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OC Transpo Ordered to Take Immediate Action
Published in the March 2009 issue of Transportation Notes - View Article
On March 11, 2009, the Canadian Transportation Agency released a ruling that demonstrated to OC Transpo (and the public transportation community in Canada), that it would not entertain significant delays in the implementation of its accessibility rulings — even when its rulings were unclear at first instance.
The whole thing started back in April 2007 (just a month after the Supreme Court of Canada issued its reasons in the fateful CCD v. Via Rail case, see Transportation Notes, passim) when the Agency delivered its decision in a complaint brought by a visually impaired passenger, Terrance Green, against the public bus operator in Ottawa.
In his complaint, Mr. Green recounted two instances in November 2006 when he boarded a bus operated by OC Transpo with his guide dog and asked the driver to call out his requested stop before arriving at it.
Although it was the policy of OC Transpo to honour such requests (and, as well, to call out major stops even if not asked to do so), the “transportation cycle” broke down in these two instances, causing Mr. Green to miss his intended stops. Evidence was also lead that this “transportation cycle” breakdown was not an uncommon occurrence on OC Transpo buses.
The Agency considered the complaint under the lens of s. 172 of the Canada Transportation Act which prohibits public transportation providers from imposing undue obstacles on the mobility of persons with disabilities.
Drawing on principles from the VIA Rail decision, the Agency determined that the incidents that were the subject of Mr. Green’s complaint did, in fact, violate the s. 172 requirements on transportation service providers.
Accordingly, the Agency gave OC Transpo 90 days to show cause as to why it should not take certain corrective measures, such as amending its Transit Operation Handbook to reflect the policy that major and requested stops should be called out, modifying its training in this regard, ensuring that the GPS system (which OC Transpo was intending to install on its buses by 2008) would be activated in such a manner as to automatically call out major stops and, of most significance, monitoring bus drivers’ compliance with these policies.
OC Transpo responded to the “show cause” invitation by indicating that Ottawa City Council had, in any event, imposed similar requirements on its operations.
The Agency was satisfied with OC Transpo’s position that it would not oppose the corrective measures. It did, however, emphasize its requirement that OC Transpo had to implement a plan to monitor compliance by bus drivers. This was to be done within a “reasonable timeframe”.
Following this decision, OC Transpo was able to demonstrate that compliance had increased from 14% to 79% by September 2008. It also submitted that once the GPS system was up and running, compliance would be 100%. Apparently, there had been some delays in implementing the new system — but OC Transpo submitted that it had been “working diligently” to address them.
In the last half of 2008, OC Transpo requested a variance in the Order to allow it to have the new system up and running by December 31, 2009. The extra time was required to purchase and install the automated stop announcement system.
Mr. Green opposed the request for the variance.
In considering whether compliance with the original ruling had been achieved, the Agency found that OC Transpo had “misconstrued” the order to mean that it was sufficient to work towards getting the new automated system installed. Apparently, the Agency did not expect a two-year delay in achieving full compliance (i.e., 100% call-out of major and requested stops).
In the latest March 2009 ruling the Agency clarified that its intention was to mandate full compliance with the policy within a short time of its 2007 decision (i.e., 90 days) whether or not the technology was installed within that period. This had never before been explicitly stated.
The Agency varied its earlier order to require OC Transpo to, within 20 days, ensure that all major and requested stops are called out in a manner that permits them to be clearly heard.
In addition, OC Transpo was ordered to report the compliance rate to the public via its website and to also report this information directly to Mr. Green each month for 24 months, commencing in May 2009.
In the closing words of its latest decision, the Agency said that the ruling was not intended to limit the Agency’s power to have its enforcement division undertake independent investigations of compliance, investigate further complaints, or levy administrative monetary penalties.
CTA Decision No. 85-AT-MV-2009