Our Campaign for Strong, Effective Implementation of the AODA

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

HUMAN RIGHTS TRIBUNAL IMPOSES SUBSTANTIAL ORDERS AGAINST THE TORONTO TRANSIT COMMISSION TO MAKE TRANSIT SERVICES MORE ACCESSIBLE TO PASSENGERS WITH VISION IMPAIRMENTS – BUT WHAT WILL IT TAKE TO GET ALL OTHER ONTARIO TRANSIT PROVIDERS TO OBEY THE HUMAN RIGHTS CODE?

December 12, 2007

On November 21, 2007, the Ontario Human Rights Tribunal released an important decision in the case of Lepofsky v. TTC #2. The Tribunal had already ruled on July 26, 2007 that TTC violated the human rights of blind passengers by not having its bus and streetcar drivers announce all route stops. In July, it ordered TTC within 30 days to have its bus and streetcar drivers announce all route stops.

The Tribunal’s November 21, 2007 supplementary ruling roundly slammed TTC for so inadequately responding to this disability need. It found that TTC didn’t have in place sufficient safeguards to address such accommodation requests. It made ground-breaking orders to try to prevent TTC from violating the Human Rights Code in the future. For example, it ordered:

“The job descriptions of applicable TTC employees, including senior management, shall be amended in terms which the Monitor approves to include TTC’s compliance with this Tribunal’s Orders. In any promotional decision or performance review of said employees, the TTC shall take into account an employee’s performance with respect to disability accommodation and accessibility….

The TTC shall, within six months of this Order, arrange for the TTC Commissioners to undertake a broad educational program, similar to the one recently attended by the TTC senior management, on the obligation of the TTC to persons with disabilities under the Code and related legislation. The educational program shall be approved by the Monitor.

Within six months of this Tribunal’s Order, the TTC will hold an open, accessible and advertised public forum on issues of accessibility and accommodation of persons with disabilities on TTC transit services. It shall hold such forums at least annually for the next three years. This forum will be held outside regular business hours. The Advisory Committee on Accessible Transit (“ACAT”) will be invited to attend and co-chair the forum with the TTC. All TTC Commissioners will be required to attend and participate in the forum. The forum will be scheduled so as to allow the attendance of as many members of TTC’s senior management team as is possible. In any event, the Chief General Manager and all senior managers who report directly to him shall be expected to attend this forum. The terms of reference, the participants, TTC staff, and general plans for this forum shall be approved by the Monitor.”

From the perspective of the effective implementation of the Accessibility for Ontarians with Disabilities Act, this decision is very important for several reasons:

First, this case shows very pointedly why Ontario needs strong, effective accessibility standards under the AODA. The AODA was passed so persons with disabilities wouldn’t have to fight barriers one at a time. It should not be necessary, for example, for blind Ontarians to have to file human rights complaints against each Ontario transit provider that won’t obey the Human Rights Code.

This isn’t a hypothetical issue. For example, After this ruling, Windsor Ontario’s public transit provider, Transit Windsor, was reported in the October 31, 2007 Windsor Star as balking at the suggestion of requiring its bus drivers to announce all stops. (See the article below.) David Lepofsky’s November 20, 2007 letter published in the Windsor Star, also set out below, shows how troubling is Transit Windsor’s open and deliberate failure to implement the Human Rights Tribunal’s ruling.

Second, this case shows yet again how dramatically inadequate is the McGuinty Government’s proposed transit accessibility standard, made public last summer. As but one example, the Human Rights Tribunal gave TTC 30 days to start providing the obvious, simple and costless accommodation of bus drivers announcing all route stops. In sharp contrast, the McGuinty Government’s flawed proposed transit accessibility standard would give other Ontario transit providers an inexcusable 18 years to start doing the same.

The problems with the proposed transit accessibility standard under the AODA go far beyond the issue of announcing bus stops. This is not a situation where the McGuinty Government can simply patch up this one small part of that standard, and leave the rest of its similarly seriously inadequate provisions regarding all other disabilities in place. To see what’s wrong with that proposed standard, visit: http://www.aodaalliance.org/strong-effective-aoda/ 08132007-Support-BriefOnProposedTransportation AccessibilityStandard.asp

The Ontario Human Rights Commission condemned the McGuinty Government’s proposed transit accessibility standard as falling well short of the Ontario Human Rights Code’s requirements. For more details, visit: http://www.aodaalliance.org/strong-effective-aoda/ 09052007-ACCESSIBILITYFORONTARIANSWITH DISABILITIESACTALLIANCEUPDATE.ASP

Third, this case points out the hardships which the McGuinty Government’s forthcoming privatization of human rights enforcement will inflict on all discrimination victims in Ontario. After June 30, 2008, if a blind person wants to bring the same case against their local municipal transit authority and to get an individual remedy, they will have to investigate it themselves, and find a lawyer to prosecute it. If the Human Rights Commission decides to bring its own case without an individual discrimination victim, it will have less power to do so than in the past. The Human Rights Commission will have no role in enforcing individual remedies.

To its credit, the Human Rights Commission has written to all Ontario transit providers, to find out what they are doing to comply with this recent transit ruling. However, the Commission must unequivocally commit to use its powers that still exist to bring a public interest case against each transit provider that doesn’t promptly and effectively comply with the law. Below see the Human Rights Commission’s letter to all Ontario transit authorities about this.

Finally, this case is a shocking illustration of what lengths a large government agency will go to, in order to fight against providing full and proper accessibility. In a November 22, 2007 guest column in the Toronto Star, David Lepofsky revealed that TTC had spent the extraordinary sum of $450,000 of tax-payers’ money on private lawyers to oppose his earlier case (to get all subway stops reliably announced) and his later case (to get all bus and streetcar stops announced) See the text of that column, below.

During public consultations on the McGuinty Government’s weak proposed transit accessibility standard, some transit providers were heard to complain that they could not do more on disability accessibility because of the cost. Yet here’s a stunning example of Canada’s largest municipal transit authority managing to find almost half a million dollars to fight against providing an obviously costless form of accommodation.

Below please find:

Send your feedback to:

aodafeedback@rogers.com

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The Toronto Star November 22, 2007
Opinion
Waste of public funds to oppose accessibility

Graphic: Vince Talotta star file photo Blind lawyer David Lepofsky won two human rights rulings ordering the TTC to announce subway, bus and streetcar stops.

Using the Freedom of Information Act, I've unearthed how much of your money the TTC spent on lawyers, opposing my effort to get crews to announce subway, bus and streetcar stops. We blind people need stops announced to know when we reach our destinations. In 2005, I won a human rights ruling ordering TTC crews to announce all subway stops. Despite this, the TTC refused to direct bus drivers to announce all stops. I had to sue again.

Most can't believe the TTC fought the subway case. Once I won it, no one can believe the TTC then fought the bus case. If the Human Rights Code requires the TTC to announce all subway stops for blind passengers, the TTC obviously must also announce all bus stops.

The TTC's law firm bills total $450,000. Of that amount, $268,000 was spent fighting the subway case, even though internal documents revealed the TTC knew the Human Rights Code required announcing all subway stops, and new crews weren't consistently doing this. Another $182,000 went to fight the legally simple bus stops case at a shorter six-day hearing.

This huge waste of public money has important implications. First, the TTC boasts it is gradually instituting automated subway and bus stop announcements. I never asked for automated announcements. The costless option of drivers announcing each stop is sufficient. Each driver has a mouth and should know their stops.

Second, after recent city tax and TTC fare hikes due to budget woes, city council should hold accountable whoever condoned this waste of almost half a million dollars. Last year, then TTC chair Howard Moscoe told the CBC he didn't know how much the TTC spent fighting my subway case. He admitted it was scandalous I had to fight for a decade for that accommodation. Yet he defended the TTC opposing my bus stops request.

Third, city council should institute a vigorous policy to stop its agencies from using public funds to oppose disability accessibility. If they won't spend more to advance accessibility, they must stop using our money to oppose it.

This incident isn't unique. Recently, city heritage officials wasted public resources generating a report to city council obstructing and delaying efforts to make Ontario's highest courthouse at Osgoode Hall more accessible. That report misstates and dilutes the duty to make such places fully accessible.

It describes as sufficiently accessible the long, labyrinthine routes that mobility-impaired people must endure to access this courthouse. Installing a ramp to the front door won't deface Osgoode Hall. A courthouse isn't just a pretty building to gaze at. It's an important institution that constitutionally must be fully accessible to all.

Wasting public funds hurts everyone. The TTC's route stop announcements help sighted and blind passengers. Osgoode Hall's inaccessible main door impedes persons with disabilities and lawyers without disabilities hauling heavy bags filled with law books.

Fourth, it will soon be even harder for discrimination victims to battle organizations that spend huge sums opposing human rights. Dalton McGuinty's Liberals recently enacted Human Rights Code changes many of us opposed. These largely privatized human rights enforcement. When I fought the TTC, the Human Rights Commission was public investigator and prosecutor. Starting next July, discrimination victims must investigate their individual cases and find lawyers to prosecute. McGuinty's new legal clinic to help discrimination victims with this will only get a paltry quarter of the budget he now gives the underfunded Human Rights Commission. If that legal clinic matched dollar for dollar what the TTC spent against me (an unrealistic dream), it could only fight six such issues annually.

Fifth, the Human Rights Commission should promptly launch complaints and vigorously enforce the law against each Ontario transit authority disobeying Lepofsky v. TTC. It should conduct proceedings and settlement discussions in close consultation with the blindness community, whose rights are in jeopardy. The Liberals pledged the Human Rights Commission would be freed up to aggressively bring such public interest proceedings.

Finally, transit accessibility recalcitrance isn't limited to the TTC or to announcing stops. While they've made some progress on accessibility over the years, Ontario transit providers opposed strong new transit accessibility standards under the new Disabilities Act that I and others campaigned hard for.

They cry poor despite federal and provincial announcements lavishing billions on them. Governments must rein in these transit providers, whose obstinacy hurts those of us with disabilities, and the rest of you who'll get one later. No one should suffer what the TTC unapologetically spent $450,000 putting me through twice.

David Lepofsky

David Lepofsky is a Toronto lawyer and activist for reforms to protect the rights of persons with disabilities.

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The Globe and Mail
Toronto News, Friday, November 23, 2007, p. A19
TTC accused of wasting tax dollars in decade-long battle

Jeff Gray

The blind lawyer who twice took the Toronto Transit Commission to a human-rights tribunal over its refusal to make its staff call out stops says the cash-strapped agency should be punished for spending $450,000 on lawyers to fight him.

David Lepofsky, a senior Ontario government lawyer who waged a decade-long but successful battle against the TTC over the issue, filed a freedom-of-information request to obtain the TTC's legal bill, and said yesterday the money could have been better spent.

"I call on city council to hold accountable those responsible for TTC's protracted double violation of blind riders' human rights, and for the waste of almost half a million dollars on lawyers to oppose us," Mr. Lepofsky said yesterday in an e-mail. "That money should have been spent on increasing accessibility, not fighting against it."

This week, the Human Rights Tribunal of Ontario also issued its written ruling on his most recent case, in which Mr. Lepofsky won an order in July that gave the TTC 30 days to start announcing all stops on its bus and streetcar system. (He had won a similar human-rights case about the subway system in 2005.)

The ruling labels the TTC a "two-time offender" and says it caused "irreparable harm" to the visually impaired by failing to make its drivers call out all stops. The ruling lays out a series of conditions for the TTC, in addition to calling stops - something the transit agency is in the process of addressing by installing automated equipment. The TTC must also give the nine city councillors who serve as commissioners special training on the needs of the disabled, as well as all future drivers, supervisors and senior managers.

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The Globe and Mail
Toronto News, Friday, November 30, 2007, p. A17
TRANSIT: HUMAN-RIGHTS COMPLAINTS
Committee recommends audit of TTC's legal bills

Jeff Gray

The city's auditor-general should investigate why the Toronto Transit Commission spent $450,000 fighting two human-rights complaints from a blind lawyer over the transit agency's refusal to make drivers announce all stops, a city council committee recommended yesterday.

"There's a question of accountability," said Councillor Karen Stintz (Ward 16, Eglinton-Lawrence), a critic of Mayor David Miller who moved the motion and arranged for the lawyer, David Lepofsky, to address the planning and growth committee. "What decision process was the TTC using to decide to spend almost $500,000 fighting a case it knew it would lose?"

Mr. Lepofsky, who lives in Ms. Stintz's ward, said he wanted the city to "find out who is responsible for this tremendous waste of public money" and hold them accountable.

After a 13-year battle, Mr. Lepofsky won two cases against the TTC. In 2005, the Human Rights Tribunal of Ontario forced the TTC to make subway announcements, costing it $268,000 in legal bills. Earlier this year, the same tribunal ordered it to make announcements on buses and streetcars, and the TTC spent $182,000 on that case. The TTC is now installing automated stop-announcement systems.

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Ontario Human Rights Commission
Office of the Chief Commissioner

180 Dundas Street West, 8th Floor
Toronto ON M7A 2R9
Tel.: (416) 314-4537
Fax.: (416) 314-7752

October 17, 2007

Dear Transit Services Provider:

Re: Transportation Services and Human Rights

The Ontario Human Rights Code guarantees the rights of persons with disabilities to equal access to adequate, dignified transportation. For the reasons set out in its 2002 consultation report, Human Rights and Public Transit in Ontario , the Ontario Human Rights Commission has long been concerned by the significant barriers that persons with disabilities face when attempting to access transportation services. I am writing to share two recent developments in the area of transit and human rights, and to request that you provide the Commission with information on your organization’s accessibility efforts with regard to the announcement of transit stops.

First, in August 2007, the Commission made a submission to the Accessibility Directorate of Ontario’s consultation on the Initial Proposed Transportation Accessibility Standard, a copy of which is enclosed. While the Commission believes that the Accessibility for Ontarians with Disabilities Act has the potential to have a profound positive impact on the lives of Ontarians with disabilities, the Commission has significant concerns regarding the proposed standard.

In a number of areas, it falls far short of fundamental human rights standards, and not only fails to make progress towards equality for persons with disabilities, but regresses on some gains previously made. The Commission believes that it is essential that these standards be harmonized with the requirements of the Ontario Human Rights Code. Failure to do so may result in human rights complaints and the attendant costs for the responsible organizations and individuals, rights-seekers and society as a whole.

In another development, this past July, the Human Rights Tribunal of Ontario released an important decision, Lepofsky v. Toronto Transit Commission, a copy of which is enclosed for your information. The Tribunal held that the failure of the Toronto Transit Commission to ensure announcement of all stops on buses and streetcars violated the human rights of persons with disabilities, and ordered the commencement of announcements within thirty days of the decision.

The Commission believes that the finding in this decision applies to other transit providers, and encourages all transit service providers to immediately consider how they can quickly begin to provide stop announcements to avoid facing human rights complaints.

To this end, and pursuant to its powers under section 29 of the Code, the Commission is requesting that you provide us with information regarding your efforts to ensure this aspect of accessibility. Please send your response to the Commission in writing by December 10, 2007, to the attention of Jacquelin Pegg, Policy Analyst, Policy and Education Branch.

Please provide materials detailing:

If your organization is not currently and consistently announcing all stops, please take this opportunity to develop plans to implement the Lepofsky v. TTC decision, and provide information to the Commission about:

Over the years, we have appreciated your support of our initiatives, and we hope to be able to showcase your efforts in this area when we report publicly this winter on the responses we receive.

If you have any questions about this letter, or the information requested, please do not hesitate to contact Jacquelin Pegg, by telephone at (416) 314-3574, or by e-mail at jacquelin.pegg@ohrc.on.ca.

Thank you in advance for your cooperation.

Yours sincerely,

Barbara Hall, B.A., LL.B., Ph.D. (Hon.)
Chief Commissioner

encl.
c.c.: Beatrice Schmied, Executive Director, Ontario Community Transportation Association
Michael Roschleu, President and CEO, Canadian Urban Transit Association

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Ontario Transit Services Expected To Announce All Transit Stops
Canada NewsWire
Thursday, October 25, 2007

TORONTO, Oct. 25 /CNW/ - Following up on several key developments in the area of accessible transit, Chief Commissioner Barbara Hall has written to transit services across the province http://www.ohrc.on.ca/en/resources/news/transitletter asking them to remove barriers faced by riders with disabilities.

"Stop announcements are not only necessary for visually impaired riders but can benefit all transit users including visitors and even many of us who can't see the stops due to crowds or weather conditions," commented Chief Commissioner Hall.

In a recent decision this past July in Lepofsky v. Toronto Transit Commission (TTC), http://www.canlii.org/en/on/onhrt/ doc/2007/2007hrto23/2007hrto23.html the Human Rights Tribunal of Ontario found that the TTC's failure to ensure announcements of all stops on buses and streetcars violated the human rights of persons with disabilities, particularly riders with visual impairments.

It ordered the TTC to begin announcing bus route stops within 30 days. This follows a similar ruling by the Tribunal in July 2005 involving a complaint about the lack of stop announcements in Toronto's subway system.

As part of its ongoing work to address human rights issues in public transit, in August, the Commission made a submission http://www.ohrc.on.ca/en/resources/submissions/transportsub to the Accessibility Directorate of Ontario setting out concerns that the Initial Proposed Transportation Accessibility Standard falls far short of fundamental human rights standards. For example, most of the accessibility requirements for transportation vehicles would apply only to new vehicles, leaving barrier removal on existing vehicles to the discretion of transportation providers.

Transportation providers could also continue to make non-inclusive design choices such as being able to purchase non-accessible second-hand buses.

"Let's be clear", commented Hall. "Commission policy and Tribunal decisions have set the bar much higher for transit accessibility."

Recent Tribunal cases have shown that a policy of announcing stops only upon request doesn't work. Transit providers should call out stops regardless.

The Commission is now asking transit services to review their accessibility policies and practices and inform the Commission on what steps they are taking to ensure all transit stops are announced. The Commission will then report publicly and consider its next steps so that the Tribunal decisions are applied equally across Ontario and the duty to accommodate riders with disabilities is respected.

Aussi disponible en français

For further information: Jeff Poirier, Manager, Communications, Policy & Education Branch, (416) 314-4539;
Afroze Edwards, Sr. Communications Officer, Policy & Education Branch, (416) 314-4528

*****

London Free Press October 26, 2007
Rights body urges announcing transit stops to assist blind

By MICHAEL OLIVEIRA, CP

TORONTO -- There's no excuse for drivers of public transit vehicles to not announce stops for passengers, the Ontario Human Rights Commission said yesterday in warning operators across the province they could be violating riders' rights if the practice isn't adopted.

Chief Commissioner Barbara Hall said the simple act of announcing each stop would be appreciated by all riders, but it would be especially helpful for the visually impaired.

Hall has written to all of the province's transit operators asking them to report back on their accessibility standards, and urging that their drivers make announcements for each stop.

"Our hope is that in the same way that many individual operators have adopted this as good practice, we'll get a similar response from companies that they view this as a good thing," she said.

Hall's appeal follows a recent decision by the Human Rights Tribunal of Ontario that ruled the Toronto Transit Commission was violating the rights of riders by not announcing every stop on buses and streetcars.

The tribunal made a similar ruling in 2005 over complaints about a lack of announcements in the city's subway system.

The complaints were launched by lawyer David Lepofsky, the founder and president of the Canadian Association for Visually Impaired Lawyers, who called the legal fight "a horrific battle."

Lepofsky applauded Hall for trying to apply the judgment across the province.

"There's no reason why they couldn't be doing this everywhere," he said. "Every bus has a driver, every driver has a mouth, and I sure hope they know what stop they're at."

But Lepofsky is still unhappy with the slow rate of progress, and he blamed the Ontario government for not pressuring transit operators to do more.

"Barbara Hall shouldn't have to do this," he said. "If the Disabilities Act was being properly implemented, we'd have an accessibility standard that would mandate this without needing the Human Rights Commission.

"The McGuinty government last summer proposed a transit standard for accessibility that would give transit providers up to 18 years to start doing this, and that is a serious failure of the government."

*****

Windsor Star October 31, 2007
News
Bus fare increase weighed

Transit Windsor board members will mull service reductions and a five-cent fare increase when 2008 budget deliberations resume today.

Last year, the transit system had an operating budget of $10.9 million, said Coun. Caroline Postma, who chairs the transit board. The initial budget request was for $11.2 million for 2008, an increase of 2.7 per cent.

Following a request by city administration that all departments reduce their budget requests by 10 per cent over last year, Transit Windsor administration has submitted a new budget request of $9.8 million.

"In order to achieve a requested 10 per cent decrease in our budget from last year, we will have to look at reducing services and increasing our basic adult fare by five cents," Postma said .

"And I think the board will have a difficult time with both those options at a time when we're trying to increase ridership."

Postma said the transit service is facing cost increases in areas including wages, insurance, fuel and maintenance of an aging fleet.

LIMITED OPTIONS

"It will be impossible to reduce our budget by 10 per cent and maintain our current service levels," Postma said .

Postma said the board will have limited options when it considers the budget.

"We can cut services and raise fares or we can go back to council with our original request," said Postma.

If a fare increase is approved, it would be the first since 2004. Adult fares would go from $2.35 to $2.40. Other increases would be put in place for students, seniors and tunnel bus fares.

The board is also expected to ask the Ontario Human Rights Commission for information on a recent request by the commission that transit services across the province begin announcing stops to their riders.

The request results from a July ruling by the Human Rights Tribunal of Ontario which ordered Toronto Transit to begin announcing bus route stops.

This follows a similar ruling by the tribunal two years ago ordering similar announcements on Toronto's subway system.

Announcements such as these not only help passengers with impaired vision but can also assist visitors and those who can't see the stops because of weather conditions or crowded buses.

Postma said transit systems will be required to make those announcements as the Ontarians With Disabilities Act is phased in over the next few years.

Dave Hall

*****

Windsor Star November 20, 2007
Editorial/opinion
A matter of human rights

Graphic: Photo: Windsor Star, File / NO ANNOUNCEMENTS: Transit Windsor bus drivers aren't required to announce bus stops in order to help blind passengers, but drivers with the Toronto Transit Commission were recently ordered to do so by the human rights tribunal.

Why won't Transit Windsor tell its bus drivers to announce each stop to help blind passengers? I won a human rights case in which the human rights tribunal ordered the Toronto Transit Commission to announce all bus stops.

The Windsor Star reported that Transit Windsor doesn't require drivers to announce stops, and doesn't plan to. TTC tried defending that position. It lost. Transit Windsor offers to announce stops if requested.

The tribunal ruled that inadequate. Drivers can forget to call stops. Calling all stops is more dependable.

Transit Windsor wants to install automated stop announcements, but thinks the province should help fund it. TTC argued its drivers can't safely announce all stops, pending installation of such technology. TTC's argument didn't hold up.

I never asked the TTC for automated announcements. Drivers announcing each stop is easy and without cost. Drivers have mouths and hopefully know their stops.

The tribunal gave TTC 30 days to direct its drivers to announce stops.

Most drivers are complying.

Blind and sighted Torontonians tell me they appreciate these announcements.

This isn't rocket science. In a few months most TTC drivers got 30 minutes of training. Transit Windsor can use TTC's video to train its drivers. If TTC can provide this in Canada's busiest city, so can Windsor.

Transit Windsor's chairwoman may be oblivious to this as a human rights code requirement. She appears to think it's only a requirement under the Disabilities Act, which she can duck for years. The Disabilities Act isn't a licence for delay. It doesn't reduce the duty to respect human rights.

I hope Transit Windsor doesn't blame blind people for proposed fare hikes. It can direct drivers to announce stops at no cost.

It can't disregard the human rights code until the province picks up all or part of the tab. It can't inflate the cost by preferring fancy automated announcements, and then complain it can't afford this without fare hikes or provincial subsidies.

Unless Transit Windsor directs drivers to announce stops, the Ontario Human Rights Commission should launch swift proceedings against it and enforce the law. It should do this to any transit authority disobeying Lepofsky v. TTC.

It should conduct those discussions in consultation with the blind community, whose rights are at stake.

Many of us opposed the government's recent changes, which largely privatized human rights enforcement. The Liberals said there's nothing to fear. They pledged the commission would be freed up to aggressively address these kinds of public interest human rights enforcement proceedings. If it does not honour that pledge, the Ontario Human Rights Commission will be dismissed as a toothless tiger.

Most can't believe TTC wasted $100,000 to $200,000 on lawyers opposing my bus stop announcements case, especially after I had won a case requiring TTC to announce all subway stops. Make sure Transit Windsor doesn't waste your taxes on lawyers in a similarly hopeless bid to evade the law. No public transit authority is above the law.

DAVID LEPOFSKY