Judicial Review Application Against the

City of Toronto and the Toronto Transit Commission

(TTC) Respecting the Provision of Wheel-Trans Service

The Corporate Services Committee recommends the adoption of the following report (March 20, 1998) from the City Solicitor, subject to amending Recommendation No. (1) by adding thereto the following words, "to report back to the Corporate Services Committee on the position recommended to be taken by the City in the Application, prior, if possible, to filing court material, or as soon thereafter as is practicable", so that Recommendation No. (1) shall now read as follows:

"(1) that the City Solicitor be authorized to represent the City of Toronto in the Application for Judicial Review, and to report back to the Corporate Services Committee on the position recommended to be taken by the City in the Application, prior, if possible, to filing court material, or as soon thereafter as is practicable;":

Purpose:

The purpose of this report is to advise that an Application for Judicial Review has been brought against the City of Toronto and the TTC by six individuals who claim they have been denied the right to use the Wheel-Trans public transit system.

Funding Sources, Financial Implications and Impact Statement:

N/A

Recommendations:

It is recommended that:

(1) the City Solicitor be authorized to represent the City of Toronto in the Application for Judicial Review; and

(2) this report be forwarded to the Urban Environment and Development Committee for its information.

Council Reference/Background/History:

By Application dated February 6, 1998, Elio Cannella, Kelly-Ann Kennedy, Anita Patel, Irma Siciliano by his litigation guardian Massimo Siciliano, Monica Wright and Paul Yhap, (the "applicants") commenced a proceeding in the Divisional Court and are seeking the following relief from the Court:

(a) an Order quashing the decisions of the TTC denying the applicants the right to use the Wheel-Trans public transit system;

(b) an Order reinstating the applicants' right to use Wheel-Trans permanently or, in the alternative, reinstating this right until the applicants are granted hearings to determine their eligibility for Wheel-Trans, which hearings are conducted in accordance with the principles of fundamental justice;

(c) a declaration that the failure to accommodate the applicants in the municipal public transit service and the policy criteria for determining eligibility to use Wheel-Trans in the City of Toronto are discriminatory against the applicants, who are unable to use the conventional public transit system in the City of Toronto and have also been declared ineligible to use Wheel-Trans on the basis of these policy criteria;

(d) a declaration that the failure to accommodate the applicants in the transit service and the policy criteria for determining eligibility to use Wheel-Trans specifically violate the rights of the applicants under sections 15 and 7 of the Canadian Charter of Rights and Freedoms and are not justifiable under section 1 of the Charter; and

(e) an Order granting leave for the Application to be heard on an urgent basis by a single judge of the Ontario Court (General Division) or, in the alternative, an Order that the matter be heard on an expedited basis by the Divisional Court on a fixed date.

Comments and/or Discussion and/or Justification:

The applicants received Wheel-Trans service for several years prior to 1996 when they had to re-apply for the service and meet the eligibility requirements for accessible transit.

Eligibility for Wheel-Trans service is based upon an individual's physical functional mobility in the home, within the area immediately surrounding the home and in the community at large. In addition, the permanency of disability is considered.

The applicants failed to meet the eligibility requirements and, after an appeal process, were all denied the service between March-July, 1997.

In the Application the applicants are challenging the policy criteria used by the TTC and the questions and scoring system used. They also take the position that their disabilities must be accommodated by the TTC and that their rights have been violated under the Canadian Charter of Rights and Freedoms.

The relief sought by the applicants is primarily directed at the TTC. However, the applicants take the position that should the Court find a Charter violation has occurred, the Court should make an Order against the City as well as the TTC.

The TTC has retained counsel to represent it in the Application. It is recommended that the City Solicitor be authorized to represent the City of Toronto in the Application.

Conclusions:

(1) It is recommended that the City Solicitor be authorized to represent the City of Toronto in the Application for Judicial Review.

(2) It is further recommended that this report be forwarded to the Urban Environment and Development Committee for its information.

Contact Name:

Jane E. Egan

Phone: (416) 392-8703

Fax: (416) 392-3848

(Councillor Johnston declared her interest in the foregoing matter in that she has been identified in the material that has been filed for judicial review.)