If WestJet cancels your flight because of a pilots’ strike, your rights depend on your itinerary. However, WestJet must always offer you a choice between the following two options.
Option 1: Continuing to Travel
- 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.
- 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
- Refund in the original form of payment, within 30 days, of all unused flight segments and segments that no longer serve any purpose.
- 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.
Additional compensation for out-of-pocket expenses (meals, hotels, lost wages) and inconvenience may be owed to you depending on your travel’s origin and destination.
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 to enforce your rights to compensation.
Ultimately, you may want to take WestJet to small claims court to enforce your rights.
Travel Entirely Within Canada
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, which absurdly considers a pilots’ strike to be an event outside the carrier’s control (s. 10(1)(j)).
If WestJet cancels your flight because of a pilots’ strike, WestJet must offer you a choice between Option 1 and Option 2 above. The source of your rights is section 18 of the APPR and the case law on refunds.
Flights that are Part of 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. 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; 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:
- pilots are “agents and servants” of WestJet;
- the strike was announced weeks in advance, and thus was not unforeseeable; and
- there is a judicial determination that a strike is not an “extraordinary circumstance.”
Nevertheless, WestJet may dig in its heels and refuse to pay unless and until passengers take them to court.
Flights Departing from the EU/EEA/UK
If you were booked on a WestJet flight departing from an airport in the European Union or the European Economic Area or the UK to Canada and your flight is cancelled due to the pilots’ strike, WestJet must in addition to offering you a choice between Option 1 and Option 2 above:
- pay you cash compensation in the amount of 600 EUR (or 300 EUR if you are delayed by less than 4 hours); and
- 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 have 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. (You may also be entitled to additional compensation under the Montreal Convention, if applicable.)
Canadians Deserve EU-style Passenger Protection
The looming WestJet strike underscores the stark contrast between air passengers’ rights under the Liberal government’s inferior APPR and the European Union’s gold standard of passenger protection. Unfortunately, the Transport Minister’s latest proposed amendments to the law are unlikely to substantially improve the situation.
The only gleam of hope for Canadian traveller is the Strengthening Air Passenger Protection Act (Bill C-327) introduced by MP Taylor Bachrach. If passed into law, Bill C-327 would harmonize Canada’s air passenger protection regime with the European Union’s gold standard.
You may want to consider signing our petition on the House of Commons website calling on the Government to adopt Bill C-327.
