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Appendix B - Bibliography of Articles*

Appendix C - Listing of websites where the relevant legislation and standards are available*

An inquest was called into the death of Ms. Anne Woloshen. The Society for Manitobans with Disabilities ("SMD") sought standing to participate at the inquest. I was retained by SMD to request standing and represent it at the inquest. SMD was granted standing to participate fully at the inquest which took place before Provincial Court Judge Lynn Stannard. The inquest took place in Winnipeg from February 14, 2000 to February 28, 2000.

SMD sought standing to participate in this inquest because of the circumstances surrounding Ms. Woloshen’s death. Ms. Woloshen had been a recipient of services from SMD’s Wheelchair Services Program. She was a wheelchair user both at home and when she moved to Middlechurch Home, where she had been living at the time of her death. In addition to her wheelchair, Ms. Woloshen also used a three-wheeled motor scooter at the Middlechurch Home.

On December 8, 1997, Ms. Woloshen had an appointment to see her eye doctor. She was transported in her wheelchair by a company that provides accessible taxi service. She travelled with a Middlechurch Home volunteer who accompanied residents of the home on various outings. On the return trip, her wheelchair was secured to the floor of the vehicle. The wheelchair was secured with a mobility aid securement device which involved tie-down straps to four points on her wheelchair. Although the vehicle was equipped with an occupant restraint system, Ms. Woloshen was not offered an occupant restraint. The evidence at the inquest was that the driver of the vehicle was not aware of the existence of the occupant restraint and did not appear to have received any training with regard to the use of occupant restraint devices.

On the journey back to Middlechurch Home, the vehicle had to stop abruptly and Ms. Woloshen was projected out of her wheelchair onto the floor of the vehicle. She suffered a fractured femur bone. The medical evidence presented at the inquest suggested that the fracture led to a series of complications which ultimately caused her death on December 30, 1997.

The inquest was called to determine whether Ms. Woloshen’s death was preventable. At the conclusion of the inquest, SMD filed a series of recommendations with the Judge which are included as Appendix "A" to this report. In order to place SMD’s recommendations in context, I have prepared this brief background paper to provide information about Ms. Woloshen, the industry that delivers transportation services to persons with disabilities and the regulatory environment in which these services are provided.

Wheelchair users and others with disabilities that require assistance with transportation have come to rely on a variety of services that are now available. Non-profit organizations, personal care homes and other facilities have specially equipped vehicles. Handi-cabs and accessible taxis have been licensed by the Taxicab Board. The City of Winnipeg operates its Handi-Transit program which is serviced by private sector operators pursuant to a tendered contract.

The industry that has developed over the years to provide transportation services to wheelchair users has never been regulated in a consistent fashion. The type of vehicle used, the physical standards that the vehicle must meet and the equipment available to ensure safe transportation depend on whether the vehicle used falls within the jurisdiction of the Taxicab Board or regulated by legislation governing the transportation of students to and from public schools on a bus. Vehicles operating outside the jurisdiction of the Taxicab Board or the public schools legislation might be performing the transportation service pursuant to the terms of a written contract. For example, the Handi-Transit program has a series of specifications set out in its tender that vehicle operators are expected to meet. Some of these specifications deal with mechanical and equipment standards.

The safe transportation of wheelchair users is an issue that has been studied from a number of perspectives. Vehicle manufacturers, wheelchair manufacturers and companies that make safety devices have published the results of their studies in numerous papers. Advocacy groups have also played a part in developing a body of literature that is now available on the subject (see attached Bibliography listed in Appendix B). Out of all the papers and statistical reports that have been published, recommendations have been made and various standards have been developed. In Manitoba some of these standards have been adopted in regulations.

Standards look at all aspects of the transportation of wheelchair users. With regard to the vehicle itself, the standards address such things as door size, ramps, lifts, the strength of the floor and its suitability to anchor tie-down points for wheelchairs, and such safety features as the presence of first aid kits, appropriate signage and fire extinguishers.

With regard to mobility aid securement devices, the standards deal with such things as:

Performance specifications

Anchorage requirements

Materials to be used for the straps and tightening components

Detailed diagrams illustrating proper use

With regard to occupant restraint devices, the standards deal with such things as:

Performance specifications

Positioning of the anchor points

Instructions for use of the system

Detailed diagrams illustrating proper use

Examples of these standards can be found in three specific standards:

Motor Vehicles for the Transportation of Persons with Physical Disabilities CAN/CSA-D409-92.

Transportable Mobility Aids: Health Care Technology published as Standard Z604-95 in December 1995, as updated

Mobility Aid Securement and Occupant Restraint (MASOR) Systems for Motor Vehicles Standard Z605-95 published in December 1995, as updated.

On September 13, 1991, the Taxicab Board adopted Regulation 209/91. Section 18 of that Regulation reads as follows:

This was the first regulation in Manitoba that adopted a vehicle standard for accessible taxis and handicabs operated within the Taxicab Board’s jurisdiction.

While the standard was enacted, the evidence at the inquest disclosed that it was not enforced against vehicles that were already in service. A number of Taxicab Board decisions exempted older vehicles from the regulation. This permitted operators to continue providing transportation services with vehicles that did not meet the standard. Evidence at the inquest also disclosed that the standard itself was difficult to implement because it was designed for vehicles with a gross vehicle weight exceeding 4,536 kgs (10,000 lbs). To deal with this problem, an alternative standard was developed in Manitoba which would have better application to vehicles weighing less than 4,536 kgs. On December 1, 1997 Regulation 209/91 was amended. The amendment adopts the CAN/CSA3-D409-92 standard for vehicles exceeding 4,536 kgs. For vehicles weighing less than 4,536 kgs, a new standard attached as Schedule I would apply. Although the regulation was enacted on December 1, 1997, the regulation contained a transitional provision which stated that vehicles licensed as either an accessible taxicab or handicab van did not have to meet the standard until the earlier of:

This amendment to the regulation essentially gave operators of accessible taxicabs or handicab vans an additional 27 months to bring themselves into compliance with the standards adopted by the Taxicab Board.

The inquest heard evidence that operators of accessible taxicabs or handicab vans must have equipment in their vehicles that meet certain standards. However, it was demonstrated that there was no corresponding regulation that required an operator to actually use the mobility aid securement device or the occupant restraint device.

Evidence also came forward at the inquest that the location in vehicles where wheelchair users are transported is essentially unregulated. For example, in a standard vehicle a manufacturer will designate the number of seating positions. A manufacturer could market a passenger van which has seven seating positions - two in the front, a bench seat for two in the middle and an additional bench for three in the rear of the vehicle. Each of these seats is required to have an occupant restraint. Section 186 of Manitoba’s Highway Traffic Act deals with seat belt requirements. Section 186(2) provides:

Section 186(3) provides:

Section 186(4) provides:

As a consequence, each of the seven seating positions discussed in the hypothetical van released by the manufacturer would have to have a functioning occupant restraint for each position.

If you take that same van and remove the bench seat built for two and the bench seat built for three and modify the space behind the remaining two seats for wheelchair use, the area in which the wheelchair user is being transported is not considered to be a seating position in any current regulations. In essence, the wheelchair user is being treated as cargo. One of the recommendations made by SMD to the court deals with the legislative amendments that would be required to treat the area in which a wheelchair user is being transported as a seating position so that it would be governed by the same legislation and regulations that have been enacted for the safety of other passengers who could be transported in that very same vehicle in a different configuration.

At the conclusion of the inquest, SMD provided the court with a series of recommendations. In preparing its recommendations, SMD attempted to identify measures that could be taken both in the short and long term to improve the safety of persons with disabilities that use a mobility aid when being transported in vehicles that have been converted for this purpose. What follows are the 18 recommendations that were made. Each recommendation is followed by an annotation that provides some background on why the recommendation was being made.

Taxicab Regulation 201/91, as amended, should be further amended to make it mandatory to secure a consumer’s mobility aid with a securement device that meets either the D-409-92 Standard or the Standard set out in Schedule I of the Regulation before the driver can operate the vehicle, subject to any valid exemption granted under the Highway Traffic Act. (This requirement would be consistent with regulations already in force pursuant to the Public Schools Act - School Buses Regulation No. 465/88R subsections 4(i) and 16; and School Buses Regulation, Amendment No. 139/95 subsection 4(iv)(2)).

This recommendation was made to put into effect the safety standard that has already been adopted. Although the regulations require operators to meet the equipment standard, there is no corresponding regulation that requires the operator to actually use the equipment to secure the wheelchair to the vehicle. If the recommendation was accepted, it would become an offence for the operator to drive the vehicle where the wheelchair had not been properly secured to the vehicle. The cross reference to the school bus regulations was to remind the court of the evidence that was presented that school bus operators in the province of Manitoba that transport persons in wheelchairs are not permitted to drive the vehicle unless the wheelchair has been properly secured to the school bus. In asking the court to put forward a recommendation that a similar regulation be adopted for the transportation of wheelchair users in other vehicles, we were simply illustrating that this had already been done and that we were not asking for an unprecedented change in the regulatory environment.

The Taxicab Regulation should be amended to make it mandatory for all children that require the use of a mobility aid being transported in vehicles licensed by the Taxicab Board to be secured by a mobility aid securement device and an occupant restraint before the driver can operate the vehicle, subject to any valid medical exemptions granted under the Highway Traffic Act (this requirement would be consistent with subsections 186(6) & (9) of the Highway Traffic Act).

This recommendation was targeted towards protecting wheelchair users under the age of 18 that are transported in vehicles that have been adapted for the purpose. Section 186(6) of the Highway Traffic Act provides:

This subsection makes it an offence for a person to operate a motor vehicle where a person under the age of 18 years of age is not wearing a seat belt. SMD is recommending that it also be mandatory under the taxicab regulation that a driver is not permitted to drive the vehicle unless the wheelchair user under the age of 18 has the wheelchair properly secured to the vehicle and is wearing the appropriate occupant restraint device.

The Taxicab Regulation should be amended to make it mandatory for drivers to offer occupant restraints to all passengers before operating a vehicle.

SMD’s third recommendation was a comprise. The inquest had heard evidence from wheelchair users that they wanted to be treated in the same manner as any other passenger being transported by a taxi-type service. Under the Highway Traffic Act, a passenger over the age of 18 years becomes responsible for his or her own safety in relation to the use of seat belts. A person over the age of 18 years can decide not to wear a seat belt. In the event the vehicle was inspected by a police officer for any reason during the journey, a passenger over the age of 18 years not wearing a seat belt could be fined under the provisions of the Highway Traffic Act . This is not the case where the operator operates a vehicle with persons under the age of 18 where seat belt use is mandatory. In such a case, the operator could be liable for a fine under the Highway Traffic Act.

By making it mandatory for drivers to offer the occupant restraint to all passengers before operating a vehicle, the wheelchair user over the age of 18 becomes an informed consumer able to make a choice. The consumer is aware of the existence of the occupant restraint and can decide whether to assume the risks associated with not wearing the occupant restraint (a possible injury; a fine under the Highway Traffic Act ). In reaching this compromise, SMD was aware of draft legislation currently being considered in British Columbia which provides:

Although a regulation of this type is designed to provide protection to wheelchair users while in transport, it was also felt that imposing this type of mandatory requirement for wheelchair users that does not exist for others in society would constitute a form of discrimination that is inconsistent with the Canadian Charter of Rights and Freedoms. Once there are mechanisms in place to ensure that the wheelchair user is an informed consumer (i.e., is told about the availability of the occupant restraint device), the consumer should have the choice just like any other passenger being transported by this type of service. Issues relating to wheelchair users with either communication or cognitive difficulties is dealt with in a separate recommendation.

The Taxicab Board should undertake a review of Taxicab Regulation 209/91, as amended, and in particular, section 2 of the Regulation which sets out all of the vehicles that are exempt from the definition of "taxicab" to determine whether all the exemptions continue to be in the public interest.

SMD has asked the Taxicab Board to reconsider all of the exemptions set out in Section 2 of the Regulations. Those exemptions are as follows:

Many of these exemptions place wheelchair users at risk when being transported by vehicles that do not have to meet minimum safety standards. SMD is asking that the exemptions be reconsidered to determine whether they are still in the public interest. If some of SMD’s recommendations for changes to the Highway Traffic Act were adopted by the Department of Highways, the exemptions would be inconsistent with a new regulatory environment that requires all vehicles to meet certain minimum standards.

The Taxicab Board should add a training component to its licensing process dealing with the transportation of persons with disabilities and in particular, the proper use and operation of mobility aid securement devices and occupant restraints. The program should include a component involving persons with disabilities participating in demonstrations where drivers are trained on how to offer and secure the occupant restraint devices.

At the inquest, the evidence was inconsistent with regard to the training received by the drivers who work for licenced operators. SMD has suggested that any training program deal specifically with the proper use and operation of mobility aid securement devices and occupant restraints. It was also suggested that persons with disabilities be involved in the training program so that sensitivity to the needs of consumers could be enhanced.

Any enhancements to the existing training program offered by the Taxicab Board should include video tapes currently available from companies that manufacture mobility aid securement devices and occupant restraints.

At the inquest two videotapes were shown with regard to mobility aid securement devices and occupant restraints. There was some evidence that drivers in the industry have a low level of education. The first language of some drivers may not be English. In order to overcome some of the difficulties associated with the use of written training materials, SMD recommended that the videotapes be used as a teaching tool.

Operators of vehicles licensed by the Taxicab Board to transport persons with disabilities should be required to have a Quality Assurance Program which includes:

(a) Refresher training for drivers on an annual basis;

(b) Training for new drivers concerning the use and operation of mobility aid securement devices and occupant restraints and how to offer the occupant restraint system in a manner that maximizes consumer use; and

(c) A spot inspection program to ensure drivers are in compliance with the Regulations

At the inquest, evidence was given by three operators and a number of consumers. The existence of any type of quality assurance program appears to depend on how conscientious the operator is. Based on the evidence, SMD recommended that each operator have some form of quality assurance program that included the three basic components. It was suggested by a number of consumers during the inquest that the manner in which an occupant restraint device is offered by a driver could have an impact on whether the consumer will use the device. As a consequence, this was emphasized as an important point to be covered in the training program.

The Taxicab Board should work in cooperation with organizations of and for persons with disabilities (i.e. Society for Manitobans with Disabilities; Independent Living Resource Centre; Manitoba League of Persons with Disabilities; Canadian Paraplegic Association; and Association for Community Living) to develop a communication mechanism or protocol for persons 18 years of age and older with communication difficulties and/or cognitive difficulties that can be used to make it known to a driver whether the person wants to use the Type 1 or Type 2 occupant restraint systems that are available. The possible use of a sticker placed in a designated location on the mobility aid to indicate the consumer’s choice should be explored as one means of achieving this purpose.

In recommending a model that does not make the use of an occupant restraint mandatory before the driver can operate the vehicle (like what is proposed in the British Columbia legislation), SMD needed to craft a recommendation that took into account that there would be consumers with communication or cognitive difficulties that might not be able to communicate their wishes to a driver at curbside. Recommendation 8 attempts to deal with the issue by developing a communication tool for persons with communication or cognitive difficulties to make their wishes known. Some operators may have a database which could include a specific notation that sets out the consumers preference with regard to the use of an occupant restraint device. Handi-Transit could amend its database to include such information. If this information were available, a dispatcher could ensure that the driver is aware of this information on daily sheets that set out the basic information about the consumers to be transported on that particular day.

A sticker system was also discussed as a method for informing the driver of the consumer’s particular wishes in this area. It was also recognized that this type of decision might have to be made by a substitute decision maker under the provisions of the Vulnerable Persons Living with a Mental Disability Act. One suggestion that came out was that there should be an assumption that the consumer always wants to take the benefit of the occupant restraint device that is available unless there is some communication from the consumer to the contrary. The mechanisms to deal with this issue need to be worked out in consultation with the groups identified within the recommendation itself.

The Taxicab Board should publish a website where it keeps an up to date listing of the companies that offer vehicles that are in compliance with either the D409-92 Standard or Schedule I of the Taxicab Regulation and the number of compliant vehicles in each of the company’s fleets.

Recommendation 9 attempts to provide a mechanism for consumers to locate operators that have compliant vehicles in their fleet. Consumers are then in a position to make an informed choice about which service provider to use.

The Department of Highways, in cooperation with organizations of and for persons with disabilities, should develop a plan to raise public awareness about the availability of occupant restraint systems for persons being transported in mobility aids and the benefits of using such systems.

Based on the evidence led at the inquest, SMD believes it would be helpful if the Department of Highways could work with the disability community to raise awareness about the availability of occupant restraint systems so that consumers and the support networks that work with wheelchair users are aware of these safety devices and can ask for them.

SMD, through its Wheelchair Services Program, should continue to emphasize to its consumers that a seat belt which is attached to a wheelchair is not designed to function as an occupant restraint during transportation in a motor vehicle.

Based on the evidence at the inquest, it became clear that more education was required in this area. Drivers and at least one operator were under the mistaken assumption that a seat belt that is attached to a wheelchair for positioning purposes could also provide a sufficient occupant restraint in the event of an accident. SMD will, among its own consumers, continue to emphasize that such seat belts are not designed to be of any assistance in the event of a motor vehicle accident.

The words "seating positions" as used in subsection 186(4) of the Highway Traffic Act ("HTA") should be defined in section 1 of the HTA to include positions in vehicles which have been adapted to transport persons in mobility aids. The regulation would apply to commercial operators, nursing homes, health care facilities, vehicles that have been contracted by municipal or provincial government departments and agencies to transport persons in mobility aids, and non-profit organizations that offer this type of transportation service ("commercial vehicle"). The definition would not apply to privately owned vehicles.

This recommendation attempts to address the evidence heard at the inquest that a person being transported in a wheelchair in a van is essentially being treated as cargo from a regulatory point of view. The Highway Traffic Act would need to be amended to specifically designate positions where wheelchairs are being transported in a vehicle as "seating positions". This would be the first step to ensure that all wheelchair users being transported in commercial vehicles have the benefit of minimum standards. Such an amendment would ensure that each "seating position" would come equipped with an occupant restraint device.

The recommendation specifically exempts what are referred to as privately owned vehicles. Wheelchair users that have adapted a vehicle for their own personal use and not for transporting others would not be affected by any regulatory change. In suggesting this exemption, SMD has made the assumption that wheelchair users who have already adapted vehicles for their own private use have considered any relevant regulations and all safety issues and have assumed any risks in customizing their own vehicle for the intended purpose.

The Department of Highways should attempt to collect data on how many commercial vehicles currently operate in the Province of Manitoba that transport persons in mobility aids.

After two weeks of evidence at the inquest, no witness was able to give the court any information on how many vehicles are being used in the Province of Manitoba to transport wheelchair users. The Taxicab Board was able to speak only to vehicles which it licensed. It could not speak to all of the vehicles that were exempt under section 2 of its regulations or vehicles that might be owned by municipalities or service clubs that are being used to transport wheelchair users to their employment, day programs and medical appointments. It would be helpful to have the numbers available to determine how difficult it would be for all vehicles to comply with any proposed changes to legislation and regulations.

Amendments should be made to the HTA to ensure that all commercial vehicles used to transport persons in mobility aids are required to meet prescribed minimum safety standards, and that such vehicles be inspected to ensure that they are equipped to meet the standards. The operators of such commercial vehicles would include those owned, operated or contracted by provincial and municipal agencies that deliver transportation programs for persons in mobility aids; health care facilities; nursing homes; non-profit organizations like service clubs and band councils. In establishing minimum standards to be adopted under the HTA, consideration should be given to Taxicab Regulation, Amendment 237/97 - Schedule I, and in particular those sections of Schedule I dealing with mobility aid passenger seating (S.36); Part 4 dealing with mobility aids, subsections 53 to 60; Part 5 dealing with mobility aid lifts; and Part 6 dealing with service ramps.

Recommendation 14 is the one that has the most far reaching implications for the transportation of wheelchair users in Manitoba. The inquest heard evidence that unless a vehicle was licensed by the Taxicab Board, the amount of inspection it receives is minimal. Even the regime set up under the Highway Traffic Act to inspect vehicles contains exemptions that are so broad that vehicles used to transport wheelchair users might never be inspected in any formal way. This particular recommendation suggests that regulations be passed pursuant to the Highway Traffic Act to ensure that all vehicles used to transport wheelchair users must meet certain minimum standards and that those vehicles must pass a periodic inspection to ensure that the equipment meets those standards. In making the recommendation, SMD was asking the court to consider that anyone drafting new regulations should use the existing standards adopted by the Taxicab Board as a starting point.

Amendments should also be made to the HTA to incorporate the same safety measures for all commercial vehicles as the ones recommended for vehicles operating under the Taxicab Board’s jurisdiction set out in points 1 to 7 above.

This recommendation would ensure that there is a level playing field in the transportation of wheelchair users. Operators who do not fall within the Taxicab Board’s jurisdiction would have to meet the same standards as those who are licensed by the Board.

The Department of Highways should coordinate a consultation process involving representatives from the Taxicab Board, the City of Winnipeg’s Handi-Transit Service, other municipal or provincial agencies responsible for management of transportation programs directed at persons with disabilities, nursing homes, non-profit organizations and other health care facilities that transport persons in mobility aids, and organizations of and for persons with disabilities to consider the implications of the changes to the HTA recommended above and devise appropriate timelines and measures necessary to successfully implement the changes.

This recommendation acknowledges that there may need to be consultations with the various affected parties so that realistic timelines to implement some of the proposed regulatory changes could be worked out.

The Department of Highways should, in cooperation with organizations of and for persons with disabilities, provide information to all groups involved with the transportation of persons with disabilities about the importance of mobility aid securement and occupant restraint systems that are available and the proper use of these systems to ensure the safety of disabled persons they have undertaken to transport. As part of a coordinated publicity campaign, instruction materials should be provided to relevant groups or organizations to ensure that volunteer or paid drivers have the information and training necessary to transport persons in mobility aid devices in a safe manner.

This recommendation stresses that there is no point improving the regulatory scheme and upgrading standards for equipment unless a corresponding public education program is developed. If drivers are not familiar with the standards and equipment available or consumers do not have sufficient information to ask for the benefit of these devices, another death like Anne Woloshen’s is inevitable. In addition to drivers and consumers, it would also be beneficial if volunteers who may be involved in escorting wheelchair users to appointments or other persons in a consumer’s support network had this information available.

As part of the consultative process undertaken by the Department of Highways, consideration should be given to the impact of any regulatory changes on the accessibility of transportation services to disabled persons. Measures should be considered that would minimize the impact on the cost of services to consumers

In making its recommendations, SMD was mindful that there could be a cost associated with upgrading vehicles currently in use to meet the standards. In the past, both federal and provincial governments have been willing to provide grants to defray some of the costs associated with converting vehicles for use in the transportation of wheelchair users. SMD is mindful that in the absence of grant programs, upgrading costs might be passed through to consumers. That is why a recommendation was made that the Department of Highways consult with the community to find ways of minimizing the impact on the cost of services to consumers in the event of any regulatory change

SMD was invited to a meeting of the Taxicab Board on April 12, 2000. The Taxicab Board heard presentations from Theresa Ducharme ("PEP"), SMD and the Canadian Paraplegic Association. The Taxicab Board appeared to be very receptive to the recommendations. SMD urged the Taxicab Board not to wait for Judge Stannard to issue her inquest report before implementing the short term recommendations that were being proposed. Following SMD’s presentation at the Taxicab Board, the secretary to the Taxicab Board informed the Board Members that Recommendations 5 and 6 were already being implemented with regard to training of drivers in the use of mobility aid securement devices and occupant restraints. She also advised that videotapes were now being used in the training. As of the preparation of this brief background paper, no report has been released by the Court in relation to the inquest. Aside from the implementation of Recommendations 5 and 6, SMD is not aware of any amendments being passed to the Taxicab Regulations to address any of the other recommendations.