Bill C-327

Strengthening Air Passenger Protection Act

An Act to amend the Canada Transportation Act (air passenger protection)

This enactment amends the Canada Transportation Act to, among other things,
(a) require the Canadian Transportation Agency to make certain regulations in relation to an air carrier’s obligations towards its passengers, including regulations requiring an air carrier to pay minimum monetary compensation for inconvenience in the case of a flight delay, flight cancellation or denial of boarding that is not caused by extraordinary circumstances;
(b) set out what constitutes “extraordinary circumstances” for the purposes of the requirement to pay minimum monetary compensation;
(c) increase the maximum amounts of the fines payable in respect of certain offences under the Act that are punishable on summary conviction; and
(d) increase the maximum amounts of the administrative monetary penalties that the Canadian Transportation Agency may, by regulation, prescribe for the contravention of requirements under the Act that may be proceeded with as a violation.

Air Transportation

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Madam Speaker, I rise today to present a petition on behalf of 4,000 Canadians who are frustrated with the state of air passenger protection in this country.

This petition comes on the heels of several seasons of air travel chaos. The petitioners note that Canada's air passenger protection regime falls well short of the examples set in other jurisdictions, including the European Union.

The petitioners note that the backlog of complaints before the Canadian Transportation Agency, as of March 20, 2023, stood at 42,000 complaints. I would add that it is now well over 50,000.

Finally, the petitioners call on the government to table a bill that would reflect the contents of Bill C-327, which was drafted in close collaboration with air passenger rights advocates, and to do so at the soonest opportunity in order to protect the rights of air passengers right across this country.

[Dr. Gábor Lukács]

Yes, it is salvageable. It would take some work, and we have outlined in our brief the seven points of the amendments.

The first is that proposed sections 85.09 and 85.14 would need to be deleted, as well as clause 462.

In clause 459, in proposed subsection 85.06(1), the word “information” should be replaced with “evidence”.

In clause 459, proposed subsection 85.06(2), should be amended to read, “(2) An order referred to in subsection (1) is an order of the Agency.”

Proposed section 85.12 should be deleted, and proposed section 85.1 should be cleaned up in terms of its reference to proposed section 85.12.

Subclauses 465(1), (2) and (3) should read as do subclauses 4(1), (2) and (3) of Bill C-327, the private member's bill.

Proposed subsection 85.07(2) should read as does proposed section 85.2 in clause 3 of Bill C-327.

Lastly, clauses 467 to 470 in Bill C-47 should be deleted.

[Dr. Gábor Lukács]

Thank you for the question. It's a pleasure to be here.

There are two main differences that are worth mentioning. The first and the most important one is about closing the loophole with respect to the “required for safety” reasons. Bill C-327 would hard-code in the primary legislation that compensation is the norm and that the airline can avoid compensation only in truly extraordinary circumstances. Those circumstances are spelled out in Bill C-327 clearly. They are not left to anybody else to decide.

In sharp contrast, the budget bill retains the loophole. It makes four references to the “required for safety” reasons if you do a search in the electronic text. On the longer timeline, it shunts the list of exceptions to the Canadian Transportation Agency in the form of regulations where we know—we have already heard just yesterday or the day before from the airlines—they would like to see the same loopholes retained, claiming that safety is so important that airlines should never have to pay compensation when a flight is cancelled due to so-called safety issues.

A second important difference relates to the burden of proof. In Bill C-327, it is clear and unambiguous that it doesn't matter whether the passenger goes to small claims court, provincial superior court or a class action in federal court, the burden of proof will always be on the carrier to show why a flight was delayed or cancelled or why a passenger was bumped.

In sharp contrast, in the budget implementation bill, that burden of proof is shifted only if the passenger agrees to forgo their right to due process before an impartial judge, agrees to a star chamber-like secretive process and goes through the Canadian Transportation Agency's kangaroo court.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Thank you, colleagues, for allowing me to sit in on the finance committee.

Shifting our discussion a little bit to the topic of air passenger rights, I want to start by thanking Dr. Lukács for his tireless work on behalf of Canadian air passengers. He does this as a volunteer, and over the past several years has emerged as Canada's foremost consumer advocate in the air passenger space. I think a lot of the advancements that we've seen are due to his work. I'm very pleased that he's joined us today to talk about the portion of Bill C-47 dedicated to this government's attempt to finally fix Canada's air passenger protection regime.

Dr. Lukács, you and I worked closely on developing Bill C-327, the Strengthening Air Passenger Protection Act. I wonder if you could comment a little on the contrast between what is in that private member's legislation and what we see in Bill C-47 today.

[Dr. Gábor Lukács, President, Air Passenger Rights]

Mr. Chair and honourable members, Air Passenger Rights is Canada's independent, non-profit organization of volunteers devoted to empowering travellers. We have a track record of successfully predicting shortcomings and loopholes in legislation related to air passenger rights.

Five years ago, we testified before the House of Commons and the Senate respective committees and cautioned that the Transportation Modernization Act was inadequate. In 2019, we published a 52-page report with predictions of how airlines would likely exploit the air passenger protection regulations' shortcomings and loopholes. In December 2022, we cautioned that Canada's air passenger protection regime was broken, and we proposed specific legislative amendments as a solution. Mere days later, during the holiday season, Canadians witnessed a second meltdown of air travel that year, compounded by airlines' flagrant disregard for passenger rights under the APPR..

Our predictions are based on the experience of the passengers we help daily in their struggle to enforce their rights. They have been validated by the four years that have passed since the regulations came into force. Today, even the government acknowledges that our air passenger protection regime needs to be substantially strengthened. Unfortunately, the legislative amendments put forward in Bill C-47 have the opposite effect.

First, the government proposes to create a secretive, star chamber-like process for adjudicating consumer disputes between passengers and airlines with no right of appeal. The adjudication will be conducted on the basis of confidential information instead of evidence, with the exclusion of the public and the media. This is unheard of in consumer disputes.

Bill C-47 therefore violates Canadians' freedom of expression and the open court principle guaranteed by section 2(b) of the Charter, as well as the right to a fair hearing in accordance with the principles of fundamental justice, protected by section 2(e) of the Canadian Bill of Rights.

Second, proposed section 85.12 is effectively a Henry VIII clause that allows the Canadian Transportation Agency to change the law while bypassing the system of checks and balances set out in the Statutory Instruments Act. The agency will be able to make and modify guidelines affecting passengers' rights overnight without examination by the Clerk of the Privy Council and the deputy minister of justice, without publication in the Gazette and without scrutiny by Parliament's committees.

Third, Bill C-47 perpetuates existing loopholes and creates a new one. In spite of the government promise to the contrary, the bill retains the “required for safety purposes” excuse for airlines to avoid paying compensation and shunts that excuse into regulations. This made-in-Canada loophole has unnecessarily and disproportionately complicated adjudication of disputes between passengers and airlines.

Since evidence about the reasons for a flight disruption is in the airlines' exclusive control, passengers are at a great disadvantage in enforcing their rights to compensation. Bill C-47, however, shifts the burden of proof to the airlines in such disputes only if the passenger gives up their right to a fair and open hearing before an impartial judge and instead agrees to submit to the star chamber-like process.

Bill C-47 also creates a new loophole. Clauses 467 to 470 would allow airlines that sign a so-called compliance agreement to avoid paying penalties for violating passengers' rights.

To summarize, many of the government's proposed amendments to the Canada Transportation Act miss the mark, do the opposite of their stated purpose and will weaken not only air passenger protection but also fundamental rights in Canada.

We urge you lawmakers to amend division 23 and not to forgo this historic opportunity to create a robust air passenger protection regime in Canada. A suitable model for amending division 23 would be Bill C-327, a private member's bill to harmonize Canada's air passenger protection regime with the European Union's gold standard. Bill C-327 has been endorsed by Canada's leading consumer protection organizations, and it is what Canadians need.

Thank you.

Budget Implementation Act, 2023, No. 1

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Madam Speaker, I am pleased to rise today to speak to Bill C-47, the budget implementation act.

Before I begin my speech, I hope my colleagues will humour me while I take a brief moment to wish my daughter, Maddie, a very happy 16th birthday.

There is a lot in this bill, of course, and I want to start by providing a few words about dental care, which is the most significant, optimistic and powerful policies contained within this legislation. I hear all the time from seniors, young families and people who do not have dental insurance and cannot afford to get their teeth fixed. They are so excited to see dental care finally coming in this bill, and it cannot come soon enough. It is the most significant expansion of public health care in a generation. It is going to make a difference for some nine million Canadians, including folks in Skeena—Bulkley Valley in the beautiful northwest of British Columbia, which is the area I am so proud to represent.

Today I want to focus on the portions of Bill C-47 that deal with air passenger rights. As the NDP's transport critic, this has been my preoccupation over the past year or so. It is something we studied at the transport committee and it is something the Minister of Transport has chosen to slip into this budget implementation act in order to, what he claims, finally fix air passenger rights in this country.

The Liberals brought in their air passenger protection legislation back in 2019. The former minister of transport brought it in to great fanfare. He claimed that it was going to be a world-leading approach and that air passengers were finally going to have a government that would have their backs, yet what we have seen over the past four years has been anything but world-leading.

We have seen thousands of Canadians put in extraordinarily difficult situations by the big airlines. We have seen passengers sleeping on airport floors. We have seen families having to miss much-awaited vacations and trips. We have seen people out thousands of dollars. This system the Liberals claimed was going to be world-leading and was going to have air passengers' backs has really left people in a lurch.

What we see before us in Bill C-47 is the government's third attempt at fixing this problem. Of course, this problem exists because the big airlines make commercial decisions that delay and cancel flights and leave passengers picking up the slack. What we have seen in other parts of the world, particularly in the European Union, are effective approaches that get passengers compensation when that happens, and yet the approach we have seen here in Canada has not succeeded in protecting air passenger rights.

In fact, right now there are over 44,000 complaints before the Canadian Transportation Agency. Who are these folks? These are the most determined air travellers. I say “determined” because they have the fortitude to navigate not one but two complaint processes. Under the Liberals' current system, not only does a passenger need to complain to the airline and wait 30 days for a response, but when the airline almost inevitably declines their claim for compensation, they need to file a complaint with the Canadian Transportation Agency and then wait in line while this very complex bureaucratic and expensive process runs its course. Right now the wait time to proceed through that complaint process is over a year and a half.

As I said, the transport committee has been studying this issue. We heard from the leading consumer advocates working on air passenger rights in this country. We heard from all sorts of witnesses and put together a report with a whole host of recommendations aimed at finally bringing Canada's air passenger protection regime up to the standards set by the European Union.

I also had a chance, about a month ago, to table in this place a private member's bill, Bill C-327, the strengthening air passenger protection act, which aims to lay out in legislation precisely which changes are required to create a robust regime of air passenger protections in this country. Then the Minister of Transport brought forward his proposed changes, this third attempt at fixing air passenger protections.

I want to start by giving credit where credit is due. There are a couple of things in this new approach that have been called for fairly consistently by advocates and by me through my private member's bill. One is increases to the fines within the legislation that can be levied against airlines that continue to break the rules and not award compensation as they should. There are other pieces in the legislation, particularly around delayed baggage, that have also been called for, so there are a couple of things the minister got right.

One of the key concerns with Canada's current system is a loophole that exists in the Canadian Transportation Act. Unlike the European system which sets out a very simple two-category classification system for flight disruptions, our system has three categories. In Europe, disruptions, which are cancellations or delays, are considered either ordinary disruptions, such as things that fall within the reasonable influence of the carrier, or extraordinary disruptions, things like major weather events, acts of terrorism or recalls by the airplane manufacturer. Nobody is suggesting that airlines should be held accountable for factors entirely outside of their influence, but we have been seeing airlines deny compensation for factors within their influence that cause delays and cancellations, such as making sure they have enough crew to fly the flights, ensuring the aircraft are properly maintained, and ensuring their computer system is working properly.

This bill was intended to fix that. Everyone knows this loophole exists. It has been a matter of much conversation and debate. The minister claims to have fixed this loophole in the legislation that is before us. I do not see it. When I look at the section of the Canadian Transportation Act where this loophole exists, I see those same three categories.

The category that is particularly problematic here in Canada is the category of disruptions that are within an airline's control but are required for safety reasons. When we are talking about companies that fly passengers around in aluminum tubes at 30,000 feet, I think pretty much everything related to that industry is related to safety. The issue here is that airlines are making decisions within their sphere of influence that are causing real hardships for air passengers. In those cases, passengers should be compensated and treated well.

There are other things in Bill C-47 around air passenger rights that are very concerning. I had a chance to speak to this earlier today. One aspect is essentially a gag order on passengers who pursue complaints through the Canadian Transportation Agency. It states:

All matters related to the process of dealing with a complaint shall be kept confidential, unless the complainant and the carrier otherwise agree”.

If Canadian air passengers file a complaint with the CTA , go through its resolution process and are not happy with how they are treated or the outcome, this legislation is going to prevent them from talking about it. If the minister is truly proud of this system he has put forward, why is he silencing the people who will be using it? It is incredible.

We are at a point now where the minister has claimed to have closed the loophole. He and I have had this conversation. He said that a lot of it will be forthcoming in regulations, which we have not yet seen, sort of like the answer to my questions will be self-evident over the next rise. He is empowering the CTA with a tremendous amount of discretion over this process instead of making the changes in the legislation itself. That is the process we wanted to see, yet what we see falls well short of that mark.

Another issue we see is with respect to transparency and the amount of information the CTA provides. We think the amount of compensation paid through this complaint process should be part of the disclosure. That is something we will be working on when it comes to amending this bill.

I will end with this. Canadians deserve real protections that are easy to navigate and get them their compensation. That is what we will keep fighting for.

Strengthening Air Passenger Act

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

moved for leave to introduce Bill C-327, An Act to amend the Canada Transportation Act (air passenger protection).

Mr. Speaker, I am proud to rise this afternoon to table the strengthening air passenger protections act. This bill comes on the heels of two seasons of air travel chaos that left air passengers sleeping on airport floors, missing important family trips and out thousands of dollars.

My bill would do four key things. First of all, it would close a loophole in the Canada Transportation Act that airlines have been using to deny passengers the compensation they are due. It would make compensation automatic. It would shift the burden of proof off passengers and squarely onto the airlines themselves. Finally, it would increase the financial penalties for non-compliance.

Most importantly, this bill would bring Canada's air passenger protection regime up to the standards set by the European Union, finally and for all time moving forward.

I will end by thanking the organizations Air Passenger Rights, the Public Interest Advocacy Centre and Option Consommateurs, whose hard work helped immeasurably in crafting this bill.

The government does not have to wait to debate my bill. It could take the ideas contained within and table a government bill. I hope it does that at the earliest opportunity.

(Motions deemed adopted, bill read the first time and printed)