Canadian air passenger rights changes put burden of proof on airlines, not travellers

By Cormac Mac Sweeney and Hana Mae Nassar

The federal government is re-writing the rules around air passenger rights, with the aim of putting more of the onus on the airlines when flights are delayed or cancelled.

Transport Minister Omar Alghabra says airlines’ use of loopholes around traveller compensation”left government with no choice” but to strengthen passenger rights rules.

He notes the COVID-19 pandemic exposed gaps in the Liberals’ passenger rights charter, as carriers frequently cited safety as the reason for last-minute cancellations and delays, relieving them of their obligation to pay compensation to customers.

On Monday, he said some of the big changes that were being announced to air passenger rights include making most disruptions an automatic compensation for passengers, with some narrow exemptions.

“Among the new changes, amendments would make compensation the default unless specifically cited as a limited exception,” he explained.

“Right now, compensation for delays and cancellation is only required for disruptions caused by the airline and which is not a safety issue. With the new changes, we would be combining the current three categories, which are: disruption within the airline’s control, within the airline’s control but necessary for safety, and outside the control of the airline, into a single category where everyone would be entitled to compensation except for a clear list of exceptions,” Alghabra explained.

He notes that list of exceptions will be established by the Canadian Transportation Agency (CTA) after both stakeholders and Canadians are consulted.

“This means there will be no more loopholes where airlines can claim a disruption is caused by something outside of their control for a security reason when it’s not. And 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.”

However, despite the chaos airports across Canada saw over the December holiday due to snow, Alghabra says bad weather will still not lead to added compensation, since those factors are outside of an airline’s control.

The minister says changes also include “implementing standards of treatment, like paying for your food if your flight is cancelled or delayed due, for example, to a snowstorm,” and new requirements for airlines to establish internal processes to deal with air travel claims.

“They will be required to manage air passenger complaints within 30 days. We’re also proposing to hold airlines more accountable by allowing the Canadian Transportation Agency to recover the cost of air passenger complaints from the airlines, giving airlines a stronger incentive to address complaints directly with travellers as soon as possible,” Alghabra explained, adding changes are expected to reduce the number of complaints that make their way to the CTA.

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For complaints that do reach the CTA, Alghabra is promising a more simplified framework, with plans to replace the current adjudication process.

The changes to air passenger rights will not be in place for the upcoming busy summer travel season, as they will take effect on Sept. 30, 2023, giving airlines some time to prepare.

Meanwhile, fines for airlines that don’t follow the rules will increase tenfold, from $25,000 to $250,000.

The federal government says it’s also working on new legislation to handle delayed and lost luggage issues. There is currently a backlog of tens of thousands of complaints following the massive flight disruptions last summer and over the winter holidays.

The changes still need to pass Parliament and Algahbra says the industry will get a chance to comment too.

Changes don’t address major loophole, passenger advocate says

While the government is touting its changes as a big step forward, air passenger rights advocate Gábor Lukács calls these updates smoke and mirrors, arguing the biggest exemption for airlines is still in play.

“It does not close the safety reasons loophole whatsoever. That terminology remains in the text of the bill,” he told CityNews after Alghabra’s announcement.

“Proposed changes will not help passengers this spring or this summer, and starting September, it’s going to weaken passenger rights further.”

He says after reading the bill, he sees more outs for airlines to avoid compensation and fines, and less transparency for passengers.

The National Airlines Council of Canada, an industry group representing four of the country’s biggest carriers, adds the cost of tougher passenger protections could trickle down to travellers by way of pricier fares.

NDP transport critic Taylor Bachrach is also not impressed, saying the proposed law still leaves the so-called safety loophole in tact and falls short of European passenger rights standards. He adds if people go through the complaints process, there are new confidentiality rules he calls a gag order.

“If you’re an air passenger and you go through the claim process and you’re unhappy with the way that it’s finally resolved, you’re not allowed to speak to the public or the media about how it went unless you have the consent of the airline,” he said.

The Conservatives are also weighing in, with shadow minister Mark Strahl saying Canada’s “transportation system has become an international embarrassment” under the Trudeau government.

“During the holiday season, families were left stranded for days sleeping on floors at airports and rail stations across the country. Now, 45,000 Canadians are stuck in an 18-month long line just to have their complaints heard by Trudeau’s government. This isn’t to mention the thousands of Canadians who couldn’t even get a passport to travel. The nightmare of our transportation system is only furthering under this Liberal government’s watch and this latest announcement will do nothing to change that,” Strahl said in a statement.

-With files from The Canadian Press

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