'It's just not fair': Canadian passenger won't be compensated, when in Europe she'd get $900
Government’s new air passenger rights don't measure up, passengers and advocates say
Chris Conrad's European vacation in August got off to a bad start when her flight to London was delayed by a mechanical malfunction and then cancelled altogether in the middle of the night. She was finally able to get a flight to London 22 hours later than planned.
She complained to Air Canada and received a 25 per cent discount code off the base fare of a future flight. On a return flight to the U.K. that Marketplace checked, the base fare is only $329 of the $949 total cost, making the discount worth just $82.25.
Airlines in Canada aren't required to provide actual compensation to passengers for their inconvenience in situations like this, although they may provide meal, taxi or hotel vouchers, depending on the length of delay.
"They robbed me of an entire day of my vacation," Conrad said. "I didn't sleep for 48 hours. I think they owe me at least half of my air fare back."
The federal government says Canada will soon have what the transport minister calls a "world leading" passenger bill. It will outline rights — including compensation — covering all passengers flying into, out of and within Canada. But the precise details of those regulations won't be published until sometime in 2018.
Canada currently lags behind places like Europe and the U.S., which already have strong standardized passenger rights regimes. While the new rules may bring improvements, there are still areas of concern, advocates say.
Marketplace took a close look at the proposed legislation and found areas where it will fall short of protections offered elsewhere, especially in Europe.
Europeans enjoy the world's strongest consumer protections when flying. Their bill of rights outlines how airlines must treat passengers when things go wrong, including generous compensation that can reach up to $900 for the longest delays on long-haul flights.
Airlines should be liable for compensating passengers in the event of cancellation, delay or overbooking that is somehow caused by mechanical issues.- Gabor Lukacs, passenger advocate
Those rules apply to any flight on a European carrier, but also extend to Canadian carriers if the flight is departing from Europe. Had Chris Conrad been flying in the opposite direction, or with a European airline, she would be owed a payout of $900.
"It's just not fair," she says.
Airlines can avoid compensating passengers if they can demonstrate the disruption was caused by something "extraordinary" or beyond their control.
But a precedent-setting court case in England in 2014 clarified that mechanical problems — like Conrad's delay — are not "extraordinary" and are therefore the responsibility of the airline.
In Canada, however, the government is proposing to exempt airlines from compensating passengers when the reason for the delay is due to a mechanical problem with the plane.
Halifax-based passenger rights advocate Gabor Lukacs doesn't agree with this. He's helped hundreds of passenger win payouts and successfully challenged unfair airline practices dozens of times.
"Airlines should be liable for compensating passengers in the event of cancellation, delay or overbooking that is somehow caused by mechanical issues." he said.
"That's a no brainer," he added. "That has been the rule in Europe, and I don't see why it should be any different in Canada."
So why are airlines being let off the hook?
Transport Minister Marc Garneau says that "safety must be the first consideration" and that they don't want to put pressure on airlines to fly in a "marginal situation."
This is the position of many airlines, too. One of the International Air Transport Association's core principles for passenger rights legislation urges regulators not to "compromise" the "top priority of safety" and to "exonerate airlines from liability for safety-related delays and cancellations."
According to Lukacs, there is no evidence to suggest that safety has been compromised under the European rules.
The minister emphasizes that there will still be "obligations" for airlines during mechanical delays, such as having to "rebook passengers on any airline that they choose to get them to their destination as quickly as possible."
But passengers won't be compensated, he says, so that "airlines can remain competitive" and "keep prices as low as possible."
Conrad believes the policy shows the government is favouring the airlines over passengers like her.
"It makes me wonder whose side the government is on, if they're only advocating for the airlines, not the consumers," she said.
Lukacs presented his concerns to the House of Commons committee that examined the bill, but he says his recommendations were ignored.
"Nothing happened: they just rammed the bill through the committee," Lukacs said.
He also flagged to the committee that the new bill seems to be going backward on existing protections regarding lengthy tarmac delays.
All major Canadian airlines are supposed to offer protections to passengers after 90 minutes on the tarmac. Customers have a right to refreshments and the opportunity to get off the plane if it's safe and practical to do so. That's why Air Transat was fined Thursday over two flights that had lengthy tarmac delays in Ottawa last July.
However, the new bill proposes to double the amount of time to three hours before your rights kick in.
"It's mind-boggling to me why; it makes no sense to me," Lukacs says.
Rules up to CTA
The government argues that not all carriers offer the 90-minute protection, and the new rules will apply to all airlines. It also believes the change might mean you get to your destination sooner, because allowing passengers off and then reboarding them could actually extend a delay.
The job of drawing up and enforcing the precise new rules — should the bill become law — is being given to the industry regulator, the Canadian Transportation Agency (CTA).
Lukacs questions putting the agency in charge of the new system. He said he has lost faith in the CTA's ability to police airlines and ensure passenger rights are respected.
The agency's "lack of enforcement" has "plagued" Canadian travellers for as long as five years, he said.
Currently in Canada, passenger rights differ depending on which carrier you use. Each airline has a "tariff" that forms the agreement between the airline and the passenger, including what your rights are if things go wrong.
When an airline breaches those rights, the CTA has the power to order the correct compensation be paid, but it can go further and fine the airline.
"Over the last five years … our enforcement officers have issued about 100 notices of violation and have imposed about a million dollars worth of fines," agency chair Scott Streiner said.
But when pressed, the agency conceded that just one fine has been given to an airline for breaking its tariff agreement with passengers, and that was to Air Transat Thursday.
Instead, they said that most fines were issued for licensing, insurance and breaking price advertising rules.
"The problem is, in Canada, an airline that disobeys their rules faces no financial consequences," Lukacs says.
The minister, however, said he is "fully confident" that the CTA will exercise its power to enforce the new rules, adding that he "can't speak for the reasons why the CTA made certain decisions."
Lukacs remains less confident: "From my perspective, you can have the best possible rules and laws that you can imagine. If they are not being enforced, they're all futile."
Despite the dismissal of his suggestions by the House of Commons committee, Lukacs hopes the Senate — which is still debating the bill — might make some changes.
In the meantime, Garneau urges Canadian passengers like Chris Conrad to be "patient." He believes they'll be "very satisfied" with the new rights.
"You can point to differences … but in some cases, you're going to find that we do a lot better than the Europeans."