Air Passenger Bill: Address to the House of Commons committee
Speaking notes of Dr. Gábor Lukács

September 14, 2017

 

Madam Chair, Honourable Members. Thank you for inviting me to this meeting. It is an exceptional privilege to have the opportunity to present the perspective of air travellers.

Air Passenger Rights is an independent nonprofit network of volunteers, devoted to empowering travellers through education, advocacy, investigation, and litigation. Our Air Passenger Rights (Canada) group on Facebook has over 5,000 members.

I am the founder and coordinator of Air Passenger Rights, which grew out of my advocacy for the rights of Canadian travellers. Since 2008, I have filed 26 successful regulatory complaints against airlines relating to issues such as liability for damage, delay, and loss of baggage, flight delay, flight cancellation, and compensation for involuntary denied boarding.

I am here today to deliver a cautionary message. Bill C-49:

  • does not address the key issue of lack of enforcement of the rights of passengers;
  • does not adequately protect Canadian passengers; and
  • it falls short of the rights provided by the European Union's  regime.

I will be expanding on each of these issues in turn.

Lack of Enforcement

The lack of adequate legislation is often blamed for the woes of passengers. This is a myth.

The Montreal Convention is an international treaty that protects passengers travelling on international itineraries:

  • Damage, delay, loss  of bag: CAD$1,957.
  • Delay of passengers: CAD$8,122.
  • Injury or death of pax: CAD$195,700.

The Montreal Convention is part of the Carriage by Air Act, and has the force of law in Canada.

Canada also requires airlines to set out the terms and conditions of travel in clear language in a so-called Tariff. Failure of an airline to apply the terms and conditions of the Tariff is:

  • punishable by a fine of up to  CAD$10,000; and
  • an offence punishable on summary conviction.

Thus, the existing laws, regulations, and regulatory decisions could provide substantial protection for Canadian passengers—if only they were enforced by the regulator, the Canadian Transportation Agency.

The trouble is that the Agency has abdicated its duty to enforce the law:

Complaints Against Airlines

Enforcement Actions by the Agency

The Agency has also been criticized by the Federal Court of Appeal. In a 2016 judgment, Justice de Montigny found:

[...] the Agency erred in [...] thereby ignoring not only the wording of the Act but also its purpose and intent. [...] the role of the Agency is [...] also to ensure that the policies pursued by the legislator are carried out.

There is no doubt that the laws can and should be improved; however, without enforcement, the law will remain dead letter.

Bill C-49, as it reads now, does nothing to remedy this state of affairs.

Shortcomings of Bill C-49

Bill C-49 suffers from numerous major shortcomings. It misses important areas of passenger protection altogether, and undermines existing rights in other areas.

First, it does not create an enforcement mechanism or any financial consequences for airlines that break the rules. Thus, breaking the rules remains the most profitable course of action for airlines.

Second, it offers no protection for the most vulnerable passengers: children travelling alone and persons with disabilities.

Third, it hinders advocacy groups in protecting the rights of passengers by barring most preventive complaints that seek intervention before anyone would suffer damages. All but one of the 26 successful regulatory complaints that I brought were of this nature: I was not personally "adversely affected," but the practices that I challenged were harmful.

We recommend that the Committee remove proposed section 67.3 from the Bill.

Failure to Protect Canadian Passengers

Fourth, contrary to the testimony of Transport Canada officials, Bill C-49 does not provide protection that is comparable to the European Union's regime.

  • For the all too common event of mechanical malfunction, the Bill proposes to relieve airlines from the obligation to compensate passengers for inconvenience. This is hidden in proposed subparagraph 86.11(1)(b)(ii).
  • In sharp contrast, the European Union's regime recognizes that it is the responsibility of the airline to adequately maintain its fleet, and requires airlines to compensate passengers for inconvenience in the event that a flight is delayed or cancelled due to mechanical malfunction.

We recommend that the Committee amed paragraph 86.11(1)(b) to clarify that in the event of mechanical malfunctions, airlines are liable to compensate passengers for their inconvenience.

Fifth, Bill C-49 proposes to double the acceptable tarmac delay from the current Canadian standard of 90 minutes to 3 hours.

We recommend that the Committee amend paragraph 86.11(1)(f) by replacing "3 hours" with "90 minutes."

Regulatory Capture of the Canadian Transportation Agency

In closing, we would like to draw attention to some troubling facts that deepen our concerns about the impartiality and integrity of the Agency:

  • Bill C-49 would be passed by Parliament and before any public consultation would take place about the regulations to be developed, the Agency has already "sought IATA's input with regard to the regulations that" the Agency would draft.
    • IATA is the International Air Transport Association. It represents the interests of the airline industry.
    • Evidence showing this is found in an affidavit submitted by IATA to the Supreme Court of Canada in File No. 37276.
  • We have received reports from passengers about Agency staff turning them away, unceremoniously advising them that their complaint filed with the Agency would be "closed."
    • The Agency did not make a decision or order dismissing these complaints, yet complainants were made to understand that their complaint had been dismissed.
    • Complainants were either not informed about their right to ask for formal adjudication or were discouraged from exercising that right by Agency staff.

In our view, the Agency has lost its independence, and the integrity of its consumer protection activities has been compromised. The Agency's actions and failure to act to enforce the law have undermined
public confidence in its impartiality.

We recommend that the Committee amend the Bill to transfer regulation-making powers from the Agency to the Minister, and transfer other responsibilities relating to air passenger rights to a separate consumer protection body.

I would like to thank you for the opportunity to present the concerns of air travellers to the Committee.

A brief, outlining these concerns, and providing detailed recommendations to remedy them, has been submitted.


Downloads

Air Passenger Rights' brief to the Standing Committee on Transport, Infrastructure and Communities