Canada's Air Passenger Protection Regulations coming into force

Following several rounds and many months of consultations, on 24 May 2019 the government announced that the Air Passenger Protection Regulations (APPRs) developed by the Canadian Transportation Agency have been finalised.(1) This follows Parliament's enactment of the Transportation Modernisation Act (SC 2018, Chapter 10) in May 2018. Parts of the APPRs enter into force on 15 July 2019, while others will be binding as of 15 December 2019.

Overview of APPRs

The APPRs apply to all flights within, from or to Canada, whether operated by a Canadian or foreign airline. Once in effect, the regulations will impose obligations on:

• carriers in cases of tarmac delays;
• denied boarding; and
• delayed and cancelled flights.

They also include rules regarding:

• baggage;
• seating assignments for children; and
• advertising.

This article describes the main obligations that the APPRs will impose on carriers once they come into effect. The table below shows when some of the key obligations will enter into force.

Situation	Obligation	Date in effect
Tarmac delays	Care obligations	15 July 2019
Disembarkation obligations	15 July 2019
Denied boarding	Information obligations	15 July 2019
Alternate travel obligations	15 July 2019
Care and accommodation obligations	15 July 2019
Compensation for inconvenience obligations	15 July 2019
Cancelled flights	Information obligations	15 July 2019
Alternate travel obligations	15 December 2019
Care obligations	15 December 2019
Compensation for inconvenience obligations	15 December 2019
Delayed flights	Information obligations	15 July 2019
Alternate travel obligations	15 December 2019
Care obligations	15 December 2019
Compensation for inconvenience obligations	15 December 2019
Baggage	Obligation to reimburse baggage fees and pay compensation in accordance with the Carriage by Air Act or the Montreal Convention	15 July 2019
Obligation to establish terms and conditions regarding the carriage of musical instruments	15 July 2019

Tarmac delays

The APPRs create certain specific obligations in cases of tarmac delays. The APPRs do not set a minimum amount of time to define a 'tarmac delay', but instead rely on whether the aircraft's doors are closed while it is on the tarmac. A tarmac delay can occur before take-off or after landing.

The language used in Section 8 of the APPRs is as follows: "If a flight is delayed on the tarmac after the doors of the aircraft are closed for take-off or after the flight has landed". The obligations imposed by this section on carriers (flying to, from or within Canada) if passengers are confined within the aircraft while it is on the tarmac and there is no immediate opportunity to disembark include providing:

• access to lavatories;
• proper ventilation and cooling or heating of the aircraft;
• the means to communicate with people outside the aircraft free of charge, if feasible; and
• food and drink "in reasonable quantities, taking into account the length of the delay, the time of day and the location of the airport".

In addition, pursuant to Section 9, if the tarmac delay occurs at an airport in Canada, passengers have the right to disembark three hours after the aircraft doors have been closed for take-off or three hours after landing ("or at any earlier time if it is feasible"). The obligation to provide an opportunity to disembark will not be imposed if it is likely that take-off will occur fewer than three hours and 45 minutes after the doors are closed, or after landing, and the carrier is able to continue to provide the standard of treatment required by Section 8.

There is also an exception to the obligation to provide an opportunity to disembark if this is not possible for safety and security reasons or reasons relating to air traffic or customs control.

Where the opportunity is provided, the carrier must give passengers with disabilities and any support persons, service animals or emotional support animals the opportunity to disembark first "if it is feasible".

Denied boarding

The APPRs set out a procedure that carriers must follow where a flight is overbooked. A carrier cannot deny boarding to any passenger unless it has first asked all passengers if they are willing to give up their seat. Where the carrier offers a benefit to encourage volunteers, it must provide each volunteer with a written confirmation of the benefit agreed to be provided before the flight's departure.

If involuntary denial of boarding is necessary, the APPRs prescribe which passengers must be given priority for boarding. The carrier cannot deny boarding to anyone who has already boarded the aircraft. Priority to board the flight must be given to certain categories of passenger, including:

• unaccompanied minors;
• persons with disabilities; and
• passengers travelling with family members.

In addition, carriers must provide passengers who are denied boarding with information, alternate travel arrangements, care or treatment and monetary compensation, depending on the circumstances.

These obligations are discussed below.

Key concepts: carrier obligations

As outlined in the table above, all obligations that arise in cases of denied boarding will take effect on 15 July 2019, while others, including obligations to provide care, compensation and alternate travel in cases of delayed and cancelled flights, will take effect on 15 December 2019.

Key concept: small versus large carriers

Largely in recognition of the many smaller carriers that operate in northern and less populated parts of Canada, the APPRs distinguish between small and large carriers. However, certain foreign carriers that operate services to Canada may also qualify as small carriers. A 'large carrier' is defined as one that "has transported a worldwide total of two million passengers or more during each of the two preceding calendar years". A 'small carrier' is one that has transported fewer than 2 million passengers in the previous two years.

As described below, carriers in the two categories have differing obligations in cases of flight disruptions. However, a small carrier has the same obligations under the APPRs as a large carrier to any passenger it is carrying "on behalf of a large carrier under a commercial agreement", such as a codeshare agreement.

Key concept: carrier control

A well-known source of debate and disagreement under EU Flight Delay Compensation Regulation (261/2004) has been – and continues to be – the concept of 'extraordinary circumstances'. The APPRs seek to reduce the likelihood of following EU Regulation 261/2004 lead by defining in some detail which circumstances will result in which obligations and rights. Crucial to this is the APPRs' distinction between three situations that can cause flight disruptions (ie, flight delays, flight cancellations and denied boarding):

• situations outside the carrier's control;
• situations within the carrier's control but required for safety purposes; and
• situations within the carrier's control.

Situations outside carriers' control

Section 10 provides a non-exhaustive list of situations deemed to be outside the carrier's control, including:

• war or political instability;
• weather conditions or natural disasters "that make the safe operation of the aircraft impossible";
• instructions from air traffic control;
• airport operation issues;
• a bird strike or other collision with wildlife;
• labour disruptions "within the carrier or within an essential service provider"; and
• a manufacturing defect in an aircraft that reduces passenger safety, as identified by the manufacturer or a competent authority.

In these situations, carriers must provide passengers with certain information and, in cases where the situation results in a denial of boarding, cancellation or a delay of three hours or more, to provide alternate travel arrangements. The communications obligations and applicable requirements to make alternate travel arrangements are set out in Sections 13 and 18, respectively, and are described further below. In cases of denied boarding, certain treatment or care obligations may also apply. These are also discussed below.

Situations within carriers' control but required for safety purposes

Section 11 sets out carriers' obligations where there is a delay, cancellation or denial of boarding that is within the carrier's control but is "required for safety purposes". The APPRs define 'required for safety purposes' as anything that is required by law to reduce risk to passenger safety. The definition specifically refers to "safety decisions made within the authority of the pilot" and any decision "made in accordance with the safety management system". The definition explicitly excludes from its ambit "scheduled maintenance in compliance with legal requirements".

In this category of situations, the carrier has the same communication obligations that it has in cases of flight disruptions that are outside its control, in addition to the somewhat more onerous obligations to make alternate travel arrangements for affected passengers. Finally, the carrier may also have care obligations (eg, the provision of food, drinks, means of communication, accommodation and transport) in cases of delayed or cancelled flights in addition to cases of denied boarding. All of these obligations are described below.

An important difference between the APPRs and the way in which EU Regulation 261/2004 has been interpreted is that mechanical or technical issues with the aircraft preventing its safe operation that are discovered other than in the course of scheduled maintenance checks (eg, immediately before take-off) will not result in an obligation to pay statutory monetary compensation for inconvenience to passengers whose flights are delayed or cancelled.

Situations within carriers' control

Section 12 applies where a passenger experiences a flight disruption that is within the carrier's control but is not required for safety reasons. In these situations, the carrier has all of the obligations that it would have under Section 11 and may also be obliged to pay statutory monetary compensation to passengers who are delayed in their carriage, as described below.

Communication and information obligations

Where there is a flight disruption of any kind, the carrier must provide specified information to affected passengers, including:

• the reason for the delay, cancellation or denial of boarding;
• the compensation that passengers may be entitled to receive for inconvenience;
• any rights to care or accommodation that passengers may be entitled to receive; and
• what recourse passengers may have against the carrier, including through the Canadian Transportation Agency.

The APPRs also require that status updates be given every 30 minutes until a new departure time is set or passengers have been provided with alternate travel arrangements. In any event, new information learned by the carrier must be communicated as soon as feasible. The APPRs also include requirements as to the form in which this information is made available, including through adaptive technologies to accommodate passengers with disabilities.

Notably, these obligations to provide information to passengers about flight disruptions are in addition to general requirements under Sections 5, 6 and 7 to provide information about the rights and obligations set out in the APPRs.

These include the obligation to make a specific notice available on:

• all digital platforms used to sell tickets;
• all documents on which each passenger's itinerary appears; and
• the display at the check-in desk, self-service machines and boarding gate for all flights to or from Canada.

The required text of the notice – which is set out in the APPRs – must be made available in English and French. As further obligations come into force on 15 December 2019, the text of the notice must be updated from that required as of 15 July 2019.

Alternate travel arrangement obligations

The obligations to provide alternate travel arrangements apply where affected passengers are denied boarding or their flight is cancelled or delayed by three hours or more. There are somewhat different obligations in place depending on whether the flight disruption is within the carrier's control (ie, whether safety requirements are involved) or entirely outside its control.

Flight disruption within carriers' control

Where a flight disruption requires it, a large carrier must provide a confirmed reservation on the next available flight to each affected passenger's destination operated by it or by a carrier with which it has a commercial agreement. If the carrier cannot provide a reservation on such a flight that departs within nine hours of the departure time on the passenger's original itinerary, it must provide a confirmed reservation for carriage on a flight operated by any carrier that departs within 48 hours of the original departure time.

A small carrier must provide carriage to each affected passenger's destination on the next available flight operated by it or by a carrier with which it has a commercial agreement.

Where these options do not meet the passenger's needs, the carrier is must refund the passenger and, if applicable, return the passenger to the point of origin on their itinerary.

Flight disruption outside carriers' control

The obligations to provide alternate travel arrangements are slightly different where the flight disruption is entirely outside the carrier's control. A large carrier must provide a confirmed reservation on the next available flight to each affected passenger's destination operated by it or a carrier with which it has a commercial agreement that departs within 48 hours of "the end of the event that caused the delay, cancellation or denial of boarding". If this is not possible, alternate travel arrangements on any carrier must be provided.

A small carrier must provide a confirmed reservation on the next available flight to the passenger's destination operated by it or by a carrier with which it has a commercial agreement.

Treatment or care obligations

Section 14 sets out the standards of treatment that apply in cases of delayed or cancelled flights in situations within the carrier's control (again, regardless of whether safety requirements are involved). These obligations apply if the passenger is informed of the delay or cancellation fewer than 12 hours before the departure time and has waited two hours after the scheduled departure time. These include the obligation to provide:

• food and drink "in reasonable quantities";
• access to means of communications; and
• if an overnight stay is required, hotel accommodation and transport between the hotel or other accommodation and the airport.

Similar care obligations also apply in cases of denied boarding. As set out in Section 16, appropriate care must be provided until the passenger boards the flight reserved as part of the alternate travel arranged by the carrier.

Compensation for inconvenience obligations

As noted above, payment of statutory monetary compensation for inconvenience is required only where the flight disruption is within the carrier's control and is not required for safety purposes. The amounts that must be paid increase as the delay in the affected passenger's arrival increases, as is the case under EU Regulation 261/2004. The compensation amounts that must be paid are also higher in cases of denied boarding, as compared to delayed or cancelled flights. And, where the flight disruption is a delayed or cancelled flight, small carriers are not required to pay affected passengers as much as large carriers are.

The APPRs specify that compensation for inconvenience is to be paid "in the form of money" unless the following requirements are met:

• The alternate form of compensation has a value that is greater than the minimum monetary value required.
• The alternate form of compensation has no expiry date.
• The passenger has provided written confirmation that they have been informed in writing:
  • of the value of the alternate form of compensation;
  • of their right to receive monetary compensation; and
  • that they have chosen the alternate form of compensation.

Denied boarding

Any passenger who is denied boarding must be paid a minimum of C$900. If the passenger is delayed in their arrival at their destination by six or more hours, but fewer than nine hours, this amount doubles to C$1,800. If the passenger is delayed by nine hours or more, C$2,400 must be paid.

In addition, the APPRs require that the payment be made to the passenger as soon as "it is operationally feasible" and no later than 48 hours after they have been denied boarding. The regulations specify that the amount to be paid is to be determined with reference to the anticipated time of arrival of the alternate flight arranged for the affected passenger. In addition, the APPRs require that the amount paid be increased if the actual time of arrival of the passenger's alternate flight is later than the anticipated time of arrival such that a higher amount of compensation would be owed.

Delayed and cancelled flights

In cases of delayed or cancelled flights, no compensation for inconvenience is owed if the passenger is informed of the change in schedule more than 14 days in advance of the departure. Where it is owed, the levels of compensation to be paid by large and small carriers, depending on the length of the delay in arrival experienced by the passenger as a result of a cancelled or delayed flight, are set out below.

Delay in passenger's arrival	Small carrier	Large carrier
Three hours or more, but fewer than six hours	C$125	C$400
Six hours or more, but fewer than nine hours	C$250	C$700
Nine hours or more	C$500	C$1,000

If the carrier provides the affected passenger with a refund (and travel to the point of origin, if applicable) instead of alternate travel arrangements to their destination, the minimum amounts of compensation that must be paid are C$400 for a large carrier and C$125 for a small carrier.

Where the APPRs anticipate an automatic and almost immediate payment of compensation in cases of denied boarding, there is some indication that passengers must file a request for compensation in cases of delayed and cancelled flights. Under the proposed regulations published in December 2018, passengers were given 120 days to file these requests with the carrier, but in the approved, version of the APPRs, they have a full year from the day on which the flight delay or cancellation occurred to request compensation.

The carrier has 30 days from the date of the request to either provide the compensation owed under the regulations or explain why it is not payable in the circumstances.

Baggage

Lost, damaged or delayed baggage

For international carriage to or from Canada, the APPRs simply confirm that in the case of lost, damaged or delayed baggage, the applicable convention governs liability of the carrier. In that respect, there is no change in the law regarding liability for baggage claims. However, the APPRs also specify that any fees paid for baggage that has been lost, delayed or damaged must also be reimbursed.

The major effect of the APPRs is to make the rules of liability under the Montreal Convention applicable to domestic carriage, which was not the case before.

Carriage of musical instruments

The APPRs require carriers to establish terms and conditions in their tariffs regarding the carriage of musical instruments, including:

• any restrictions on size and weight;
• the quantity of instruments;
• the use of stowage space in the cabin for them; and
• fees.

In addition, they impose an obligation on carriers to accept musical instruments as checked or carry-on baggage unless it would be contrary to general terms and conditions set out in the tariff relating to the weight or dimensions of baggage or to safety.

Comment

This article has provided an overview of many of the most important aspects of the new Canadian passenger protection regulations and does not constitute legal advice.

The APPRs include provisions not described above, including those requiring carriers to facilitate the seating of children in proximity to an accompanying adult at no charge, which will come into effect on 15 December 2019, and others governing the advertising of air services originating in Canada. In addition, the APPRs empower the agency to impose administrative monetary penalties of up to C$25,000 for failure to comply with many of their requirements.

In addition to taking measures to comply with the new obligations imposed by the APPRs, the new Canadian regulations require carriers to update and amend the tariffs that they must already make available on their websites and file with the agency.

Beyond updating their terms and conditions to include the new obligations imposed by the APPRs, many carriers may find it necessary or useful to set out in their tariffs how any obligations required under Canadian law interact with obligations imposed by other jurisdictions.

While Section 86.11(3) of the Canada Transportation Act prohibits receipt of compensation under the APPRs if the person claiming it has already been compensated for the same event under a different regime, the APPRs provide that carriers may not refuse to provide compensation in accordance with their provisions on the grounds that the passenger is also eligible for compensation for the same event under a different jurisdiction's regime.

Endnotes

(1) For further information, the Air Passenger Protection Regulations (SOR 2019/50) are available here.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.