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Insights

November 04, 2020

ARTICLE

Air passenger protections: an analysis and comparison between Canada and the European Union

Introduction

In 2019, Canada enacted new regulations regarding the treatment of air passengers.1

Prior to the introduction of the regulations, there was a consultation period when input was sought from the public, consumer advocates, and the air industry.2 The consumer advocates wanted the air carrier obligations to equal or exceed the requirements in the European Union, while the aviation industry advocated for the exclusivity of the Montreal Convention and that the regulations should not exclusively penalise air carriers.

A compromise was reached and the regulations, known as the Air Passenger Protection Regulations (APPRs) set standards for treatment, as well as minimum compensation levels for different circumstances, including flight delays, cancellations, carrier communications with passengers, tarmac delays, denied boarding and baggage claims.3

Although the APPRs are Canadian in origin, these regulations apply to all flights to, from and within Canada, including connecting flights. It is therefore important for all air carriers to understand what the APPRs include. To assist in such understanding, this article will review the regulations and provide a comparison with the existing passenger protection regulations in the European Union.4

Scope and application

Scope

The APPRs provide guidance to carriers in the following areas:

  • general guidance (sections 2-7);
  • delay, cancellation and denial of boarding (sections 8-21);
  • assignments of seats to children (section 22);
  • baggage (section 23-24);
  • advertising (section 25-31); and
  • compliance penalties (section 32-33).

Application

The APPRs apply irrespective of whether an air carrier is domestic or not. The regulations apply to:

  • flights to and from Canada;
  • flights within Canada, including connecting flights;
  • charter flights on which one or more seats are for resale to the public, both within Canada and to and from Canada, as part of a charter that originated in Canada;
  • connecting flights taking place outside Canada, where the connecting flight is operated by the same air carrier that operated the flight to or from Canada; and
  • connecting flights taking place outside Canada where the connecting flight is operated by a different air carrier from that which operated the flight to or from Canada, but is doing so pursuant to a commercial agreement, such as a code-share arrangement.

In certain sections of the regulations, there is a distinction made between large and small air carriers. For these purposes, large carriers are considered to be air carriers that have transported at least two million passengers worldwide in each of the two preceding years.5 All other air carriers are considered to be small. In their tariffs, and for the purposes of the APPRS, air carriers must identify themselves as large. A smaller air carrier transporting a passenger on behalf of a large air carrier will be subject to the obligations of the large air carrier.

The air carrier issuing the ticket is responsible for providing the passenger with the required information on travel documents and on the platforms it uses to sell tickets.

The APPR requirements for flight disruptions (flight delays, cancellations, tarmac delays and denied boarding) are the responsibility of the air carrier operating the affected flight.

Reasons for enacting the APPR

The APPRs were developed after the news media published details of a number of unfortunate tarmac delays and overbooked flights.6

As the Canadian Minister of Transportation stated at the time the APPRs were introduced:

‘In a vast nation like Canada, Canadians rely on economically viable modes of transportation to travel and move commodities within the country, across the border, and to our ports for shipment overseas. The time has come to modernize our policies and practices to provide a safer, more competitive and respectful system that can respond to modern conditions and to Canadians’ expectations. When Canadians purchase an airline ticket, they expect the airline to provide the service that they paid for and to be treated with respect. When things don’t go the way they are planned, travellers deserve clear, transparent, fair and consistent compensation.’

Comparison to EU passenger rights regulations

In the following section, a chart compares some of the main provisions between Canada’s APPR and the European Union:7

 

Canada

European Union

SCOPE
  • flights into or out of Canada, or,
  • flights operated by a Canadian air carrier
  • flights within the EU, operated by an EU or a non-EU airline;
  • flights arriving in the EU from outside the EU, where an EU airline operates the flight; and
  • flights departing from the EU to a non-EU country, operated by an EU or a non-EU airline.

Denied Boarding
  • must ask for volunteers first
  • provide alternative travel arrangements or refund
  • provide compensation
  • provide assistance (e.g. food/accommodation)
  • must ask for volunteers first
  • if denied boarding, passenger has right to compensation, right to choose reimbursement/rerouting/rebooking, and right to assistance (e g, food/accommodation)

Compensation

Based on length of arrival delay time

  • <6 hr delay in arrival = C$900
  • 6-9hr delay in arrival = C$1,800
  • >9hr delay in arrival = C$2,400

Based on trip distance

  • <1,500 km = € 250
  • 1,500 – 3,500 km = € 400
  • >3,500 km = € 600

Reimbursement

Once denied boarding, the air carrier must:

  • reroute the passenger on the next available flight;

if alternative travel arrangements don't meet passenger needs, carrier must:

  • provide a flight to point of origin and refund the passenger’s ticket, if the passenger is not at their point of origin; or
  • refund the passenger’s ticket, if the passenger is at their point of origin

Once denied boarding, the air carrier mist:

  • Refund the passenger’s ticket, return passenger to departure airport or reroute the passenger to their final destination.

Assistance

If there is a delay caused by denied boarding, the air carrier must provide:

  • reasonable food and drink;
  • access to communication;
  • accommodation (if the passenger is rebooked to travel on the next day); and
  • transport to and from accommodation.

If there is a delay caused by denied boarding, carrier must provide:

  • food and refreshments;
  • accommodation (if rebooked to next day);
  • transport to and from accommodation; and
  • two telephone calls, faxes or emails.

Flight Delays

If the delay is within carrier control, the carrier must:

  • provide information and updates, including reasons for the delay, entitled compensation, recourse;
     
    After two hours, provide:
    • reasonable food and drink;
    • access to communication;
    • accommodation (if the passenger is rebooked to travel on the next day); and
    • transport to and from accommodation;

    After three hours, provide alternative travel arrangements, free of charge, to passengers that desire these; and
     
  • alternative travel arrangements don’t meet passenger needs, the carrier must:
    • provide a flight to point of origin and refund the passenger’s ticket, if the passenger is not already at their point of origin; or
    • refund the passenger’s ticket, if the passenger is at their point of origin.

If the delay is announced 14 days or less before departure, carriers must compensate passengers as follows:

Large air carriers must pay:

  • C$400 if the passenger arrives three to six hours late;
  • C$700 if the passenger arrives six to nine hours late; and
  • C$1,000 if the passenger arrives nine or more hours late.

Small air carriers must pay:

  • C$125 if the passenger arrives three to six hours late;
  • C$250 if the passenger arrives six to nine hours late; and
  • C$500 if the passenger arrives nine or more hours late.

If the delay is within carrier control but required for safety reasons, the carrier must do all of the above except for paying compensation.

If delay is not within carrier control, the carrier must communicate the reasons for and nature of the delay properly and must make alternative arrangements for the passenger, free of charge, with the aim of getting passengers to their destination as soon as possible.
  • In the event of long delays (two hours or more, and depending on the distance of the flight), the carrier must provide free meals and refreshments plus means of communication;
  • If the time of departure is deferred until the next day, the carrier must provide hotel accommodation and transport;
  • If a delay is five hours or longer, passengers can choose reimbursement of the full cost of the ticket and a return flight to the first point of departure.

Flight Cancellation

The air carrier has same responsibilities as for flight delays, listed above.

If a flight is cancelled (in circumstances that could have been avoided), the carrier must provide:

  • refreshments, meals, hotel accommodation, transport, means of communication;
  • reimbursement of the cost of the ticket within seven days or a return flight to the first point of departure or re-routing to their final destination; and compensation totalling:
    • €250 for all flights of 1,500 kilometres or less;
    • €400 for all intra-EU flights of more than 1,500 kilometres and for all other flights of between 1,500 and 3,500 kilometres; and
    • €600 for all other flights.

Tarmac Delays
  • Carriers may keep passengers on the plane for up to 3 hours before they must be offered the option to deplane.
     
    Carriers must provide:
    • access to lavatories (if the aircraft is thus equipped);
    • proper ventilation and cooling/heating;
    • means to communicate with people outside the aircraft;
    • reasonable food and drink.

  • Carriers may keep passengers on the plane longer if take off is imminent (within three hours and 45 minutes of the start of the delay).
  • Carriers may keep passengers on the plane for up to five hours before they must be offered the option to deplane.
  • If a tarmac delay is for one hour or more, water, access to the lavatories and air conditioning must be provided in the aircraft.

In all cases, flight delay compensation rules apply.

Important principles

In this section, the authors present some principles of application for the AAPRs, as decided in previous cases before the Canadian Transportation Agency (CTA).

The CTA is an independent, quasi-judicial tribunal and economic regulator. It is to the tribunal to which passengers and air carriers may apply to have disputes arising out of APPRs adjudicated. Some previous decisions regarding principles for the application of the APPRs, relevant to this article, are as follows.

The CTA cannot adjudicate disputes over the application of EU passenger rights legislation, or require an air carrier to comply with them. This is so even where the air carrier applying that legislation is a Canadian airline, and the passenger may have originated from Canada.8

For example, in CTA Decision No. 432-C-A-2013, the Applicants argued that the Tribunal should direct the air carrier Sunwing to apply a compensation regime similar to that of EC261. However the CTA confirmed that it makes determinations on provisions relating to legislation or regulations that it is able to enforce. Foreign legislation, such as the European Union’s Regulation (EC) 261/2004, does not satisfy this criterion. If an air carrier feels compelled or has been instructed by a foreign authority to include a reference in its tariff to foreign law, the air carrier is permitted to do so. However, the inclusion of a foreign tariff is not a requirement imposed by the CTA.

Additionally, the new APPRs do not apply retroactively. In a recent decision, a passenger submitted that, because her dispute with Air Canada was being determined after the APPRs came into effect, it should be determined in accordance with the APPRs rather than the former tariff rules. However, the CTA determined: ‘It is a well-understood concept of statutory interpretation that, unless explicitly specified, statutes and regulations are not of retroactive effect.’ Because the legislation does not specify retroactive application, the date of the flight governs which regime will apply: either the former tariff, or the APPR.9

Conclusion

The introduction of the APPRs in Canada had some impact on the rights of passengers and, in many ways, imposes more stringent requirements on air carriers. Because the APPRs apply to all air carriers flying into, out of or within Canada, it is important for any air carrier to understand the requirements of the Canadian legislation.

With any new legislation impacting on the wallets of Canadians, there will be a great deal of interest on the part of those who stand to gain. Already, the CTA has received numerous complaints from passengers about how the APPRs are being applied. The volume of those requests forced the CTA to deploy a rarely used power of inquiry in order to look into the complaints in aggregate, rather than individually. This inquiry has not progressed far, however, due to the Covid-19 pandemic.

As for the pandemic, it caused the CTA to relax many of the APPRs for a period of time in order to allow for repatriation, which required a significant number of flight changes and cancellations. The complete set of impacts of the pandemic on worldwide air travel is not yet known. Suffice it to say that, as a result of the pandemic, how the APPRs will be applied to flights taking place in these uncertain times and into the future remains an open question.

This article first appeared on the website of the Aviation Law Committee of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.

1 The complete regulations can be accessed on the Government of Canada, Justice Laws Website: Air Passenger Protection Regulations, ‘Air passenger protection regulations consultations - What We Heard’

2 (Canadian Transportation Agency), see "Air Passenger Protection Regulations Consultations - What We Heard," accessed 8 September 2020.

3 ‘Air passenger protection regulations’ (Canadian Transportation Agency), see "Air passenger protection regulations," accessed 8 September 2020.

4 ‘Help and advice for EU nationals and their family’ (European Union), see, https://europa.eu/youreurope/citizens/travel/passenger-rights/air/index_en.htm accessed 8 September 2020.

5 The authors anticipate that the impact of the Covid-19 pandemic on passenger volumes may lead to challenges to the applicability of the regulations and/or changes to the definitions used in the APPRs.

6 See, for example, "Air Transat passengers describe 'deplorable' treatment at first day of inquiry," accessed 8 September 2020; and "Why overbooked flights aren't going away any time soon," accessed 8 September 2020.

7 The sources for these summaries are the websites of the Canadian Transportation Agency and EUR-Lex Summaries of European Legislation.

8 See, for example, Decision No. 15-C-A-2019, Heaney et al. v Air Canada, and Decision No. 432-C-A-2013, Nawrot et al. v Sunwing Airlines Inc.

9 Decision No. 71-C-A-2020, Ben-Ishai v Air Canada.

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