Introduction
In 2019, Canada enacted new regulations regarding the treatment of air passengers.1
Prior to the introduction of the regulations, there was a consultation period when input was sought from the public, consumer advocates, and the air industry.2 The consumer advocates wanted the air carrier obligations to equal or exceed the requirements in the European Union, while the aviation industry advocated for the exclusivity of the Montreal Convention and that the regulations should not exclusively penalise air carriers.
A compromise was reached and the regulations, known as the Air Passenger Protection Regulations (APPRs) set standards for treatment, as well as minimum compensation levels for different circumstances, including flight delays, cancellations, carrier communications with passengers, tarmac delays, denied boarding and baggage claims.3
Although the APPRs are Canadian in origin, these regulations apply to all flights to, from and within Canada, including connecting flights. It is therefore important for all air carriers to understand what the APPRs include. To assist in such understanding, this article will review the regulations and provide a comparison with the existing passenger protection regulations in the European Union.4
Scope and application
Scope
The APPRs provide guidance to carriers in the following areas:
- general guidance (sections 2-7);
- delay, cancellation and denial of boarding (sections 8-21);
- assignments of seats to children (section 22);
- baggage (section 23-24);
- advertising (section 25-31); and
- compliance penalties (section 32-33).
Application
The APPRs apply irrespective of whether an air carrier is domestic or not. The regulations apply to:
- flights to and from Canada;
- flights within Canada, including connecting flights;
- charter flights on which one or more seats are for resale to the public, both within Canada and to and from Canada, as part of a charter that originated in Canada;
- connecting flights taking place outside Canada, where the connecting flight is operated by the same air carrier that operated the flight to or from Canada; and
- connecting flights taking place outside Canada where the connecting flight is operated by a different air carrier from that which operated the flight to or from Canada, but is doing so pursuant to a commercial agreement, such as a code-share arrangement.
In certain sections of the regulations, there is a distinction made between large and small air carriers. For these purposes, large carriers are considered to be air carriers that have transported at least two million passengers worldwide in each of the two preceding years.5 All other air carriers are considered to be small. In their tariffs, and for the purposes of the APPRS, air carriers must identify themselves as large. A smaller air carrier transporting a passenger on behalf of a large air carrier will be subject to the obligations of the large air carrier.
The air carrier issuing the ticket is responsible for providing the passenger with the required information on travel documents and on the platforms it uses to sell tickets.
The APPR requirements for flight disruptions (flight delays, cancellations, tarmac delays and denied boarding) are the responsibility of the air carrier operating the affected flight.
Reasons for enacting the APPR
The APPRs were developed after the news media published details of a number of unfortunate tarmac delays and overbooked flights.6
As the Canadian Minister of Transportation stated at the time the APPRs were introduced:
‘In a vast nation like Canada, Canadians rely on economically viable modes of transportation to travel and move commodities within the country, across the border, and to our ports for shipment overseas. The time has come to modernize our policies and practices to provide a safer, more competitive and respectful system that can respond to modern conditions and to Canadians’ expectations. When Canadians purchase an airline ticket, they expect the airline to provide the service that they paid for and to be treated with respect. When things don’t go the way they are planned, travellers deserve clear, transparent, fair and consistent compensation.’
Comparison to EU passenger rights regulations
In the following section, a chart compares some of the main provisions between Canada’s APPR and the European Union:7
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Canada |
European Union |
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SCOPE |
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Denied Boarding |
|
|
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Compensation |
Based on length of arrival delay time
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Based on trip distance
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|
Reimbursement |
Once denied boarding, the air carrier must:
if alternative travel arrangements don't meet passenger needs, carrier must:
|
Once denied boarding, the air carrier mist:
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Assistance |
If there is a delay caused by denied boarding, the air carrier must provide:
|
If there is a delay caused by denied boarding, carrier must provide:
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Flight Delays |
If the delay is within carrier control, the carrier must:
After three hours, provide alternative travel arrangements, free of charge, to passengers that desire these; and If the delay is announced 14 days or less before departure, carriers must compensate passengers as follows: Large air carriers must pay:
Small air carriers must pay:
If the delay is within carrier control but required for safety reasons, the carrier must do all of the above except for paying compensation. If delay is not within carrier control, the carrier must communicate the reasons for and nature of the delay properly and must make alternative arrangements for the passenger, free of charge, with the aim of getting passengers to their destination as soon as possible. |
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Flight Cancellation |
The air carrier has same responsibilities as for flight delays, listed above. |
If a flight is cancelled (in circumstances that could have been avoided), the carrier must provide:
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Tarmac Delays |
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In all cases, flight delay compensation rules apply. |
Important principles
In this section, the authors present some principles of application for the AAPRs, as decided in previous cases before the Canadian Transportation Agency (CTA).
The CTA is an independent, quasi-judicial tribunal and economic regulator. It is to the tribunal to which passengers and air carriers may apply to have disputes arising out of APPRs adjudicated. Some previous decisions regarding principles for the application of the APPRs, relevant to this article, are as follows.
The CTA cannot adjudicate disputes over the application of EU passenger rights legislation, or require an air carrier to comply with them. This is so even where the air carrier applying that legislation is a Canadian airline, and the passenger may have originated from Canada.8
For example, in CTA Decision No. 432-C-A-2013, the Applicants argued that the Tribunal should direct the air carrier Sunwing to apply a compensation regime similar to that of EC261. However the CTA confirmed that it makes determinations on provisions relating to legislation or regulations that it is able to enforce. Foreign legislation, such as the European Union’s Regulation (EC) 261/2004, does not satisfy this criterion. If an air carrier feels compelled or has been instructed by a foreign authority to include a reference in its tariff to foreign law, the air carrier is permitted to do so. However, the inclusion of a foreign tariff is not a requirement imposed by the CTA.
Additionally, the new APPRs do not apply retroactively. In a recent decision, a passenger submitted that, because her dispute with Air Canada was being determined after the APPRs came into effect, it should be determined in accordance with the APPRs rather than the former tariff rules. However, the CTA determined: ‘It is a well-understood concept of statutory interpretation that, unless explicitly specified, statutes and regulations are not of retroactive effect.’ Because the legislation does not specify retroactive application, the date of the flight governs which regime will apply: either the former tariff, or the APPR.9
Conclusion
The introduction of the APPRs in Canada had some impact on the rights of passengers and, in many ways, imposes more stringent requirements on air carriers. Because the APPRs apply to all air carriers flying into, out of or within Canada, it is important for any air carrier to understand the requirements of the Canadian legislation.
With any new legislation impacting on the wallets of Canadians, there will be a great deal of interest on the part of those who stand to gain. Already, the CTA has received numerous complaints from passengers about how the APPRs are being applied. The volume of those requests forced the CTA to deploy a rarely used power of inquiry in order to look into the complaints in aggregate, rather than individually. This inquiry has not progressed far, however, due to the Covid-19 pandemic.
As for the pandemic, it caused the CTA to relax many of the APPRs for a period of time in order to allow for repatriation, which required a significant number of flight changes and cancellations. The complete set of impacts of the pandemic on worldwide air travel is not yet known. Suffice it to say that, as a result of the pandemic, how the APPRs will be applied to flights taking place in these uncertain times and into the future remains an open question.
This article first appeared on the website of the Aviation Law Committee of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.
1 The complete regulations can be accessed on the Government of Canada, Justice Laws Website: Air Passenger Protection Regulations, ‘Air passenger protection regulations consultations - What We Heard’
2 (Canadian Transportation Agency), see "Air Passenger Protection Regulations Consultations - What We Heard," accessed 8 September 2020.
3 ‘Air passenger protection regulations’ (Canadian Transportation Agency), see "Air passenger protection regulations," accessed 8 September 2020.
4 ‘Help and advice for EU nationals and their family’ (European Union), see, https://europa.eu/youreurope/citizens/travel/passenger-rights/air/index_en.htm accessed 8 September 2020.
5 The authors anticipate that the impact of the Covid-19 pandemic on passenger volumes may lead to challenges to the applicability of the regulations and/or changes to the definitions used in the APPRs.
6 See, for example, "Air Transat passengers describe 'deplorable' treatment at first day of inquiry," accessed 8 September 2020; and "Why overbooked flights aren't going away any time soon," accessed 8 September 2020.
7 The sources for these summaries are the websites of the Canadian Transportation Agency and EUR-Lex Summaries of European Legislation.
8 See, for example, Decision No. 15-C-A-2019, Heaney et al. v Air Canada, and Decision No. 432-C-A-2013, Nawrot et al. v Sunwing Airlines Inc.
9 Decision No. 71-C-A-2020, Ben-Ishai v Air Canada.
