CITATION: Hejka v. The Regional Municipality of Durham, 2022 ONSC 2233

DIVISIONAL COURT FILE NO.: 452/21

DATE: 20220412

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Lederer and J.A. Ramsay JJ.

BETWEEN:

Bogdan Hejka

Applicant

– and –

The Regional Municipality of Durham and Durham Regional Transit Commission

Respondents

Hannah Lee and Gabriel Reznick, for the Applicant

Alexander McPherson and Cindy Boyd, for the Respondents

HEARD at Oshawa by videoconference: March 22, 2022

H. Sachs J.

Introduction

[1] The Applicant, Mr. Hejka, is a person with mobility, developmental and cognitive disabilities. For 8 years prior to the decision under review in this application Mr. Hejka regularly and independently used the Respondents’ specialized transportation services without incident. He used this service to travel to and from his employment, his gym and his local community centre.

[2] The Respondents have taken steps to improve the accessibility of their conventional transportation services. As part of that process they initiated a review of Mr. Hejka’s eligibility to use their specialized services on an unconditional basis. That review culminated in a decision of the Specialized Services Eligibility Appeal Panel dated May 11, 2021 (the “Decision”). The Decision found that Mr. Hejka is no longer eligible for unconditional door to door service and changed his eligibility to conditional. Under this conditional eligibility Mr. Hejka is required to use conventional transportation for part of his trip and he is required to be accompanied by a personal care assistant (PCA), which he must provide at his own expense.

[3] This is an application to judicially review the Decision. Mr. Hejka does not take issue with the fact that the Respondents chose to initiate a review of his need to use specialized transportation services. What he argues is that the Decision is unreasonable because it found that he had disability related needs that made it dangerous for him to travel alone on conventional transportation services and then found that the way to alleviate that danger was to require him to find a PCA who could assist him in using the conventional services at issue.

[4] For the reasons that follow I would allow the application and set aside the Decision as being unreasonable. In short, the Decision fails to meet the purpose and objective of the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11 (the “Act”), which is to remove barriers and set accessibility standards for public transportation services that recognize the historical discrimination that persons with disabilities have experienced. It is also contrary to the text, purpose and objectives set out in the Integrated Accessibility Standards, Ont. Reg. 191/11 (the “Regulation”). The Regulation requires the Respondents to provide transportation services that best meet Mr. Hejka’s disability related needs. The Decision recognizes that Mr. Hejka has disability related needs that make it dangerous for him to use conventional transportation services, but then chooses to solve that problem by erecting rather than removing a barrier. That barrier requires Mr. Hejka to be accompanied by a PCA provided at his own expense. The other effect of the Decision is to undermine rather than promote Mr. Hejka’s independence and dignity, two fundamental needs of persons with disabilities that have historically been ignored.

The Statutory Framework

[5] The Act was passed in 2005. Its purpose is as follows:

Recognizing the history of discrimination against persons with disabilities in Ontario, the purpose of this Act is to benefit all Ontarians by

(a) developing, implementing and enforcing accessibility standards in order to achieve accessibility for Ontarians with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises on or before January 1, 2025.

[6] Section 6 of the Act gives the Lieutenant Governor in Council the authority to establish accessibility standards.

[7] Part IV of the Regulation contains the Transportation Standards.

[8] Under the Regulation the Respondents provide two types of transportation services. One type is conventional transportation services, which includes public buses and motor coaches. The other is specialized transportation services, which includes vehicles that are designed to transport persons with disabilities.

[9] Section 63(1) of the Regulation requires every “specialized transportation service provider” to have “three categories of eligibility to qualify for specialized transportation services”:

(a) Unconditional eligibility;

(b) Temporary eligibility; and

[10] Section 63(2) describes which persons with disabilities are to be put into which category. It states that “[a] person with a disability that prevents them from using conventional transportation services shall be categorized as having unconditional eligibility.” If a person has a temporary disability that prevents them from using conventional transportation services, that person is to be categorized as having temporary eligibility. “A person with a disability where environmental or physical barriers limit their ability to consistently use conventional transportation services shall be categorized as having conditional eligibility.”

[11] Section 68(1) provides that “[e]very specialized transportation service provider shall provide origin to destination services within its service area that takes into account the abilities of its passengers and that accommodates their abilities.”

[12] Section 68(3) states that “[f]or the purposes of this section, origin to destination services refers to the overall package of transportation services that allows a specialized transportation service provider to provide, in a flexible way, transportation services in a manner that best meets the needs of persons with disabilities.”

[13] Section 64(5) requires the specialized service provider to establish an “independent appeal process to review decisions respecting eligibility.”

Factual Background

[14] Mr. Hejka has regularly and independently used the Respondents’ specialized transportation services without incident since 2013. He had unconditional eligibility and received door-to-door specialized transportation services to and from his part-time job at the Abilities Centre, his part-time job at the Oshawa Generals (Tribute Community Centre), the gym, and his local community centre. On average, he used these services 4 to 8 times per week.

[15] The Respondents have undertaken upgrades to their conventional transportation services to make them more accessible such that all their buses on scheduled routes have no stairs, a kneeling feature to meet the height of the curb, a ramp that can be lowered for easy mobility aid access and mobility aid spaces with securement devices. Buses are also equipped with automated audible and visual stop announcements.

Durham Region Launches a Review and Sets up the Impugned Category

[16] On October 6, 2020, the Eligibility Review Team of Durham Region Transit sent Mr. Hejka a letter advising him that it was launching a review of “eligibility for all active customers registered for Specialized Services before 2015.” The letter made it clear that the review was prompted by the fact that since 2015 “accessible conventional buses allow customers of varying abilities to travel throughout the community with increased independence.” Thus, past barriers to travel for some persons with disabilities may no longer exist.

[17] The letter also stated that the review would result in Mr. Hejka being classified into one of the following categories:

Unconditional Eligibility: You will continue to receive trips using only Specialized Services vehicles because you are unable to use the accessible conventional service, even for a portion of your trip.
Unconditional Eligibility with a mandatory Personal Care Attendant: You will continue to receive trips using only Specialized Services vehicles because you are unable to use the accessible conventional service, even for a portion of your trip. You will be required to travel with an attendant to ensure your safety for the entire trip because you are not able to use public transit independently.
Conditional Eligibility: You are limited in your ability to use the accessible conventional service, so you will receive door-to door trips that may include a combination of Specialized Services and conventional accessible vehicles.
Conditional Eligibility with a mandatory Personal Care Attendant: You are limited in your ability to use the accessible conventional service, so you will receive door-to-door trips that may include a combination of Specialized Services and accessible conventional vehicles. You will be required to travel with an attendant to ensure your safety for the entire trip because you are not able to use public transit independently.
Not Eligible: You are no longer eligible for Specialized Services because you have the ability to access and use the accessible conventional services, or because you are required to travel with a Personal Care Attendant and are able to use conventional services with your attendant.

Mr. Hejka submits his Eligibility Review Specialized Services Application Form

[18] On November 17, 2020, Durham Region Transit asked Mr. Hejka to submit his Eligibility Review Specialized Services Application form. His mother helped him to complete the form, which also included information from his doctor. The form explained that Mr. Hejka has multiple orthopaedic issues, including severe tri-dimensional scoliosis, hip dysplasia, short tendons, short stature and poor vision. It also explained that he is sensitive to light and smell and has cognitive disabilities. While he can follow simple commands, he can be overwhelmed with choice. He does not understand abstract concepts or money and does not have the cognitive function to transfer safely. He suffers from a syndrome known as “Costello Syndrome.” When asked to describe how Mr. Hejka’s functional limitations affect his ability to use conventional transit for all or part of his trip Mr. Hejka’s doctor replied as follows:

Bogdan has Costello Syndrome which has significantly impacted and reduced his physical and Cognitive Capabilities, and he has very poor vision. These functional limitations prevent him from navigating streets, cars busy intersections, and conventional bus service. He Requires Door to Door Specialized Transit Service as his safe and effective mode of transportation.

[19] His doctor made it clear that Mr. Hejka’s disability was permanent and that while he did have the necessary abilities to use Specialized Services, he “does not have mental or physical capability to safely use conventional transportation services, even ones with no stairs and ramps to allow access with mobility aids such as a wheelchair.”

Durham Region Categorizes Mr. Hejka as Conditional with a PCA

[20] On February 11, 2021, Mr. Hejka was advised that he “[qualified] for Conditional Eligibility for Specialized Services using the Integrated Service Model.” As put by Durham Region Transit:

Conditional eligibility involves scheduling a door-to-door trip using a combination of conventional and specialized accessible vehicles. A Specialized Services vehicle or a contracted taxi (an accessible van or sedan) will pick you up from your point of origin and take you to a bus stop with a shelter, seating, and a concrete pad. You will then transfer to a conventional bus that will take you to another bus shelter that is as close as possible to your final destination. When required, another Specialized Services vehicle or contracted taxi will pick you up and bring you to the accessible building entrance at your destination.

Due to your needs identified in the application, you are required to have a Personal Care Attendant accompany you when travelling. The Personal Care Attendant is provided by you, the customer, and is required to be in attendance for each trip.

[21] The Specialized Services Review Checklist contained in the Record of Proceedings provides some insight into the reasoning that led to this decision. Both Mr. Hejka and his doctor had indicated that Mr Hejka could “mobilize up to ½ a level block”, which the reviewer found was “a greater distance than required for door-to-door integrated service.” However, the reviewer found that Mr. Hejka’s physical and cognitive difficulties required that his use of conventional services as part of the integrated model be supervised by a PCA.

Mr. Hejka Appeals the Region’s Decision

[22] With the assistance of his mother, Mr. Hejka appealed the Region’s decision, emphasizing that he had successfully used Specialized Services for 8 years without the assistance of an attendant. The appeal request made it clear that Mr. Hejka was requesting that he be moved back to the Unconditional category and that the requirement that he have an attendant be removed.

The Region Reconsiders their Decision and Removes the Attendant Requirement

[23] On March 3, 2021, the Region wrote to Mr. Hejka stating that it was prepared to “reassess his attendant requirement.” After receiving further information indicating that Mr. Hejka’s request was to be returned to Unconditional status, the Region removed the requirement for Mr. Hejka to travel with a Personal Care Attendant.

Mr Hejka’s Appeal is Heard and Decided

[24] The appeal hearing was held on April 21, 2021. Mr. Hejka and his mother were in attendance. On May 11, 2021, the Appeal Panel issued the Decision, advising Mr. Hejka that his eligibility would remain Conditional for the Integrated Model and that he would be required to provide a PCA to travel with him when using conventional transport.

[25] The Appeal Panel’s hearing form (which was disclosed to Mr. Hejka after he commenced this application), listed the following reasons for its decision:

• “Revised to include PCA based on information provided by appellant during the appeal hearing. Appellant mentioned concern with instances where he could potentially get bumped into and fall over, and would be unable to get up on his own. This could lead to severe medical injury”

• “Conditional eligibility based on appellant able to travel a half block or greater, cross the street at an intersection and able to wait for ten minutes or more at a bus stop.”

Standard of Review

[26] The parties agree that the applicable standard of review is reasonableness.

The Position of the Parties

[27] The Applicant submits that the Regulation requires the Respondents to provide transportation services that best meet Mr. Hejka’s disability-related needs. According to the Applicant, the Respondents unreasonably interpreted their discretion under the statute by categorizing persons with disabilities based on their abilities to travel accompanied on conventional transportation services, rather than on an individualized assessment of their needs. This interpretation of their discretion is contrary to the text, context and purpose of the Act and the Regulation.

[28] The Decision erects barriers to accessibility by insisting that Mr. Hejka use a service that he is not able to use in an independent and dignified way. This, according to the Applicant, is contrary to the legislature’s intention and the objectives of the Act and the Regulation.

[29] Finally, the Applicant argues that the Decision does not demonstrate a logical and rational chain of analysis and is not grounded in the evidence.

[30] For these reasons, Mr. Hejka submits that the Decision is unreasonable and must be quashed.

[31] The Respondents agree that they must provide transportation services in a manner that “best meets the needs of persons with disabilities.” However, it argues that it has a statutory discretion to provide these services “in a flexible way.”

[32] According to the Respondents, “[t]he nature of public transportation requires compromises due to limits on passenger vehicles, the operators to drive them, the employees to maintain them, and the staff to schedule and dispatch them. The shared nature of public transport, like many public services, means the reasonable goal is good service for all, not perfect service to a few.” (Respondents’ Factum, at para. 12).

[33] Thus, according to the Respondents, their obligation to provide services that best meets the needs of persons with disabilities “must be interpreted in light of the public transportation service it provides for all, and not with a view to perfecting it for one.” (Respondents’ Factum, at para. 14). As put by them, they run a public transportation service, not a private transportation company.

[34] The Respondents argue that the statute gives them the discretion to meet their obligations to persons with disabilities in a flexible way. That flexibility includes the ability to set up additional categories to the three specified in the Regulation by requiring the presence of PCAs to reduce the load on specialized services. The fact that the Applicant had unconditional access to specialized services for 8 years does not mean that he is entitled to continue to do so. According to the Respondents, the Applicant seeks to unreasonably limit their statutory discretion under the Regulation.

[35] The Respondents submit that the Decision was a reasonable one, both in terms of its reasoning and its outcome.

Analysis

The Modern Principle of Statutory Interpretation

[36] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 117, the Supreme Court of Canada affirmed that the modern principle of statutory interpretation requires statues to be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.”

The Legislation is Remedial and should be interpreted in a fair, large and liberal way

[37] Section 64(1) of the Legislation Act, S.O. 2006 c. 21, provides:

An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

[38] In the debates concerning the Act it was made clear that it “was social justice legislation that would need to be interpreted broadly by the courts in order to achieve its purpose” (Ontario, Legislative Assembly, Standing Committee on Social Policy, Accessibility for Ontarians With Disabilities Act, 2005, 38-1 (31 January 2005) at SP-463 (Katherine Hewson)). This point is reinforced by the Supreme Court of Canada in cases such as Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, at para. 5, where Iacobucci J. stated:

On the subject of the appropriate interpretive approach for human rights statutes, the need to approach the legislation purposively, giving it a fair, large and liberal interpretation with a view to advancing is objects, is well accepted. But is also well established that the wording of the statute is an important part of the process.

The Text of the Legislation

[39] Section 68(1) of the Regulation requires a specialized transportation service provider to provide origin to destination services in a manner that “takes into account the abilities of its passengers and that accommodates their abilities.”

[40] Section 68(3) gives the specialized transportation service provider the discretion to provide “in a flexible way”, “transportation services in a manner that best meets the needs of persons with disabilities” [emphasis added]. Thus, the text of the Regulation mandates that the service provider’s discretion to be flexible is prescribed by the requirement that the transportation services provided be the ones that best meet the needs of the person with a disability. Nowhere in the Regulation does it specify that the discretion to be flexible includes the right to decide that even though one type of service might best meet the disability-related needs of a passenger, that service should not be provided because of a need to take into account the needs of all the other passengers using the service.

[41] The text of the Regulation also does not give the Region the discretion to consider whether Mr. Hejka should provide his own PCA to make an otherwise inaccessible transportation service more accessible.

The Context and Purpose of the Legislation

[42] As set out in s. 1(a) of the Act the purpose of the legislation is to develop, implement and enforce accessibility for persons with disabilities in recognition of the history of discrimination against persons with disabilities in Ontario. Section 6(6) of the Act states that an “accessibility standard” shall “set out measures, policies, practices or other requirements for the identification and removal of barriers…and for the prevention of the erection of barriers.”

[43] The definition of “disability” in s. 2 of the Act makes it clear that it encompasses far more than just a physical disability and includes the mental and cognitive impairments that Mr. Hejka has.

[44] The definition of “barrier” in the Act is also expansive. It means “anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability, including a physical barrier, an architectural barrier, an information or communication barrier, an attitudinal barrier, a technological barrier, a policy or a practice.” Adopting a practice or policy that requires a person with a disability to provide a PCA to use public transportation services is a barrier within the meaning of the Act. It limits and potentially prevents a person with a disability from fully accessing public transportation services. If they cannot provide a PCA they cannot use the service.

[45] In Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 56, the Supreme Court described the history of disabled persons in Canada in the following way:

It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions. This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the “equal concern, respect and consideration” that s. 15(1) of the Charter demands. Instead, they have been subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of able-bodied norms. (Citations omitted).

[46] In Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at para. 110, Abella J. explained that “[t]o redress discriminatory exclusions, human rights law favours approaches that encourage, rather than fetter, independence and access.” At para. 162, Abella J. stated:

The accommodation of personal wheelchairs enables persons with disabilities to access public services and facilities as independently and seamlessly as possible. Independent access to the same comfort, dignity, safety and security as those without physical limitations, is a fundamental right for persons who use wheelchairs. This is the goal of the duty to accommodate: to render those services and facilities to which the public has access equally accessible to people with and without physical limitations.

[47] While there has not been a significant amount of caselaw interpreting the Act, the Ontario Court of Appeal has endorsed the proposition that the Act, together with the Human Rights Code of Ontario and the Charter represents a greater societal appreciation of the barriers affecting persons with disabilities, and a resolve to eliminate those barriers (Toronto Transit Commission v. Ontario (Finance), 2009 ONCA 658, affirming [2008] O.J. No. 5251 (Ont. S.C.J.), 2008 67910 (ONSC)).

The Decision Ignores the Text of the Legislation and its Purpose and Context

[48] In the Decision the Appeal Panel justified classifying Mr. Hejka’s eligibility for specialized services as “conditional” on the basis of his ability to perform certain discrete tasks—namely his ability “to travel a half block or greater, cross the street at an intersection” and his ability “to wait for ten minutes or more at a bus stop.” At the same time, the Appeal Panel acknowledged that the risk to Mr. Hejka’s safety in being knocked over on a crowded bus creates a significant barrier to his accessing conventional transportation services. To remove that barrier the Appeal Panel created another barrier: the need to provide a PCA.

[49] This solution does not best meet the needs of Mr. Hejka as a disabled person. It neither allows him to be as independent as possible nor does it promote his ability to easily participate in the activities that he has previously participated in—employment, exercise and socialization. To engage in those activities (activities that able bodied people regularly engage in) he will have to ensure that he has a PCA, something that on its face is not easy to do. That person will have to be available for short, irregular periods of time. If that person can be found, they will have to be paid for from Mr. Hejka’s limited financial resources or consistently put their lives on hold to assist Mr. Hejka in emulating the abilities of an able bodied person. The effect of this solution is to perpetuate the discrimination (with the marginalization and lack of dignity that involves) that Mr. Hejka has experienced as a person with disabilities and to once again require that if he wishes to access transportation services he must make sure that he is accompanied by an able bodied person who can make up for the “abnormalities” or “flaws” he possesses.

[50] This solution neither promotes the objectives of the Act nor accords with the text of that legislation. As already noted, the discretion the Respondents have to be flexible is constrained by the requirement to provide a service that best meets Mr. Hejka’s disability related needs. The Decision is not one that best meets Mr. Hejka’s disability related needs—needs that were met for 8 years without incident when his eligibility was categorized as unconditional. It may meet the needs of the Region to cut down on the number of people who use specialized services, but that is not what the Regulation specifies should be the governing consideration.

[51] Further, the Regulation makes no provision for the creation of a category known as Conditional with a PCA. While requiring a disabled person to travel with a PCA may promote the Region’s ability to be “flexible” it defeats the objectives of the legislation, which is to remove, not erect barriers.

The Appeal Panel’s Reasons for the Decision are not Intelligible or Justified.

[52] The Decision is not intelligible or justified because it does not explain how, if travelling on conventional transportation could pose a risk to Mr. Hejka’ personal safety, he can be categorized as being eligible for the conditional model. The source of his difficulty with using the conventional model is his disability. That disability is a permanent one. Therefore, he is a “person with a disability that prevents them from using conventional transportation services” under s. 63(2) of the Regulation. According to the text of the Regulation such a person “shall be categorized as having unconditional eligibility.”

[53] To remove the risk that travelling on conventional transportation poses to Mr. Hejka because of his disability the Decision requires Mr. Hejka to find a PCA to accompany him when he uses that transportation. The Decision does not explain how such a requirement meets Mr. Hejka’s disability related needs or how the requirement does not result in the imposition of a barrier to Mr. Hejka’s access to transportation services—something that is antithetical to the purpose of the statutory scheme.

The Decision is Unreasonable

[54] The Decision does not accord with the text or the purpose of the Act. The reasoning used to justify the decision is not intelligible or justifiable. For these reasons, the Decision is unreasonable.

Remedy

[55] Given that the Decision is unreasonable it must be quashed. The question then becomes whether this Court should exercise its discretion to remit the matter for reconsideration to the Appeal Panel with our reasons. As Vavilov makes clear, this is most often the appropriate alternative (see para. 141). However, “[d]eclining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose” (Vavilov at para. 142).

[56] In my view, this is a case where a review of the Decision makes it clear that Mr. Hejka is a person whose disability prevents him from using conventional transportation services. As such, the Regulation states that he “shall be categorized as having unconditional eligibility.” In other words, the result is inevitable and remitting the matter to the Appeal Panel would serve no useful purpose.

[57] For these reasons the Decision is quashed and an order shall go categorizing Mr. Hejka as having Unconditional eligibility to use specialized transportation services. The parties have agreed that there should be no order as to costs.

Sachs, J.

I agree _______________________________

Lederer, J.

I agree _______________________________

J.A. Ramsay, J.

Released: April 12, 2022