MONTREAL — The Canadian Transportation Agency on Tuesday laid out proposed changes to the passenger rights charter that seek to simplify customer compensation, launching consultations on the overhaul amid skepticism from both advocates and airlines.
The reforms come after the Liberal government passed legislation last month to toughen penalties on airlines, shore up the complaint process and target flight disruption loopholes that have allowed carriers to avoid compensating travellers.
"Under the new, simplified framework, air carriers will be required to compensate passengers unless there was an exceptional situation" — with the burden of proof on the airlines to show there was — said Tom Oommen, who heads analysis and outreach at the agency, in a virtual briefing.
The amendments to the Air Passenger Protection Regulations spell out the circumstances when a carrier would not have to compensate customers, narrowing the field so that most technical problems will no longer give airlines an out.
The new rules would also allow customers to claim a refund if the government raises the risk level of travel to certain countries or if a flight disruption prevents them from completing their trip "within a reasonable time — for example, if the offered rebooking was so delayed ... that the trip would no longer serve the passenger's original purpose," according to the agency. The current threshold is 48 hours.
Further, the changes demand more timely information about disruptions from airlines and cap at two the number of flights in a row where carriers can point to "knock-on effects" caused by a problem elsewhere, such as inclement weather, as a reason to deny compensation.
The complaints backlog at the regulator now tops 52,000, roughly triple the tally from a year ago and taking two years per case on average.
The tally steadily ticked up after last summer's airport chaos and further hitches over the winter holidays. While traffic has flowed much more smoothly this travel season, airlines including Air Canada routinely see the proportion of on-time arrivals dip below 50 per cent as they continue to work through post-pandemic kinks.
“We’re in a kind of a mess," said John Lawford, executive director of the Public Interest Advocacy Centre.
He cast doubt on whether the so-called safety loophole for compensation was really shut tight.
The bane of many passengers over the past few years, it has allowed airlines to deny customers compensation for flight cancellations or three-hour-plus delays if they were "required for safety purposes," as stipulated in the Canada Transportation Act.
The proposed changes scrap that safety provision. But Lawford said the list of "exceptional circumstances" partly walks back the move, "listing almost everything that was in the previous regime."
The list of examples — "illustrative" rather than definitive, the agency said — that clear airlines of compensation obligations includes "hidden manufacturing defects," which are potentially comparable to the mechanical issues frequently cited by carriers.
"That’s not an exception that’s recognized in Europe," Lawford said, highlighting what's sometimes referred to as the gold standard of passenger protection regimes.
However, the list does exclude "technical problems that are an inherent part of normal airline operations."
In the European Union, a defect would have to affect all planes of that model to qualify as an exception, said Gabor Lukacs, president of the Air Passenger Rights advocacy group.
Airline strikes, also listed as a proposed exception, don't typically make the cut across the Atlantic, he said.
"I'm somewhat skeptical about the whole process."
Meanwhile, the National Airlines Council of Canada, an industry group representing four of the country's biggest carriers, has denounced the scrapping of safety concerns as an explicit exception to compensation requirements.
"No airline should be penalized for adhering to the highest standards of safety, whether that is due to weather, mechanical issues or other safety-related constraints," council president Jeff Morrison in a statement in April.
The route to a better travel experience runs through airport upgrades and greater accountability across the range of aviation players, according to the council.
Morrison has also said airlines should not shoulder sole responsibility for all organizations in the overall system, over which they have no control.
Included in the list of exceptional circumstances are "airport operational issues for which the airline is not responsible." It remains to be spelled out what those issues are — for example, whether they would include a dearth of air traffic controllers that triggers a wave of disruptions, a problem that has played out in recent weeks.
"I don't have the definitive answer," Oommen said in a phone interview. But he stressed the goal of consultations: "hearing about the approach, about different things that could arise that we haven't thought of."
Not all advocates were dismissive.
“I think they’re trying to close those gaps as tight as possible. It’s never something that’s easy," said Sylvie De Bellefeuille, a lawyer with the advocacy group Option consommateurs.
However, she said that even operational hiccups not directly caused by an airline shouldn't necessarily relieve it of compensation obligations.
"Should it be their responsibility when they book numerous flights to make sure that the airport systems are in good enough shape to manage all of those flights?" she asked.
Other upcoming changes involve ratcheting up the maximum penalty for airline violations to $250,000 — a tenfold increase — and putting the regulatory cost of complaints on carriers. In theory, that measure gives airlines an incentive to brush up their service and thus reduce the number of grievances against them.
Another proposed regulation would make airlines provide food and accommodations after delays, even under exceptional circumstances — carriers do not currently have to do so if the disruption is for reasons outside their control.
The transportation agency kicked off 30 days of public consultations on the proposed reforms Tuesday.
A second round of consultations will follow a set of draft regulations, to be published after initial public consultations wrap up on Aug. 10.
The new rules are expected to be in force by early next year, if not before, with a streamlined complaints process set for implementation on Sept. 30.
This report by The Canadian Press was first published July 11, 2023.
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Christopher Reynolds, The Canadian Press
