Air Passenger Protection Regulations Highlights

Introduction

On May 24, 2019, the Canadian Transportation Agency (CTA) announced that the Air Passenger Protection Regulations are now finalized.

The final regulations reflect input that the CTA received from the public, consumer rights groups, and the airline industry during extensive consultations held from May 28 to August 28, 2018, and during a 60-day comment period following the publication of draft regulations on December 22, 2018. The regulations are being made by the CTA under the Canada Transportation Act (Act), as amended by the Transportation Modernization Act on May 23, 2018.

Overview

The regulations provide for clearer and more consistent air passenger rights by imposing certain minimum airline requirements in air travel – including standards of treatment and, in some situations, compensation for passengers. The regulations set out airlines' obligations to passengers in the following areas:

• Communication;
• Delayed or cancelled flights;
• Denied boarding;
• Tarmac delays;
• The seating of children under the age of 14;
• Lost or damaged baggage; and
• The transportation of musical instruments.

The regulations came into effect in two stages. On July 15, 2019, airlines were required to meet new obligations concerning communication, denied boarding, tarmac delay, baggage and the transportation of musical instruments. The remaining obligations on flight disruptions and seating of children came into effect on December 15, 2019.

Application

To ensure robust passenger protection, the regulations apply to all flights to, from, and within Canada. This includes connecting flights.

The regulations also apply to both large and small airlines. However, different requirements for compensation and rebooking apply to small airlines, given their unique operating circumstances. Large airlines are those that have transported at least two million passengers in each of the two preceding years. All other airlines are considered to be small.

The vast majority of passenger flights to, from and within Canada are operated by large airlines. Small airlines offer important services to remote, regional and northern areas of Canada, as well as low-cost services.

Flight Disruptions

The Act provides that airlines will have the following obligations to passengers in case of flight disruptions, depending on the level of their control over the situation:

• Situation within airline control: compensation; standards of treatment; and completion of passenger's itinerary;
• Situation within airline control but required for safety purposes: standards of treatment; and completion of passenger's itinerary;
• Situation outside airline control: completion of passenger's itinerary only.

Definitions of situations within and outside of the airline's control

• Situations within airline control are any situations not covered by the two categories below.For example, they include commercial overbooking; scheduled maintenance of an aircraft that is necessary to comply with legal requirements; or mechanical malfunction of the aircraft identified during scheduled maintenance.

• Situations within airline control but required for safety purposes are typically unforeseen events legally required to reduce safety risk to passengers. While this includes mechanical problems, it does not include scheduled maintenance or mechanical problems identified during scheduled maintenance. Safety decisions made by the pilot and those made under an airline's Safety Management System would also fall into this category.

• Situations outside airline control include: war or political instability; illegal acts or sabotage; meteorological conditions or natural disasters that make the safe operation of the aircraft impossible; instructions from air traffic control; a Notice to Airmen (as defined in the Canadian Aviation Regulations); a security threat; airport operation issues; a medical emergency; a collision with wildlife; a labour disruption within the carrier or within an essential service provider such as an airport or an air navigation service provider; a manufacturing defect in an aircraft that reduces the safety of passengers and that was identified by the manufacturer of the aircraft concerned, or by a competent authority; and an order or instruction from an official of a state or a law enforcement agency or from a person responsible for airport security.

Requirements as of July 15, 2019

General information

The regulations require that passengers be informed of their rights in a timely, clear and accessible way. Airlines will have to provide passengers with information in simple, clear and concise language on their terms and conditions of carriage for:

• Flight delay or cancellation;
• Denial of boarding;
• Lost or damaged baggage; and
• The seating of children under 14 years of age.

This information will have to be provided electronically and on all travel documents the airline provides to the passenger. This could be done via a hyperlink to the airline's website. Airlines will also be required to make reasonable efforts to ensure that official ticket resellers provide this information to customers.

During a flight disruption

Airlines will be required to keep passengers regularly informed if there is a flight disruption (flight and tarmac delays; flight cancellations; and denials of boarding).

They will have to tell passengers why their flight has been disrupted as soon as is feasible. This information will have to be provided through:

• an audible announcement;
• a visible announcement, upon request; and
• the available communication method the passenger has selected (e.g., email, SMS).

Airlines will have to provide flight status updates every 30 minutes until a new departure time has been confirmed. The airline must offer any new status information to passengers as soon as is feasible, which may be sooner than 30 minutes after the last update.

Accessibility for persons with disabilities

Airlines will have to ensure that communication is accessible to persons with disabilities. Where information is provided digitally, the format will have to be compatible with adaptive technologies used by persons with disabilities. If information is provided in paper format, the airline will have to be able to provide it in large print, Braille or a digital format, upon request.

Denied boarding occurs when a passenger has a valid ticket for a flight, but is not allowed to occupy a seat on board the aircraft because the number of passengers who have checked in, have proper documentation and are at the gate on time is greater than the number of available  seats that can be occupied.

Before any carrier denies boarding to a passenger for reasons within its control or required for safety, it must look for volunteers to give up their seat. Once an airline has found a volunteer to give up their seat, the airline must put in writing for them the benefits agreed to prior to the departure of their flight.

Any passenger who is denied boarding for a reason that is within the airline's control and is not required for safety – for example, commercial overbooking or a change in aircraft due to scheduled maintenance – would be entitled to compensation. A passenger's compensation would be based on length of delay at arrival at their final destination.

Minimum Levels of Compensation

The airline operating the affected flight will have to issue compensation at the time the passenger is notified that they are denied boarding. The amount of compensation could be supplemented if a passenger's delay at arrival is longer than was expected when payment was issued. If payment cannot be made before the passenger's new departure time, the airline would be required to issue the payment within 48 hours.

After an airline denies boarding to a passenger, they must rebook them free of charge, meeting the same obligations as described for flight delays and cancellations below. While the passenger waits for their new flight, the airline must provide the standards of treatment described for flight delays and cancellations below.

The regulations ensure that during tarmac delays – whether they occur in Canada or abroad – passengers are properly treated.  Standards of treatment for all tarmac delays include, at minimum, access to working lavatories, proper ventilation and heating or cooling, food and drink, and the ability to communicate with people outside the plane free of charge, if feasible.

As well, after a 3 hour tarmac delay at a Canadian airport, airlines will be required to return to the gate so that passengers can disembark. However, a plane will be permitted to stay on the tarmac for up to 45 additional minutes, if it is likely that it will take off within that period and the airline is able to continue providing the required standards of treatment.

This allowance for a short extension is intended to ensure that the plane can take off if there is a reasonable prospect of this occurring – so that passengers reach their final destination and do not suffer further inconvenience caused by a flight cancellation.

However, if take off is not likely to occur within that 45 minute window, the plane will have to return to the gate. In no circumstances will airlines be permitted to exceed this time, unless they are prevented for reasons related to safety, security, customs or air traffic control.

Under the Montreal Convention, an international air transport treaty to which Canada is a party, airlines can be held liable for baggage that is damaged, delayed or lost during international travel, up to approximately $2350, subject to currency exchange rates. To provide better protection to passengers travelling within Canada, the airlines will be held liable for up to the same amount for baggage that is lost or damaged during domestic flights. For delayed baggage, the applicable limits of liability and related terms and conditions are those set out by airlines in their domestic tariffs (the contract of transport between the passenger and the airline), which are expected to be consistent with the Montreal Convention.

A passenger must file a claim for expenses in writing with the airline. For damaged baggage, the claim must be submitted within seven days after the passenger receives the baggage. For potentially lost baggage, the claim should be submitted as soon as possible. For delayed baggage during international travel, the claim must be submitted within 21 days after receiving the baggage. For delayed baggage during domestic flights, the claim should be submitted as soon as possible and no later than the time limit found in the terms and conditions applicable to the ticket purchased with the airline.

In addition, the regulations require airlines to reimburse passengers for any baggage fees paid if their baggage is damaged or lost. For delayed baggage, obligations regarding fees charged for baggage would be outlined in the airline's tariff.

Airlines will have to include, in their tariffs, terms and conditions of carriage regarding the transportation of musical instruments as checked or carry-on baggage. This includes:

• Weight, size and quantity restrictions;
• Cabin storage options;
• Options in the event of aircraft downgrading; and
• Fees for transporting musical instruments.

A policy which simply states that the airline will not accept musical instruments does not meet the requirements.

Requirements as of December 15, 2019

Communication

In addition to the communication requirements above, airlines have to provide passengers with information on the applicable standards of treatment and compensation. They also have to tell passengers about their recourse options, including the ability to make a complaint to the Canadian Transportation Agency.

Minimum Levels of Compensation

Airlines are required to pay passengers compensation for flight delays or cancellations that are in their control and not related to safety. Passengers are entitled to compensation based on the length of delay at arrival at their final destination:

A passenger has one year to make a compensation claim with the airline that operated the disrupted flight. The airline has 30 days to respond by issuing a payment or indicating why it believes compensation is not owed.

Airlines have to offer passengers this compensation in monetary form. They can also offer passengers alternative forms of compensation (e.g., vouchers or rebates), but passengers always have the right to select what they prefer. As well, alternative forms of compensation offered have to be of higher value than the monetary compensation that is required, and can never expire.

Standards of Treatment

The regulations establish minimum standards of treatment that airlines have to provide to passengers for delays at departure that are within their control, or within their control and required for safety purposes.

After a delay at departure of 2 hours, the airline operating the disrupted flight has to provide:

• food and drink in reasonable quantities; and
• a means of communication (e.g., free wifi).

If a passenger must wait overnight, airlines have to offer hotel or other comparable accommodation free of charge, as well as free transportation to the accommodation.

Rebooking and refund

For all types of flight delays or cancellations, the airline operating the flight has to ensure passengers complete their itinerary (that is, reach their final destination). When a flight is cancelled, or once a delay reaches 3 hours, an airline must also offer alternate travel arrangements in the same class of service and using a reasonable route. The airline must rebook the passenger on the next available flight operated by them or an airline with which they have a commercial agreement.

If the situation is within the airline's control (whether or not it's related to safety), if that next available flight would not leave within 9 hours of the original departure time, a large carrier must rebook the passenger on a flight operated by any airline. This could mean booking a ticket with a competing airline.

If a large airline is unable to rebook a passenger on a flight leaving the same airport within 48 hours of the original departure time, they have to book the passenger on a flight leaving another airport, if there is an option nearby.

For disruptions other than those outside the airline's control, a passenger would be entitled to a refund instead of rebooking, if:

• the arrangements offered do not meet their travel needs; or
• there is no longer any purpose to the travel, because of the disruption.

Passengers who experience a flight disruption that is within the airline's control but not required for safety and who choose to take a ticket refund instead of rebooking must still be compensated for inconvenience. Large airlines must pay them $400 and small airlines, $125.

In the event of a flight disruption outside of the airline's control, a large airline is required to rebook using the services of another (competing) airline, if the next available flight operated by them or an airline with which they have a commercial agreement does not depart within 48 hours of the end of the event that caused the disruption.

If a large airline is unable to rebook a passenger on a flight leaving the same airport within 48 hours of the end of the event that caused the disruption, they have to book the passenger on a flight leaving another airport, if there is an option nearby.

Airlines have to, at no extra cost and at the earliest opportunity, help seat children under the age of 14 near to their parent, guardian or tutor. The proximity depends on the age of the child:

Under the age of 5:

in a seat adjacent to their parent, guardian or tutor.

Aged 5 to 11:

in the same row and separated by no more than one seat from their parent, guardian or tutor.

Aged 12 or 13:

separated by no more than a row from the parent, guardian or tutor.

Airlines are also required to establish a policy for unaccompanied minors, and prohibit minors under the age of five from travelling without their parent or an accompanying person who is at least 16 years old.

Enforcement

Airlines are required to follow the obligations set out in the regulations as soon as they come into force and could be subject to administrative monetary penalties of up to $25,000 per incident for non-compliance. In the event of an air travel-related dispute that cannot be resolved directly by a passenger and an airline, the passenger can make a complaint to the CTA.