Report to/Rapport au :

Transit Committee

Comité du transport en commun

and Council /et au Conseil

22 February 2010 / le 22 février 2010

Submitted by/Soumis par : M. Rick O’Connor,
City Clerk and Solicitor/Greffier et Chef du contentieux

Contact Person/Personne ressource : Stuart Huxley,
Senior Legal Counsel/Conseiller juridique principal

(613) 580-2424 x21630, stuart.huxley@ottawa.ca

Ref N°: ACS2010-CMR-LEG-0004

SUBJECT:	SERVICE ANIMALS ON BOARD TRANSIT VEHICLES

OBJET :	ANIMAUX DE SERVICE À BORD DES VÉHICULES DE TRANSPORT EN COMMUN

REPORT RECOMMENDATION

That the Transit Committee and Council receive this report for information.

RECOMMANDATION DU RAPPORT

Que le Comité du transport en commun et le Conseil prennent connaissance de ce rapport.

BACKGROUND

At the meeting held on August 20, 2008, Transit Committee directed the City Solicitor and the Director of Transit Services to review the relevent legal authorities and present a report to Transit Committee and Council assessing the compliance of Ottawa By-law No. 2007-268 (the "By-law") with applicable federal and provincial accessibility standards for persons with disabilities and advising of possible amendments to the By-law that may be required.

DISCUSSION

The By-law, enacted on June 13, 2007, provides that any person with a disability who wishes to travel on a transit vehicle or enter transit property and who requires the assistance of a service animal, shall obtain an Assistant Card from OC Transpo.

"Service animal” for the purposes of the By-law “means an animal trained by a recognized school for service as a guide dog for the blind or visually impaired, a guide dog for the deaf or hearing impaired, or a special skills dog for other persons with disabilities and includes an animal used in therapy and trained by and registered with a recognized organization for that purpose”.

The Canada Transportation Act and the regulations passed thereunder, which apply to OC Transpo as a federal undertaking, do not provide an applicable definition of “service animal” or “recognized organization for the purposes of registering a service animal."

However, Ontario Regulation 429/07 made under the Accessibility for Ontarians with Disabilities Act, 2005 (the "AODA") establishes accessibility standards for persons with disabilities for every municipality and on every public transportation organization in Ontario, including any municipally operated transportation services for persons with disabilities, that provides services for which a fare is charged for transporting the public by vehicles that are operated by a municipality.

Furthermore, Ontario Regulation 429/07 mandates that an animal is a service animal for a person with a disability: (a) if it is readily apparent that the animal is used by the person for reasons relating to his or her disability; or (b) if the person provides a letter from a physician or nurse confirming that the person requires the animal for reasons relating to the disability.

The AODA, and Ontario Regulation 429/07 passed thereunder, are legislation that were validly passed under a provincial area of jurisdiction. However, it is clear that Ontario's legislative scheme would not directly affect the management and operation of OC Transpo, which is a federal undertaking due to the fact that it operates in both Ontario and Quebec. The constitutional principles of paramountcy and interjurisdictional immunity therefore dictate that the AODA and its associated regulations do not apply to OC Transpo. Consequently, Council is not required to amend the By-law pursuant to the AODA.

CONSULTATION

Although public consultation was not required, a briefing on this report was made by Legal staff to the Accessibility Advisory Committee (AAC) on January 20, 2010.

The AAC expressed concern about the breadth of the AODA's definition of service animals. As noted previously, the AODA does not require the service animal to be certified as such. Rather, it must be "readily apparent" that the animal is a service animal, or the person may produce a note from a doctor or nurse that the animal is required for reason of disability. The ACC was strongly in favour of service animals having to undergo some kind of formal certification process in order for them to be allowed on transit vehicles. While this should not be a barrier for some service animals (guide dogs, for example can be certified through the Canadian Guide Dogs for the Blind), there does not appear to be a standardized certification process available to transit users. The AAC was in favour of an internal review mechanism that would allow OC Transpo to address and resolve case-specific issues regarding service animals on transit vehicles.

In response to the AAC's comments, Transit Services advises that it currently has a process in place to consider requests from customers for the use of service animals on a conventional bus or Para Transpo vehicle. These are directed to the Accessible Transit Specialist for review of the available documentation, including medical documentation or certification. As part of this process, the customer will receive specific direction on the expected handling of the animal so as to balance the interests of all users of the conventional or Para Transpo service. On satisfactory completion of the review, the customer is issued a Service Animal Card/Assistant Card, which has a photo of the customer with their service animal for presentation on boarding.

LEGAL/RISK MANAGEMENT IMPLICATIONS

There are no legal or risk management implications arising from this report.

FINANCIAL IMPLICATIONS

There are no financial implications associated with the report recommendation.

SUPPORTING DOCUMENTATION

N/A

DISPOSITION

That the Transit Committee and Council receive this report for information.

SERVICE ANIMALS ON BOARD TRANSIT VEHICLES

ANIMAUX DE SERVICE À BORD DES VÉHICULES DE TRANSPORT EN COMMUN

ACS2010-CMR-LEG-0004 CITY WIDE / À L'ÉCHELLE DE LA VILLE

Chair Cullen noted the above-noted report was to be received for information. He advised Committee that Catherine Gardner had registered to speak twice on the item, first as Chair of the Accessibility Advisory Committee, and again as an individual. Knowing that there could be a difference between the two roles, he suggested giving the delegation these opportunities. He asked whether Committee members were in agreement.

Although he wanted to hear from the delegation, Councillor Legendre felt the request to distinguish between the two roles seemed artificial.

Chair Cullen re-iterated his point and, having received consent from Committee members on the matter, he invited the delegation to come forward.

Ms. Catherine Gardner, Chair of the Accessibility Advisory Committee, read from a prepared presentation in which she expressed her committee’s appreciation for the hard work that had gone into the report and support for the report and voiced concerns with respect to how service animal cards would be issued and how they would affect some users. She noted that persons with guide dogs already have a card, which allowed them unlimited access to all services, and she wondered if the proposed policy would require them to get yet another card. She also wondered how the policy would affect tourists: what OC Transpo would require from them and how the policy would be communicated to them. She asked whether service animal cards from other jurisdictions would be accepted. She remarked that the Accessibility Specialist would be responsible for reviewing documentation and issuing service animal cards. She requested that these cards be recognized by other community services such as restaurants, theatres and stores, and she wondered what would happen when the current Accessibility Specialist left her position. In closing, she voiced concerns over service animals’ qualifications, particularly for persons presenting a letter from a doctor or nurse. She maintained that although this method would break down barriers, such medical professionals could not certify that an animal had been properly trained and had up-to-date vaccinations. A copy of Ms. Gardner’s presentation is held on file with the City Clerk.

Chair Cullen referenced the delegation’s question about the reciprocity of using service animal cards from other jurisdictions and asked whether staff was familiar with this. Mr. Alain Mercier, General Manager of Transit Services, indicated this was a new item in the sense that it had never come up. He remarked that many jurisdictions had by-laws, rules and regulations similar to the one outlined in the current report, though he did not believe there was any record of conflict related to persons coming from another jurisdiction. Therefore, he submitted that any exception would have to be addressed locally, if and when it arose.

Responding to a question from Councillor Wilkinson with respect to the advisory committee’s concerns surrounding the Accessibility Specialist, Ms. Gardner clarified that the current Accessibility Specialist was trained in dealing with service animals but that her job description may not list this as a requirement. Therefore, the Accessibility Advisory Committee was concerned that if it was not part of the job description, the process may be impacted by the next incumbent’s qualifications / experience in this regard.

In light of this explanation, the Councillor asked staff if this was in the Accessibility Specialist’s job description or whether it would be added. Mr. Mercier explained that, as with any by-law required on behalf of Transit Services, the current approach was that he was responsible for putting in place sufficient control to ensure the department could manage the by-law in accordance with the way it was drafted. He acknowledged that he may require the Accessibility Specialist to fulfill this role but he maintained this was not necessarily written into individual job descriptions.

In response to follow-up questions from Councillor Wilkinson, Mr. Mercier submitted that in order to follow the by-law, staff would simply depend upon the documentation provided by medical professionals. Having said that, he confirmed that the department periodically reviewed job descriptions and responsibilities such as the ones outlined in the subject by-law would be taken into consideration.

Responding to a final question from Councillor Wilkinson, Mr. Mercier explained that because OC Transpo operated in both Ontario and Quebec, it did not operate under Provincial legislation. It operated under federal legislation. Further, he confirmed that the by-law followed the general guidelines under the federal accessibility norms.

Councillor Legendre referenced paragraph five on page two of the report, noting it suggested that provincial legislative scheme “would directly affect the management and operation of OC Transpo”. He wondered if this was a typographical error. Mr. David White, Manager of Litigation and Labour Relations, City Clerks and Legal Services, confirmed that the provincial legislative scheme did not apply.

Councillor Legendre asked that the report be corrected.

Committee then heard from Ms. Gardner as an individual.

Ms Catherine Gardner, resident, noted that she was accompanied by a dog. She advised that her dog was in training and, as an individual, she would not take him on an OC Transpo bus until he had been properly trained and certified. However, she was concerned that she would be allowed to have this dog with her on an OC Transpo bus if she had a letter from her doctor or a nurse, regardless of whether or not the dog was properly trained. As a result, she was afraid that other dogs may be going onto buses without proper training and certification and that their vaccinations may not be up-to-date.

As there were no further questions or comments on the matter, Committee received the report.