A B.C. Human Rights Tribunal decision ordering Uber to pay $35,000 for discriminating against a wheelchair user has been set aside by the province’s Supreme Court. Last year, the HRT ordered the ride-hailing giant to pay the compensation to Martin Bauer and make wheelchair-accessible rides available on its platform after concluding that the company has been discriminating based on disability since it began operating in B.C.’s Lower Mainland. Uber petitioned the B.C. Supreme Court for a judicial review of the tribunal’s decision. The company did not challenge the HRT’s ruling that the provincial Human Rights Code applies to it and that Bauer was adversely affected by its lack of wheelchair-accessible vehicles. Rather, Uber argued that the HRT had made errors in its assessment of whether the company had “reasonable justification” for its otherwise discriminatory conduct. 90 cents per ride When arguing the case before the tribunal, Uber claimed that it was essentially exempt from its obligations under the code because the province requires ride-hailing companies to pay a 90-cent fee for every ride in a non-accessible vehicle that is arranged through their platforms. The company argued that the fee is paid in lieu of providing wheelchair-accessible vehicles, referred to in B.C. Supreme Court Justice Andrew Majawa’s decision as “WAVs.” Because it pays this fee, Uber argued to both before the HRT and again before the Supreme Court, its failure to provide WAVs is justified. Both the HRT and Majawa rejected this argument from the ride-hailing company, but for different reasons. When the matter was before the HRT, the tribunal found that the purpose of the per-ride fee was not to take the place of Uber’s obligation to provide accessible service, but rather to “incentivize ride-hailing companies to provide a wheelchair accessible option,” as quoted in Majawa’s decision. The tribunal used this interpretation of the per-ride fee throughout its analysis of Uber’s justification claim, which it ultimately found deficient. During the judicial review, Uber argued that the HRT’s interpretation of the fee’s purpose was incorrect, again submitting its own interpretation of the fee as an exemption from the Human Rights Code. Majawa agreed that the HRT had interpreted the fee incorrectly, and found that its reliance on this interpretation rendered its decision “indefensible under any standard of review.” “The fee is a charge on every non-accessible trip made by an Uber driver without consideration of the demand for WAVs from consumers,” the decision reads. “Even if Uber adopted sufficient WAV capacity to meet the demand for every wheelchair accessible trip in the province, the fee would still be charged on all non-accessible trips, which trips in any event would form an exponentially larger proportion of rides facilitated by Uber. Uber’s provision of WAVs would have no effect on the demand for trips taken in non-accessible vehicles. It thus offers little by way of incentive as the fee is charged regardless of Uber’s WAV capacity.” Majawa’s decision also notes that a service’s obligations under the Human Rights Code are not optional. “Within this statutory context, an ‘incentive’ to comply with the code makes little sense as compliance is already mandatory and enforceable at law,” the decision reads. “Without some evidence to support why (transportation network companies) need incentives to meet their mandatory obligations, but others do not, I cannot agree that the legislature’s intent was to incentivize compliance.” However, the judge also found Uber’s interpretation of the fee to be incorrect. ‘Undue hardship’ The company argued that the province’s decision to impose the per-ride fee rather than requiring it and other transportation network companies – “TNCs” in the language of Majawa’s decision – to have a minimum percentage of their vehicles be wheelchair-accessible is proof that the fee was intended to exempt TNCs from accessibility requirements. “Uber’s position implicitly equates the regulatory requirement to have a certain percentage of vehicles within a fleet be WAVs with the obligation under the code to accommodate the needs of persons with disability up to the point of undue hardship, such that the rejection of the former implies the rejection of the latter,” Majawa’s decision reads. “The two are not the same: while a minimum fleet percentage of WAVs might meet a service provider’s obligation under section 8 of the code, it does not follow it is the only way that this obligation could be met. The fact the legislature declined to mandate how a TNC would meet its section 8 obligations does not mean that they have no such obligations.” The judge found that the legislation enabling TNCs to operate in B.C. did not explicitly exempt them from their obligations under the Human Rights Code. Moreover, though an exemption only needs to be clear – not explicit – in legislation, Majawa found no such clarity existed in the case of accessibility requirements for companies like Uber. Rather than functioning as either an exemption or an incentive, the per-ride fee, in Majawa’s view, was intended to “support accessibility in the passenger directed vehicle (‘PDV’) industry generally, as well as to offset the costs of the government in regulating TNCs.” Having reached this conclusion, the judge found the tribunal’s analysis to be “predicated on an erroneous interpretation of the legislature’s intent” that made it far easier to conclude that Uber would face no “undue hardship” if it accommodated wheelchair users. The question of whether making the reasonable accommodations required under the Human Rights Code would amount to an undue hardship remains an open one, according to Majawa. “My determination of the purpose of the per-trip fee does not lead to an inevitable conclusion with respect to the justifiability of Uber’s conduct, particularly in respect of whether Uber has met the undue hardship threshold,” the decision reads. “Consequently, it would not be appropriate to set aside the (tribunal) decision and dismiss Mr. Bauer’s complaint.” Instead, the judge remitted the matter to the HRT for reconsideration.
