Making Toronto Transit Commission announce all bus and subway stops for blind riders, Lepofsky versus TTC. David Lepofsky, chair, Accessibility for Ontarians with Disabilities Act Alliance. Delivered at the Osgoode Hall Law School, January 24th, 2014, as a Roy McMurtry Clinical Fellow.
>> Good morning everyone. It's, it's I'm delighted to be here.

To talk to your seminar about test case litigation in advocating for accessibility for people with disabilities. I'm gonna give you an unusual example because, even though I happen to be a lawyer, I don't do test cases on disability rights as a lawyer. My, my activism has always been as a member of the community, as a volunteer.

And in the example I'm going to give you, I wasn't the lawyer, I was the, I was the client. I had pro bono counsel in two cases, who were fabulous. Pro bono are unpaid volunteer legal work, something all lawyers should do, and I had access to the best.

In my first case it was, Elizabeth Shelton and then later after she retired Mary Cornish the Kavalosa Law Firm. And my second case it was Clifford Lacks from the Lacks and Sullivan Law Firm. They each deduce my evidence and the firms donated a junior council to be, assist me as I conducted the rest of the case myself.

Cross-examining argument and so on. I did myself but with the able assistance of junior lawyers from their respective firms, and I'm very indebted to them for doing that. In war, a country in an armed conflict has several different, ways to fight the war. They have navy. They have air force.

If they're equipped with all this, they have ground army. They may have special forces. Espionage and now, cyber espionage or cyber warfare. and, when a country is fighting a war with another country, they choose which of those will do the best to assist them or in combination with others of them to achieve their, their goals.

I'm not a war person but when it comes to trying to use trying to achieve a community goal or a social goal. Through advocacy efforts, we have several weapons or tools at are disposal. That can include organizing a coalition to advocate, whether it's for a law reform or for a new policies.

And it can involve test case litigation, by an organization, or just an individual bringing their own case on their own. And all sorts of other things as well. And, I've, I've involved myself since shortly the end of my, my law school days. In advocating for people with disabilities.

In a volunteer role. And I've been involved in various of these different kinds of efforts. When do you use which? That's going to under lie what I'm talking about. But to get you there I want to, I want to tell you the story of my case. I, as a young person, I'd been, I had partial vision as a kid and lost, my remaining vision, dur, actually, when I was in law school.

It was dropping gradually. And as a little kid, I was able to see out the window of the bus, and that would help me find where to get off. But as my vision decreased, I, I wouldn't be able to tell which bus or subway station I was at without assistance.

On the subway I had to be trained to count the stations and hope I didn't lose count. And hope somebody didn't talk to me while I was on the subway, leading me to lose count. And to hope that the train didn't stop for long stretches of time due to a breakdown, which might make me also lose count.

On the bus it's even trickier because the subway stops at all stops, but a bus doesn't. It'll pass stop at minor locations or at non-major intersections if nobody pulls the the string to chime to, to ask the driver to let them off, so you can't count them. To be sure.

Sited people are accommodated in both way, in,in both subways and on buses by having windows they can look out. To enable them to see where they are and know when to get off. Not so much for blind people. In the 70's around the time I was in law school the Toronto Transit Commission tried an experiment for a while of audibly announcing all subway stops.

I've also gotten word, and I've a vague memory but nothing specific, that they used to audibly announce all bus stop as well. The subway announcements were tried for a few weeks and were called off. The speaker system wasn't great. The volume varied a lot. They got, apparently, complaints from the public.

I remember seeing one in the paper and, contemplating writing a letter to the editor to respond. Not knowing what this would later, how big a part of my life this would all become. It wasn't until 1994, many years later, that I decided to get active on this. It had crossed my mind, I'd been in the States, in New York or San Francisco or, Washington or Boston where they, on the subways, they announce all, all stops.

And I remember thinking many a time why aren't we doing this in Toronto? I remember TCC tried it and they said they were calling it off they were going to study it further. How long do they need to study? I thought. But I didn't do anything about it.

Along came the summer of 1994 and that's when they all began. Now, I'd like to su, you might like to think that as a person very interested in disability advocacy. That I sat down and I looked at a range of different issues that I might bring a test case over, and I carefully studied which would be better than which, and I analyzed them in terms of their possible social significance and so on.

no. It's not what I did. I just wrote a letter one day in June of 1994 to ask the TTC, I asked the Chief General Manager, could you announce all stops. I'm blind and we need those stops on the subway announced. I didn't ask about buses, because where I lived at the time I was really only riding subways.

To get to work and, and other major destinations. I really didn't use buses very much at all. It wasn't that I didn't, I, I, I thought it unimportant for others it just wasn't central to my experience at the time. I got a letter back explaining that it's not really feasible for their subway crews to make these announcements.

But, that they were planning in a couple of years to in, they, they were at the stages pardon me, they were in the process of planning to institute an automated system for subway stop announcements. I responded, in writing, in affect, that with the position I would carry forward, which is I, I'm not asking anybody to spend money on all this automation.

And even if you're going to, could you have your crews announce the stops in the meantime? I couldn't get a, I couldn't get a yes. So in September of two, 1994, almost 20 years ago rolled around, I did two things on the same day. I went over to the human right's commission which then had a public mandate to investigate and enforce human right's complaints that regime has changed since.

And I filed a complaint of discrimination against the Toronto transit division. Discrimination in the provision of services because of my disability. The second thing is, I got on the radio. I'd set up an interview that morning, this is the first time I broke the story, on Toronto, on CBC Toronto's flagship metro morning program.

If you follow me on twitter @DavidLepofsky, or my coalition, @AODAAlliance, we periodically tweet a link to that radio interview, because it was the start of a long saga. The CBC had me on explaining what I need and at the same time they had a gentleman from the TTC saying we can't really do this but we are putting in this big new system of automation that'll take a couple of years to institute.

Many who heard that interview were quickly on my side of this debate. That included people at TTC because it wasn't maybe two hours later that I got a phone call at my office from someone at TTC saying, could you come in for a meeting, we'd like to discuss this.

Media coverage is often a very important tool in triggering change in this area. I had a, a friend go with me to the meeting. I was ready for a huge fight, I was ready to make all these arguments about why I'm right and why they're wrong. But I never had to make the arguments because when I went to that meeting a week later, the gentleman who was on the radio on the other side, named Jerry Broley, senior person at TTC at the time.

Said, I'm, I'm opening my mouth to start making all the arguments that we as law students or lawyers are trained to make. And he said, we're going to do it. All of a sudden, I won. They wanted a couple months to get people ready for it. And they wanted to be able to do it right, so could we, would I be agreeable to them not proceeding until the start of the next year.

I said sure and in December of that year when they announced, in December 1994 when they announced that these were gonna start they actually, CBC radio had me and Jerry Brulian again, but not against each other, but together. Me thanking them and congratulating them and them expressing appreciation for my raising the issue.

Well in 1995 the announcement started on the subway. But it didn't go so well. Depending on the train you got on, we found that they announced all the stops, or some of the stops, or none of the stops. Well, unless it's consistently done, isn't very useful for a blind person.

You gotta keep counting the stops. Taking off your, your gloves and your shoes and counting on your fingers and toes. And hoping you don't lose count. I started writing letters over the next five or so years. As five or six years I think I wrote around 30 different times to raise concerns.

They wrote me back at one point that year, in 1995, saying, could you please get us the number of the train where you're having the problem when it happens? Now, for one thing, I can't see. [LAUGH] And for another thing, I thought the number's on the outside. So am I supposed to get out and run alongside.

Well, it turns out he never. You don't know this, probably, but in every train there's a red number, four digits, starts with a five. And so what happened is I'd be on the train, and I'd, I, they weren't announcing stops, so I'd turn to some complete stranger and say, excuse me, there's a number up there in red with, it starts with a five, it's four digits, would you tell me which it is?

I'm sure people thought I was crazy. And I'd write letters, and then they'd write back saying we're investigating it and so on. And they gave me every excuse you can imagine, including we're gonna put in a new radio system. Well, they then put in a new radio system and it didn't make anything any better.

Back and forth and back and forth. Finally, 2001 rolls around and I said, enough. And I filed a human rights complaint. Now, I just, I filed a second human rights complaint. The first one I didn't proceed with, because my complaint was, they said they wouldn't announce stops, and they said they'd start.

That has significance. It's gonna come up in a moment. But I filed this complaint, and, and, and I genuinely thought, this is gotta settle, cuz they got no defense. well, 2001 rolls into 2002. We end up going into a mediation process. I can't tell you about the content of that, cause there's obviously an undertaking of confidentiality, but I can say, the one public fact is that it failed, and I went on to a hearing.

While this process was unfolding, TTC decided the, the automated system that they promised in '94, would be instituted in '96, was called off. Now, in in the early 2000's, they just, with my litigation pending, they decided to go back and go for an automated system. So the issue in my case boiled down to this.

If they're gonna have an automated system up running in a couple years, are they obliged to have their, their subway crews audibly announce all stops in the meantime? We couldn't resolve that, and so, it went to a hearing. The hearing took place before the human rights tribunal. Under the old regime, there was a lawyer from the Human Rights Commission presenting.

I had pro bono counsel as I said, calling my evidence, and the rest of the hearing I did myself, with the benefit of a, a junior from the law firm, a junior counsel from the law firm that was providing the pro bono service. So you're gonna ask me, what was the issue?

Well, it began with them bringing a whole bunch of procedural motions to tie up a couple of days, claiming they weren't given enough notice of what I was asking for. I was asking for audible stops announcements, it's not too hard to figure out. Claiming that the, I should only be able to sue the TTC, not the chief general manager, a man named Rick Ducharme.

We said he's on the hook cuz he was part of the decision making. He was writing some of the key letters. Well, the Tribunal cut him out of the claim. Which to this day I think was unfortunate. Cuz individual accountability would've helped make some, for, for more change.

At the hearing, I testified that I need to know what stop I'm at and they're not tell they, the stop announcements aren't reliable. And they didn't dispute that. I called an expert, er lati, the Human Rights Commission called an expert. It was Leslie McDonald, who teaches white cane and mobility training to, to blind people.

TTC at one point objected to her as an expert because she also was a friend of mine. The T, the Tribunal rejected that argument because the Human Rights Commission showed that she'd also done consulting for TTC. So, they were hardly in a position to talk about either that her advice wasn't worth taking or that she had a unilateral connection with me.

We were quite open in the fact that we that, that we were friends. But she all she was saying is blind people, it sums it, blind people need to know what stop they're at. Which, one would imagine, you don't even need an expert to show this. Just help make our case.

So, what was their defense? Under the human rights code, they, they have a legal defense saying we can't accommodate with, it would be un, it would be undue hardship to TTC, to accommodate by making all route stop announces. But they didn't argue that, and they couldn't argue that.

Because it was their own policy that they had directed their operators to announce all stops. Their own documentation shows that they weren't consistently doing it, that their rate of doing it when they were audited, only went as high as 88% and went as low as 57% of the time.

And that's when audited. And, between the lines what they're real argument sounded like is we can't really get our drivers to do any more. But they didn't induce any evidence of that. They didn't induce any pushback for the union. Most people think the union was against it. We had no, they weren't, the union wasn't a party.

And there was, we asked for this documentation, many exchanges between them and the union, and there was none. There was no evidence that the union went and said, Don't make us do this, or got in the way. So we had this hearing, and when it was over, after the evidence was taken in, the adjudicator retired Superior Court Justice Alvin Rosenberg, sadly he passed away last, last year.

Justice Rosenberg reserved. Now usually the Human Rights Tribunal reserve for some time. He reserved for 20 minutes he said can I just come back in a few minutes and we all looked at each other what's going on. He came back in 20 minutes after we finished oral argument and he came in and said that he was finding that the human that the TTC had been violating and my human rights and the human rights of blind Torontonians for at least ten years That he would issue orders.

But he wanted to make that finding promptly. It was quite an amazing day, and it got a ton of media coverage he issued ground breaking orders but not anywhere near as much as we ask for. He ordered that the TTC announce all route stops, train their crews on it, train senior management on human rights, But a significant new order in this context, was he appointed the former chair of the human rights tribunal, Mathew Garfield, to be an official monitor.

And an official monitor paid for by the TTC. Is a, in effect, a representative of the human rights tribunal who will oversee the implementation remedies. This had only been ordered once, to our knowledge, in Canada. It was ordered in a case called McKennan. It was a race based case where there were show, a proof that they Ontario prison system had rampant racist, racist problems with, with prison guards.

We didn't have that kind of rampant virulent case to show. But none the less the monitor was ordered. Let me move quickly to the second case. Oh by the way, one of the orders they had to train their, their employees. TTC called me and asked if I would be in a video.

I actually sat in an empty subway car with a couple of TTC crew and they interviewed me and others, other blind people about why we needed stop announcements. This was really quite cool and we were on the video. I have a copy of it. Now, around this time, we won in '05, just around that time.

I've been hearing from various blind people that you should push for bus stops announcements too and also, I was looking at moving to a location. To live in a location where I was going to need bus access so. I was now in a position to be a, a plaintiff in this.

I had made the request and I reiterated that after I won this case. I went to, I wrote to the head of the TTC, Richter Charmin, I said, look, you know, you gotta announce all sub, subway stops, so surely you've gotta announce all bus stops. The TTC's appellate response was that their policy is to announce major intersections on buses and streetcars.

And to announce your stop at your request. My response, shared by, I will tell you, other blind people. Is that if you ask the driver to call your own stop, they can forget. Cuz they've got to hold in their head, who asked for what. My position was if you ask them to call all stops.

It becomes proceduralized, it becomes routine. They will just do it. They don't have to remember your particular stop. Well, you might think that it, it follows pretty obviously that if you got to announce all subway stops you also got to announce all bus stops. I thought that, everybody I know thought that except the TTC.

So I had to bring my second case. It is very weird having a case named after you, Lepofsky versus TTC, it is even odder to have two. In the second case, we went back before the human rights tribunal. The TTC had the same lawyer. A very good lawyer and a very honorable person, fighting the best she could for her, for her client and we had the same adjudicator.

Retired Justice Rosenberg. This case came on for hearing in in 2007. So what was their defense? They couldn't argue that we didn't need route stop announcements called. Cuz as I said at the start of my talk, we need them at least as much on the subway if not more cuz you can't count bus stops reliably cause buses don't stop at all stops.

Well their defense was that it would be a danger to the public for bus drivers or street car drivers to go beyond calling in major intersections and and requested stops. And go all the way to calling all stops, that there would be, distract them, that, essentially, there could be cru-, people could get hurt, there could be accidents because of calling stops.

This is my, I, I characterize this as the, bus drivers can't walk and chew gum at the same time, argument. Our response to it was this. Number one they didn't call a bus driver to testify they can't do it. Number two they're not even adhering to their own policy because their own audits in the last couple years showed that for the most part they were announcing the major intersections even less frequently then they were announcing subway stops.

And their inadequate subway stop announcements were a violation of the human rights code, and were found to be such. Our next argument was that this danger thing is not their real reason for why they refused. I had been on CBC Metro Morning talking about this issue. And then the then chair of the TTC Howard Moscoe was also on, not at the same time.

And he said the reason that they weren't gonna call, tell their drivers to call stops, is cuz they said it would be, he said it would be a major administrative hassle to have to discipline their drivers for noncompliance. And he went on in the interview to say, on the radio, I know that's no excuse.

I put that audio tape, put all of these interviews, eventually ended up in the records for these various cases. Well. So I said, that's not the danger thing, that isn't the real reason. Moreover, we adduced evidence in cross-examination from the TTC that they had actually commended their own drivers who call all stops.

So, do you give a commendation to people who, your own drivers if they're endangering people? Come on. Moreover, their own internal policy showed that they, they tell their drivers to call all stops if the bus is crowded or the weather is inclement outside. And some of them even said, or if there's a visually impaired person on the bus.

Well, buses crowded or inclement weather, that means we'll call all stops to accommodate sighted people who can't see outside. You should be doing the same thing for blind people who can't see outside. Well, there's more to it but I'm synthesizing. But the human rights tribunal rules quite promptly, not in 20 minutes but within a couple of weeks.

That the TTC had again violated the human rights of blind people by not consistently calling out bus stops. By the way I should explain that even before I brought this case to claim, but while the subway claim was pending, the TTC had announced that they were going to bring in a system of automated bus announcements.

In the buses, not just the subways. So the issue in, just as the issue in case number one was, do you have to make human being announcements while you're waiting for the automation to be installed? And the answer was yes. The issue in the second case is, does the TTC have to, have human being announcements while they're waiting for the bus announcements to be installed?

And the answer was, I know this is shocking, yes. So, and the, the tribunal ruled in my favor. The orders in the second case are, are really interesting. I'm gonna take a minute on that, and then I'm gonna wrap up. Again there was an order to comply. As in the first case, there was an order for the TTC to monitor its compliance and report monthly on on compliance.

The same official monitor, Matthew Garfield was ordered to take on the official monitor role on this case as well. He's still, in effect, now, this many years later, monitoring implementation. but, and the TTC was ordered to have, an action plan or an implementation plan devised within 15 days of the order To be implemented within 30 days of the order.

So they were told to get into action very quickly. And to the TTC's credit, they did. After the first case, the order in the first case, they had constant substantially improved audio announcements, within weeks. And same within weeks of the bus ruling. But the second case went further.

You see, there were some remedies I asked for in the first case, which I didn't get. TTC opposed. But in the second case, I did get. I told the judg, justice Rose Brig, that we have a recidivist, we have a repeat offender here. And it's a government agency.

It's part of the city of Toronto. And I argued that they've shown that they just aren't gonna get it unless you impose some more orders. The two critical orders I asked for were these that I got. There's one I didn't get. But there's two critical one's that I did get.

We showed, in evidence, in both cases that TTC has received a number of complaints over the years about their failure to provide these announcements. And we also showed that senior management didn't know those complaints had been coming through their complaints department. And the commissioners, the board of governors of the TTC also didn't know.

So we argued that it, we need to change the top. They need to hear directly from passengers with disabilities, not just blind folks, but others about the problems they face. So we asked that the TTC be ordered to hold an annual open, advertised, accessible public forum, on accessible transit issues.

And that all senior managers and all commissioners be required to attend. The tribunal ordered that for three successive years. By the way, the TTC opposed the order initially. Within holding, after holding the first such event, which hundreds of people attended, The TTC under, thought, thought it was such a good idea that they agreed they'd keep doing it after the three years, and they're still doing it to this day.

We also got it mandated for all tra, transit authorities, under the public tran, the Assessable Transportation Regulation passed under the Disabilities Act. All inspired from our experience here. I said there were two really important word as, we'd never seen anything like this before they write the human rights codes.

The other one was this, it became clear to us, that nobody in senior management was being held accountable if they mess up on this issue. They per, senior managers at TTC all undergo something which they do in a lot of organizations called a annual performance review. Where you've set your goals for the next year and you get reviewed on how you're doing for your goals for the last year.

We proved in cross examination that they do this annual performance review, that there's no requirement to look into anything about the managers performance on disability, accessibility and accommodation. And so it's not even the basis of a review. So, you could do really bad for years and you'll never get reviewed or held to account on it.

So we asked the tribunal to make an order requiring that this be incorporated and the tribunal did, they ordered that accessibility be built into job descriptions in various ways. And senior management and that it be part of their annual performance review and take into account in pay and promotion.

I never heard of this being done anywhere. TTC to their credit, while they opposed the order when I sought it, once it was ordered I was told that they actually extended it from senior management to all employees. Which I think has the real potential for making a change.

The order I didn't get Was I asked for the TTC to be ordered to create a disability accessibility on this person to deal with these complaints, because their internal complaint system didn't seem to work. I didn't get the order but the tribunal kept, retained, decided that it would remain seized of the matter.

And I can come back later if that order is needed and that's still an opportunity open to me to this day. Let me offer you some conclusions, number one this case has had huge impact well beyond anything I expected. It led the Ontario government to require all stop announcements be made all public transit across the province under the Accessibility Frontier with Disabilities Act.

I heard it's gotten picked up in other parts of Canada. I get feedback on this case from people all the time, mostly sighted people who find the announcements are really helpful for sighted people who can't see through crowds or want to read a book. It's a in my experience, it became and I didn't foresee this in events but it became a good illustration of how accommodating us helps everyone.

That it isn't a matter of accessibility for us comes at the price of what other people without disabilities might want. It shows that what's good for us is typically good for everyone and it helps builds the case for accessibility. It's a case that people remember. I, I've been involved in disability advocacy or the disability act for years.

Most people out there don't know that but you'd be amazed how many people walk up to me and say. Oh, you're the guy with the subways thing. Or the buses thing. I think of you when I hear those announcements. It's because every time they hear the announcements it reminds them of the news stories that would, that, that the TTC opposed us.

And that, and then they think about how the, the announcements are helpful for them. Why did the TTC oppose it in the first place? To the Human Rights Commission's credit, they did a survey of all, transit authorities, right, shortly after I won urging them to all do the same, as is required by law.

Illustrative of the kind of impediments we face, some said yes, but some said no, and some who said yes still didn't until the Human Rights Commission had to institute proceedings against them. One public transit authority won and was London was quoted in London Free Press as saying, they'll put in automated announcements, but they're not gonna direct their, their crews to do it manually, or, you know, by human being announcement in advance.

This is, this is the law. But they decided it was arbitrary, I think was the word that the guy, that the fellow used. So I guess they decided that they don't have to obey the law. The other thing that this case illustrated was to explode a myth. A common myth that there accommodating us is always about money, it's all the costs.

Well it often isn't. And in this case they could have provided this accommodation without anything beyond training costs. I didn't ask for any automated, fancy, high powered teconolog, technology as a solution. Every bus or subway has a driver. They all have a mouth. They all have a microphone, and I hope they know where they are.

So, just tell us! But in this case, the money issue cut the opposite way. After the case was over, I filed a human rights or, pardon me, a freedom of information request, to get the TTC's legal bills. I want to see how much they paid their lawyers. I got nothing against the lawyers, I'm not saying the lawyers was, was billing inappropriately but how much did they pay to oppose these claims.

Well the bills came in and we added them up, between the two lawsuits they spent $450,000 on lawyers to oppose these two claims. It could have bought a lot of accessibility. So, in the end, it was an incredible learning experience for me. I would tell you that in deciding to bring a test case, you never know at the beginning where it's gonna end up at the end.

You can't foresee that it's gonna have these ramifications. And I sure didn't. I just carried on with the case because I thought the request was reasonable. And, I couldn't believe they wouldn't settle. And then when they didn't settle, it was either quit, which I wasn't prepared to do, or keep on going which I did.

It was as simple as that. But this case has really helped with the broader campaign for accessibility. It helped highlight things. But, what's amazing beyond every other experience I've had. Is how the world has changed because if you read, I've read one Toronto Star article. They refer to the announcements on the TTC as iconic, and anybody that I've talked to at the TTC, including people who were opposing me at the time have said to me they actually agree with my position.

Now, I think they were being genuine. What's actually, what, what it reveals is the capacity of an organization to do the wrong thing, because they can without really thinking it through and without being held accountable. And, I'm hoping the remedies I sought will help, will help change that.

Thank you very much for the chance to speak to you, and I look forward to your, to your questions. He's a PS to my talk on the transit on, on the case against the Toronto Transit Commission. I mentioned at one point that the, the exchange I had with TCC in 1994 came into play in the 2005 case.

Here's how it happened. Back in' 94, I filed a complaint saying I that TCC was violating my human rights ca, my human rights, because they were not requiring their operators to announce route stops. They announced that they were gonna direct their operators to announce route stops so I discontinued that complaint.

In 2005 the TCC tried to argue at the hearing that they should not have a finding of discrimination against them. That, because, in effect, in, in 1994, I had agreed to withhold any future claims on the quality of the announcements, that simply by starting to make announcements in 1995, they had absolved themselves of any obligation to me.

To make sure those announcements were made consistently and reliably. I responded at the 2005 Subway's case by arguing that, that was no such, there was no such agreement. I didn't sign any settlement agreement to that effect. I didn't waive my future human rights and needless to say I wouldn't.

Under those circumstances ultimately the human rights tribunal agreed with me. Rejected that argument and found that the TTC had violated, the human rights, of me and other blind by Torontonians for at least a decade by not consistently and reliably announcing all subway stops.