Are Canada’s Air Passenger Protection Regulations Working?

By Myrna El Fakhry Tuttle

Reposted from LawNow 47(5) with permission

Canada’s Air Passenger Protection Regulations protect passengers traveling to, from or within Canada, including by setting out compensation rules for when flights are delayed or cancelled.

When something goes wrong with our flight, we get very annoyed.

Nowadays, there are a lot of complaints about airlines delaying and cancelling flights and their refusal to or delay in paying compensation, as well as staff shortages.

Air Passenger Protection Regulations

Since December 2019, the Air Passenger Protection Regulations (APPR) have protected passengers travelling to, from, or within Canada. The APPR were amended in 2022 and 2023, and all airlines flying to, from, or within Canada must follow them.

The 2019 APPR explain how airlines should communicate with passengers and the standards of treatment in case of a flight disruption. According to the APPR, the airline must tell passengers the reason for the flight disruption, and passengers must be informed of their rights in “a timely, clear, and accessible way”.

Airlines must follow the obligations set out in the APPR. If they do not, the Canadian Transportation Agency (CTA) can fine them for non-compliance.

In International Air Transport Association v Canadian Transportation Agency, the Federal Court of Appeal defined the CTA:

The Agency is a regulator and quasi-judicial tribunal. It is empowered by the CTA [Canada Transportation Act], its enabling statute, to develop and apply rules that establish the rights and responsibilities of transportation service providers and users. As part of its regulatory function, the Agency makes determinations relating to matters such as the issuance of licenses, permits, and exemptions where appropriate, within the authority granted to it by Parliament. The Agency is also empowered to assign administrative monetary penalties to any breaches of the CTA or its regulations and to take enforcement action through designated enforcement officers. As a quasi-judicial tribunal, the Agency is tasked with resolving commercial and consumer transportation-related disputes, as well as adjudicating accessibility issues for persons with disabilities.  (at para 7)

Amendments to the 2019 APPR

The 2019 APPR divided flight disruptions into three different situations:

·       those within the airline’s control

·       those within the airline’s control but required for safety

·       those outside the airline’s control

Airlines were required to compensate passengers only if the delay was within the airline’s control, for example if the flight was overbooked or oversold.

In June 2022, and as a result of many chaotic flight disruptions, the Canadian government decided to amend the APPR through the Regulations Amending the Air Passenger Protection Regulations. The updated rules came into force in September 2022.

The 2022 regulations kept the three categories but airlines were “to provide passengers with either a refund or rebooking, at the passenger’s choice, when there is a flight cancellation, or a lengthy delay, due to a situation outside the airline’s control that prevents it from ensuring that passengers complete their itinerary within a reasonable time.”

Criticisms of the APPR and its Amendments

Compensation

These regulations, which set out the standards of treatment and levels of compensation, provide protection in case of flight disruptions. Under previous versions of the APRR, airlines could easily escape paying compensation for flight delays or cancellations by claiming the situation was either outside of their control or within their control but required for safety reasons.

As T.J. Dunn put it:

[…], some of the language used in the regulations leaves a lot to be open to interpretation by the airlines, which could result in passengers not being compensated in situations where they should be.

For example, there don’t seem to be any easy ways of verifying the exact cause of a flight delay or cancellation. Rather, it seems that the airlines have been placed on an honour system, which could lead to them painting situations that are within their control as situations beyond their control.

In this sense, the burden of proof is put on passengers, who then have to go through a lengthy complaint process with the CTA or take the airline to small claims court for a hearing.

In May 2023, Nolan Magee, a British Columbia resident, travelled with Air Canada to Rome from Vancouver. Their journey included “four rescheduled flights, three hours on a tarmac and a day-late departure without a voucher for an overnight hotel stay.”

Passengers were not informed of the real reason for the disruption. Air Canada’s only response was “unexpected business or operational constraints.” Magee, who was offered $300 as compensation, stated: “I think they’re taking advantage of this because the only official recompense that a passenger has in this situation is to make an official complaint through the [CTA].” He added, “Air Canada knows that they can refuse to pay what they should be paying and [that] our only recourse has a two-year delay”.

Dr. Gábor Lukács, President, Air Passenger Rights, told the Standing Committee on Transport, Infrastructure and Communities (the Committee) that “operating an airline is not a charity. At the same time, they provide a service, and that service has to be reliable. … Refunds should be provided regardless of the reason for cancellation. Compensation, however, is specifically meant to address a passenger’s lost time, inconvenience, and productivity value”.

Dr. Lukács also stated to the Committee that “the CTA’s enforcement capacity must be enhanced. The CTA currently lacks the ability to enforce regulations, to ensure that airlines will think twice before they break the law.” In addition, Dr. Lukács recommended “introducing mandatory minimum fines, as the CTA has not been issuing fines anywhere near the limit already available.” Prior to September 2023, the maximum fine was $25,000.

In fact, in January 2023, the head of the CTA admitted to the Committee “that the agency hasn’t levied a single fine for failing to compensate passengers.”

However, maybe harsher fines would motivate airlines to comply with the APPR. John Gradek, a professor at McGill University, stated: “they [airlines] won’t be playing games because they know as soon as they start playing games they’ll get slapped pretty hard with fines”.

Backlog of Complaints

In March 2023, Minister of Transport Omar Alghabra announced $75.9 million in additional funding over three years for the CTA to deal with the backlog of passenger complaints related to flight disruptions.

In September 2023, according to the Canadian Press, there was a backlog of 57,000 complaints, an average of 3000 complaints per month, with the CTA. This number is three times the total from September 2022.

Commentary

In June 2023, once again, Parliament amended the Canada Transportation Act, which proposed changes to the APPR “to clarify, simplify and strengthen consumer protection for air passengers.”

The amendments removed the three flight disruption categories all together. Airlines now must compensate passengers for flight disruptions, unless the airline can prove there are exceptional circumstances. Fines for airlines that violate the APPR also increased from $25,000 to $250,000.

The new changes took effect on September 30, 2023. We will have to wait and see if the new amendments are going to be effective at remedying the criticisms they aim to address.