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Consultations on air passenger ‘bill of rights’ show sticking points on tarmac delays, compensation for cancelled and delayed flights

By Jolson Lim      

Consultations show the public and consumer advocates are at odds with the airline industry on many components of what soon-to-come air passenger protections may look like.

A set of Air Canada planes are pictured at Toronto's Pearson International Airport. The Canadians Transportation Agency is drafting regulations on passenger protections, which could significantly impact the flying experience of many Canadians. The Hill Times file photograph
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The federal government has published its summary report of its summer cross-country listening tour on air passenger protections, highlighting firm disagreements the airline industry, consumer advocates, and the public have over what the upcoming rules should look like.

The consultations, which included public meetings hosted in eight Canadian cities, show consumer advocates and the public both believe that three hours is too long for a passenger to be confined on the tarmac, particularly without food, water, washroom access, ventilation, and heating and cooling.

Advocates and members of the public had generally told the Canadian Transportation Agency (CTA), which published its consultation report on Oct. 16, that passenger assistance and disembarkation rules should apply after one hour to 90 minutes of a delay.

There were mixed views as to when an airline should be required to disembark an aircraft after a delay, ranging from 90 minutes to three hours—now the length of delay before requiring airlines to respond, after the passing of the Transportation Modernization Act in May.

Airlines, however, said that they are generally against setting too short or strict a window before disembarkation is required, noting that pilots have little control over whether an aircraft can return to the gate for disembarkment.

Industry said disembarkment could cause further inconveniences at the airport, and also expressed concern that strict disembarkation rules may lead to more cancelled flights. In its written submission, Air Canada stated it supports requirements to allow deplaning after a four-hour tarmac delay.

Currently the CTA is drafting regulations on air passenger protections, including an airline’s minimum obligations in the case of tarmac delays, which could significantly impact the flyer experience of many Canadians. The new legislation mandated that the agency develop regulations on airlines’ minimum obligations to passengers regarding their rights and recourse options, flight delays and cancellations, denied boarding, and so on.

The length of time for a tarmac delay before airlines must respond was an especially strong sticking point during debate on the act, then known as Bill C-49.

Transport Minister Marc Garneau, pictured speaking to reporters in the House foyer on Oct. 2. Mr. Garneau is overseeing the implementation of provisions of the Transportation Modernization Act, which was passed in May. The Hill Times photograph by Andrew Meade

Senators on the Standing Committee on Transport and Communications had unsuccessfully tried to amend the bill to ensure air passengers aren’t kept stranded on the tarmac for more than 90 minutes—something pushed for by advocates—rather than the three hours put forward by the Liberal government.

Concerns over air traveller protections grew in the summer of 2017, when passengers were held on two Air Transat planes at Ottawa’s airport for up to five hours without food or water. The airline was required to pay $295,000 in November, although it appears to have been waived by the CTA. 

Consultations occurred between May and August. The agency received feedback from more than 6,000 Canadians, with meetings hosted in eight Canadian cities, and 39 bilateral meetings held with various stakeholder organizations, government officials and experts.

Passenger advocate Gábor Lukács said the Liberal government’s efforts to codify air passenger rights is actually a “step backwards” when it comes to tarmac delays, among other things.

He said the general standard in Canada for the length of time in which passengers are allowed to be stranded on the tarmac before an airline had to provide assistance was 90 minutes, rather than the three hours now. He said enforcing the standard has long been weak.

“People are being told this is going to be good for you but in reality, people are being deceived,” he said. “I don’t see how doubling the tarmac delay from 90 minutes to three hours can be good.”

Although Mr. Lukács said the consultation report did a good job summarizing diverse perspectives, he remains “very pessimistic over the whole process.” He pointed to a 2017 affidavit filed by the International Air Transportation Association, an industry group, in the Supreme Court of Canada that stated the CTA had sought its input on regulations, suggesting that airlines’ interests were favoured in the drafting process.

“I still have a firm belief that this is a dog and pony show,” he said.

However, Scott Streiner, chair and CEO of the CTA, said he’s confident that the process of considering input has been fair to everyone.

“We had a very comprehensive process,” he said. “We did what we said we would do. We got out and heard from everybody. And we take seriously all of the input we got.”

On the variety of sticking points, Mr. Streiner said “if everybody agreed on every item it wouldn’t be necessary to consult.” He said there may be some elements some stakeholders will like and others that certain groups will prefer more. He said the CTA is trying to develop a regulatory package that balances both “robust and consistent” protections for air travellers and the “operating realities of airlines.”

“Our objective is to have a package which is strong and balanced,” he said.

Massimo Bergamini, president and CEO of the National Airlines Council of Canada, which represents four large Canadian carriers, said American rules stipulating a “hard return” for tarmac-delayed flights have resulted in fewer tarmac issues but an increase in overall in-transit time and cancellations.

He said with regulations, he hopes it will provide pilots flexibility in discussions with air traffic controllers.

“If air traffic control says, ‘look, a window is going to open up [after] three hours and 15 minutes, it wouldn’t make a lot of sense for that pilot at two and a half hours to turn back,’” he said, adding that Canadian carriers exist in an already-complex regulatory and competitive environment.

Another sticking point is on how flight delays and cancellations are handled. The CTA is mandated to draft regulations on an airline’s minimum obligation when a flight is delayed or cancelled based on three categories: when the issue is within an airline’s control, not in control, and within control but required for safety purposes. The strongest disagreements exist with defining the parameters of the third category.

Consumer advocates and the public believe that airlines should be required to pay compensation for mechanical issues that could have been foreseen and prevented. Advocates particularly want the CTA to narrowly define the category to reflect, for example, that not all mechanical issues compromise safety and to exclude regular maintenance activities.

The air industry, meanwhile, cautioned that there are many parts of the air industry ecosystem that can cause a delay or cancellation, and carriers should be held to fair and reasonable standards. They noted that not all mechanical malfunctions can be foreseen or prevented through regular maintenance, such as defects in mechanical parts. They also warned that upcoming rules should not pressure crews to make decisions to avoid delays at the expense of safety.

Mr. Lukács said a wide scope for the third category could lead to safety being cited by airlines as a way to skirt having to compensate affected passengers.

“It opens up a lot of room for abuse,” he said. “The airline can always use safety. Will passengers have to fight airline in each and every one of those cases, and prove it wasn’t safety?”

Mr. Bergamini cautioned that ensuring safety has to be the number one principle.

“There isn’t a captain that will under any circumstance fly if there are any safety concerns,” he said. “We are confident that the regulator will ensure that safety is paramount in all instances and that there will not be any watering down of those considerations.”

Disagreements also exist for denied boarding for reasons other than health, safety, security or inadequate travel documentation. The public said airlines should be discouraged from overbooking and that the amount of compensation for denied boarding should be steep to deter the practice. Some told the CTA that American rules should be copied, which put compensation at 200 per cent of fare for a one to two hour delay.

Airlines defended the practice, noting that being involuntarily denied boarding as a result of overbooking is a rare occurrence. It did however agree with consumer advocates that seeking volunteers to stay behind is the preferred method of addressing the situation.

The air industry also generally believes that lost baggage should not be an area requiring regulations, noting that airlines have invested in new technologies to better track baggage. The Montreal Convention sets rules on compensation rules for lost baggage during international travel. Advocates believe that such rules should extend to domestic travel as well.

All sides agreed that the new rules should be communicated to passengers clear and concisely and in plain and accurate language, although they disagreed on how such information would be disseminated. Consumer advocated wanted airlines to provide plain-language brochures, available airport counters, and videos about passenger rights. The air industry preferred electronic communications.

Mr. Streiner said the consultations and drafting is a “key priority” for the CTA and hopes draft rules will be published in the Canada Gazette and then open to a further comments by the end of 2018.

“Just having those standard rules create greater clarity, greater consistency for the travelling public and I think that will almost certainly mean that the travel experience will be better,” he said.

jlim@hilltimes.com

The Hill Times

Editor’s note: Information regarding the $295,000 fine on Air Transat has been updated,

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