Introduction
On April 12, 2022 the Division Court of Ontario rendered the decision in Hejka v The Regional Municipality of Durham,2022 ONSC 2233 (CanLII).
Bogdan Hejka was a frequent user of Durham Regional Transit services (“Durham”). Mr. Hejka took the specialized transportation service to access his employment, local gym, and community centre, using these services approximately 4-8 times a week. Since 2013, Durham had given Mr. Hejka unconditional eligibility for the use of these specialized services, which take him door-to-door.
The Integrated Accessibility Standards Regulation , O Reg 191/11 (“IASR“) in Ontario sets out accessibility standards for public transportation services. More specifically, it requires specialized service providers to offer services that best meet the accessibility-related needs of users. According to the transportation standard, every specialized transportation provider should determine the eligibility of specialized services using three categories: Unconditional Eligibility, Temporary Eligibility, and Conditional Eligibility.
Section 63 of the regulation indicates that a person with a disability will be eligible for specialized transportation services according to the following criteria:
Unconditional Eligibility — is a category reserved for persons with “a disability that prevents them from using conventional transportation services”;
Temporary Eligibility — is a category that provides specialized transportation to persons with a “temporary disability that prevents them from using conventional transportation services;
Conditional Eligibility — provide specialized transportation for persons with “a disability where environmental or physical barriers limit their ability to consistently use conventional transportation services”.
Durham issued a review of the eligibility of all users of specialized transportation services in 2020, believing that some historical barriers to travel may have been eradicated by its upgrades to the accessibility features of its conventional buses. In response to Durham’s request for review, Mr. Hejka and his mother submitted a form outlining his unique needs along with additional information provided by his doctor. They explained Mr. Hejka’s orthopaedic issues, visual impairments, and cognitive disabilities in their submission. Most importantly, they noted that the permanence of Mr. Hejka’s functional limitations prevented his use of conventional transportation.
On February 11. 2021, Durham advised Mr. Hejka that he would be placed within a category called “Conditional Eligibility for Specialized Services using the Integrated Service Model”. Durham had created this additional category. This category would provide Mr. Hejka with a vehicle that would pick him up and drive him to a bus shelter/stop at which point he would need to take a conventional bus to the point closest to his destination. From there, another vehicle would pick him up and take him to his destination. Mr Hejka was advised that he would also need to ensure that a personal care attendant (“PCA”) travelled with him and that he was responsible for paying and scheduling the PCA. In their reasoning for this decision, Durham pointed to both Mr. Hejka and the doctor’s indication that he could “mobilize up to ½ a level block” and concluded that his ability to mobilize this distance was sufficient to preclude him from door-to-door service.
With his mother’s assistance, Mr. Hejka appealed the decision to Durham’s Appeal Panel. He asked to be placed back into the “Unconditional Eligibility” Category and that the requirement for the PCA be removed. However, the Appeal Panel decided that Mr. Hejka’s eligibility category would remain conditional with the integrated model, and that he would continue to be required to have a PCA with him.
Ontario Divisional Court Decision
On judicial review, Mr. Hejka argued that Durham and had interpreted its discretion contrary to the text, purpose, and context of the Accessibility for Ontarians with Disabilities Act, SO 2005, c 11 (“AODA”) and the IASR. He submitted that the respondents failed to provide and implement an individual assessment to ensure that the service would meet his disability-related needs as the legislation requires. Rather, they created eligibility categories based on abilities to travel with accompaniment on conventional transit. Furthermore, Mr. Hejka argued that in revoking his unconditional eligibility and implementing additional requirements instead, Durham erected barriers to accessibility and hindered Mr. Hejka’s ability to use transportation in an independent and dignified way.
Durham agreed that they were obliged to provide their specialized services in a way that “best meets the needs of persons with disabilities.” (para 31). Durham, argued, however, that the legislation allows them to meet their obligations to persons with disabilities in a flexible way. Leaning on this flexibility allowed them the discretion to implement additional categories of eligibility, such as one requiring a PCA. They submitted that the fact that Mr. Hejka had used the services for eight years, did not entitle him to continue accessing the same services. Finally, they argued that the nature of public transportation and, in particular, its limited resources “means the reasonable goal is good service for all, not perfect service to a few.” (para 31)
The Court ultimately quashed the decision, having found it to be unreasonable, and ordered that Mr. Hejka have Unconditional Eligibility for the specialized transportation services. In their interpretation of section 68(3) of the IASR the Court determined that the text of the IASR restricts a service provider’s discretion: “the discretion the Respondents have to be flexible is constrained by the requirement to provide a service that best meets Mr. Hejka’s disability-related needs”. (para 50)
Most notably, the Court determined that the eligibility criteria chosen for Mr. Hejka ignored the purpose and context of the AODA and IASR. The purpose of the AODA, as outlined by the court, was to recognize the history of discrimination faced by those with disabilities and to create, implement and enforce the standards created to achieve accessibility for all Ontarians. The IASR is subordinate legislation to the AODA, and its purpose is to establish accessibility standards for areas such as transportation. More specifically, the Court recognized that the IASR establishes Durham’s responsibility to provide transportation services that best meet the disability-related needs of Mr. Hejka. The alteration of Mr. Hejka’s transportation services amplified the barriers that he faced within society. These barriers included finding and paying for a PCA, having the PCA be able to meet his scheduling needs, and adding increased complexity to Mr. Hejka’s life. The Court noted that Durham’s intended changes not only perpetuated the discrimination that Mr. Hejka has experienced as a person with a disability, but also impaired his independence and dignity. Finally, the decision was not justified or intelligible. Travelling on conventional transit clearly posed a risk to Mr. Hejka’s personal safety. According to the text of the regulation, he must therefore be categorized as having unconditional eligibility. In the court’s words: “he [Mr. Hejka] is a “person with a disability that prevents them from using conventional transportation services” under s. 63(2) of the Regulation. According to the text of the Regulation such a person “shall be categorized as having unconditional eligibility.” (para 52)
Commentary
A positive aspect of this case is that the Court incorporated and looked within the practical and real-life barriers that would hinder Mr. Hejka as a result of Durham’s changes. The Court identified that the requirement of a PCA would be a significant barrier to Mr. Hejka’s ability to access and use transportation independently. The requirement not only to find an individual who would work such short intervals, but also the sheer financial cost to Mr. Hejka to employ a PCA for all trips could seriously impact his ability to use the transportation service. Persons with disabilities are often among the most impoverished populations in Canada and Durham’s additional category would further marginalize, financially and socially.
In reaching its conclusions, the court relied heavily on decisions like Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 at para 56, 151 DLR (4th) 577andCouncil of Canadians with Disabilities v Via Rail,2007 SCC 15 at para 110 [Via Rail]to paint a clear picture of the historical exclusion that persons with disabilities have faced. In particular, the Court acknowledged the importance of autonomy, independence and access in interpreting and approaching human rights law. The Court highlighted Justice Abella’s reasoning in Via Rail to emphasize the importance of these values when remedying discriminatory exclusions. Requiring an attendant would perpetuate discrimination, as Mr. Hejka and others with a disability that prevent them from using conventional transportation services would need to be accompanied by a nondisabled person. The court held:
The effect of this solution is to perpetuate the discrimination (with the marginalization and lack of dignity that involves) that Hejka has experienced as a person with disabilities and to once again require that if he wishes to access transportation services he must make sure that he is accompanied by an able-bodied person who can make up for the “abnormalities” or “flaws” he possesses. (para 49)
By acknowledging this, the court further demonstrated the importance of removing barriers for persons with disabilities so as to affirm the dignity and personhood of individuals with disabilities.
* Kiel Baker JD ‘24 (Windsor Law), Florence Kwok JD ‘24 (Osgoode Hall Law School) & Laverne Jacobs, Professor & Director of the Law, Disability & Social Change Project (Windsor Law).
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