Passengers who give up their travel in response to health authority advisories are entitled, not only as matter of fairness but also as a matter of law, to a full refund to the original form of payment. Various credits for future travel or services by companies that may or may not exist when the pandemic is over do not meet this requirement.
If you are one of the thousands of Canadians doing their civic duty and saving lives by cancelling their travel abroad, then this guide is for you.
The Big Picture
If there is one thing airlines and other travel service providers hate doing, it is returning your money. They have come up with various “flexibility policies” to steer you away from exercising your right to a full refund. Think of them as their “first offer” to you. You do not have to accept it.
The relationship between you and travel service providers is a contractual one. You have to pay and they have to deliver certain services to you. There are several ways of getting out of such a contract and getting a full refund:
- based on the terms and conditions set out in the contract (e.g., refundable ticket);
- If the travel service provider fails to provide the services contracted (e.g., flight cancellation or unreachability of the provider); or
- if unforeseeable circumstances prevent performance of the contract (e.g., a public health authority advisory against travel abroad).
In these circumstances, the service provider cannot charge you any cancellation fees, but has to issue you a full refund in the original form of payment. Any statement to the contrary is a mere attempt to dissuade you from exercising your rights.
This guide explains how to fit your circumstances into one of these broad principles. Stand your ground. Do not take “no” for an answer.
If your travel is in more than 7 days, do not contact the airline or your travel agent. Circumstances and policies are likely to change between now and the date of your travel. You may end up wasting a lot of your own time arguing for a refund, while in a day or two the refund would be issued effortlessly (e.g., the flight gets cancelled in the meantime). More importantly, you would also tie up agents who are needed to bring home Canadians stranded abroad.
Legal Grounds for a Refund
If the airline cancels any segment of your itinerary since the time you purchased your ticket, you are entitled to a refund of the unused portion of your airfare, and if you did not depart yet, the entire airfare.
If the reason for the flight cancellation was “schedule change” or something similar within the airline’s control (including maintenance issues), then the precise legal basis for your right to a full refund is subsection 17(2) of the Air Passenger Protection Regulations. Subsection 17(7) confirms that “Refunds under this section must be paid by the method used for the original payment and to the person who purchased the ticket or additional service.”
If the reason for the flight cancellation is outside the airline’s control, such as closure of airports, then the legal basis of the right to a refund is contract law in general, and case law from the Canadian Transportation Agency:
[...] it is unreasonable for Porter to refuse to refund the fare paid by a passenger because of its cancellation of a flight, even if the cause is an event beyond Porter’s control.
- Lukács v. Porter, Decision No. 344-C-A-2013, para. 88
- Lukács v. Sunwing, Decision No. 313-C-A-2013, para. 15
- Lukács v. Porter, Decision No. 31-C-A-2014, paras. 33 and 137
- Re: Air Transat, Decision No. 28-A-2004
The United States Department of Transportation (DOT) requires airlines operating flights to, from, and within the US to issue refunds to passengers for flights that are cancelled or significantly delayed.
The DOT issued an enforcement notice to US and foreign airlines, warning them that:
Although the COVID-19 public health emergency has had an unprecedented impact on air travel, the airlines’ obligation to refund passengers for cancelled or significantly delayed flights remains unchanged.
- Enforcement Notice Regarding Refunds by Carriers Given the Unprecedented Impact of the COVID-19 Public Health Emergency on Air Travel, United States Department of Transporation (April 3, 2020).
- Frequently Asked Questions Regarding Airline Ticket Refunds Given the Unprecedent Impact of the COVID-19 Public Health Emergency on Air Travel, United States Department of Transportation (May 12, 2020).
If the airline cancels any segment of your itinerary departing from the EU, or if the airline operating the flight is an EU carrier, you are entitled to a refund of the unused portion of your airfare, and if you did not depart yet, the entire airfare.
- Regulation (EC) No. 261/2004, Articles 5(1)(a) and 8(1)(a).
- Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19, European Commission (March 18, 2020).
4. Unreachable travel service provider
If your ticket or vacation package allows you to make changes, possibly for the payment of a fee, but you cannot exercise that right because the airline or the tour operator or the travel agency is not reachable, then this may amount to breach of contract entitling you to rescind the contract and seek a full refund on that basis.
The government’s advisory against travel abroad and the COVID-19 pandemic is an unforeseeable circumstance that makes it impossible to perform the contract for travel services, such as flights and vacation packages. In legal language, such contracts are “frustrated.” The law is that when a contract is frustrated, the sums paid or payable may be recovered from the payee. In your case, it means that you are owed a refund of all unused services.
“Frustration” of contracts is a common law doctrine, but a number of Canadian provinces have specific statutes codifying it. Depending on your province, you may want to cite one of the following:
- Alberta: Frustrated Contracts Act, ss. 2(1) and 3(1)
- British Columbia: Frustrated Contracts Act
- Manitoba: The Frustrated Contracts Act, ss. 2(1) and 3(1)
- New Brunswick: Frustrated Contracts Act, ss. 2(1) and 3(1)
- North West Territories: Frustrated Contracts Act, ss. 2(1) and 3(1)
- Newfoundland and Labrador: Frustrated Contracts Act, ss. 3(1) and 4(1)
- Nunavut: Frustrated Contracts Act, ss. 2(1) and 3(1)
- Ontario: Frustrated Contracts Act, ss. 2(1) and 3(1)
- Prince Edward Island: Frustrated Contracts Act, ss. 2(1) and 3(1)
- Quebec: Civil Code of Québec, ss. 1693-1694
- Saskatchewan: Frustrated Contracts Act
- Yukon: Frustrated Contracts Act
Do not worry if your province is not listed here. The doctrine is a common law doctrine, which applies anyway.
Record All Your Interactions
Make sure to have an audio recordingrecording of all your telephone calls and interactions with the airlines, travel agents, and tour operators involved in your efforts to obtain a refund. Record also the hours of “elevator music” they make you listen to while on hold.
- Such recordings can be used as evidence in the case of a dispute.
- Section 183.1 of the Criminal Code permits you to record your own conversations.
If you do anything online in connection with your booking, take a screenshot of each step.
Whom to Contact
Your contract of carriage is always with the airline, not the travel agent. If the airline refuses to talk to you, it may already be a form of breach of contract, entitling you to rescind the contract and get a full refund. For travel packages, you should attempt to contact both the airlines involved and the travel agencies or tour organizers involved.
A common excuse to bounce passengers back and forth is to talk about who has “control” of the reservation. It is a myth. Legally, the company with whom you have the contract and the company that charged your credit card both have to talk to you.
What to Say
Be polite, firm, and professional:
- Advise the airline or travel agent of the legal reasons for your entitlement to a refund.
- Remind them that “policies” cannot override the law.
- Inform them that should their company not issue a refund, you will be taking further actions, including credit card charge back or legal proceedings.
If refused or ignored, make good on the promise to take action:
- Contact your credit card company and initiate a charge back (dispute) of your payment.
- Commence a legal action in provincial small claims court against the companies involved.