The Preamble of the Code emphasizes the importance of human rights in enabling each person to feel part of the community and to contribute fully to society. For many persons in Ontario, transit services are critical to their achieving these goals. Transit services are part of the public infrastructure, which provides access to basic goods and services, as well as to social and economic activities. Those who are unable to drive or to use common forms of transportation such as conventional buses are dependent on specialized transit services. Parents of young children, students and older persons are also highly dependent on transit services. For a low-income single parent with an infant, for example, a low floor bus may make the difference between participating in a community center program and isolation.
Public transit is a "service" within the meaning of section 1 of the Code. The duty to accommodate persons with disabilities is located in sections 11 and 17 of the Code and has been repeatedly upheld by the Supreme Court of Canada under section 15 of the Canadian Charter of Rights and Freedoms (the “Charter”).
Persons with physical disabilities are the principal focus of the accessibility measures undertaken by transit service providers, but patrons with sensory disabilities such as visual and hearing disabilities and those with learning disabilities also benefit. The OHRC survey showed that several transit service providers were very aware of the positive impact of accessible transit services on other persons in relation to grounds protected by the Code, including older persons and parents with children. As well, there are benefits for yet others: for example, an immigrant to Canada who is learning English may find it easier to understand a sign or print announcement than a spoken announcement over a public announcement system in a noisy station.
Advocates for the disability community have for several years been seeking assistance for persons with mental disabilities, who may experience unique difficulties in accessing public transit services. To date, the progress in this area has been very limited. A recent case in Ontario decided that there is no legal duty to accommodate such patrons by providing attendants. 
1.2 The Ontario Human Rights Code
Under the Code, everyone has the right to be free from discrimination in the social areas of employment, services, goods, facilities, housing, contracts and membership in trade and vocational associations. This right means that persons with disabilities, older persons and children, and parents with young children have the right to accessible transit services.
Human rights law creates a right to accommodation with dignity. This fundamental right is part of a broader principle, namely that our society should be structured and designed for inclusiveness. This principle emphasizes barrier free design and equal participation of persons with varying levels of ability. For example, accessible, integrated conventional services will maximize the use of the conventional system while minimizing the pressure on paratransit systems. Integrated conventional systems also enhance accessibility for many other persons, such as older persons who may have mobility difficulties or parents with young children.
Inclusive design and integration are also preferable to “modification of rules” or “barrier removal” which terms, although popular, assume that the status quo (usually designed by able-bodied persons largely for able-bodied persons) simply needs an adjustment to render it acceptable. In fact, inclusive design may involve an entirely different approach.
Inclusive design means that positive steps are needed to ensure equal participation for those who have experienced historical disadvantage and exclusion from society’s benefits. The right to equality can be breached by a failure to address needs related to disadvantage. As the Supreme Court of Canada has observed:
[T]he principle that discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public is widely accepted in the human rights field.
This principle applies to those who are responsible for managing public services. The design and development of transit systems as part of the public infrastructure should therefore be based on the objective of maximum integration of all persons into society. Paratransit systems should not, therefore, be viewed as a "special program" in the sense of section 14 of the Code. Rather, paratransit systems are appropriate responses to the duty to accommodate, which is imposed by the Code and confirmed by case law. Moreover, the duty to accommodate also means that conventional systems should be designed to assure maximum accessibility for all persons, including persons with disabilities.
The obligation to provide accessible transit services is part of the duty to accommodate, a duty that is shouldered by public authorities. Whether a particular accommodation need arises in the conventional system or the paratransit system, the legal obligation is the same and it is located in the duty to accommodate under sections 1, 11 and 17 of the Code. This duty is fundamental to human rights law in Canada, and it has a necessary consequence: the obligation to accommodate is not a voluntary exercise or “special program" within the meaning of sections 14 of the Human Rights Code. It is a legal duty.
This legal duty has to be discharged to the point of undue hardship. The assessment of undue hardship is limited in Ontario to three factors: cost, outside sources of funding, if any, and health and safety. When assessing the cost implications, the cost must be assessed having regard to the entire budget of the transit authority, and not the operating budget allotted to a particular part of the service or department such as the paratransit service. Health and safety concerns include those of persons with disabilities attempting to access public transit.
1.3 The proposed "Ontarians with Disabilities Act" and other legislation
The Charter and the Code protect persons with disabilities from discrimination. They set out equality rights and rights to equal opportunities, services, and facilities. However, Ontario has no specific legislation that provides particular technical or service standards in any area of disability. With respect to transit services in particular, there are no specific standards to address barrier removal or services levels for conventional or paratransit systems.
In 1996, a Federal Task Force on Disability Issues recommended that the Federal Government enact a Canadians with Disabilities Act, and in Ontario, the government undertook in 1995 to enact an Ontarians with Disabilities Act. In a Resolution unanimously passed in the Ontario legislature on October 29, 1998, the Ontario government stated that the intended Ontarians with Disabilities Act would:
require the providers of goods, services and facilities to the public to ensure that their goods, services, and facilities are fully usable by persons with disabilities, and that they are designed to reasonably accommodate the needs of persons with disabilities … [p]roviders of these goods, services, and facilities should be required to devise and implement detailed plans to remove existing barriers within legislated timetables.
A Bill was introduced in the provincial legislature - the Ontarians with Disabilities Act in October 1998. The Bill did not become law. The Minister of Citizenship, Culture and Recreation has publicly undertaken to introduce a new ODA.
Other relevant legislation relevant to transit services includes:
- Ontario Building Code (sets standards for making buildings accessible)
- Highway Traffic Act (regulates the safety standards on accessible transit)
- Blind Person’s Rights Act (protects individuals from discrimination because of their use of guide dogs and/or canes)
- Public Transportation and Highway Improvement Act (allows the Minister of Transportation to enter into agreements with private firms to develop, design maintain, test or supply all or part of transit vehicles).
1.4 Case Law
Given the absence of specific legislation or standards pertaining to disability rights and transit services in Ontario, it is not surprising that there are relatively few civil or human rights cases involving the provision of accessible transit. Some cases have dealt with issues relating to paratransit services, particularly with respect to attempts by transit service providers to enforce stricter paratransit eligibility requirements (see Coutu v. Société de Transport de la Communauté Urbaine de Montréal and Cannella et al. v. Toronto Transit Commission and the City of Toronto). These decisions are reflective of the trend in lower courts to adopt restrictive approaches to equality cases involving public transit. This is a noticeable trend generally in Canadian cases where litigants seek to use s. 15 Charter rights or equivalent statutory rights to enforce social or economic rights for a group.
However, a 1997 decision of the Supreme Court of Canada may signal a shift. In Eldridge, the Supreme Court of Canada held that the government of British Columbia was required to provide sign language interpreters for hospital patients. The Court held that public facilities and services such as hospitals must be accessible if people with disabilities are to enjoy equal protection under the law. Eldridge is a clear signal that there is a legal obligation to take positive steps to design systems for inclusiveness, thereby ensuring that people with disabilities can fully access public services and facilities. Eldridge represents a milestone in the approach to Canadian disability rights law and one that is, in the long term, likely to have a significant and progressive impact.
Eldridge should be read in the context of other, more recent decisions of the Supreme Court of Canada such as Eaton, B.C. Firefighters, Mercier, Granovsky and Grismer. The implications of these cases for persons with disabilities in the context of public services such as transit services can be briefly summarized as follows:
- systems should be designed to be inclusive and to reflect all members of society;
- integrated systems are preferable to segregated ones;
- human rights protections should focus on the social response to the disability rather than on the disability itself, meaning that the details of the actual condition are less important than the barriers raised by the myths and stereotypes of society regarding it; and
- public service providers have an obligation to ensure that services are accessible to everyone, and not to permit practices or other barriers that exclude persons with disabilities.
1.5 The Americans with Disabilities Act, 1990 (ADA)
Disability Law in Transportation 1960-1990:
In the United States, as early as the middle 1960’s transit systems used paratransit vehicles to make their service accessible. The Urban Mass Transportation Act (1964), the Federal-Aid Highway Act (1973), and the Surface Transportation Assistance Act (1982), recommended minimum criteria for ensuring that transit systems were accessible to patrons with disabilities. However, none of these acts required that access be equal or service comparable to that offered by conventional transit.
Throughout the 1980’s, individuals committed to protecting the interests of people with disabilities sued transit service providers for failing to provide equal access to services. In the earliest cases, claimants contended that the use of public funds to finance services that could be enjoyed only by the able-bodied infringed on the civil rights of those with disabilities. In 1981, the Department of Transportation (DOT) allowed local transit agencies to limit their spending on paratransit services to 3% of total operating costs. This precipitated a new series of lawsuits all charging that the 3% spending cap was arbitrarily and capriciously applied. Further, the cap infringed on the constitutional rights of those with disabilities by allowing agencies a "safe harbour" for not complying fully with DOT regulations. In most instances, plaintiffs found little immediate success, but through appeals and anti-discrimination lawsuits against transit service providers, the issues of accessible transit, mainstreaming, and the rights of the disabled community came to the forefront of the political stage.
Signed into law on July 26, 1990, the Americans with Disabilities Act (ADA) is the reply to the decade-long demand for comprehensive civil rights protections for people with disabilities. Divided into five titles, the ADA covers employment (Title I), public services (Title II), public accommodations (Title III), telecommunications (Title IV), and protects individuals from threats or reprisals for asserting their rights under the ADA (Title V). This paper addresses only specific provisions of Title II.
1.5.1 The ADA: Title II
Title II mandates that all conventional public and private transportation vehicles and facilities be barrier free and that public transit operators provide paratransit services comparable in quality to that of conventional fixed route systems. Title II, s.10, which deals specifically with public transportation accommodations, includes guidelines for making vehicles, stations, bus stops, maps, and schedules accessible to all people. Some key provisions include:
- New vehicles purchased after August 1990 must have lifts, fold-up seats, ramps, slip-resistant aisles and other facilities for patrons with disabilities;
- Systems that buy used vehicles must make “good faith efforts” to find used accessible vehicles and must document that effort.
- Re-manufactured vehicles purchased after August 1990 must be made accessible, to the maximum extent possible given their age if the vehicle’s expected useful life is more than five years.
- Paratransit services must be offered during the same days and hours as fixed-route service and must cover the area ¾ mile on each side of the fixed-route boundaries. (Transit providers had to submit plans for their paratransit service by January 1992 and had until January 1997 to implement their plans.)
- Restrictions on the number of trips a person can make, waiting lists, and other practices that limit the accessibility of paratransit service are prohibited.
- Providers with overlapping services areas must offer coordinated paratransit service.
Although the ADA does not prescribe specific eligibility requirements, it recommends that transit service providers consider persons with temporary and permanent disabilities as well as the aged when establishing their criteria for paratransit users. As well, the ADA makes receipt of federal funding conditional on an agency’s compliance with its regulations. Recognizing the high cost of compliance with its guidelines, however, the Federal Transit Administration allowed providers to file waivers if compliance costs were prohibitive and their transit systems were unable to meet all service criteria by the 1997 deadline.
Critics of the ADA worry that it burdens transit agencies with high costs for retrofitting and/or purchasing accessible vehicles. Further, the ADA also forces small, rural transit agencies with limited resources and personnel to comply with its standards when to do so would be economically unfeasible. However, despite these contentions, by allowing transit service providers to coordinate services, the ADA creates a mechanism for smaller systems to pool resources in order to offer service that complies with ADA regulations.
The passage of this legislation, with its clear and enforceable standards for transit services, has provided a major impetus in the U.S. towards accessible transit.
 The Ontario Divisional Court has ruled that persons with disabilities who need assistance in order to use transit services because of cognitive disabilities (as opposed to physical or sensory disabilities) need personal attendants and not Wheel-Trans. Restrictions in eligibility criteria by Wheel-Trans are therefore not an infringement of s. 15 of the Canadian Charter of Rights and Freedoms. See Cannella v. Toronto Transit Commission,  O.J. No. 2282 (leave to S.C.C. refused September 14, 2000,  S.C.C.A. No. 31) [hereinafter “Cannella”].
 The terms "disability" and "person with a disability" are used throughout this document instead of "handicap" or "handicapped person." Although the term "handicap" is used in the Code, many people with disabilities prefer the term "disability".
 The conventional system is the transit system that is designed for the public through buses on fixed routes, subways and/or streetcars.
 In Granovsky v. Canada (Minister of Employment and Immigration),  1 S.C.R. 703, online: Supreme Court of Canada Homepage <http://www.lexum.umontreal.ca/csc-scc/en/index.html> [hereinafter “Granovsky”], the Supreme Court recognized that the primary focus in the disability analysis is on the inappropriate legislative or administrative response (or lack thereof) of the State (at par. 39). The Court states (at par. 33)
Section 15(1) ensures that governments may not, intentionally or through a failure of appropriate accommodation, stigmatize the underlying physical or mental impairment, or attribute functional limitations to the individual that the underlying physical or mental impairment does not entail, or fail to recognize the added burdens which persons with disabilities may encounter in achieving self-fulfillment in a world relentlessly oriented to the able-bodied. [Emphasis added.]
Although in Granovsky, the focus was State action, similar principles apply to persons responsible for accommodation under human rights law.
 Eldridge v. British Columbia (Attorney General),  3 S.C.R. 624 at para. 78, online: Supreme Court of Canada Homepage <http://www.lexum.umontreal.ca/csc-scc/en/index.html> [hereinafter “Eldridge”].
 The Resolution can be located in “ODA Resolution Unanimously Passed by the Ontario Legislature October 29, 1998” as found on ODA Committee Homepage <http://www.odacommittee.net>.
 Coutu v. Société de Transport de la Communauté Urbaine de Montréal,  24 C.H.R.R. D/489, T.D.P.Q.; Cannella, supra, note 5.
 Ontario Human Rights Commission, Human Rights Commissions and Economic and Social Rights (Research Paper, February 2000) [unpublished].
 Eaton v. Brant County Board of Education,  1 S.C.R. 241, online: Supreme Court of Canada Homepage <http://www.lexum.umontreal.ca/csc-scc/en/index.html> [hereinafter “Eaton”].
 British Columbia (Public Service Employee Relations Commission) v. B.S.G.S.E.U.,  3 S.C.R. 3, online: Supreme Court of Canada Homepage <http://www.lexum.umontreal.ca/csc-scc/en/index.html> [hereinafter “BC Firefighters”].
 Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City),  1 S.C.R. 665, online: Supreme Court of Canada Homepage <http://www.lexum.umontreal.ca/csc-scc/en/index.html> [hereinafter “Mercier”].
 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),  3 S.C.R. 868, online: Supreme Court of Canada Homepage <http://www.lexum.umontreal.ca/csc-scc/en/index.html> [hereinafter “Grismer”].
 Paul Dempsey, “The Civil Rights of the Handicapped in Transportation: The ADA and Related Legislation” Transportation Law Journal. Winter 1991 19n2. pp. 309-333.
 See Eastern Paralyzed Veteran’s Association, Inc., v. Metropolitan Transportation Authority, 103Misc. 2d 933, 426 N.Y.S. 2.d 406 (1980).
 See Americans Disabled for Accessible Public Transportation, 881 F.2d 1184 (1989).
 Dempsey, supra, note 17.