Canadian Transport Minister Omar Alghabra has revealed some new legislation that consumers will no doubt appreciate…
In this post:
Airlines will have to prove reasons for disruptions, not passengers
In 2019, Canada introduced new air passenger protections, similar to the EU261 policy that exists in the European Union. With this, airlines have to provide cash compensation in the event of major flight disruptions, with the exact amount varying depending on the length of the delay, and whether you’re flying a small or large airline.
As you might expect (and as we also often see in European), airlines sometimes try to wiggle their way out of compensation requests, claiming that a flight disruption was outside the carrier’s control. Fortunately there will be changes regarding which party needs to prove that.
As noted by @istrakhov and reported by Reuters, under proposed new legislation, airlines will be on the hook for proving that they shouldn’t have to pay compensation, rather than passengers having to prove it. In other words, the default would be to get compensation for an eligible flight delay, unless an airline can prove otherwise.
As explained by Alghabra:
“This means there will be no more loopholes where airlines can claim a disruption is caused by something outside of their control or a security reason when it is not. It will no longer be the passenger who will have to prove that he or she is entitled to compensation. It will now be the airline that will need to prove that it does not have to pay for it.”
This comes at a time when the Canadian Transportation Agency (CTA) has a backlog of 44,000 complaints, the highest in history. Under this proposal, airlines would also be charged a fee if they can’t resolve a complaint and it is then brought to the CTA.
The only catch with Canada’s air passenger rights
Requiring airline to prove the reason for a disruption is a fantastic change that I’d also love to see in Europe, given how frequently airlines claim that a disruption is outside of their control, even when it’s not.
It is important to note one key distinction that limits the usefulness of Canadian air passenger rights compared to those in Europe. While both sets of regulations don’t force airlines to pay compensation when a delay or cancelation is outside a carrier’s control, the key distinction is that Canada lets airlines off the hook if a disruption is for safety reasons.
Canada puts mechanical delays or cancelations in that category. That’s a pretty major difference, and greatly limits the situations under which airlines are on the hook for paying compensation. In other words, compensation is really only due if an airline just doesn’t feel like operating a flight, if a flight is disrupted due to a missing crew member, etc.
Bottom line
Canada has some pretty strong consumer protections for air travel. As part of this, airlines are potentially on the hook for compensation in the event of flight disruptions. As you’d expect, airlines sometimes try to weasel their way out of this, claiming that a disruption is outside of their control.
Thanks to new legislation, the onus will be on airlines to prove that a disruption is outside of their control, rather than it being the responsibility of the passenger.
What do you make of these improvements to Canada’s air passenger rights?
Canada is providing a loophole airlines can walk through without even a wiggle.
I hear the popping of champagne corks in airline boardrooms all over!
Bad news for passengers.
If it’s anything like EU261, it will be impossible to receive compensation. I’ve had 5 flights where I was eligible for compensation and each time the airline had refused to pay.
I’ve had flights delayed due to unavailability of crew and it was blamed on weather because an inbound crew were late due to weather elsewhere. (BA at Heathrow)
I’ve had flights delayed 24 hours due to mechanical. I reached out to the airline...
If it’s anything like EU261, it will be impossible to receive compensation. I’ve had 5 flights where I was eligible for compensation and each time the airline had refused to pay.
I’ve had flights delayed due to unavailability of crew and it was blamed on weather because an inbound crew were late due to weather elsewhere. (BA at Heathrow)
I’ve had flights delayed 24 hours due to mechanical. I reached out to the airline and they put me on a flight 8 hours later. Because I called they said my flight change was voluntary. (AA)
I’ve had flights where they agreed to pay compensation but would only wire the funds to an EU bank account. (Level)
I’ve been involuntarily moved from my connecting flight to a later flight because my inbound was delayed 20 minutes due to ATC. I was able to make it to the gate on time for the original connecting flight but was refused boarding. Airline said delay was due to my own lis connect. (BA)
Dealing with airlines directly in the context of EU261 indeed tends to drag out and often not provides what you are legally owed.
That's why I started using the likes of compensation2go.com or flightright. They take a margin, but you save most of the hassles and do get paid.
its NOT really a change the airlines will continue to pretend its a safety issue and screw flyers.
Compensation is never actually paid in Canada, and nothing will change even if this proposed legislation is approved. Any delay or cancellation is claimed by airlines to be either weather or safety related, so no compensation is due.
Ben,
How does this change the burden of proof at all for case of missing crew member? Previously a passenger would submit a request for compensation because the flight was canceled due to missing crew. However, Air Canada simply replies with “the crew shortage was due to COVID. And operating the flight without minimum crew is a safety hazard. Therefore because the cancellation is due to safety reason, Air Canada is not obligated to...
Ben,
How does this change the burden of proof at all for case of missing crew member? Previously a passenger would submit a request for compensation because the flight was canceled due to missing crew. However, Air Canada simply replies with “the crew shortage was due to COVID. And operating the flight without minimum crew is a safety hazard. Therefore because the cancellation is due to safety reason, Air Canada is not obligated to pay compensation.”
In other words, they can make up any excuse and file it under the safety exception. How does the new legislation change their ability to do that?
Of course European carriers do have to justify the reason when I claim is declined. However the Canadian regulation currently states a technical reason doesn’t always mandate compensation if it’s unforeseen, whereas EC261 states all technical disruptions.
While they're at it, they should also fix their immigration policy to view every traveler have some suspicious intent.
They even view us Canadians with suspicion so don't hold your breath.
In both Europe and Canada, the regulator should monitor the delays.
When over the relevant time limit, decide whether airline at fault.
Then publish a list of flights for which compensation is due.
The airline can appeal and there needs to be some decision mechanism.
Much cheaper for everyone to have a given flight decided once rather than re-examining for every claim (even if only 30 of the 150 people entitled...
In both Europe and Canada, the regulator should monitor the delays.
When over the relevant time limit, decide whether airline at fault.
Then publish a list of flights for which compensation is due.
The airline can appeal and there needs to be some decision mechanism.
Much cheaper for everyone to have a given flight decided once rather than re-examining for every claim (even if only 30 of the 150 people entitled do so so file a claim)
Fund the small team in the regulators by a charge on each ticket - CAD0.10 * 6M passengers per month would be CAN600k per month.
Not that simple. You can be booked with a connection and the first flight is just 10 mins late causing you to miss the onward. You may be late he only one entitled to compensation whereas others didn’t miss their connections or it was their final destination and just 10 mins late.
In Europe that mechanism already exists via enforcement bodies and resolution bodies.
A few major issues:
1) So many of Canadian delays are outside of the airline control. I'm looking at you Airport Authorities, CATSA, CBSA, etc. etc. etc. However these never seem to have to provide any accountability nor ever issue compensation when they fail. Long lines at security causing a delay because of poor staffing? Do you get your security taxes back? Nope. Do you get cash compensation for standing in line for an hour?...
A few major issues:
1) So many of Canadian delays are outside of the airline control. I'm looking at you Airport Authorities, CATSA, CBSA, etc. etc. etc. However these never seem to have to provide any accountability nor ever issue compensation when they fail. Long lines at security causing a delay because of poor staffing? Do you get your security taxes back? Nope. Do you get cash compensation for standing in line for an hour? Nope. Long lines at CBSA causing misconnect - does CBSA pay for your hotel or provide compensation or get your taxes back? Nope. Airport Authority infrastructure fails (baggage system, bridge, etc.). Do you get your airport improvement fee back? Nope. And yet all along the airline has to prove it was the other third party? These third parties play such a big role in flight disruptions yet never seem to be held to account. And the airline has to pay staff to respond to complaints for these delays they didn't even cause?
2) People keep blaming the airlines for the 'loophole' for the airline controllable but required for safety exception, however, this is the law, so how is it the airlines' fault or to be blamed for a loophole when that simply is the legislation?
3) This new law will almost guaranteed to be challenged as Canada's law system is based on innocent until proven guilty yet this suggests airlines are guilty unless they prove themself to be innocent. I know customers argue the onus should be on the airline but since the customer is launching the claim the customer should prove the claim just like any other claim that goes before a court. It sets a dangerous precedent that a company is guilty unless it proves itself to be innocent.
4) I like how the proposed system is going to have the CTA make a decision within 90days yet they are already 18 plus months behind. I mean how can you blame the airlines for missing a 30day deadline when the enforcement agency is 18months behind?
The APPR system is broken but these changes are not going to fix it.
Without taking a stance on the merits of the new rule, I want to note "innocent until proven guilty" is a criminal law concept which is inapplicable here. This is a civil/regulatory action and not a criminal prosecution.
Canadian law does not always have every burden on the accuser in a civil law context. One example: the burden in Canada is on the *accused* (not the accuser) to prove the truth of a statement...
Without taking a stance on the merits of the new rule, I want to note "innocent until proven guilty" is a criminal law concept which is inapplicable here. This is a civil/regulatory action and not a criminal prosecution.
Canadian law does not always have every burden on the accuser in a civil law context. One example: the burden in Canada is on the *accused* (not the accuser) to prove the truth of a statement to defend against a libel lawsuit. (That's not the case in the US, though the US places burdens on the accused in lawsuits in other areas.)
It's possible there are other challenges legally to the rule; I'm far from an expert on Canadian aviation law. But violation of the presumption of innocence is not likely to be a problem.
Presumption of innocence is in a criminal court, this is not a criminal court. That other aspects of travel also suck isn’t an excuse for airlines. Improvements always start somewhere, and it’s starting here.
I found the airline employee/corporate simp...