Inquiry Officer’s Report into complaints that airlines did not respect communications obligations under the Air Passenger Protection Regulations

Case No. 20-01590

September 30, 2020

Prepared by: Tom Oommen, Inquiry Officer

Appointment of Inquiry Officer and Scope of the Inquiry Officer’s Report

On February 13, 2020, the Canadian Transportation Agency (Agency) opened an inquiry into complaints from passengers alleging that air carriers did not accurately communicate the reasons for flight delays or cancellations, as required by the Air Passenger Protection Regulations, SOR/2019-150 (APPR). As stated in Decision No. LET-C-A-12-2020, the purposes of the proceeding are to “look into allegations made on communications-related issues in multiple complaints in an efficient manner, and to ensure that the communications-related requirements of the [APPR] are clear for both passengers and air carriers”. Decision No. LET-C-A-44-2020 clarified that “all information in the possession of air carriers relating to the actual reason for a flight delay or cancellation or to any communications to passengers regarding the reason for a flight delay or cancellation” are relevant to the inquiry, and that this includes “responses by air carriers to passengers’ requests for compensation sent pursuant to subsection 19(4) of the APPR”.

In an e-mail message dated February 13, 2020, the Agency appointed the Agency’s Chief Compliance Officer as an Inquiry Officer pursuant to subsection 38(1) of the Canada Transportation Act, SC 1996, c 10. Working with support from Agency staff, the Inquiry Officer was responsible for conducting the inquiry and reporting to the Agency. The Inquiry Officer’s mandate was to obtain any documents, records and information relevant to the inquiry; conduct interviews and take written statements from individuals and organizations directly involved in the complaints; and submit a report to the Agency.

The inquiry focused on 567 complaints against Air Canada, Westjet, Swoop, Sunwing, Air Transat, and United Airlines (respondent air carriers).

The inquiry was conducted over the period from February 24, 2020, to September 30, 2020, with an interruption from March 18, 2020, to June 30, 2020 (Order No. 2020-A-32 and Order No. 2020-A-37), as a result of the COVID-19 pandemic. This report, prepared by the Inquiry Officer, presents the factual evidence gathered with respect to the complaints that form part of the proceeding, as well as the issues that the Inquiry Officer highlights, which may require Agency interpretation, and is hereby presented to the Agency for decisions on next steps.

Background

The APPR came into force in two stages.

On July 15, 2019, the first group of provisions came into force. This included the obligation to provide affected passengers with information on the reason for a flight disruption, pursuant to paragraph 13(1)(a) of the APPR, which states:

13 (1) A carrier must provide the following information to the passengers who are affected by a cancellation, delay or a denial of boarding:

(a) the reason for the delay, cancellation or denial of boarding

[…]

This also included the communication requirements set out in subsections 13(2) and (3) of the APPR, which provide the following:

13(2) In the case of a delay, the carrier must communicate status updates to passengers every 30 minutes until a new departure time for the flight is set or alternate travel arrangements have been made for the affected passenger.

13(3) The carrier must communicate to passengers any new information as soon as feasible.

The second group of provisions came into force on December 15, 2019. This included the obligation to provide information, as required by paragraphs 13(1)(b), (c) and (d) of the APPR that states:

13 (1) A carrier must provide the following information to the passengers who are affected by a cancellation, delay or a denial of boarding:

[…]

(b) the compensation to which the passenger may be entitled for the inconvenience;

(c) the standard of treatment for passengers, if any; and

(d) the recourse available against the carrier, including their recourse to the Agency.

From December 15, 2019, to February 13, 2020, the Agency received over 3,000 complaints from air passengers alleging that respondent air carriers did not accurately communicate the reasons for flight delays or cancellations.

Considering that this was too large a number of complaints to be examined in a single proceeding with the Agency’s existing resources, the Agency joined 567 complaints based on criteria such as the issues raised and the number of complaints per carrier and per flight.

The 567 complaints were made with respect to 182 flights operated by the respondent air carriers.

Methodology

In an e-mail message dated February 24, 2020, the Inquiry Officer informed the respondent air carriers of his plans for carrying out his mandate. For each of the 182 flights, the Inquiry Officer, assisted by Agency staff, reviewed passenger complaints, conducted interviews with the respondent air carriers, and collected relevant documentation, with the purpose of establishing the facts associated with those flights and determining whether any particular trends or issues should be flagged to the Agency. In order to conduct the inquiry more efficiently, an exception was made for 63 Air Canada flights for which there were only one complaint, as these were considered unlikely to raise new issues that were not raised by the other 504 complaints (see “Air Canada Single Complaint Flight List” in Appendix B of this report). Although basic information was collected on each of these 63 flights, they were not subject to a detailed review with Air Canada representatives, nor to the provision of additional supporting documentation.

With the exception of these 63 Air Canada flights, the flights covered by the inquiry are listed in the Summary Table (see Appendix A of this report). For each of these flights, the Summary Table describes:

  1. the sequence of events of the flight disruption, as obtained from the air carrier and as ascertained by the Inquiry Officer during the course of the inquiry;
  2. the communications with passengers during and after the flight disruption;
  3. the categorization of the flight disruption by the carrier (within the carrier’s control, within the carrier’s control but required for safety purposes, or outside the carrier’s control); and
  4. any issues with respect to the flight that the Inquiry Officer highlights for consideration.

The Summary Table and the text below constitute the substance of the Inquiry Officer’s report.

Preliminary Observations

Flight disruptions are often complex and can result from multiple causes and involve a chain of flights, as respondent air carriers attempt to deal with them. Regardless of the cause, passengers are impacted when flights are delayed or cancelled. While there was no evidence gathered during the course of the inquiry that suggests that the respondent air carriers deliberately mischaracterized flight disruptions or miscommunicated to passengers with the purpose of relieving themselves of their obligations towards passengers, inadequate preparation for the coming-into-force of the APPR appears to have led to a number of communication and implementation issues. Poor communication can exacerbate passenger frustration and may have led passengers to suspect that they were not being provided with correct information. This is illustrated by flight disruptions for which some passengers were compensated, while others were denied compensation, sometimes in error (see, for example, Flight Nos. 16 and 133).

One of the challenges encountered by the Inquiry Officer was the collection of documentation concerning air carrier communication with passengers. On the one hand, most of the respondent air carriers were in a position to provide the Inquiry Officer with the written notifications that were sent to passengers during the flight disruptions, with the exception of United Airlines, whose existing archival system does not retain that information beyond 90 days from the flight disruption in question.

On the other hand, most of the respondent air carriers do not retain records of the timing or text of oral announcements, whether at the airport or on board flights. The exceptions were Sunwing, which kept handwritten logs by their employees of the oral announcements that were made at the airport, and Air Transat, which created a record of some key announcements. This lack of documentation was particularly noteworthy with respect to communication regarding the standard of treatment that was being offered to passengers in terms of meal vouchers, ground transportation, and hotel accommodations because most of this communication was provided verbally. Hence, the Inquiry Officer was unable to determine, in most cases, when oral announcements were made and what the contents of those announcements were.

Findings on Communications

Air carriers are required to provide passengers affected by a flight disruption with clear, timely and accurate information (subsections 13(1), (2), and (3) of the APPR). The Agency’s guidance document, Communicating Key Information to Passengers: A Guide, states that “communicating with passengers is a key obligation for [air carriers]”, and that “[air carriers] must provide information that is clear and concise [...] ”.

During the inquiry, issues were found with respect to the provision of information to passengers, either during or after the flight disruption, for many of the flights that are subject to the complaints that form part of the inquiry.

It should be noted that, with respect to Air Canada, there was the common occurrence of referring to “scheduling issues” when explaining why compensation was denied, notwithstanding the various other reasons that were provided during the flight disruption itself. (For example, see Flight Nos. 46, 47, 49, 50, 52, 55, 58, 59, 60, 67, 89, 99, 101, 109, 115, 116, and 118.) During the course of the inquiry, Air Canada notified the Inquiry Officer that there was a system error that resulted in “scheduling issues” being provided as the underlying reason for the flight disruptions in response to passenger requests for compensation. Air Canada stated that it had both established a temporary fix to this problem and was working on permanently fixing the error.

Highlighted Issue 1

Unlike the other respondent air carriers, at the time of the flights subject to complaints that form part of the inquiry, Sunwing had no system in place to provide the reasons for flight disruptions in written notifications (“flight alerts”) to passengers during the flight disruptions, but stated to the Inquiry Officer that they were in the process of modifying their system to add this functionality.

Highlighted Issue 2

During flight disruptions, passengers were commonly provided with terse statements regarding the reasons for the delay or cancellation. For a number of flights where there were multiple reasons for the flight disruption, passengers were provided with accurate information about the reason for a specific component of the flight disruption as the situation evolved. However, passengers were not provided with enough information to understand that each of the specific reasons was correct at the time that it was given and how one was linked to the others. Consequently, this led passengers to question the legitimacy of the reasons provided. Examples of flights where this issue arose include Flight Nos. 10, 33, 35, 37, 48, 50, 51, 57, 103, and 117.

Highlighted Issue 3

Implementation issues with respect to the obligation to communicate clear, timely, and accurate information often persisted post-event, when, in response to a request for compensation, the air carrier only referenced one reason amongst the multiple reasons communicated during the flight disruption; the reason(s) referenced was worded differently from the reason(s) provided during the flight disruption; or the flight disruption was categorized differently (e.g. required for safety purposes rather than outside the carrier’s control) than from what passengers had originally been told during the flight disruption. In the case of complex flight disruptions, respondent air carriers did not provide enough information to allow the passengers to have a credible narrative of the flight disruption, even when some time had passed after the flight disruption and a request for compensation had been filed. Examples of flights where this issue arose include Flight Nos. 14, 15, 17, 18, 25, 36, 37, 41, 45, 53, 56, 62, 65, 69, 70, and 112.

Highlighted Issue 4

There were a number of flights where complainants claim that employees of the air carrier provided them individually with additional information about the flight disruptions; however, the information provided individually differed from passenger to passenger or did not correspond to the information that was provided through written notifications from the air carrier. Moreover, there were several flights where the complainants claim that employees of the air carrier suggested to them, during the flight disruption, that they would be compensated, but following a request for compensation, their claim was denied by the air carrier. Examples of flights where this issue arose include Flight Nos. 1, 4, 5, 11, 14, 15, 34, 35, 41, 47, 51, 54, 66, 69, 84, 88, and 92.

Highlighted Issue 5

There were a number of cases where complainants were denied compensation following a request for compensation, yet different reasons for the denial were provided to different passengers. Examples of flights where this issue arose include Flight Nos. 1, 3, 4, 5, 7, 8, 32, 36, 47, 51, 64, and 107.

Highlighted Issue 6

There were a number of cases where it was unclear whether the air carrier was referring in its response to a request for compensation to the subject flight, to another disrupted flight in the passenger’s itinerary, or to recovery flights (see, for example, Flight Nos. 3, 5, 45, and 59). In other cases, a passenger’s flight was cancelled, and the passenger was subsequently rebooked (reprotected) on another flight, which experienced a delay. When the passenger claimed compensation for the cancelled flight, in many cases, the carrier responded with respect to the reprotected flight, rather than the cancelled flight. This appeared to be the case with respect to Flight Nos. 60, 61, 66, 76, 78, 87, 88, 93, 98, 103, 104, 105, 113 and 115.

Additional Issues

The inquiry focused on complaints from passengers alleging that the respondent carriers provided inaccurate or inconsistent information regarding the reasons for flight delays or cancellations. When gathering and analyzing facts relevant to the consideration of these allegations, the Inquiry Officer identified issues that were intimately connected to the purpose of the inquiry: the categorization of flight disruptions, the definition of “scheduled maintenance” and the interpretation of a knock-on effect. These interrelated issues, for which the Agency may wish to provide interpretive guidance, are discussed below.

Categorization of Flight Disruptions

An air carrier that refuses to provide compensation following a request from a passenger must provide an explanation for the denial, pursuant to subsection 19(4) of the APPR, which states:

19(4) The carrier must, within 30 days after the day on which it receives the request, provide the compensation or an explanation as to why compensation is not payable.

Sections 10, 11 and 12 of the APPR divide air carriers’ obligations to passengers, in case of flight disruptions, into three categories depending on the level of their control over the situation: those that apply when a situation is within the carrier’s control, those that apply when the situation is within the carrier’s control but required for safety purposes, and those that apply when the situation is outside the carrier’s control.

The Agency’s guidance document, Types and Categories of Flight Disruption: A Guide (hereinafter referred to as the Guide on flight disruptions), provides further explanations and illustrative examples with respect to the categorization of flight disruptions. The Guide on flight disruptions also discusses considerations when determining the category of the flight disruption and notes that there may be cases where the cause of the flight disruption “normally found in one category […] belongs more fairly in a different category, due to extenuating circumstances such as third-party actions.”

During the inquiry, respondent air carriers indicated that they rely on the “Guidelines on Air Travel Performance Data Collection for Large and Small Carriers”, issued by Transport Canada (available on request). This document provides guidance with respect to the data reporting obligations under the Transportation Information Regulations, SOR/96-334. The guidance includes a correspondence between delay codes used by carriers and the categorization of the delay codes for the purposes of mandatory data reporting to Transport Canada. The document includes the disclaimer that it “does not provide guidance on any of the obligations under the [APPR], which is made under a separate authority of the Canada Transportation Act. This guidance has no bearing on the Canadian Transportation Agency’s interpretation or enforcement of the APPR.”

An examination of the flights covered by the inquiry highlighted several issues with respect to the categorization of the flight disruption that is communicated by respondent air carriers to passengers.

A number of flights had multiple reasons for the flight disruption. The Agency’s guidance document, Types and Categories of Flight Disruption: A Guide states that “if a flight is delayed or cancelled due to multiple factors, the primary cause, or the most significant contributing factor, will normally determine the category.” In some cases, the reasons for the flight disruption are independent, such as bad weather and an unrelated mechanical problem. In other instances, the reasons are dependent, where one reason results in a subsequent reason for an additional delay within a flight disruption. For example, the first reason for a flight disruption could be a mechanical problem in an aircraft which, even though repaired, might have resulted in the flight crew exceeding its maximum allowed hours of work (crew time-out). Crew time-out would be a subsequent reason for the flight disruption, as a result of the first reason.

Highlighted Issue 7

In several instances, there were multiple independent reasons for the flight disruption, as well as dependent reasons. For Flight Nos. 15 and 55, for example, there were two independent reasons for the flight disruption. Although the third reason that contributed to the delays on both flights was “crew time-out”, this reason was caused by the first two independent reasons. In these cases, the Guide on flight disruptions could be interpreted as meaning that in order to categorize the flight disruption, the air carrier should first determine which were the independent reasons for the flight disruption (the “primary cause”), and then determine which of these was “the most significant”.

Issues were found in several flight disruptions with respect to crew availability or crew time-out as the cause or a major contributing factor to the flight disruption. The Guide on flight disruption states that flight disruptions caused by “staff and flight crew scheduling and availability” would “generally be within [the carrier’s] control”, but that the Agency “would take a case-by-case approach to categorizing flights delayed or cancelled for these reasons – particularly when the crew goes over duty time (“times out”). The Guide on flight disruption states that the following factors will be considered, as well as any others that are relevant to the case:

  • the location of the aircraft at the time of the flight disruption, which can affect the scheduling of new crew; and
  • whether there were events affecting the flight that caused the staffing shortage and whether or not those events were outside the carrier’s control. For example, a weather-related delay, a mechanical malfunction, or other factors.

Highlighted Issue 8

For Flight Nos. 25 and 65, a last-minute medical issue with a member of the crew in Cancun highlights the issue of categorization of a flight disruption. Does this issue fall within the language of "generally within [the carrier’s] control" as noted in the Guide on flight disruption or does the location of flight departure (Cancun) result in the flight disruption falling within the other two categories? And if so, which of the two categories – outside the carrier’s control, because of the unexpectedness of the reason, or within the carrier’s control but required for safety purposes, because of the assessment that the flight should not depart with reduced crew? Among the flights covered by the inquiry, there are examples of the carrier categorizing such crew-related flight disruptions as outside carrier control (see, for example, Flight No. 37) and as within carrier control but required for safety purposes (see, for example, Flight No. 100).

Highlighted Issue 9

In respect of Flight No. 84, the flight disruption was due to a disruption to the operating carrier’s computer network that was not due to an external factor, such as a cyberattack, and that delayed all of the operating carrier’s flights during the day in question. This raises the issue of the proper categorization of flight disruptions due to issues with computer networks and information technology systems that go beyond mechanical malfunctions to a specific aircraft, and the factors that determine whether such disruptions may in some cases fall within one category, and in others, in another category.

Highlighted Issue 10

There were a number of flights considered in this inquiry which, for some passengers, were just one leg in a multi-flight itinerary. In a number of those itineraries, there were flight disruptions on more than one flight in the itinerary, and this played a role in what the carrier communicated to complainants about the categorization of the flight disruptions. Consider the following situation: Flight A is delayed by 4 hours for a reason within the carrier’s control and the passenger misses their connection on Flight B. The carrier rebooks the passenger on Flight C scheduled to leave an hour later. However, Flight C is delayed 10 hours for reasons outside the carrier’s control. The passenger requests compensation for one of the flights. The carrier could :

  1. respond that the delay to Flight A was the root cause of the passenger’s delay and communicate to the passenger accordingly with respect to categorization and compensation;
  2. respond that the delay to Flight C was the longest delay and communicate to the passenger accordingly with respect to categorization and compensation.

Respondent air carriers chose the first option in the case of Flight No. 105, for example, but chose the second option in the case of Flight No. 41.

Scheduled Maintenance

Subsection 11(1) of the APPR establishes that flight disruptions caused by scheduled maintenance are within the carrier’s control, while subsection 1(1) provides related definitions of “mechanical malfunction” defined as “a mechanical problem that reduces the safety of passengers but does not include a problem that is identified further to scheduled maintenance undertaken in compliance with legal requirements” and “required for safety purposes”, which means “required by law in order to reduce risk to passenger safety and includes required by safety decisions made within the authority of the pilot of the aircraft or any decision made in accordance with a safety management system as defined in subsection 101.01(1) of the Canadian Aviation Regulations but does not include scheduled maintenance in compliance with legal requirements.” The APPR establishes that a flight disruption caused by a "mechanical malfunction" is therefore within the carrier’s control but required for safety purposes. However, this is not the case for a flight disruption caused by "scheduled maintenance", which the APPR establishes as within the carrier’s control.

The Agency’s guidance document, Types and Categories of Flight Disruption: A Guide, states that flight disruptions caused by “routine or scheduled maintenance, including any subsequent repairs or required activities”, are within the carrier’s control. Furthermore, the Guide on flight disruption explains that respondent air carriers are expected “to schedule the time that an aircraft is out of service for routine maintenance appropriately, so that passengers are not affected by last-minute cancellations or delays.”

The Guide on flight disruption also recognizes that “not all mechanical malfunctions can be foreseen or prevented through regular maintenance”, and that “flight disruptions caused by these unexpected aircraft malfunctions (not identified in routine maintenance) would be within [the carrier’s] control but required for safety.”

The mechanical issues that resulted in the flight disruptions examined for the purpose of the inquiry were discovered during aircraft operations (including pre-flight checks), rather than during routine or scheduled maintenance, with the following possible exceptions, which are discussed below for consideration: Flight Nos. 32, 82, and 90.

Highlighted Issue 11

In the case of Flight No. 32, the mechanical issue that caused the flight disruption was detected during the previous night, while repairs were being conducted on the aircraft for another unrelated issue. This raises the question of whether the mechanical issue should be considered to have been discovered during "scheduled maintenance".

Highlighted Issue 12

In the case of Flight No. 90, the mechanical issue that caused the flight disruption was detected between the landing of the aircraft and the departure of the flight, during post- / pre-flight servicing of the aircraft. This was also the case for Flight No. 82, where a mechanical issue was discovered during post-flight servicing of the aircraft, and was reportedly addressed, but was again reported shortly before departure of the flight, eight hours later. These cases raise the issue of whether the mechanical issues should be considered to have been discovered during "scheduled maintenance".

Knock-On Effects

In situations where a flight disruption was the result of a knock-on effect from a previous flight disruption, subsections 10(2) and 11(2) of the APPR state that the categorization of the previous flight disruption, as either outside the carrier’s control or within the carrier’s control but required for safety purposes, will also apply to the subsequent flight "if the carrier took all reasonable measures to mitigate the impact of the earlier flight delay or cancellation". With respect to Flight No. 67, for example, if it is accepted that the flight disruption of a previous flight was due to a mechanical issue that was within the carrier’s control but required for safety purposes, then the categorization of the subsequent flight disruption could also be considered within the carrier’s control but required for safety purposes.

However, according to the Agency’s guidance document, Types & Categories of Flight Disruptions: A Guide, in the absence of the carrier taking all possible measures to prevent or minimize the knock-on effects, the subsequent flight delays could be considered within the carrier’s control. The Guide on flight disruption further states that “in determining whether an [air carrier] took all possible measures to prevent or minimize knock-on effects, the following factors should be considered:

  • the remoteness of the location;
  • the availability of another aircraft; and
  • the duration of knock-on effects.”

With respect to the flights covered by the inquiry, the Inquiry Officer took note of a number of cases where the issues arose as to whether or not the respondent carrier “took all reasonable measures to mitigate the impact of the earlier flight delay or cancellation” as required by subsections 10(2) and 11(2) of the APPR.

Highlighted Issue 13

In relation to the consideration of the "remoteness" of the location, Flight No. 7 is relevant. For this flight, there was a lack of crew available to operate a flight out of Deer Lake, because the inbound flight from Toronto to Deer Lake did not operate, which would have transported the crew necessary for the flight out of Deer Lake. This raises the issue of the expectation of the carrier regarding the availability of flight crew not just in Deer Lake, but for the inbound flight from Toronto, where presumably there was a greater possibility of the carrier being able to assemble the required crew.

Highlighted Issue 14

In several cases, an inbound flight to a foreign location was delayed or cancelled, resulting in a lack of aircraft or crew to operate a flight out of the foreign location (see, for example, Flight Nos. 12, 18, 35 and 61 out of Cancun; No. 14 out of Miami; No. 23 out of Varadero; No. 58 out of Fort Lauderdale; No. 60 out of Las Vegas; No. 67 out of Puerto Plata; No. 70 out of Roatan, Honduras; No. 73 out of Lima; Nos. 86 and 88 out of Honolulu). These flights raise the issue of the expectation of air carriers regarding the availability of reserve aircraft and crew to service a flight departing from a foreign location.

Highlighted Issue 15

In regard to the consideration of the "availability of another aircraft", there were a number of flights where a mechanical issue resulted in the aircraft from a previous flight being taken out of service, and where the aircraft in question was the planned aircraft for a subsequent flight. For a number of flights (see, for example, Flight Nos. 4, 6, 62, 73, 76, 78, 98, and 109), the availability of other aircraft was significantly impacted by confirmed weather issues at the time of the flight disruption or the day before. In such cases, the availability of other aircraft and crew were also influenced by whether or not the departure airport was an aircraft or crew hub for the air carrier in question. For example, although Toronto is Canada’s largest airport, it is neither an aircraft hub nor a wide-body aircraft crew hub for Westjet.

Highlighted Issue 16

In relation to the consideration of the "duration of the knock-on effects", in some cases, the knock-on effect began more than one flight earlier in the chain of flights. For example, for Flight No. 16, a first flight the previous day affected the aircraft and crew for a second flight the same day, which in turn affected a third flight on the following day, a flight covered by the inquiry. Flights Nos. 23, 24, and 108, also involved chains of three flights. In all of these cases, the respondent air carriers have substantiated the delays to the previous flights, but what is expected of respondent air carriers regarding the availability of reserve aircraft and crew to make up for earlier flight disruptions in a chain of flights? In particular, with respect to Flight Nos. 23 and 24, the carrier was actively managing its flights to mitigate the impacts on a flight not covered by the inquiry, whose passengers would have experienced a long delay if the inquiry flights (Flight Nos. 23 and 24) had not been allowed to each experience a shorter delay.

Appendices

Appendix A: Inquiry Summary Table (Format : PDF ; Size : 1.14 MB)

Appendix B: Air Canada Single Complaint Flight List (Format : PDF ; Size : 116.35 KB)

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