Air passenger protection during and beyond the pandemic

by Scott Streiner, Chair and CEO, Canadian Transportation Agency (Hill Times 2020-11-16)

The global collapse of air travel as a result of the COVID-19 pandemic is without precedent in the century since the dawn of international commercial aviation. Many passengers have experienced frustration, including, for some, exasperation about not getting refunds for cancelled flights. Airlines, meanwhile, have curtailed operations, mothballed aircraft, and laid off tens of thousands of employees.

All this happened just months after new Air Passenger Protection Regulations (APPR) fully came into effect on December 15, 2019.

The APPR were made by the Canadian Transportation Agency (CTA) – an independent, quasi-judicial tribunal and regulator – pursuant to authorities given to it by Parliament. The APPR set out airlines' minimum obligations towards passengers for a range of common concerns, including communications, tarmac delays, flight disruptions, denied boarding, lost baggage, and the seating of families together.

Of course, flight disruptions have been the air travel issue most on people's minds since March. Consistent with the legislative framework, passengers' rights under the APPR when flights are delayed or cancelled depend on whether that occurs for reasons fully within the airline's control, within the airline's control but required for safety, or outside the airline's control.

For delays and cancellations in the first category, airlines must pay compensation for inconvenience if passengers arrive at their destination 3 hours or more past the scheduled time. For both the first and second categories, passenger entitlements include, depending on the circumstances, things like food, drink, accommodation, and – of particular interest in the current circumstances – refunds if flights are cancelled and rebooking doesn't meet a passenger's need.

But for the third category – when a flight's delayed or cancelled for reasons beyond an airline's control -- the legislation only allows inclusion of one airline obligation in the APPR: to ensure passengers complete their itineraries. Perhaps the law was framed this way because at the time it was passed, disruptions outside airlines' control were expected to be localized and short-term. Regardless, the CTA works within the authorities and resources Parliament gives it.

Alongside the APPR, passengers get entitlements through each airline's individual tariffs – the contracts of carriage outlining the terms and conditions of its service. Tariffs address matters beyond those covered by the APPR and, if the airline chooses, can go further than the APPR in the areas it does cover. For example, a tariff might provide for refunds for cancellations outside the airline's control, especially when passengers pay extra for a refundable ticket.

If passengers think an airline hasn't respected the APPR or its tariff and can't resolve the issue directly with the airline, or if they believe tariff terms aren't reasonable, they can complain to the CTA. We deal with every complaint on its merits.

Over the last 11 months, Canadians have filed complaints in record numbers. About 11,000 did so in the three months between the day the APPR fully took effect and mid-March, when the pandemic threw air travel into turmoil. Another 10,000 have submitted complaints since then. By way of comparison, the CTA received just 800 complaints in all of 2015. Such a massive surge in volumes is almost unheard of for any tribunal. In the interests of fairness, the CTA generally processes complaints on a first-in-first-out basis.

About 3,000 of the complaints made in the months immediately after the APPR came into force allege that airlines failed to respect their communications-related obligations under the APPR. The CTA launched a major inquiry to examine these allegations, and recently published the report of the Inquiry Officer assigned to collect evidence on them.

In addition, despite teleworking since the start of the pandemic, the CTA's dedicated public servants have dealt with thousands more complaints through efficient, informal facilitation and mediation services, avoiding the need for more formal adjudication. Less than 2 per cent of the complaints on our books predate December 15, 2019 and only 1 per cent of complaints end up in adjudication.

Thanks to these efforts, we'll soon be able to begin processing complaints submitted after the pandemic struck, half of which concern refunds for cancelled flights. It's possible some of the refund-related complaints will be resolved in short order if recently-announced negotiations between the government and airlines on financial assistance result in the issuance of more refunds. That would, of course, be welcome news for passengers. We'll be monitoring developments closely and checking with each complainant to see if they've received a refund or want to proceed with their case.

Looking forward, consideration should be given to expanding airlines' minimum obligations when flights are disrupted for reasons outside their control, to ensure that no passenger is ever again at risk of losing the value of a cancelled flight when rebooking doesn't meet their needs. If the CTA is provided with authority to amend the APPR to address such situations, we'll act quickly.

This has been a difficult time for passengers and airlines, but better days lie ahead. Eventually, conditions will allow growing numbers of Canadians to fly. Through and beyond the pandemic period, the APPR will be there to protect travellers – and the CTA will continue making sure its requirements are understood and respected.