(Disponible en français : Nouveaux droits des passagers aériens au Canada)

There have been many media reports in recent years about the plight of Canadian airline passengers being denied boarding, having their flights delayed or cancelled, or having to wait hours on the airport tarmac before takeoff. These reports suggest that passengers are often unsure about their rights in such situations.

In response, the Transportation Modernization Act was enacted in May 2018. It required the Canadian Transportation Agency (Agency) to make regulations on air passenger rights. Those rights are set out in the Air Passenger Protection Regulations (regulations) which came into force in 2019. They establish an airline’s obligations towards its passengers, including minimum compensation levels and standards of treatment in certain circumstances. In particular, the regulations include requirements relating to flight delays, cancellations, denied boarding (i.e., “bumping” due to overbooking) and tarmac delays.

Previous air passenger rights regime

Under the previous regime, airlines were required to establish terms and conditions in their tariffs (i.e., their contracts with passengers), which addressed many of the same topics as the new regulations. However, subject to Agency decisions, airlines were generally free to establish their own policies in these areas.

The Agency was responsible for verifying that airlines had tariffs and ensuring that the airlines applied the terms and conditions contained in those tariffs. It also had the authority to determine whether the terms of a tariff were reasonable, but its ruling applied only to the airline(s) named in the decision.

Flight delays, cancellations and denied boarding

The regulations spell out airlines’ obligations towards their passengers for flight delays, cancellations and denied boarding. The level of obligation depends on the degree of control that airlines have over the situation:

• For situations outside an airline’s control – such as illegal acts or natural disasters – airlines are only required to ensure that the passengers complete their itinerary to the destination on their ticket.
• For situations within an airline’s control but required for safety reasons – such as a mechanical malfunction that was not identified during scheduled maintenance – the airline must meet minimum standards of treatment (e.g., provide access to means of communication, food and drink) and ensure that passengers complete their itinerary to the destination on their ticket.
• For situations within the airline’s control and not related to safety – such as overbooking – the airline must meet minimum standards of treatment, provide compensation for inconvenience and ensure that passengers complete their itinerary to the destination on their ticket.

Tables 1 and 2 summarize the minimum levels of compensation for situations within the airline’s control that are not required for safety reasons. Passenger compensation is calculated based on the length of the delay in arriving at the passenger’s destination.

Table 1: Minimum Levels of Compensation for Flight Delays and Cancellations (Situations Within the Airline’s Control)

Note: The regulations define a large airline as one “that has transported a worldwide total of two million passengers or more during each of the two preceding calendar years.” All other airlines are considered “small” under the regulations.

Table 2: Minimum Compensation for Denied Boarding (Situations Within the Airline’s Control)

Source: Tables prepared by the author based on data obtained from Air Passenger Protection Regulations.

After an airline receives a passenger claim for compensation for a flight delay or cancellation, it has 30 days to respond and pay the compensation or explain why compensation is not owed.

Compensation for denied boarding must be issued as soon as operationally feasible, but no later than 48 hours after boarding is denied.

Tarmac delays

If passengers are obliged to remain on the aircraft due to delays on the tarmac, the airline must ensure that certain standards of treatment are met. Passengers must be provided with working lavatories, proper ventilation, heating or cooling, food and drink in reasonable quantities, the ability to communicate with people outside the airplane free of charge, and access to medical assistance if necessary.

Airlines must also provide passengers with an opportunity to deplane after waiting three hours and give persons with disabilities the opportunity to disembark first where operationally feasible. However, the regulations give airlines the discretion to stay on the tarmac for an additional 45-minute window without being required to let passengers deplane if takeoff is imminent and if the airline can continue to provide the required standards of treatment. Under the previous regime, some airlines had 90-minute tarmac delay limits established in their tariffs.

In April 2019, the Minister of Transport instructed the Agency to make a regulation regarding an airline’s obligations towards passengers in the case of tarmac delays of three hours or less.

Other requirements

In addition to the requirements described above, the regulations include provisions regarding clear communication, damaged or lost baggage, the seating of children under the age of 14 years and the transportation of musical instruments.

The clear communication provisions require the airlines to display a written notice with prescribed text describing passenger rights and remedies, such as standards of treatment and compensation, while also directing passengers to the carrier or the Agency’s website. As well, in the case of a flight disruption (delay, cancellation or denied boarding), airlines are required to inform passengers of the reasons for the disruption and keep them apprised of developments.

Under the enforcement provisions of the regulations, individuals can be fined up to $5,000 per offence for contravening the regulations, while corporations (such as airlines) can be fined up to $25,000 per offence. As of 8 November 2019, the Agency had fined a number of airlines (at $2,500 per infraction) for failing to properly display notices about air passenger rights at various Canadian airports:

• Delta Airlines, Inc.: $2,500 for one infraction;
• United Airlines, Inc.: $10,000 for four infractions;
• WestJet: $17,500 for seven infractions;
• Air Canada: $12,500 for five infractions;
• Porter Airlines Inc.: $7,500 for three infractions; and
• Air Transat A.T. Inc.: $7,500 for three infractions.

Looking forward

Proponents of the Air Passenger Protection Regulations suggest that the regulations will result in clearer, fairer and more transparent and consistent policies regarding airlines’ treatment of their passengers. However, the regulations have been the subject of debate, with two court challenges currently underway: one launched by airlines and another started by consumer and disability rights advocates.

Additional Resources

Canada Transportation Act Review Panel. “Chapter 9: Air Transport.” Pathways: Connecting Canada’s Transportation System to the World – Volume 1, 2015.

Canadian Transportation Agency.

• Air Passenger Protection: APPR implementation guides are now available.
• Air Passenger Protection Highlights.
• Air Passenger Protection: Know your rights.
• Air Passenger Protection Regulations Consultations – What We Heard.

Chong, Jed. Air Passenger Rights in Canada and Other Jurisdictions. Publication No. 2018-09-E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 28 February 2018.

Author: Jed Chong, Library of Parliament

Categories: Business, industry and trade, Law, justice and rights

Tags: 43Parl, Air passenger, Air transport, Airlines, Protection, Transport Canada