Air Passenger Protection Reform: Address to the Senate Transport Committee
Speaking notes of Dr. Gábor Lukács

Senate May 16, 2023

Mr. Chair, Honourable Senators,

Air Passenger Rights is Canada’s independent nonprofit organization of volunteers, devoted to empowering travellers.

We have a track record of successfully predicting shortcomings and loopholes in legislation relating to air passenger rights

Five years ago, we testified before the House of Commons and the Senate’s respective Committees, and cautioned that the Transportation Modernization Act was inadequate.

In 2019, we published a 52-page report with predictions about how airlines would likely exploit the Air Passenger Protection Regulations’ shortcomings and loopholes.

In December 2022, we cautioned that Canada’s air passenger protection regime was broken, and we proposed specific legislative amendments as a solution.

Mere days later, during the holiday season, Canadians witnessed a second meltdown of air travel that year, compounded by airlines’ flagrant disregard of passengers’ rights under the APPR.

Our predictions are based on the experience of passengers whom we help daily in their struggle to enforce their rights, and have been validated by the four years that have passed since the regulations came into force.

Today, even the government acknowledges that our air passenger protection regime needs to be substantially strengthened.

Unfortunately, the legislative amendments put forward in Bill C-47 have the opposite effect.

First, the government proposes to create a secretive, Star Chamber-like process for adjudicating consumer disputes between passengers and airlines, with no appeal.

Adjudication will be conducted on the basis of confidential information instead of evidence, and with the exclusion of the public and the media.

Bill C-47 therefore violates Canadians’ freedom of expression and the open court principle guaranteed by s. 2(b) of the Charter, as well as the right to a fair hearing in accordance with the principles of fundamental justice, protected by s. 2(e) of the Canadian Bill of Rights.

Second, proposed section 85.12 is effectively a Henry VIII clause that allows the Canadian Transportation Agency to change the law while bypassing the system of checks and balances set out in the Statutory Instruments Act.

The Agency will be able to make and modify guidelines affecting passengers’ rights overnight, without examination by the Clerk of the Privy Council and the Deputy Minister of Justice, without publication in the Canada Gazette, and without scrutiny by Parliament’s committees.

Third, Bill C-47 perpetuates existing loopholes, and creates a new one.

In spite of the government promise to the contrary, the Bill retains the “required for safety purposes” excuse for airlines to avoid paying passengers compensation.

This made-in-Canada loophole has unnecessarily and disproportionately complicated adjudication of disputes between passengers and airlines.

Since evidence about the reasons for a flight disruption is in the airlines’ exclusive control, passengers are at a great disadvantage in enforcing their right to compensation.

Bill C-47, however, shifts the burden of proof to the airlines in such disputes only if the passenger gives up their right to a fair and open hearing before an impartial judge, and instead agrees to submit to the Star Chamber-like process.

Bill C-47 also creates a new loophole. Clauses 467-470 would allow airlines that sign a so-called “compliance agreement” to avoid paying penalties for violating passengers’ rights.

To summarize, many of the government’s proposed amendments to the Canada Transportation Act miss the mark, do the opposite of their stated purpose, and will weaken not only air passenger protection but also fundamental rights in Canada.

Please be a “sober second thought,” and do not let this happen.

Please amend Division 23.

A suitable model for amending Division 23 would be Bill C-327, a private member’s bill to harmonize Canada’s air passenger protection regime with the European Union’s gold standard.

Bill C-327 has been endorsed by Canada’s leading consumer protection organizations. It is what Canadians need.

Thank you.