Supreme Court of Canada Grapples with the Social Construction of Disability: Council of Canadians with Disabilities v. Via Rail

By Jo-Anne Pickel

In its recent decision in Council of Canadians with Disabilities v. Via Rail, the Supreme Court of Canada continued to take tentative steps toward embracing a vision of equality for persons with disabilities that acknowledges the social construction of disability. The majority decision in Via Rail puts forward a vision of equality based on full inclusion, accessibility and independence rather than one in which people with disabilities are forced to accept lesser access to inferior rail service. However, the 5-4 split on the Court and the very different analysis adopted by the four dissenting judges shows just how tenuous the acceptance of this vision of equality remains. The Via Rail decision also highlights how important it will be for disability rights advocates to develop legal arguments aimed at solidifying this participatory vision of equality in Canadian law.

A. Facts

In 2000, Via Rail purchased a fleet of 139 “Renaissance” railway cars at discount prices. The cars were inaccessible to persons with disabilities in several respects: the cars did not have accessible washrooms, the wheelchair tie-down only accommodated a child’s wheelchair, the doorways were too narrow for most personal wheelchairs, and there was insufficient space for a service animal. Most strikingly, the so-called “accessible suite” service cars, separate train cars on which passengers in wheelchairs were to be accommodated, were in fact inaccessible as doors were too narrow and there was insufficient space in them to manoeuvre a wheelchair.

The Council of Canadians with Disabilities filed a complaint with the Canadian Transportation Agency (“CTA”) arguing that the cars posed an “undue obstacle to the mobility of persons with disabilities” that required corrective measures under the Transportation Act. The CTA issued a preliminary decision in which it identified a number of obstacles to the mobility of persons with disabilities and gave Via a chance to show why the obstacles were not undue and/or why it would not be reasonable to require Via to modify the cars. Via responded with only limited information and resisted the CTA’s repeated requests for costing information with respect to the recommended accommodations. Following an exchange of correspondence, the CTA issued a final decision requiring Via to modify 13 economy coach cars and 17 service cars out of the 139 cars purchased. Via successfully appealed the CTA’s decision to the Federal Court of Appeal. The Council of Canadians with Disabilities appealed.

B. Supreme Court of Canada Judgments

The Supreme Court of Canada allowed the appeal and restored the CTA’s decision. However, the split 5-4 decision reflects a division on the Court in regards to the proper analysis of equality rights for people with disabilities in Canada. As described below, the majority and dissent put forward two very different conceptual frameworks for addressing the equality rights of persons with disabilities. Not only do these frameworks speak to different visions of equality, but they also adopt two fundamentally different conceptions of disability and the contributing causes to disability in Canadian society.

i. Majority Judgment: Accommodation and Inclusion

The majority’s judgment at least partially accepts the paradigm of disability as being socially constructed rather than simply the result of personal impairments. That is, there is an acceptance within the majority judgment that socially constructed barriers cause, or at least contribute to, the disadvantages faced by persons with disabilities. The majority appeared to accept that social barriers, such as the barriers to accessing equal rail service in Via Rail, significantly hinder the full and equal participation of persons with disabilities in Canadian society. Presuming that there is a right to inclusion within the Transportation Act, the majority undertook a more pro-active analysis of accommodation. The outcome of the majority’s judgment is that persons with disabilities have a right to at least one accessible car per train that meets standards generally accepted by Via itself in the voluntary Rail Code adopted almost a decade ago in 1998.

In support of its conclusion that Via had discriminated against people with disabilities by failing to provide reasonable accommodations, the majority made the following findings:

• Via bought the cars at a discount price and spent $100 million to assemble and retrofit the cars. However, it had no plans to make the cars accessible to persons with disabilities as part of this retrofitting plan. Via argued that the cars were sufficiently accessible to persons with disabilities as its employees would transfer passengers into on-board wheelchairs and assist them with services such as washroom use and/or passengers with disabilities could continue to use the existing fleet (which is in fact in the process of being phased out).
• The majority pointed to the provisions of the voluntary Rail Code established through a Canadian Human Rights Commission process as well as the standards in place in several other jurisdictions to conclude that Via was required to accommodate personal wheelchairs as far as practicable. Physically transferring people into on-board wheelchairs was not acceptable. As the majority noted, the accommodation of personal wheelchairs is important as it enables persons with disabilities to access public services and facilities as independently as possible. As well, the use of personal wheelchairs minimizes the eliminates the physical risks and humiliation that can accompany transfers to alternative seating accommodations.
• The ad hoc provision of taxis by Via and the existence of some accessible routes on its network were not sufficient to discharge its duty to accommodate persons with disabilities. The majority concluded that the fact that there are accessible trains traveling along some of Via’s routes does not justify inaccessible trains on others. The majority held that it is the global network of rail services that should be accessible. As for the provision of alternative transportation in some circumstances, the majority noted the importance of full inclusion stating that “persons with disabilities are entitled to ride with other passengers, not consigned to separate facilities.”
• The majority did not accept Via’s argument that the cost of retrofitting some of the Renaissance cars to accommodate persons using personal wheelchairs would be unreasonable and represent an undue hardship. The majority upheld the CTA’s finding that there was no reasonable basis for Via’s cost argument since the Company steadfastly refused to provide costing information to show that required accommodations would cause it undue hardship. The Court cautioned that cost calculations can be deceptive as the benefits of eliminating discrimination are not easily reflected on a balance sheet. As the Court noted “[i]t will always seem demonstrably cheaper to maintain the status quo and not eliminate a discriminatory barrier.”

ii. Dissenting Judgement: Emphasis on Cost and Feasibility

The dissent put forward a quite different analysis of the equality rights issues in the case. One that uses the status quo, rather than a right to inclusion, as the baseline for analysis. Although the dissent did accept that the human rights accommodation framework set out in the Supreme Court’s Meiorin decision should be applied, the dissent emphasized that “perfection is not the standard” and that not every obstacle must be removed. The dissent adopted a very narrow focus on the costs of accommodation and accorded substantial deference to Via’s narrowly defined economic purposes for purchasing the Renaissance cars at a discount price. The outcome of the dissenting judgment for persons with disabilities would have been one accessible car per train on its existing fleet (which is in the process of being phased out) and a lower standard of accessibility on its new Renaissance fleet due to all of the obstacles identified in the CTA and majority’s judgments.

Applying the Meiorin analysis of the duty to accommodate, the four dissenting judges would have struck the CTA’s decision and remitted the matter back to it for redetermination primarily for the following reasons:

• The dissent rejected the idea that equality requires the accommodation of people’s personal wheelchairs. It criticized the CTA for accepting the standard that was set out in the non-binding Railway Code signed by Via and disregarded the fact that this same standard has been accepted in other jurisdictions.
• The dissent accepted Via’s “network defence”, finding that Via had put forward reasonable alternatives to accommodate people with disabilities through the use of its existing network of trains. According to the dissent, a reasonable alternative “may be a functional alternative, not necessarily an identical service, and the alternative need not be the same for all routes.”
• The dissent found that the CTA had not appropriately weighed the costs attached to the accommodations it had recommended. It commented that the CTA had failed to take into account the limitations on the amount of funding Via receives from the Federal Government and instead treated Via’s funding as “virtually unlimited”. In stark contrast to the majority’s caution against undervaluing the benefits associated with full inclusion and equality, the dissent deployed a strict costing approach that would weigh the costs of accommodation against the (estimated) benefits arising from the accommodation. In its view, where the costs of removing an obstacle are disproportionate to the significance of the obstacle to the mobility of persons with disabilities, the obstacle does not have to be removed.

Overall, the dissent emphasized costs on a balance sheet rather than full participation and inclusion. According to the dissent, the CTA “must be attuned to the feasibility of the orders it issues to the parties and the intrusiveness of its process into the management of the carrier.”

C. Significance of the Supreme Courts Judgments

Although the end result of the Supreme Court’s decision is positive, the very different visions of equality for persons with disabilities deployed in the two judgments suggests that courts will continue to grapple with what full equality, inclusion, and participation for persons with disabilities would look like. As least some judges on the Supreme Court, and other courts, recognize that it is social barriers that create the “disability” experienced by people who live with various physical, mental, intellectual or sensory impairments. However, as a reading of the dissenting judgment makes clear, this paradigm is far from having gained universal acceptance amongst judges. Continued legal advocacy will be required for a full and inclusive vision of equality to become more entrenched in Canadian law, advocacy that draws on the positive developments within cases such as Via Rail as well as developing international standards such as those found in the new UN Convention on the Rights of Persons with Disabilities (see article above).