WestJet’s decision to lock out its own employees and/or “preemptively” cancel flights in anticipation of a strike that has not yet started is a business decision over which WestJet has full control, and it is not required for safety reasons. Such flight disruptions are not “caused” by labour disruptions; rather, they are akin to the airline deciding not to operate a flight for purely economic reasons (e.g., insufficient number of seats sold).
On the other hand, if your flight is cancelled after WestJet employees go on strike and without WestJet locking out its own employees, then please see WestJet Strike 2024: What Are My Rights?
If WestJet locks out its own employees and/or cancels your flight “preemptively” before a strike has begun, your rights depend on your itinerary; however, WestJet must always offer you a choice between the following two options.
Option 1: Continuing to Travel, Plus Assistance and Compensation for Inconvenience
- Rebooking, free of charge, on the next available flight operated by any carrier, including on competitors with whom WestJet has no interline agreement, on any reasonable air route from the airport where you are located, or another airport that is within a reasonable distance of that airport, to the destination that is indicated on your original ticket.
- Meals and overnight accommodation while waiting for your alternate transportation.
- Cash compensation for your inconvenience of up to $1,000 CAD per passenger depending on the length of delay you experienced arriving at your final destination compared to the scheduled arrival (if you were notified about the cancellation 14 days or less before your travel date).
- In addition, if the new departure is from an airport other than the one at which you are located, transportation to that other airport.
Option 2: Refund and Return to Point of Origin, Plus Compensation for Inconvenience
- Refund in the original form of payment and within 30 days of all unused flight segments and segments that no longer serve any purpose.
- Cash compensation in the amount of CAD$400 per passenger for your inconvenience (if you were notified about the cancellation 14 days or less before your travel date).
- In addition, transportation to your point of origin, free of charge, if you are not at the point of origin and the travel no longer serves any purpose because of the cancellation.
If the airline refuses to rebook you on a competitor airline in accordance with Option 1, then you may want to buy a ticket on a competitor airline on your own, and then hold WestJet liable for the extra expense.
Do not agree to Option 2 if what you really want is to continue travelling, because Option 2 allows the airline to wash its hands of further responsibility for your travel. It often costs more to book a flight the closer it gets to the travel date. Accepting a refund and rebooking on your own will often make you out of pocket because of the airline’s conduct. The airline cannot “force” on you Option 2, though.
We strongly recommend that you record your own interactions with WestJet. Evidence of WestJet’s actions and omissions, including refusal to offer compensation or rebooking, may turn out to be crucial evidence for enforcing your rights to compensation.
Additional compensation for out-of-pocket expenses (meals, hotels, lost wages, prepaid events missed at the destination) and inconvenience may be owed to you, depending on your travel’s origin and destination.
Ultimately, you may want to take WestJet to small claims court to enforce your rights.
The Air Passenger Protection Regulations
If your itinerary is entirely within Canada, then unfortunately your only protection is Canada’s inferior Air Passenger Protection Regulations, also known as the APPR. The APPR also applies to all flights to and from Canada, but you may have additional rights under other legislation (see below).
An airline deciding to “preemptively” cancel flights ahead of a strike or to lock out its own employees is a business decision. It is “within the carrier’s control” and is not “required for safety reasons” within the meaning of the APPR (s. 12(3)). The airline must offer you a choice between Option 1 and Option 2 above.
Option 1: Continuing to Travel, Plus Assistance and Compensation for Inconvenience
- Under paragraph 17(1)(a) of the APPR, the airline must rebook you, free of charge, on the next available flight operated by that airline or its partner (i.e., Delta for WestJet) departing within 9 hours of your original departure time, or failing that, on the next available flight operated by any competitor with whom WestJet has no interline agreement.
- The rebooking must be done irrespective of class of service (ss. 17(3) and 17(5)). For instance, if the next flight available only has business class seats and you were originally booked in economy, the airline must book you into business class for free.
- It may be beneficial to consult a flight booking website to determine what the next available flights in fact are, as some airlines may try to put you on flights departing many hours or days later, in contravention of their rebooking obligation under the APPR.
- Under section 14 of the APPR, the airline must provide food and beverages when you are delayed by two hours or more, and accommodation if you must wait overnight for your flight.
- If the airline does not provide these, you may want to pay for them yourself, keep the receipts, and then hold the airline liable for these expenses.
- The airline cannot place an arbitrary cap on these expenses on the basis of its internal guidelines or rules. As long as your meal and accommodation expenses are reasonable, the airline must pay for them.
- Under paragraph 19(1)(a) of the APPR, the amount of cash compensation owed for inconvenience is based on how much you were delayed on arrival at your final destination compared to your scheduled arrival time:
- CAD$400 per passenger - delays of 3-6 hours;
- CAD$700 per passenger - delays of 6-9 hours; and
- CAD$1000 per passenger - delays of 9 hours or more.
Option 2: Refund and Return to Point of Origin, Plus Compensation for Inconvenience
- Under subsection 17(2) of the APPR, you are entitled to choose to not travel anymore and opt for a full refund of the ticket. Should you make this decision enroute to your destination, the airline is required to also fly you back to your point of origin free of charge.
- Under section 18.2 of the APPR, the airline must provide that refund to the original form of payment within 30 days of you requesting it.
- Under paragraph 19(2)(a) of the APPR, should you opt for a refund, cash compensation for inconvenience in the amount of CAD$400 is also owed on top of the refund.
Flights that are Part of an International Itinerary
If your itinerary includes at least one international segment, then the airline is liable for damages incurred by you as a result of delay. This includes flights to or from the US. Put another way, if any one of your flights crosses an international border, this section applies to you. This means that, in addition to offering you a choice between Option 1 and Option 2, WestJet must also compensate you, after the fact, for:
- reasonable expenses incurred for meals, ground transportation, accommodation, telecommunications, etc.;
- lost wages;
- prepaid hotel nights or events missed at the destination; and
- any other loss you may have incurred as a result of the delay.
The source of your rights is Schedule VI to the Canadian Carriage by Air Act, also known as the Montreal Convention, specifically its Article 19. It says that the airline can avoid liability for delay only if the airline proves that the airline, the airline’s agents, and the airline’s servants have taken all reasonable measures to prevent the delay or that there were no such measures available. In addition, under Article 26, the airline cannot exclude this liability by using creative contractual language.
While WestJet may attempt to deny compensation on the basis of this exception, it is unlikely to succeed in court given that cancelling flights preemptively or locking out employees is a deliberate action that the airline can easily prevent. Nevertheless, WestJet may dig in its heels and refuse to pay unless and until passengers take them to court.
In most cases, airlines’ liability for passenger delay under the Montreal Convention is limited to approximately CAD$10,000 per passenger. Airlines cannot impose any formula or guidelines on reimbursement. A policy purporting to limit hotel reimbursements to $150 per night is null and void pursuant to Article 26 of the Montreal Convention.
Flights Departing from the EU/EEA/UK and Connecting Flights
If your trip starts in the European Union or the European Economic Area or the UK, contains one or more flights operated by WestJet, and those flights get cancelled, this section applies to you.
For instance, if you were flying from Paris to Calgary via Atlanta, and the first flight was operated by Air France from Paris to Atlanta, while the Atlanta-Calgary flight operated by Westjet is “preemptively” cancelled in anticipation of a strike or due to a lockout.
In these instances, in addition to offering you a choice between Options 1 and Option 2 above, the airline must:
- pay you cash compensation in the amount of:
- 300 EUR if you are delayed by at least 3 hours but less than 4 hours; and
- 600 EUR if you are delayed 4 hours or more;
- provide you with care (meals, accommodation, ground transportation, and 2 free phone calls or emails).
The source of your rights is Regulation (EC) No. 261/2004 of the European Parliament and of the Council, which has also been codified as UK domestic law. The European Court of Justice recently confirmed that a strike is not an “extraordinary circumstance” within the meaning of Regulation (EC) No. 261/2004, and a strike does not relieve the airline from the obligation to pay compensation; in particular, a lockout or a preemptive flight cancellation is not an “extraordinary circumstance.” (You may also be entitled to additional compensation under the Montreal Convention, if applicable.)
