Air Canada and WestJet have launched a legal battle to appeal separate Canadian Transportation Agency (CTA) rulings in which, in each case, the airline was ordered to compensate one or more passengers $1,000 for a flight canceled due to understaffing. Each airline claims in court documents that it should not have to pay because the CTA — Canada’s transportation regulator and a quasi-judicial tribunal — misinterpreted Canada’s compensation regulations. Consumer advocate and lawyer John Lawford said if the airlines win their appeals, it could affect other claims for compensation for flight cancellations. “Basically any time the airline has a staff shortage of any kind that could be … an event that is beyond their control and therefore all of these claims will fail,” said Lawford, executive director of the Public Interest Advocacy Center (PIAC). “I think these lawsuits … signal that they, the airlines, are very resistant to paying compensation.” John Lawford, executive director of the Public Interest Advocacy Centre, says if WestJet and Air Canada are successful in appealing the recent Transport Canada decisions, it could affect other compensation claims. (Christian Patry/CBC) WestJet and Air Canada told CBC News they comply with Canada’s Passenger Protection Regulations (APPR). WestJet said it has launched its appeal to ensure the rules are applied fairly. “There is no single crew issue, and we think that’s what the CTA is trying to do, is make all crew issues the same,” said Andy Gibbons, WestJet’s vice president of government relations.
WestJet ordered to pay $1,000
Under the APPRairlines must pay compensation — up to $1,000 — only if a flight delay or cancellation is within an airline’s control and not required for safety reasons. The CTA said it has received more than 16,000 air passenger complaints about flight cancellations since May. The CTA’s rulings in the WestJet and Air Canada cases, which came out last summer, were supposed to help clarify compensation rules for flight cancellations caused by crew shortages. The agency clarified that staffing issues are considered within the airline’s control and cannot be classified as a safety issue unless an airline can prove otherwise. The WestJet case involved passenger Owen Lareau, whose July 2021 flight from Regina to Ottawa was canceled, causing a 21-hour delay. According to the CTAWestJet argued that a pilot had called in sick about an hour before takeoff and a replacement could not be found in time, so the flight’s cancellation was a safety issue that did not warrant compensation. However, the CTA ruled that WestJet “did not sufficiently demonstrate” that the flight cancellation was unavoidable, so it ordered the airline to compensate Lareau $1,000. Andy Gibbons, WestJet’s vice-president of government relations, says Transport Canada should not penalize airlines that cancel flights for safety reasons. (CBC) WestJet sought leave to appeal the decision in August and was granted leave by the Federal Court of Appeal last month. “Basically, we believe it was a safety decision to cancel this flight and we stand by it,” WestJet’s Gibbons said. “The original purpose of the APPR was to protect consumers from airline commercial decisions, not to penalize airlines for safety decisions.” Gibbons also suggested that airfares could rise if the CTA continues to generalize crew shortages under an airline’s control. “We have an obligation to keep our costs down and that has to be balanced against the fairness of the compensation regimes in place.” The CTA and passengers involved in both cases declined to comment while the matters are before the courts.
Air Canada was ordered to pay $2,000
In the case of Air Canada, passenger Lisa Crawford and her son were delayed nearly 16 hours after the airline canceled their August 2021 flight from their home in Fort St. John, BC, to Halifax. According to the CTAAir Canada argued that a pilot was unable to complete a required training program on time and the airline could not secure a replacement, so the flight cancellation was out of control. But the CTA ruled that Air Canada failed to provide evidence “demonstrating that the crew shortage was unavoidable despite proper planning,” so Crawford and her son must be compensated $1,000 each. Air Canada asked the courts for permission last month to appeal the decision and is awaiting approval. WATCHES | Air Canada, WestJet fight customer compensation rulings:
Air Canada, WestJet fight customer compensation rulings
Both WestJet and Air Canada are launching legal battles to appeal recent rulings ordering them to compensate passengers. Experts say that if the airlines are successful, it could affect other claims.
In its brief on appeal, the airline argues that the CTA cannot assume that crew shortages are under the control of the airlines and then put the burden on them to disprove it.
“It interpreted the APPR in a way not intended by the act, placing an impossible burden of proof on air carriers,” Air Canada spokesman Peter Fitzpatrick said in an email.
WestJet makes a similar legal argument in its appeal.
PIAC’s Lawford suggests that the CTA’s request for proof was fair.
“It’s a reasonable proposition for a regulator to say we expect you to have plans for staff shortages,” he said. “The agency just asked them to provide some evidence that they made an effort.”
Another appeal
Canada’s Air Passenger Protection Regulations are also the subject of another legal dispute. In 2019, Air Canada and Porter Airlines, along with more than a dozen applicants, including the International Air Transport Association, filed a lawsuit to the Federal Court of Appeals to invalidate many of the regulations. Applicants argue that the APPR is “void” for international flights because it differs from it the Montreal Conventiona treaty adopted by many countries — including Canada — that establishes the liability of airlines for flight disruptions. Under the Montreal Convention, air passengers can only receive compensation for flight interruptions if they prove that they suffered financial loss. A decision on this case is expected soon. Lawford said that if all the appeals are successful, it could mean that few flight cancellations warrant compensation. “It would certainly be a struggle for the average consumer to get his claim accepted.”
