The Canadian Government’s recent advisory against non-essential international travel has left passengers not only with difficult decisions to make about their upcoming travel, but also wondering about their rights if they decide to cancel. Fears of forfeiting airfares make these decisions particularly challenging.
While travel advisories do not create an automatic right to cancel your trip and get a refund, there are several other ways to do so or to mitigate the financial impact of foregoing your travel:
- If the airline changes any of your originally booked flight segments, you are entitled to a full refund in the original form of payment.
- Your ticket may be refundable, although perhaps subject to a cancellation fee.
- If your ticket is changeable, but the airline is not reachable, you may rescind the contract and seek a refund.
- Some tickets are sold with guarantees for a no-fee cancellation for future credit.
- Your travel insurance policy may provide you some coverage.
Do Not Rush to Cancel
Whether to cancel your travel now or wait things out depends on a number of factors and your risk tolerance. The following are a few examples that you may want to consider:
- Are you travelling in the next few days or in a few weeks or months from now?
- The more time you have until your travel, the more events can happen until then that may entitle you to a refund, and so you may want to wait things out.
- What do you anticipate the health situation to be around the dates of your travel?
- If you consider it likely that the Omicron variant will blow over relatively quickly, some normalcy in travel may return by February or March 2022, and so again, you may want to wait things out.
- Has the airline already made a change to your itinerary entitling you to a refund?
- If yes, you may already be in a position to insist on a refund to the original form of payment.
- Does your ticket or insurance policy require you to cancel a certain number of days before your travel to be eligible for certain benefits?
- If yes, you may want to start working on exercising your rights a day or two before the deadline to be on the safe side.
Before You Begin
Cancelling your travel and seeking a refund is a serious, albeit potentially necessary, decision that is not to be made lightly. Before you begin, you may want to have the following items printed out and handy:
- Original itinerary, provided to you when you booked the travel.
- Current itinerary, as shown today on the airline’s or the travel agency’s website.
- Terms and conditions of your ticket or itinerary, saved by you or provided to you when you booked the travel.
- Travel insurance policy document (if you have one).
You may also want to get a good app for recording phone calls to document all your interactions with the airlines, travel agencies, and insurance companies.
1. The Airline Changed Any of Your Flight Segments
Your ticket is a contract with the airline. As a general rule, if the airline makes unilateral changes to your itinerary, you are entitled to decline the change and insist on a refund in the original form of payment. In many cases, this right is spelled out in:
- Articles 5(1)(a), 6(1)(iii), 8(1)(a), and 7(3) of Regulation (EC) No. 261/2004; or
- subsections 17(2) and 17(7) of the Air Passenger Protection Regulations (APPR).
In other cases, you may have to invoke other federal or provincial legislation or common law doctrines.
Under Regulation (EC) No. 261/2004, you are entitled to a refund in the original form of payment if:
- any of your flight segments were cancelled for any reason (Articles 5(1)(a), 8(1)(a), and 7(3)); or
- any of your flight segments are advanced by more than one hour (the European Court of Justice held that such a flight advancement is deemed to be a flight cancellation); or
- any of your flight segments are delayed by 5 hours or more for any reason (Articles 6(1)(iii), 8(1)(a), and 7(3)).
Under the APPR, you are entitled to a refund in the original form of payment if:
- any of your flight segments were cancelled for reasons within the airline’s control (paragraphs 11(4)(c) and 12(3)(c)); or
- any of your flight segments are delayed by 3 hours or more for reasons within the airline’s control (paragraphs 11(3)(c) and 12(2)(c)).
The most easily recognized situation within the airline’s control is when the airline changes a segment of your itinerary several days or weeks before your travel. It is important to recognize that these changes are flight cancellations or delays, even if the airline euphemistically calls them a “schedule change.”
- A flight cancellation is when a flight on which you were booked no longer operates as shown on your original ticket. The following are likely cases of flight cancellation:
- you were booked on Flight 1234, and now you are booked on Flight 5678; or
- you were booked on Flight 1234 on January 13, 2022, and now you are booked on Flight 1234 on another date; or
- your flight departs from or arrives in a city different than what is shown on your original ticket; or
- you were booked on a non-stop flight, and the airline added a stop.
- A flight advancement is when the flight on which you were booked still operates on the same date and under the same number, but its departure time has been changed to an earlier time.
- For example, you were booked on Flight 1234 on January 13, 2022 departing at 13:00, and now Flight 1234 departs at 12:00 on the same date.
- A flight delay is when a flight on which you were booked still operates on the same date and under the same number, but its departure or arrival time has changed to a later time. For example:
- you were booked on Flight 1234 on January 13, 2022 departing at 13:00 and arriving at 18:00, and now Flight 1234 departs at 14:00 or arrives at 19:30 (or both) on the same date.
2. Refundable Ticket
A refundable ticket is one that you can cancel and obtain a refund in the original form of payment just because you no longer feel like travelling, even if the airline has made no changes at all to your flights.
A non-refundable ticket is one that you can cancel and obtain a refund in the original form of payment only if the airline makes changes to one of your flight segments. You cannot get a refund on such tickets just because you do not feel like travelling anymore.
Read and familiarize yourself with the fine print shown on the documents you received on the day of booking:
- Does your ticket state that it is refundable?
- Does your ticket state that the airline may charge a fee if you cancel and seek a refund?
- Does your ticket state time limits on cancelling and getting a refund (e.g., at least 24 hours before your flight’s departure)?
Airlines and the travel agencies cannot impose or change conditions after the ticket is sold.
3. 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.
4. No-Fee Change or Cancellation for Future Credit
Since the beginning of the pandemic, airlines have been offering various additional guarantees on non-refundable tickets to mitigate passenge’s’ risk and to alleviate fears of sudden changes in air travel. These additional guarantees include no-fee change or cancellation for future credit.
While travel credits are far less valuable than cash, it may be a way to mitigate your losses in cases where the airline still operates all your original flights but you choose not to travel. While the airline may claim that travel credits expire after a certain amount of time, this may not be legal in several Canadian provinces that prohibit expiry of prepaid purchase or gift cards. (See Sharifi v. WestJet Airlines Ltd., 2020 BCSC 1996 for more details.)
5. Travel Insurance
Travel insurance policies you purchased or that are part of your credit card may cover some of your losses. Insurance policies cover only specific risks set out in the policy language, and no other risks. Read and familiarize yourself with your policy language:
- Does the policy cover situations when the passenger cancels the travel on the basis of a government-issued travel advisory?
- Will the insurance reimburse you if the airline is willing to provide credit for future travel?
- Do you have to give the insurance company notice within a certain number of hours or days?
Before you decide to rely on your insurance, you may want to call your insurance underwriter, and thoroughly question them. Do not forget to record your calls, as they may be used as evidence if you are subsequently denied coverage.
