Northern Exposure

Canada’s Top Court Signals Tougher Days Ahead on Accessibility

by Tara McPhail
McCarthy Tetrault

Canadian human rights laws require employers to accommodate employees and customers with disabilities up to a point. What point? The point at which the accommodation would constitute “undue hardship” on the employer. But what makes an undue hardship? A recent Supreme Court of Canada decision appears to set a high threshold for the undue hardship defense.

The court upheld a federal regulatory order forcing Canada’s primary passenger railway operator, VIA Rail, to spend tens of millions of dollars to provide better access to passengers in wheelchairs.

The decision (Council of Canadians with Disabilities v. VIA Rail Canada Inc.) has a major impact on transport services including airlines and interprovincial bus companies. More broadly, the decision also influences the way Canadian courts and human rights tribunals are going to approach the issue of how far employers must go to accommodate employees and customers with disabilities.


In late 2000, VIA Rail spent $29.8 million to purchase 139 “Renaissance” rail cars from a French manufacturer. The purchase meant Via Rail could significantly increase the size of its fleet at a moderate cost. Unfortunately, the Renaissance cars were too narrow to be accessible to passengers using their own personal wheelchairs.

Rather than redesigning the Renaissance cars, VIA Rail took the position that passengers with personal wheelchairs were adequately accommodated in other ways. Via Rail proposed that its employees could transfer passengers using personal wheelchairs onto “on-board wheelchairs” and assist them in accessing washrooms and other facilities.

Complaint upheld

The Council of Canadians with Disabilities filed a complaint with the Canadian Transportation Agency that the Renaissance cars were inaccessible to passengers using personal wheelchairs.

The agency found that the Renaissance cars constituted “undue obstacles” to persons with disabilities. So it ordered VIA Rail to redesign 30 of the Renaissance cars so that daytime trains would have one car accessible by personal wheelchair and overnight trains would have one car with sleeper facilities accessible by personal wheelchair.

Railway wins appeal

VIA Rail appealed the agency’s order to the Federal Court of Appeal. VIA Rail argued that a redesign of the Renaissance cars would cost at least $48 million. This would result in such “hardship” to VIA Rail that it shouldn’t be required to accommodate wheelchair passengers by redesigning the Renaissance cars, the railway asserted.

The federal court agreed with VIA. It overturned the agency’s finding, concluding that the agency didn’t properly consider VIA Rail’s entire transportation network, the interests of nondisabled passengers, and the interests of other disabled passengers who don’t use personal wheelchairs.

Supreme Court appeal

The Supreme Court of Canada restored the agency’s decision that the Renaissance cars constituted “undue obstacles” to wheelchair passengers.

The court concluded that the agency, when defining and identifying “undue obstacles” in the transportation context, was required to apply the principles of the Canadian Human Rights Act. Notably, this included the principle that employees and customers with disabilities must be accommodated by the company up to the point at which the accommodation would cause “undue hardship” to the company.

The Supreme Court concluded that the agency had considered the appropriate factors in assessing whether VIA Rail had reasonably accommodated the passengers up to the point of “undue hardship” by assessing the implications of cost, economic viability, safety, and the quality of service to all passengers.

Relevant standards

The Supreme Court found that companies must accommodate affected groups by considering the standards of the affected group. In other words, VIA Rail was required to accommodate persons in wheelchairs by ensuring that rail cars are accessible to personal wheelchairs. Transferring passengers from their personal wheelchairs to “on-board wheelchairs” and providing them with other service assistance while on board didn’t meet this standard.

The court rejected VIA Rail’s argument that this standard of accommodation shouldn’t apply because of the unique economic opportunity that the purchase of the Renaissance cars represented for VIA.

The Supreme Court also rejected VIA Rail’s argument that because certain elements of VIA Rail’s passenger rail network were accessible to individuals in personal wheelchairs, the inaccessibility of the Renaissance cars should be overlooked. The fact that the trains on some of VIA Rail’s routes were accessible didn’t relieve VIA Rail of the duty to provide accessible trains on all routes.

No “undue hardship”

The court upheld the agency’s finding that VIA Rail failed to provide concrete evidence in support of its “undue hardship” argument. The company didn’t provide precise cost information to the agency before the release of the agency’s decision. Accordingly, the Supreme Court noted that “impressionistic evidence of increased expense will not generally suffice” in establishing “undue hardship.”

Impact of this decision

This decision has a number of important consequences for companies operating in Canada:

· Companies have a duty to prevent new barriers to mobility for persons with disabilities, and companies aren’t permitted to perpetuate existing barriers when they are preventable.

· Companies have a duty to investigate fully all possible accommodation options and must consider the costs of those options.

· To prove that more complete accommodation would constitute an “undue hardship,” companies must provide detailed and specific cost information in a timely manner. The information must go further than showing that the accommodation is “costly.” It must show that the costs would threaten the enterprise’s survival or essential character.

· The standard of reasonable accommodation to the point of “undue hardship” won’t be reduced just because a company finds a unique economic opportunity.