Canada's New Air Passenger Protection Rights Partially In Effect - Aviation

On July 15, 2019, Canada's new Air Passenger Protection Regulations¹ came into force in part, with the second phase of rights scheduled to come into effect on December 15, 2019. The regulations are made under the Canada Transportation Act and are intended to modernize Canada's air passenger rights framework by making it more in line with the regimes in the European Union and the United States. Canada's passenger rights have historically been set out in each airline's set tariff policies and have otherwise been unregulated, apart from rights granted under the international "Montreal Convention". Should you have any questions regarding the new regulations or require assistance with its application, please contact any member of Miller Thomson's Transportation and Logistics Team.

Application

The regulations apply to any air carrier that operates flight to and from Canada and domestically within Canada, irrespective of the size. However, there are some obligations under the regulations that differ depending on the size of the carrier. For example "large carriers", which is defined as a carrier that has transported a worldwide total of two million passengers or more during each of the two preceding calendar years, have larger compensation obligations to passengers for flight cancellation and delay than do "small carriers", defined as any carrier that is not a large carrier. Large carriers also have more onerous obligations in connection with making alternative flight arrangements.

The regulations govern what information must be provided to passengers in the case of delay or cancellation of their flight, or denial of boarding, what standards of treatment apply in each instance, what compensation, if any, is available, and what alternative travel arrangements, if any, must be made for the passenger. The regulations also provide requirements in the case of lost or damaged baggage. A chart is set out below providing a more detailed explanation of passengers' rights in each instance and indication as to when those rights come into effect.

July 15, 2019 vs. December 15, 2019

Apart from the rights related to denial of boarding and lost or damaged baggage, the majority of the rights under the new regulations come into force on December 15, 2019.

Key Obligations

The regulations distinguish between events that are outside the carrier's control, within their control but relating to safety, and otherwise within their control. Generally, the more something is within the carrier's control, the more onerous the compliance obligation.

Situations which are "outside" the carrier's control are defined to include weather conditions making it impossible to safely operate the aircraft, a security threat, instructions from air traffic control, a medical emergency and airport operation issues. This list is not exhaustive. Situations within the carrier's control but requiring delay, cancellation or denial of boarding for safety purposes are defined to mean where something is required by law in order to reduce risk to passenger safety but does not include scheduled maintenance in compliance with legal requirements.

Generally, depending on the situation in terms of air carrier control and type of disruption, passengers are entitled to be notified about the reasons for the delay, cancellation or denial of boarding, and notified about the other rights to which they are entitled. These other rights generally include: alternative travel arrangements on another one of the carrier's flights within a certain timeframe or with another airline if the foregoing cannot be accommodated; accommodations and transportation to and from the airport free of charge if the passengers must stay overnight; monetary compensation depending on the length of the delay in arrival time; provision of food and drink in a reasonable quantity; and access to a means of communication, among other things. In the case of a tarmac delay that lasts more than three hours, passengers must be permitted to disembark, unless it is likely that the plane will take off within the next 45 minutes after the three-hour period.

Additionally, air carriers must now ensure that children under the age of 14 are seated within "close proximity" to their parent or guardian. The level of proximity depends on the age of the child; for example, a child of four years of age or younger must have a seat adjacent to the parent or guardian. If there are difficulties with compliance, the airlines must ask other passengers to voluntarily change seats in order to accommodate the parent/guardian and child.

Non-Compliance

If an air carrier fails to comply with the regulations, it could face an administrative monetary penalty of up to $5000 per violation for individuals involved and up to $25,000 per violation for corporations.

Recent Events

It was announced in August 2019 that WestJet is facing the first federal inquiry into non-compliance with the regulations after a couple was denied boarding their flight.² The Canadian Transportation Agency (the "Agency") indicated that it would review the airline's policies to determine if they align with the new regulations, separately from the actual complaint review. The couple made a formal complaint to the Agency and also released their story to the media. The Agency further indicated that information in the compliant and in the news "raises the possibility that WestJet's tariff is being interpreted and applied in a manner inconsistent with the denied boarding provisions of the [regulations]." There is a question as to whether or not the incident will meet the definition of "denied boarding", which means "when a passenger is not permitted to occupy a seat on board a flight because the number of seats that may be occupied on the flight is less than the number of passengers who have checked in by the required time, hold a confirmed reservation and valid travel documentation and are present at the boarding gate at the required boarding time", as the couple showed up at the gate with their boarding passes in hand, according to the news article, but airline had technically changed the itinerary the evening beforehand.³ This inquiry and complaint review may serve to provide an indication as to whether the Agency will interpret the regulations as broadly as possible to accommodate passengers or stick to a more narrow reading of the legislation.

Entitlement Overview Chart

Delay in Boarding

INCIDENT	ENTITLEMENT
Delay on tarmac after doors closed for take-off or after landing (s.8(1) and (2))	Access to lavatories in working order if aircraft is equipped with lavatories; Proper ventilation and cooling or heating of the aircraft; Means to communicate with people outside the aircraft; Food and drink in reasonable quantities; Facilitate access to urgent medical assistance, if required.
Delay on tarmac at an airport in Canada (s.9)	Opportunity for passengers to disembark: three hours after the aircraft doors have closed for take-off (except when the take-off is likely to occur within the next 45 min); and three hours after the flight has landed, or earlier if feasible.
Delay outside carrier's control (s10(3))	Following information must be provided to the passengers: reason for delay, cancellation or denial of boarding, as applicable; compensation to which passengers may be entitled; standard of treatment for passengers, if any; and(/li recourse available against the carrier, including to the Agency (collectively, the "Rights Information") [note: (b) to (d) only apply to denied boarding until Dec 15, 2019]. If delay is three or more hours, provide alternative travel arrangements in accordance with the regulations as follows: for large carriers: (i) reservation on their next available flight within 48 hours of the original departure time; (ii) if (i) is not possible, a reservation on any airline's similar flight, including transportation to a nearby airport if required; and for small carriers, a reservation on their next available flight or one with which they have a commercial agreement (collectively, "Outside Control Arrangements"), comes into force Dec 15, 2019.
Delay, within carrier's control but required for safety (s11(3))	Rights Information If informed of delay less than 12 hours before departure time indicated on the original ticket, the following standards of treatment apply: food and drink in a reasonable quantity, free of charge and access to a means of communication, if the passenger has waited two hours after the original departure time; hotel accommodation, transportation from the airport to and back from accommodation, free of charge, if the passenger must wait overnight (collectively, the "Standard of Treatment"), comes into force Dec 15, 2019. Three or more hours, provide alternative travel arrangements in accordance with the regulations as follows: for large carriers: (i) reservation on their next available flight within 9 hours of the original departure time; (ii) if (i) is not possible, a reservation on any airline's similar flight leaving within 48 hours of the original departure; or (iii) if (i) and (ii) are not possible, transportation to a nearby airport and a reservation for a flight by any carrier; and for small carriers, a reservation on their next available flight or one with which they have a commercial agreement (collectively, the "Alternative Arrangements") or a refund (comes into force Dec 15, 2019).
Delay within carrier's control (s12(2))	Rights Information; The Standard of Treatment (comes into force Dec 15, 2019), if informed of delay less than 12 hours before departure time indicated on the original ticket; Three or more hours, provide Alternative Arrangements or a refund (comes into force Dec 15, 2019); If informed 14 days or less before original departure time that arrival will be delayed, compensation as follows: large carrier: $400 (arrival three to less than 6 hours late); $700 (six hours or more but less than nine hours); $1000 (nine or more hours); small carrier: $125, $250, and $500 (respective timing as indicated above); if flight is refunded, $400 for large carriers and $125 for small carriers; (the "Delay/Cancel Compensation"), comes into force Dec 15, 2019.

Cancellation of the Flight

INCIDENT	ENTITLEMENT
Cancellation outside carrier's control (s10(3))	Rights Information; Outside Control Arrangements (comes into force Dec 15, 2019).
Cancellation, within carrier's control but required for safety (s11(4))	Rights Information; The Standard of Treatment (comes into force Dec 15, 2019), if informed of cancellation less than 12 hours before departure time indicated on the original ticket; Provide Alternative Arrangements or a refund (comes into force Dec 15, 2019).
Cancellation within carrier's control (s12(3))	Rights Information; The Standard of Treatment, if informed of cancellation less than 12 hours before departure time indicated on the original ticket (comes into force Dec 15, 2019); Provide Alternative Arrangements or a refund (comes into force Dec 15, 2019); If informed 14 days or less before original departure time that arrival will be delayed, provide the Delay/Cancel Compensation (comes into force Dec 15, 2019).

Denial of Boarding

INCIDENT	ENTITLEMENT
Denial of boarding outside carrier's control (s10(3))	Rights Information; Outside Control Arrangements (comes into force Dec 15, 2019).
Denial of boarding, within carrier's control but required for safety (s11(5))	Rights Information; Follow the denial of boarding procedures and provide: food and drink in reasonable quantities and access to a means of communication; and hotel accommodation, transportation from the airport to and back from accommodation, free of charge, if passenger must wait overnight (collectively, the "Denial Treatment Standards"); Provide Alternative Arrangements or a refund.
Denial of boarding, within carrier's control (s12(4))	Rights Information; Follow the denial of boarding procedures and the Denial Treatment Standards; Provide Alternative Arrangements or a refund; Compensation as follows: $900 (arrival delayed by less than six hours); $1800 (six or more but less than nine hours); $2400 (nine or more hours).

Baggage Issue

INCIDENT	ENTITLEMENT
If baggage is lost or damaged	Fees paid for the baggage; Compensation of up to $2,100.

Footnotes

1. SOR/2019-150.

2. Canadian Transportation Agency, "Canadian Transportation Agency launches inquiry into WestJet flight incident", online: (https://www.otc-cta.gc.ca/eng/content/canadian-transportation-agency-launches-inquiry-westjet-flight-incident)

3. CBC News, "WestJet faces federal inquiry after Edmonton couple bumped from flight", online: (https://www.cbc.ca/news/canada/edmonton/westjet-federal-transportation-inquiry-edmonton-1.5251139)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Canada: Canada's New Air Passenger Protection Rights Partially In Effect