Air carriers offering scheduled international services to or from Canada must, by virtue of the Canada Transportation Act, file proof of insurance each year as a condition of maintaining their licence. Historically, the Canadian Transportation Agency has, in some instances, allowed for leniency in the form of granting extra time for air carriers to file the proper certificates. However, a review of the agency's recent decisions demonstrates that such leniency is no longer being extended.
Even before the first tranche of Air Passenger Protection Regulations (APPRs) provisions came into effect, the International Air Transport Association, Airlines for America and numerous Canadian and foreign air carriers commenced a challenge to the legality of several provisions in the Federal Court of Appeal (FCA). The FCA recently issued a decision in a motion brought by the government to strike portions of two expert reports filed by the airlines in support of their position.
In March 2020 the Canadian Transportation Agency (CTA) issued public statements suggesting that it could be reasonable for airlines to provide travel vouchers for flights cancelled as a result of the COVID-19 pandemic, rather than providing refunds. An advocacy group commenced an application for judicial review of the statements, asserting that they violated the CTA's Code of Conduct and misled passengers as to their rights. The Federal Court of Appeal recently dismissed the motion.
The Federal Court of Canada recently upheld a Transportation Appeal Tribunal of Canada (TATC) decision which had found that the TATC did not have jurisdiction to accept submissions regarding the legal costs of an air carrier's application for a review of an administrative monetary penalty issued by the Canadian Transportation Agency. The court held that as the penalty had been unilaterally withdrawn by the agency prior to the TATC hearing, the TATC did not have jurisdiction to deal with the question of costs.
The British Columbia Civil Resolution Tribunal (BCCRT) recently ruled in favour of an air carrier, dismissing a passenger's claim for compensation arising from an alleged fall sustained while exiting the aircraft. In its decision, the BCCRT considered and opined on what constitutes an 'accident' under Article 17 of the Montreal Convention. This decision also provides helpful guidance on the evidentiary requirements in personal injury cases.
Air Canada, WestJet, Air Transat, Sunwing, and Swoop are facing a proposed class action for offering vouchers and credits in lieu of refunds for flights that were cancelled due to the COVID-19 pandemic. It remains to be seen whether a class action with such a wide scope – as opposed to a government bailout or coordinated response from regulators – will be considered the most efficient way to deal with the claims of those whose flights have been cancelled due to COVID-19.
The minister of transport recently issued an interim order regarding the denial of boarding to foreign nationals on international flights to Canada and a health check that air operators flying to Canada must conduct prior to boarding. This article summarises the interim order's key points.
In 2019 the Canadian federal government took steps to address barriers for persons with disabilities, including the introduction of the Accessible Canada Act. In this context, the Accessible Transportation for Persons with Disabilities Regulations – which target federal agencies and federally regulated industries, including aviation – were finalised and published in July 2019. The service requirements applicable to Canadian and foreign carriers will come into force on 25 June 2020.
A recent decision from the Ontario Small Claims Court marks the first time that a Canadian court has considered whether EU air passenger rights legislation can be enforced outside Europe. This decision will be of interest to carriers operating flights between Canada and Europe, as it holds that a tariff that does not expressly incorporate the EU Flight Delay Compensation Regulation will not expose a carrier to breach of contract claims brought in Canada for declining to pay compensation under the regulation.
Following several rounds and many months of consultations, the government recently announced that the Air Passenger Protection Regulations (APPRs) developed by the Canadian Transportation Agency have been finalised. 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.
Three dozen Canadian airports may be on the hook for fees charged to airline employees flying on employee travel passes. A proposed class action has been commenced in the Federal Court of Canada claiming compensation for airline employees who paid certain fees which the representative plaintiff claims should not have been paid pursuant to agreements signed by the defendant airports.
The Quebec Superior Court of Justice recently ruled against Air Canada in a class action brought by passengers with disabilities, their attendants and obese passengers who had been required to pay for additional seats on flights. This decision confirms that carriers that do not abide by a 'one passenger one ticket' policy may be liable for discriminating against passengers with disabilities and obese passengers who require more than one seat.
The Ontario Superior Court of Justice recently ruled that in order to claim damages for lost luggage under the Montreal Convention, a passenger need not have personally checked the luggage. This decision partially affirms a decision of the province's Small Claims Court, in which the deputy judge held that, despite only one passenger in a group having checked in all of the bags, each passenger had been entitled to claim damages for lost luggage.
The Quebec Supreme Court recently declined to certify a class action based on the application of certain sections of the Consumer Protection Act or its Alberta equivalent to flight passes sold by Air Canada. This decision is notable for carriers selling flight passes, as it clarifies the types of transaction which are subject to consumer protection laws. Carriers which sell gift cards representing a fixed monetary value should be aware of their obligations under consumer protection laws.
The Canadian Transportation Agency is seeking a public review and comment on proposed air passenger protection regulations. Among other obligations, the proposed regulations require that carriers communicate clearly with passengers regarding their rights and recourses, entitle passengers to be rebooked in the case of delay or cancellation and – in certain circumstances – provide passengers with accommodation.
In a recent case that dealt with Air Canada's duty to serve passengers in both of Canada's official languages (English and French), the Federal Court held that the airline had violated a passenger's right to be served in French. The court found that Air Canada had failed to serve a passenger in French during an incident where the passenger had been involuntarily removed from a Canada-bound flight from Fort Lauderdale and when the airline later sent him a copy of its tariff in English in response to the incident.
The Supreme Court of Nova Scotia recently ruled in favour of Air Canada, dismissing a passenger's appeal of the province's small claims court's interpretation of the air carrier's tariff provision which pertained to denied boarding compensation. Despite humble beginnings in the small claims court, the case provides some insight into how the Canadian courts may interpret air carrier tariffs and the evidence that claimants are expected to adduce to succeed in securing compensation in overbooking cases.
In early 2018 the Federal Court reviewed a 2015 Transport Canada decision to issue a civil aviation safety alert (CASA) against Rotor Maxx Support Ltd. CASAs are non-mandatory notifications issued by the regulator which contain important safety information and recommended actions for appropriate stakeholders. The court had previously declined to grant an injunction preventing the issuance of the CASA.
In a recent Ontario Court of Justice case, Ornge air ambulance services were charged under the Labour Code following an air ambulance crash that killed two pilots and two paramedics on a night flight. The Crown argued that the accident would not have occurred had the pilots been able to see the ground using night vision goggles, and that it had been Ornge's duty to ensure their safety by providing this technology. However, Ornge held that it had complied with all of the legal and regulatory requirements.
Due to an unexpected thunderstorm, some passengers on two Air Transat flights were stranded on the tarmac in the aircraft that they had boarded in Europe for almost five and six hours, respectively. The Canadian Transportation Agency decided to investigate, which is noteworthy as there is little or no precedent for this sort of situation being the subject of an investigation or order by the agency.