New air travel rules: Canadians are in for a rude awakening

July 15, 2019

The first phase of the new air travel rules are coming into force today. The new rules affect the rights of passengers in the case of excessive tarmac delays, denial of boarding, and damage and loss of baggage.

The Liberal government argues that the new rules are an improvement, touting them as a "world class" Canadian "airline passenger bill of rights." Nothing could not be further from the truth.

Tarmac delays: Airlines can now keep you waiting for longer

Under the 2008 Code of Conduct of Canada’s Airlines, the airline could keep you in an aircraft on the tarmac for up to 90 minutes. After 90 minutes, the airline had to let you disembark. The Code was incorporated into Canadian airlines’ terms and conditions (tariff), and was legally binding.

In 2017, Air Transat was found by the federal regulator to have broken this rule and was fined for it. (Regrettably, the fine was waived on the same day). More recently, Sunwing has also been found to have broken the 90-minute tarmac rule.

Under the new rules, airlines can keep you on the tarmac for up to 225 minutes (3 hours and 45 minutes). This is more than double the 90-minute limit that was also endorsed by the Senate. The new rule establishes 3 hours (180 minutes) as the new limit, and allows the airline to keep you confined to the aircraft for another 45 minutes if take-off is imminent.

Denied boarding compensation: Most likely you will not be eligible

The new rules call for seemingly generous compensation amounts of up to $2,400, but there is a catch. “Denial of boarding” is defined narrowly. Showing that you had a confirmed booking, necessary travel documents, and presented yourself for check-on time is no longer enough. You will also have to prove why you were bumped. You will get compensation only if you have evidence that at the boarding gate, there were more passengers than the number of seats available on the aircraft, and that all this happened for reasons within the airline’s control and not due to maintenance issues. Good luck!

Before the new rules came into force, the federal regulator recognized the principle that airlines should not be able to avoid paying denied boarding compensation by tricking passengers. For example, if you present yourself for check-in on time but find the airline’s counters closed or if the airline unilaterally changes your ticket, you are still eligible to compensation. The regulator called these cases constructive or de facto denial of boarding. Under the new rules, however, passengers caught in such situations are left without protection.

It is also worth comparing the new rules with the European Union (EU) gold standard of air passenger protection.

Baggage: Regifting existing rights with small improvements

The right to compensation for delay, damage, and loss of checked baggage is nothing new. For international travel, it has been on the law books since 2003 as Schedule VI of the federal Carriage by Air Act, also known as the Montreal Convention. The monetary limit of approximately $2,100 has been in place since 2009. For travel within Canada, similar obligations existed in the airlines’ terms and conditions and in regulatory decisions, although the monetary limit was lower for some airlines.

To a great extent, the new rules regift the rights passengers already have under the Montreal Convention, but we would be remiss if we did not mention two marginal improvements in the new rules. First, the Montreal Convention is extended to cover baggage liability on domestic travel. Second, if your baggage is delayed, damaged, or lost, the airline must refund your baggage fee.

Enforcement: Nothing changes

The new rules provide for no new enforcement mechanisms. Lack of enforcement by the federal regulator has been one of the most pressing concerns for the past five or six years. While the regulator already had broad powers to impose fines on airlines that violated passenger rights, no fines were issues in most cases, and when fines were issued, they were not collected.

While breaking the new rules is also punishable by a fine, the new rules offer nothing in the way of ensuring that fines are issued and collected.