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Passenger rights overhaul draws criticism from both sides — airlines and advocates

Airlines say it goes too far. Advocates say not far enough.

Airlines say it goes too far. Advocates say not far enough.

The proposed overhaul of Canada’s passenger rights charter earned mixed reviews Monday after Transport Minister Omar Alghabra laid out measures to tighten loopholes to traveller compensation and toughen penalties.

If passed, the reforms will put the onus on airlines to show a flight disruption is caused by safety concerns or reasons outside their control, with specific examples to be drawn up by the Canadian Transportation Agency as a list of exceptions around compensation.

“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,” Alghabra told reporters in Ottawa.

“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.”

Currently, a passenger is entitled to between $125 and $1,000 in compensation for a three-hour-plus delay or a cancellation made within 14 days of the scheduled departure — unless the disruption stems from events outside the airline’s control, such as weather or a safety issue such as mechanical problems. The amount varies depending on the size of the carrier and length of the delay.

The National Airlines Council of Canada, an industry group representing four of the country’s biggest carriers, denounced the potential scrapping of safety concerns as an exception to compensation requirements.

“No airline should be penalized for adhering to the highest standards of safety, whether that is due to weather, mechanical issues or other safety-related constraints,” said council president Jeff Morrison in a statement.

The route to a better travel experience runs through airport upgrades and greater accountability across the range of aviation players, he said.

“Airlines are being forced to continue shouldering sole responsibility for all organizations in the overall system, over which they have no control,” Morrison said.

Tabled in the House of Commons as part of a budget implementation bill Thursday, the amendments ratchet up the maximum penalty for airline violations to $250,000 — a tenfold increase — and put the regulatory cost of complaints on carriers. In theory, that measure gives airlines an incentive to brush up their service and thus reduce the number of grievances against them.

Alghabra defended placing the financial weight squarely on carriers. “The customer paid the airlines to receive a service. Therefore the airlines are responsible for delivering that service,” the minister said, adding that the federal budget mandates data sharing and thus broader accountability in the aviation sector.

The legislation also demands that airlines institute a process to deal with claims and respond to complaints with a decision within 30 days. The establishment of “complaint resolution officers” at the Canadian Transportation Agency should also expedite the process for complaints, as should a 60-day maximum for the regulator to handle them, some advocates say. It is not clear what the penalty for breaching those timelines might be.

The complaints backlog at the agency now stands at about 45,000, more than triple the tally from a year ago and requiring at least 18 months on average per case.

Some advocates cast doubt on whether the so-called safety loophole for compensation was really shut tight.

“The way it was sold today was, ‘We got rid of the three categories,’” — within the airline’s control, outside its control and safety concerns, with the latter two reasons for a delayed or cancelled flight exempting an airline from compensating passengers — said John Lawford, executive director of the Public Interest Advocacy Centre.

Instead of the flight disruption categories, the Canadian Transportation Agency would draft a list of exceptions for compensation, including bad weather, the minister said.

“I’m sure the airlines will say, “‘Well, one of them should be safety,” Lawford predicted.

Gabor Lukacs, president of the Air Passenger Rights advocacy group, questioned confidentiality rules for the complaints process and called for more transparency.

While decisions by complaint officers would mandate the publication of some information, such as a flight number and date and whether compensation was issued — to alert fellow passengers to their own potential payout — “what is not becoming public is the evidence and the reasons and the analysis,” he said.

“What happens with mediation is still a black box,” Lukacs added. “My impression remains that this is essentially a smokescreen, and that it is going to be a secretive process that will cover up the real problems that passengers are facing.”

NDP transport critic Taylor Bachrach, who has tabled a private member’s bill on passenger rights, expressed skepticism as to whether the Canadian Transportation Agency could be entrusted to write regulations reasonable to all sides.

“They’re far too close to the airlines themselves. And so we have a regulator that is in some ways captured by the industry. And we’ve seen that in its decisions over the past number of years,” he told reporters.

The agency dismissed the accusation. “The CTA preserves the level of independence the Canada Transportation Act requires and ensures that parties’ right to an impartial decision-maker is respected,” said spokeswoman Martine Malais in an email.

Bachrach also said the proposed law fails to fully close the so-called safety loophole and falls short of European passenger rights standards.

“When we look at the European model, it’s been working for over a decade. And I can’t explain why the minister hasn’t chosen to emulate that model. He’s trying to reinvent the wheel and it’s not necessary.”

Alghabra rejected this depiction. “We are actually consistent with the EU. In fact, we have stronger measures being proposed in this bill than the EU standards,” he said. The minister pointed to provisions that require airlines to compensate passengers for “delayed” luggage, not just lost or damaged bags.

He said the changes are “not meant to to demonize” carriers or their employees.

“But I really think airlines left government no choice, after what we saw, to further clarify the rules and make sure that passenger rights are protected,” he said.