Applying the principles articulated above, in the context of the public transit services currently provided in the 4 identified communities, it is the position of staff of the Commission that the para-transit services in these communities are not special programs within the meaning of section 14(1) of the Code. Rather, these services are measures provided pursuant to the duty to accommodate under the Code. A special program, in the view of Commission staff, is one that is “extra”, or in addition to, that which is required under the duty to accommodate. This conclusion is based on the following analysis:
Most (if not all) accommodations provided under the duty to accommodate will have the effect of relieving hardship or economic disadvantage, assisting disadvantaged groups, or contributing to the elimination of discrimination. Section 14(1) of the Code, permits discrimination in the provision of services if a program has one or more of these objects, and it could be said that the para-transit services in Toronto, London, Windsor and Hamilton meet one, if not all, of these objects. However, special programs and the duty to accommodate each carry different implications for service providers. A service provider has an obligation to ensure it is providing its service in a non-discriminatory manner, and has a duty to provide accommodation, short of undue hardship. Special programs, on the other hand, are voluntary, not obligatory, under section 14.
If a program appears to meet the description of a special program, as in the case of the four para-transit services being considered, it must be determined whether the program is in fact a means of meeting the duty to accommodate. If the program is being provided as an accommodation measure, it cannot also be a voluntary special program exempt from review by the operation of section 14(1). In the context of each of the four communities where full accessibility to public transit services is not a reality, to hold otherwise would circumvent the purpose of the Code and enfeeble its proper impact by diluting the duty to accommodate standard.
Even if a program started as a form of affirmative action, the legislative enactment of the duty to accommodate in 1988 may have changed the legal characterization of the program. This would be the case if a service provider, before 1988, was engaged in running a “parallel” service for people with disabilities without an explicit statutory obligation to do so.
In this way, it can be seen that a special program under the Code is not a substitute for accommodation. The duty to accommodate is not voluntary or temporary, but is a permanent and ongoing obligation under sections 1, 11 and 17 of the Code. The duty applies to all service providers in Ontario. Therefore, the first question that must be asked when assessing an alleged special program is whether the program’s provider has an existing duty to accommodate under the Code. If so, the inquiry turns to whether the provider is accommodating to the point of undue hardship. Only after the duty to accommodate inquiry has been exhausted does the special program analysis begin.
This interpretation ensures internal coherence in the Code, in that it provides for a robust application of the duty to accommodate before the special program defence can be invoked. It also demonstrates that a special program cannot be implemented where there is an existing legal duty to take the steps that the proposed special program would institute. Where a program goes beyond what the legal duty to accommodate would require, then that “extra” portion would likely qualify as a special program that is optional, but not mandatory, under the Code.
The TTC, London Transit, Windsor Transit and the City of Hamilton have the authority to provide public transit services in each of their respective communities. They do so by offering public transportation in the form of buses travelling on fixed street routes, and in the case of the TTC, by subways and streetcars on fixed routes (also referred to as “conventional transit systems”). The conventional transit systems in each of the four communities were not initially designed to be accessible to people with various disabilities, most particularly people with mobility disabilities who require the use of wheelchairs, scooters, walkers and other assistive devices. As such, persons with disabilities cannot readily access the public transit services provided in the communities as compared to the able-bodied. As public transit is a “service” under the Code, these transit service-providers have an obligation under the Code to ensure that their services are provided in a manner free from discrimination, including discrimination based on disability. This obligation imposes upon the transit providers a duty to accommodate the needs of persons with disabilities to access public transportation, short of undue hardship.
Accommodation measures in the transit context would include planning for accessibility and inclusive design on a go-forward basis, as well as removing barriers that currently exist in the conventional transit system. Each of the four transit-providers are working towards increased accessibility of their service, however, full accessibility has not yet been achieved by any of these transit-providers. The needs of persons with disabilities that are not being met by the current level of accessibility of the conventional transit systems in Toronto, London, Windsor and Hamilton are being met somewhat by the provision of para-transit service in these communities. A transit provider that is progressing towards full accessibility of its service will require a spectrum of accommodations. A conventional system that is becoming increasingly accessible, along with accessible taxis, community bus service, and para-transit service, together constitute a spectrum of accommodations required to satisfy the duty to accommodate under the legislation. In this context, para-transit service is an alternative or next-best form of accommodation for people who are unable to use those parts of the conventional transit system which have yet to be, or might never be, rendered fully accessible.
In Windsor, London and Hamilton, the para-transit services in these communities provide service in an area greater than that serviced by the conventional transit system. In Windsor, Handi-Transit provides service to the neighbouring Town of LaSalle, while Transit Windsor does not service this community. In London, following the annexation of smaller neighbouring communities into the City of London in 1997, the para-transit service travels to destinations in these outlying communities, whereas London Transit does not service these areas. In Hamilton, the area serviced by DARTS is significantly larger than the area serviced by conventional transit. In these cases, this “extra” aspect of the respective para-transit services may qualify as a special program and not part of the duty to accommodate. However, a strong argument can be made that this aspect of the respective services also qualifies as part of the duty to accommodate. Persons with disabilities may not have the ability, as does an able-bodied person, to walk or drive, or otherwise access with ease, the outlying points of service on the conventional transit system. Further, it must be recognized that the fact that the para-transit services in Hamilton, London and Windsor operate to and from destinations outside the area serviced by conventional transit routes is as a result of the door-to-door nature of para-transit service. Thus, this “extra” ought not to be hived off as a “special program”.