4.1 Key issues
In summary, the results of the Survey indicate that, while transit services providers are aware that there are human rights issues surrounding access, and progress is being made towards a fully accessible, integrated transit system, a great deal remains to be done. The lack, in many cases, of up-to-date plans to resolve issues of access and inclusion, as well as of standards and benchmarks, is likely to hamper progress. As well, the exclusion of persons with certain types of disabilities, such as temporary disabilities and mental disabilities, from access to paratransit raises human rights issues. There are also special concerns relating to the Greater Toronto Area.
4.1.1 Legal Standards
Under the Code, persons with disabilities, older persons, and families with young children have a right to equal treatment in the provision of public transit services. As part of this, human rights laws create a right to accommodation with dignity. Providers of public transit have a duty to design and develop transit systems in such a way as to maximize accessibility, and to remove barriers to accessibility where they exist. This may include integration of conventional systems, as well as the development and maintenance of paratransit systems.
It should be emphasized that the standard for the duty to accommodate is a high one. The factors to be considered in assessing undue hardship are costs, outside sources of funding, and health and safety. Costs will be considered to amount to undue hardship if they are quantifiable, shown to be related to the accommodation, and so substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability.
The duty to accommodate patrons with disabilities is not a voluntary or temporary duty. It is an ongoing legal duty under ss.1, 11 and 17 of the Code. The provisions regarding special programs cannot be used as a defense in place of a service provider’s responsibility to accommodate disability short of undue hardship. Paratransit programs cannot be viewed as special programs, or as a complete response to the duty to accommodate. Rather, they are one aspect, along with the integration of conventional systems, of the duty to accommodate to the point of undue hardship.
Despite the importance of basic principles of accessibility, few survey respondents reported that they had objectives of both full accessibility and integration. While some transit service providers reported plans for fully accessible systems, others reported plans for only partial accessibility over time. Others had none at all. Many planning tools are over seven years old, and it is apparent that transit service providers should update them to ensure that they reflect current fiscal and operational realities.
Without basic objectives, it is not surprising that service levels and accessibility vary considerably from area to area across the province. The lack of comprehensive planning or goals is an obvious starting point for transit service providers.
All transit service providers should have plans for how they intend to deal with the human rights issues raised by the Survey. Plans should include clear goals and current plans to achieve full accessibility. From the OHRC’s perspective, full accessibility includes both (1) a highly integrated conventional system and (2) a specialized paratransit system. If eligibility criteria for paratransit services are restrictive, care should be taken to ensure that persons with disabilities are not also excluded from the conventional service. Municipalities with inaccessible conventional systems may have to broaden access to their paratransit systems.
Plans should be regularly updated, and include clear timelines for implementation. There should be accountability for meeting the plans’ goals, for example, by including them as part of an annual business planning process, with accountability and performance measures approved and reviewed by municipal councils or other governing bodies.
Standards for service levels will be more likely to be implemented and will be enforceable only with legislation. The American experience with the Americans with Disabilities Act indicates the strong positive influence of legislated standards for service levels. In the U.S., following the passage of the ADA, there have been real improvements for persons with disabilities in the area of public transit.
The government should consider the introduction of minimum legislative standards, similar to those in the ADA, to ensure basic levels of service at least for the following areas:
- High accessibility standards for new vehicles (purchased or leased) and for remanufactured vehicles.
- The scope of paratransit services should be extended to the same days and hours as fixed-route services and should cover an area comparable to that of fixed-route services.
- Restrictions on the number of trips a person can make, waiting lists, and other practices that limit the accessibility of paratransit services should be prohibited.
- Providers with overlapping services areas should offer coordinated paratransit service.
4.1.4 Access To Paratransit Services
The survey revealed material variations in the levels of services provided in Ontario. Some authorities restrict access to paratransit for ambulatory persons with disabilities, while some are less restrictive. Some authorities allow temporarily disabled persons to use their paratransit services, while others do not.
The lack of access to transit services for persons with mental disabilities is a matter of great concern to the OHRC. The recent Cannella decision may close the door on the issue of whether attendants are required, but it does not obviate the need for other accommodation measures for persons with mental disabilities.
Transit service providers should consider persons with temporary and permanent disabilities as well as the aged when establishing criteria for paratransit users. Specialized services for persons with mental disabilities should also be considered.
In addition, the financial cost of registering for paratransit services varies significantly from region to region. Further, registration fees for paratransit services (and no other part of the transit system) are prima facie discriminatory. They are justifiable only if it can be shown that the cost to the transit service provider (for the entire budget of the service provider - not a particular program) constitutes an undue hardship. Fares should either be structured so that all transit users pay to reflect the length or cost of the trip, or a flat fee for all users.
4.1.5 Region Specific Issues
Greater Toronto Area
In the Greater Toronto Area, it is important to consider the combined impact of the limited accessibility of the conventional systems of the TTC and GO Transit and the restrictive paratransit system. These factors have created a gap for those who do not qualify for Wheel-Trans but have difficulties using the conventional system. The TTC projects that its conventional system will not be substantially accessible until 2011-12. As a result, during this eleven to twelve-year period, large portions of the conventional transit system of the TTC will remain inaccessible, while access to Wheel-Trans has been narrowed. Transitional or interim measures are needed to bridge the gap until the conventional system is accessible, e.g., by enhancing the capacity of Wheel-Trans until 2012 to accommodate persons who have difficulties accessing the conventional system, but who are not currently eligible for the paratransit system.
As well, the pace of upgrading GO Transit and the TTC conventional systems should be accelerated, either through enhanced municipal funding or provincial one-time only subsidies.
Many transit service providers are struggling today to provide basic services and to ensure safety, while trying to find ways to increase ridership. Accessibility initiatives and service integration are discernable trends, but slow moving ones.
While significant efforts have been made to improve accessibility, much more needs to be done across the province. For example, GO Transit's plans for accessibility are, at present, simply inadequate, although the anticipated new plans from the GTSB may improve this assessment. As noted above, the TTC should consider at least interim measures to handle the current lack of accessibility in large parts of its system.
Municipal and provincial commitments to accessibility need to be more strongly encouraged. There are several initiatives that are already available or have already been proposed by others: for example, the Government's current CTAP is a good idea that needs to be expanded to make it more of a spark to generating coordinated community programs that focus on accessibility. More funding is not the only option. For example, the acquisition of low floor buses is a significant expenditure, and the provincial government could waive sales tax on the acquisition of low floor buses for all municipalities as an incentive to accelerating accessibility planning. This option has been proposed by transit services providers in the past and is worth careful consideration or reconsideration.
In the longer term, the need for accessible transit raises fundamental issues about the society we live in. Access is a priority for individuals who have disabilities and for their families. But is also a priority for our aging population, students and for parents with small children. These are genuine needs, and responsible public service providers have a legal obligation to meet these needs whether or not those needs are shared by a "majority" of the population. At the risk of stating the obvious, human rights principles are especially important for persons who, because of personal characteristics, have difficulty achieving equality precisely because they are not the majority.
The Code and OHRC policy place a duty on service providers to accommodate the needs of their patrons on the grounds of disability, age and family status. Persons with disabilities should not have to bear the costs of their accommodation needs. Eldridge set a clear standard for an interpretation of equality rights under section 15 of the Charter that also imposes special obligations on public facilities that have a particular relevance to this issue. The case is thus particularly relevant to policy changes aimed at improving the accessibility of public transit. Universal design and shared accessibility guidelines for public transit are another option, failing legislated standards. The Commission notes with interest the "Joint Accessibility Guidelines" developed by Markham along with Richmond Hill and Vaughan, which will ensure that the built physical form is universally accessible.
Applying Eldridge and the human rights principles of integration and respect of dignity, the goal of any transit system should be to integrate its riders with disabilities into a primary transit system accessible to all patrons. For patrons who cannot access even a highly integrated primary or conventional system, a parallel system should provide service in a manner that is least intrusive and most respects dignity.
The Commission views this Paper as a first step in addressing issues of accessibility in transit services. It will continue to seek ways to promote discussion of human rights issues surrounding transit services, and support the development of accessible and integrated transit services in the province of Ontario. Written submissions on the issues raised in this paper are welcomed, and will be accepted until June 30, 2001.
 The Hamilton Street Railway Company, for example, appears to offer more flexibility than the TTC. The TTC's criteria operate such that persons who have disabilities but are ambulatory cannot use Wheel-Trans unless they are dependent on some form of equipment, such as a cane or walker. This might be compared with the OC Transpo paratransit service where 70% of patrons are ambulatory.
 For example, Whitby allows persons with temporary disabilities to access its paratransit services.
 TTC submission; see also Dunphy, "Barriers falling one ramp at a time" Toronto Star A-1, A-6 (September 17, 2000).