Amid the recent media reports on the “suspension” of WestJet’s Toronto-Montreal and Toronto-LaGuardia routes, precious little has been said about the rights of affected passengers who already purchased tickets on flights that WestJet has just cancelled.
The most important yet often ignored obligation of an airline in such situations is to offer affected passengers alternate transportation, including on competitor airlines.
Airlines understandably loathe buying tickets on competitors’ flights. Nevertheless, WestJet is required to do so by law if they cannot offer alternate transportation on its own or its partners’ next flights that depart within 9 hours of the original departure time.
A “Route Suspension” is a Flight Cancellation
WestJet may say that these routes were “suspended” and had a “schedule change”; however, these euphemisms do not alter the fact that the flights in question were cancelled. This means that:
- the Air Passenger Protection Regulations (APPR) apply to all route suspensions; and
- the Montreal Convention applies in addition to the APPR to international itineraries, such as those including a flight between Toronto and LaGuardia.
Cancellation Within the Carrier’s Control and Not Required for Safety Purposes
Like any other business, WestJet is entitled to make commercial decisions to maximize its profit. Such commercial decisions may include cancelling flights that WestJet considers less profitable; however, WestJet cannot walk away from its contract of carriage with passengers.
Flight cancellations for commercial reasons are cancellations entirely within WestJet’s control, and they are not required for safety purposes. This means that:
- subsection 12(3) of the APPR applies; and
- WestJet has no valid defence to liability under the Montreal Convention.
Your Rights Under the APPR
When your flight is cancelled for reasons within the carrier’s control but not required for safety reasons, subsection 12(3) of the APPR imposes four obligations on the airline operating the flight that was cancelled to provide you with:
- information about the cancellation, its reasons, and your rights;
- a choice between
- alternate transportation, free of charge, to complete the itinerary as soon as feasible (including on competitors); and
- a refund in the original form of payment;
- meals and accommodation, if you are informed about the cancellation less than 12 hours before the departure time on the ticket; and
- lump sum compensation, if you are informed about the cancellation 14 days or less before the departure time on the ticket.
If the flight cancellation is announced more than 14 days in advance, the airline’s key obligation is to offer alternate transportation that meets the APPR’s requirements.
- The obligation to offer alternate transportation, including on competitors’ flights, is unaffected by WestJet advising passengers many months in advance about the cancellation.
Additional compensation for out-of-pocket expenses (meals, hotels, lost wages) is owed to you under the Montreal Convention if you had an international itinerary.
Alternate Transportation for Disruption Within the Carrier’s Control
If WestJet cancels a flight for reasons within its control, it must rebook you, free of charge, on an alternate itinerary that allows you to reach your destination as soon as feasible.
Since WestJet is a “large” carrier, under subsection 17(1) of the APPR:
- WestJet must rebook the you on the next available flight operated by WestJet or one of its partner airlines that departs within 9 hours of the original departure time on the ticket;
- if that is not possible, then WestJet must buy you a ticket on a competitor airline’s flight that departs within 48 hours of the original departure time on the ticket; and
- if that is not possible either, then WestJet must rebook you on a flight of any airline that departs within a reasonable distance from the airport at which you are located.
Right to a Refund in the Original Form of Payment
If WestJet offers an alternate transportation that meets the aforementioned requirements, but is nevertheless not suitable for your travel plans, then you can reject the alternate transportation and seek a refund instead.
- WestJet must issue a refund in the original form of payment and within 30 days of all unused flight segments and segments that no longer serve any purpose.
- In addition, WestJet must provide 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.
Tickets Purchased Through a Travel Agent
Obligations with respect to flight cancellation under the APPR are owed by the operating carrier, WestJet, and not by the seller of your ticket (see subsection 2(1)). This means that:
- WestJet cannot refer you back to your travel agent through which you purchased your ticket.
- WestJet must deal with you and offer you alternate transportation, or a refund if you so choose, regardless of how your ticket was booked.
Travel on an International Itinerary
If your itinerary includes at least one international segment, then WestJet is liable for damages incurred by you as a result of delay caused by the cancellation of your flight. This means that, in addition to offering you a choice between alternate transportation and a refund, WestJet must also compensate you, after the fact, for:
- reasonable out-of-pocket expenses incurred (meals, ground transportation, accommodation, telecommunications, etc.);
- lost wages; and
- any other loss you may have incurred as a result of the delay.
The source of your rights is the Montreal Convention, an international treaty that has the force of law in Canada.
- Article 19 says that the airline is liable for damages caused by delay in air transportation.
- The airline can avoid liability only if it 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 the case of a cancellation for commercial reasons, the airline has no valid defence under Article 19.
- Under Article 26 of the Montreal Convention, the airline cannot exclude this liability by using creative contractual language.
The Montreal Convention is incorporated as Schedule VI to the Canadian Carriage by Air Act.
What To Do If WestJet Refuses to Obey the Law?
We strongly recommend that you record the audio of your own interactions with WestJet. Evidence of WestJet’s actions and omissions, including refusal to offer rebooking, may turn out to be crucial evidence to enforce your rights to compensation.
In dealing with WestJet on the phone:
- clearly articulate what you expect WestJet to do, and record your call during which you put forward your request and WestJet’s refusal; and
- do not accept statements starting with “your only options are…” and remind WestJet’s agent that their only option is to follow the law.
If WestJet refuses to offer alternate transportation that meets the APPR’s requirements:
- clearly state which requirement of the APPR is not met, and record your call;
- do not accept a refund if alternate transportation is available on another carrier, because it could support WestJet’s argument that it has no further obligations to you;
- advise WestJet that if they do not offer alternate transportation as per the APPR, then you will be buying a ticket on another airline, and will be holding WestJet liable for your expenses;
- fix a reasonable deadline (e.g., 7 days) for WestJet to provide alternate transportation as per the APPR; and
- if WestJet does not comply by the deadline, arrange for alternate transportation on your own, and keep all receipts.
Ultimately, you may want to take WestJet to small claims court in your province to enforce your rights. Recording the audio of your own interactions with WestJet may turn out to be key evidence for your case.
