November 05 2008
The Canadian legislature has observed with great interest that the European Union has taken action in the field of air transport to ensure protection for passengers. In 2005 the Air Passenger Bill of Rights was approved in the European Union. Among other passenger rights codified by this bill, the EU bill established that air carriers must compensate passengers if they are denied boarding against their will. This includes compensation of €600 in circumstances where passengers are denied boarding for flights of more than 3,500 kilometres.(1) On June 12 2008 a motion calling for a bill of rights modelled on the EU bill received unanimous support in the Canadian House of Commons.(2)
Advocates for the Canadian Air Passenger Bill of Rights contend that legislation and regulations should be implemented to enhance consumer protection and force air carriers to compensate passengers when the services that they provide are not up to standard. Advocates contend that the recent and dramatic “cost-cutting” policies of air carriers have negatively affected services (eg, with respect to flight delays and overbooked flights).(3) While the competitive thrust of the market may have made these cost-cutting procedures necessary, sponsors of the bill of rights insist that passengers are constantly faced with situations that border on “criminal”. An egregious example, cited by the Canadian national media, involved passengers flying with Cubana Airlines from Havana, Cuba to Montreal, Canada. The aircraft was diverted to Ottawa and held on the runway for 12 hours. Passengers had little food or water and unusable toilets. (Incidentally, Ottawa is only a two-hour drive from Montreal.) It was not until one of the passengers decided to take the situation into his own hands and called the airport’s Royal Canadian Mounted Police detachment that the passengers were “freed” from the confines of the aircraft.(4) The passenger rights issues that the Cubana Airlines fiasco highlighted may have far-reaching implications for both domestic and international airlines.
However, it is also clear that while consumer rights advocates are upset about the growing number of restrictions and fees, air carriers are not prepared to “take the blame” for all the problems. Air Canada and WestJet, for example, indicated that the entire “supply chain” should be caught by any proposed legislation, and not simply the air carriers.(5)
Despite unanimous support for the motion, to date the Canadian government has not introduced legislation that contains a bill of rights. Instead, on September 5 2008 the government announced that the basis of air passenger rights already exists in Canadian legislation and introduced the Flight Rights Canada Initiative.(6) This initiative is aimed at “strengthening consumer protection” by making important information about the current rights of passengers available to travellers through prominent signage.
The Flight Rights Canada Initiative mandates a Code of Conduct for Canada’s Airlines, which identifies six rights that air passengers have when travelling on Canadian airlines. It delineates that passengers have a right to information on flight times, schedules, changes, delays and the associated reasons. That said, the right of a passenger to this information is made subject to a ‘reasonable efforts’ standard only. Airlines are required to “make reasonable efforts to inform passengers of delays and schedule changes and to the extent possible, the reason for the delay or change”. Greater precision in setting the standard that an air carrier must meet would have been helpful in managing passenger expectations in this regard.
The code of conduct makes clear that passengers have a right to take the flight for which they have paid. It outlines three options that the airline has when a flight is over-booked or cancelled:
The code of conduct further asserts that passengers have a right to punctuality and any delay over four hours will create a passenger right to a meal voucher. A delay exceeding eight hours and involving an overnight stay obligates an air carrier to provide hotel accommodation and airport transfers for “passengers that did not start their travel at that airport”. Moreover, in the case of a delayed flight, if the delay exceeds 90 minutes “and circumstances permit”, air carriers must offer passengers the option of disembarking from the aircraft until the rescheduled departure. The code of conduct provides little guidance as to what circumstances would preclude passengers from exercising this right.
Finally, air carriers have a responsibility to take steps to deliver "lost luggage" directly to the passenger’s residence or hotel as soon as possible and to inform the passenger of the status of the luggage. The Flight Rights Code of Conduct states that it does not exclude additional rights one may have under an air carrier’s tariff provisions or legal rights that international passengers have pursuant to the Warsaw Convention and other international conventions and treaties.(7)
Notably, the Flight Rights Code of Conduct makes clear that it is not intended to make air carriers responsible for acts of nature or the acts of third parties. Inclement weather or acts of government or air traffic control, airport authorities, security agencies, law enforcement or Customs and Immigration officials are specifically identified as circumstances in which an air carrier cannot be held responsible. Air passenger rights are also trumped by the legal obligation that air carriers must comply with the highest standards of aviation safety at all times.
The Flight Rights Code of Conduct is silent with respect to a carrier’s obligation to provide monetary compensation to passengers for denied boarding on a flight or if the flight is cancelled (except as may be specified in an air carrier’s terms and conditions of carriage). A complaints mechanism is in place within the Canadian Transportation Agency (an administrative tribunal with quasi-judicial powers), which is responsible for resolving complaints between passengers and air carriers. The agency can order air carriers to take corrective measures.
The Flight Rights Code of Conduct appears to be little more than an information bulletin advising air travellers that they do have rights as consumers. Critics have argued that this so-called ‘bill’ simply reiterates inadequate pre-existing law and have dismissed the initiative as a “pre-election gimmick with no teeth”.(8) The Conservative Party government, which introduced the Flight Rights Code of Conduct on the eve of announcing a federal election, was subsequently re-elected with a minority number of seats in Parliament and will lead the next government. It is unlikely that Canada will see legislative action - following the approach taken by the European Union to ensure the protection of passengers - in the foreseeable future.
For further information on this topic please contact Catherine A Pawluch or Jana Lambert at Gowling Lafleur Henderson LLP by telephone (+1 416 862 7525) or by fax (+1 416 862 7661) or by email (firstname.lastname@example.org or email@example.com).
(1) Commission Regulation 26/2004/EC of February 11 2004 establishing common rules on compensation and assistance to passengers boarding and of cancellation on long delay of flights, and repealing Regulation 295/91/EEC,  OJ L46/1 at 7(c).
(6) “Government of Canada Announces Flights Rights Canada For Air Travellers” (September 5 2008), online: Transport Canada http://www.tc.gc.ca/mediaroom/releases/nat/2008/08-h207e.htm [Flight Rights Canada].
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Catherine A Pawluch