The Turbulent World of Canada’s Air Passenger Rights


The Turbulent World of Canada’s Air Passenger Rights

Canada’s first air passenger rights legislation (the Air Passenger Protection Regulations or “APPRs”) came into effect in two phases on July 15, 2019, and December 15, 2019. According to the Canadian Transportation Agency (the regulator responsible for drafting and enforcing the APPRs), the APPRs were meant to “provide for clearer and more consistent air passenger rights.” Unfortunately, the APPRs have caused much controversy, resulting in a rapid and head spinning series of exemptions and amendments made very shortly after their inception.

The APPRs require that airlines provide certain services and set amounts of compensation to passengers in three categories of situations that are determined by whether a flight is delayed or cancelled for reasons that are: (a) outside the airline’s control; (b) within the airline’s control; or (c) within the airline’s control but required for safety purposes.

Aviation industry stakeholders initially raised concerns that the implementation timeline for compliance was unreasonably short and impossible to meet. Another major concern was that the APPRs hold only the airlines responsible for delays and cancellations, which can also be caused by the fault of multiple other parties (such as airport authorities, air navigation service providers and governmental agencies). Very shortly after the APPRs came into effect, the airlines faced a multitude of challenges that have been writ large across the pages of news outlets and have caused much passenger frustration, primarily because of the effects of COVID-19. The Canadian Transportation Agency (the “CTA”) launched an inquiry a mere two months after the APPRs were in effect, because it had received 3,037 complaints alleging that airlines failed to accurately communicate the reasons for delays and cancellations. The CTA also issued several fines against airlines for failure to comply. The difficulties did not abate with time and the CTA was inundated by passenger complaints.

On September 8, 2022, the APPRs were amended to include new requirements requiring refunds or rebooking services regardless of whether the disruption was within the airline’s control. This was reportedly done to close a “gap” revealed by the COVID-19 pandemic.

The APPRs have been subject to legal challenges. On June 28, 2019, several airlines and airline trade associations commenced an appeal contesting the validity of the APPRs. The appellants alleged that certain provisions of the APPRs exceed the authority of the CTA, contravene Canada’s international obligations and violate international law. The appeal was largely unsuccessful, but the Supreme Court of Canada has granted leave and a hearing has been scheduled for March 25, 2024.

On March 14, 2023, the CTA was granted $75.9 million CAD in additional funding (over three years) to ensure that it has the resources to address passenger rights complaints. By September 2023, it was reported that the CTA had a record backlog of 57,000 complaints.

In June 2023, the CTA proposed further amendments to the APPRs. The main amendments remove the three categories of flight disruptions, resulting in a requirement that airlines provide compensation to passengers unless there are “exceptional circumstances” (to be defined by regulation). The burden will now be on the airline to prove that a particular situation constitutes an “exceptional circumstance.” The new regulations will only apply to flights departing after the amendments come into force.

In its “Backgrounder” for the proposed amendments, the CTA admits that “it has become increasingly apparent that some areas of the legislation have proven to be unclear….” Again, the CTA has promised that the proposed changes are to “clarify, simplify and strengthen consumer protection for air passengers.” Given the tortured brief history of the APPRs, it is hoped that this continued intention does not again cause controversy in the aviation legal landscape.