I understand that some people enjoy the experience of being confined to tight quarters and treated like cattle, and will even pay great sums of money for the experience. But this is not a column about the unique kinks of consenting adults. It’s about the bottom-of-the-barrel standards that constitute the status quo when it comes to flying in this country, which is exorbitantly expensive and frequently unreliable, complete with a process that is itself hideously undignified.
Yet a consortium of airlines, including Air Canada, Porter Airlines and a number of global carriers, are fighting not just to maintain that status quo, but to set it back. In 2019, the group launched a legal challenge against then-new rules mandating that airlines had to offer specific compensation amounts for passengers who experienced cancelled or delayed flights, lost luggage, or were bumped from flights (up to $1,000, $2,100 or $2,400 respectively). Since then, the challenge has made it all the way to the Supreme Court, which began hearing the consortium’s appeal this past week.
The airlines argue that the Air Passenger Protection Regulations (APPR) exceed the Canadian Transportation Agency’s authority under the Canada Transportation Act. They also claim that imposing the regulations on international carriers contravenes global standards set out under the Montreal Convention, a global treaty adopted in 1999. In 2022, a federal appeals court upheld the regulations, with the exception of the rule regarding lost or “delayed” baggage, noting that the Montreal Convention does not entitle passengers to compensation for the latter.
Canadians who have taken at least a few flights since 2019 – and thus, have likely experienced one or more inconveniences outlined under the APPR – might find this all a bit precious considering how hard it is to actually receive the compensation set out in the rules. Canada’s transport agency said last week that it currently had a backlog of about 70,000 complaints, which comes one year after the government announced a whopping $75.9-million in additional funding over three years to help tackle the backlog. (At the time of that announcement, there were about 40,000 unresolved complaints, meaning that the backlog has somehow managed to grow by 75 per cent despite millions in additional resources.)
One major issue is the loophole built into the APPR that relieves airlines of the obligation to pay compensation if a delay or cancellation is “outside the carrier’s control.” In practice, that has meant that an airline can claim just about any cause for delay was beyond its control (if a pilot’s wife turned off his alarm making him late for work, surely that would fall under “illegal acts or sabotage,” one of the noted exceptions, yes?) and avoid doling out compensation.
Around this time last year, Omar Alghabra – then the federal minister of transport – unveiled a list of changes that he said would mean “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.” At the time, he called the proposed new rules “the toughest in the world.” The changes promised to change, among other things, the language around circumstances “outside the carrier’s control” to “exceptional circumstances” – a distinction that, we should trust, will make it impossible for airlines to make spurious claims about their culpability … right?
All of this would perhaps be less grating if Canadians had real options when it came to booking their flights. But competition in Canadian airspace is like competition in the Canadian telecom space, which is like competition among Canadian grocers: virtually non-existent.
Ultra-low-cost carriers have tried, and failed, to successfully navigate the Canadian market, which is burdened by cumbersome ownership regulations (individual foreign ownership of Canadian airlines is capped at 25 per cent) and high fixed fees and taxes (analysis by The Globe’s Eric Atkins in 2022 noted that airport improvement fees were on average seven times higher in Canada than in the United States). That makes it difficult for ultra-low-cost carriers to find the capital to start up in Canada, and difficult for them to keep their ticket prices low when fixed costs are so comparatively high. Airlines such as Lynx, Swoop, Zoom, CanJet and others have all tried their hand, only to shutter or get absorbed by larger companies.
Those larger companies are now fighting alongside their international allies to essentially be freed from the burden of having to find the loopholes in the government’s updated passenger protection legislation. No doubt it is a terrible inconvenience for their staff, and surely they should be properly compensated for their time.
Robyn Urback