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Canada’s ‘Passenger Bill of Rights’ Could Actually Make Air Travel Worse

A consumer advocate says the proposed rules claw back protections and gives airlines a free pass.

by Anne Gaviola
Dec 20 2018, 5:41pm

Canada’s passenger bill of rights was announced this week, presented by Transport Minister Marc Garneau as a gift of new, world-class travel protection. The details of the proposed legislation coincide with the busiest travel time of the year, the holidays. Turns out, a lot of it is re-gifted — an enshrining of rules that are already in place. Even worse, a consumer rights advocate says this “gift” effectively claws back protection for air travelers in Canada.

“The government is not being honest with the public,” says Gabor Lukacs, the founder of Air Passenger Rights, an independent nonprofit group based in Halifax and one of the most vocal critics of how the airline industry is governed in Canada. “The government has admitted the purpose of the new law is to help airlines to be more competitive, meaning make more profit. To characterize this as an ‘air passenger bill of rights,’ is an additional slap in the face to the public.”

Garneau calls the first draft of the bill “fair and balanced,” and touted the government’s approach as clear and transparent. He says it’s unlike any other set of federal airline rules in the world because it applies to carriers flying into, out of, and across Canada. He says neither the European Union nor the U.S. have regulations that are similar in scope.

Lukacs takes issue with the part of the proposed regulation that allows passengers to be kept on a plane during a delay of three hours or more (a minimum that can get pushed to nearly four hours if takeoff is deemed imminent). That’s double the amount that most major carriers in Canada are currently supposed to abide by and 90 minutes more than the Senate committee recommended for this bill. (Air Canada this year changed its fine print so that passengers can be kept on a plane for four hours.)

“The government is not being honest with the public.”

He also points out something he describes as a “giant loophole” in the proposed bill. The compensation framework for delays, cancellations, and bumping doesn’t apply if the reason for the inconvenience is weather or maintenance-related. Lukacs, who says he’s been blocked from the transport minister’s official Twitter account, asks what’s to stop airlines from blaming unspecified “technical reasons,” for nearly everything and dodging financial responsibility?

Scott Streiner, the chair and CEO of the Canadian Transport Agency (CTA), defended the new bill, which his agency is overseeing.

He told VICE News that it makes more sense to go with a longer airplane delay timeframe to account for things that happen during the winter, such as de-icing. He says they’ve learned from their American counterparts, who have “the toughest tarmac regime in the world,” and ended up with a large number of flights that could have taken off but were instead cancelled.

Though the proposals aren’t perfect, airline legal expert Ehsan Monfared says the bill is “very reasonable” and does protect passengers. “If you have a technical or maintenance-related malfunction, or something to do with weather, you don’t want an air carrier to have the flight go just so they can avoid these massive fines because then you’re compromising safety, which we absolutely do not want to do.”

But he says there needs to be some leeway, noting that there are too many variables that you can’t control with air travel, and you can’t predict with certainty when a flight will depart or arrive.

However Monfared, who is a Toronto-based legal counsel at YYZlaw, a firm that has represented and advised WestJet as well as Canadian ultra-low-cost carriers, calls the proposed rules “low-hanging political fruit” with not much new being announced. And he predicts the proposed rules will translate into higher air travel costs for people across the country, and won’t incentivize change.

“The notion that the air carriers don’t care about the passenger experience ... it’s just nonsense.”

But if these rules are already mostly in place, there needs to be more enforcement according to Lukacs. This is currently in the hands of the CTA, which he claims has become too cozy with the industry.

The CTA can issue fines of up to $25,000 if a carrier violates air transportation regulations, including giving false information to the public. “The reality of it is that no airline has ever been fined for giving out false information to the public,” said Lukas, who has himself won dozens of cases against air carriers and Canadian transport regulators.

According to the CTA, it has taken on 500 enforcement actions in the last five years, most of which are against airlines, for a total of $1.6 million in fines.

Lukacs cites a recent high-profile case as an example of the CTA’s “slap on the wrist” approach to rulings. In July 2017, hundreds of passengers were stranded on two Air Transat flights on the tarmac in Ottawa for more than five hours. It was more than 30 degrees inside the plane, water ran out, and at least one passenger called 911 out of desperation.

More than six months later, after the CTA called a public inquiry into the matter, the agency announced that a $295,000 fine against the airline would be waived if the airline instead paid $500 to the 590 passengers onboard. Even though that fine was the single largest related to passenger service in Canadian aviation history, Lukacs says it didn’t go far enough and he is pursuing legal action against both the CTA and Air Transat.

Monafred says he doesn’t fault the airline for the “nightmare” that transpired at the Ottawa airport last year. “That Air Transat case was a classic example of all hell breaking loose when it comes to air transportation,” he says. “One of the limiting factors for the Air Transat fiasco is they could not open the doors to bring on water or pizza or even have the lavatory service because the aircraft had not been cleared for customs purposes.” He points out that the airline staff’s hands were tied.

“The notion that the air carriers don’t care about the passenger experience or that they’re happy to mistreat you or that they’re in a better situation stuck in an aircraft with all these angry passengers, it’s just nonsense,” he adds. “They want to give good customer service because they want you to come back and buy more flights and enjoy your vacation.”

He also disputes the notion that the CTA is too “cozy” with the industry. But he does think it is too preoccupied with soliciting and fielding individual passenger complaints without trying to find holistic solutions to make air travel more efficient.

Streiner says the CTA didn’t create a problem, it simply helped consumers understand that they could do something about it. He says the fact that the CTA has gone from fielding 800 complaints a year to about 6,000 is a “sign that folks needed this kind of service and once they were aware that it was available, they turned to us.”

A draft of the air passenger bill of rights will be published by Saturday, followed by 60 days of public consultation before it is finalized. The goal is to have the rules in place by Canada Day of next year.

Follow Anne on Twitter.

Cover image: An Air Canada jet prepares to land at Pearson International Airport in Toronto, Thursday September 30, 2004. Adrian Wyld/The Canadian Press

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