Proposed Air Passenger Protection Regulations Highlights
On December 17, 2018, the Canadian Transportation Agency (CTA) announced that proposed air passenger protection regulations will be published on December 22, 2018, in Part I of the Canada Gazette, for a 60-day public comment period.
The proposed regulations reflect input that the CTA received from the public, consumer advocates, and the airline industry during extensive consultations held from May 28, 2018 to August 28, 2018. The regulations are being made by the CTA under the Canada Transportation Act, as amended by the Transportation Modernization Act on May 23, 2018.
The proposed regulations would 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 would set out airlines' obligations to passengers in the following areas:
- Delayed or cancelled flights;
- Denied boarding;
- Tarmac delays over three hours;
- The seating of children under the age of 14;
- Lost or damaged baggage; and
- The transportation of musical instruments.
The CTA will consider all input received in developing the final regulations, which are expected to be published in Part II of the Canada Gazette in spring 2019. It is expected that the final regulations will come into force in summer 2019.
To ensure robust passenger protection, the regulations would apply to all flights to, from, and within Canada. This includes connecting flights.
The regulations would also apply to both large and small airlines. However, it is proposed that different requirements for compensation and rebooking apply to small airlines, given their unique operating circumstances. Large airlines are those that have transported at least one million passengers in each of the two preceding years, as well as those operating a flight or carrying passengers on their behalf through a commercial agreement. All other airlines are considered to be small.
The vast majority of 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.
The proposed regulations would require that passengers be informed of their rights in a timely, clear and accessible way.
First, in the event of a flight disruption, airlines would have to notify passengers as soon as possible and provide regular status updates. They would also have to advise passengers of applicable standards of treatment and compensation. Passengers would have the right to receive information by the means they have selected (for example, by e-mail or text message).
More generally, the regulations would require airlines 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 would have to be provided electronically and on all travel documents the airline provides to the passenger. Airlines would also be required to make sure that official ticket resellers provide this information to customers.
Airlines would be required to ensure that communication is accessible to persons with disabilities. All electronic or digital communication would have to be made accessible using adaptive technology. If information is provided in physical format, the airline would have to, upon request, provide it in large print, Braille or digital format.
Delays and cancellations
The Act provides that airlines would have the following obligations to passengers in case of a flight delay or cancellation, 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: standard 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 risk to passengers, not including scheduled maintenance needed to comply with legal requirements. This category also includes a mechanical problem that reduces the safety of passengers, but not one identified during scheduled maintenance.
- Situations outside airline control include: war or political instability; unlawful acts or sabotage; meteorological conditions or natural disasters that make the safe operation of the flight 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 a bird; labour disputes at an essential service provider such as an airport or an Air Navigation service provider; or a request from a police, security or customs official.
Minimum Levels of Compensation
Airlines would be required to pay passengers compensation for flight delays or cancellations that are in their control and not related to safety. Passengers would be entitled to compensation based on the length of delay at arrival:
Large Airlines Small Airlines Length of delay Amount (CAD) Length of delay Amount (CAD) 3-6 hours $400 3-6 hours $125 6-9 hours $700 6-9 hours $250 9+ hours $1000 9+ hours $500
A passenger would have 120 days to make a compensation claim with the airline. The airline would have 30 days to respond by issuing a payment or indicating why it believes compensation is not owed.
Airlines would have to offer passengers this compensation in monetary form. They could also offer passengers alternative forms of compensation (e.g., vouchers or rebates), but passengers would always have the right to select what they prefer. As well, alternative forms of compensation offered would have to be of higher value than the monetary compensation that is required, and could never expire.
Standards of Treatment
The regulations would establish minimum standards of treatment that airlines would have to provide to passengers for delays at departure that are within their control, or within their control and required for safety purposes. Airlines would have to provide this minimum treatment to passengers in these situations, whether passengers are waiting in the airport or in a plane on the tarmac.
After a delay at departure of 2 hours, airlines would have to provide:
- food and drink in reasonable quantities; and
- electronic means of communication (e.g. free wifi).
Finally, once a delay is expected to extend overnight, airlines would 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, airlines would have to ensure passengers complete their itinerary (that is, reach their final destination). Once a delay at departure reaches 3 hours, an airline would also need to rebook the passenger on their next available flight.
If a flight delay or cancellation is within their control, or within their control and required for safety purposes, airlines would be subject to additional requirements, as follows:
- Passengers would have to be rebooked in the same class of service.
- Large airlines would have to rebook the passenger on another (competing) airline, if their own next available flight departs 9 or more hours after the passenger's original departure time.
- If rebooking does not meet a passenger's travel needs (e.g., there is no longer any purpose to the travel), the passenger would be entitled to a refund, as well as compensation for inconvenience: $400 for large airlines and $125 for small airlines.
In the event of a flight disruption outside of the airline's control, a large airline would be required to rebook using the services of another (competing) airline, if their own next available flight would not depart within 48 hours.
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.
Minimum Levels of Compensation:
Length of delay Amount (CAD) 0-6 hours $900 6-9 hours $1800 9+ hours $2400
Airlines would 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.
The regulations would ensure that during tarmac delays -- whether they occur in Canada or abroad -- passengers are properly treated. Every airline would be obligated to have policies addressing passenger entitlements during tarmac delays, which the CTA would be able to review and, if it finds the policies to be unreasonable, could change through an order. In addition, standards of treatment would have to 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 by the time the tarmac delay exceeds 3 hours.
As well, after a 3 hour tarmac delay at a Canadian airport, airlines would be required to return to the gate so that passengers can disembark. However, a plane would 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.
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 does not occur within that 45 minute window, the plane would have to return to the gate. In no circumstances would airlines be permitted to exceed this time.
Seating of children
Airlines would have to facilitate, at no extra cost and at the earliest opportunity, the seating of children under 14 years of age in close proximity to their parent, guardian or tutor. The proximity would depend 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 one row from the parent, guardian or tutor.
Airlines would also be 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.
Lost or damaged baggage
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 or lost during international travel, up to approximately $2100. To provide better protection to passengers travelling within Canada, the regulations would apply this scheme to domestic travel as well.
In addition, the regulations would require airlines to reimburse passengers for any baggage fees paid if their baggage is damaged or lost.
Transportation of musical instruments
Airlines would have to include in their tariffs the terms and conditions of carriage regarding the transportation of musical instruments. The topics that the tariff would have to address include:
- The acceptance of musical instruments;
- Instruments as carry-on and checked baggage;
- Cabin storage options; and,
- Fees for transporting musical instruments.
Airlines would be required to follow the obligations set out in the regulations and would be subject to administrative monetary penalties of up to $25,000 per incident for non-compliance. In the event of a dispute between a passenger and an air carrier, the passenger can make a complaint to the CTA.