Transport Committee on Nov. 2nd, 2009

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Why not give us the amendments? Give us some amendments.

[The Chair, Conservative, Merv Tweed]

Thank you.

I'm going to go to Monsieur Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Thank you, Mr. Chair.

Thank you, Mr. Petsikas and Ms. Hébert.

Your document is clear. Indeed, this is a private bill that, in my opinion, will not solve what the sponsor is seeking to solve, and you have explained that clearly. The Cubana situation is a very problematic one, and I know that this bill will not solve it. The problems Cubana experienced with the Ottawa airport authority, the paid and unpaid fees and so forth, none of those is solved by the bill.

There are other situations, and I would like you to give us some examples. I know there are situations that are beyond your control, such as de-icing aircraft. You mentioned NAV Canada and CATSA. Give us some examples of delays for which you are not responsible.

[George Petsikas]

Thank you for your question.

You give several examples. There was the NAV Canada decision concerning Air Canada flight 32. Furthermore, the work of the customs authorities has an impact on the passenger's experience. There is de-icing, which is very important. Snow removal from airport runways has a major impact on moving aircraft prior to takeoff. As you know, de-icing is basically a matter of air safety. One of our concerns about this bill is its potential impact on decisions made solely for reasons of air safety.

Imagine an aircraft commander who knows that it will take approximately an hour and a half to de-ice his Boeing 777. After 60 minutes, the time has come when it is up to us to decide whether to continue de-icing or not. Personally, I would trust the commander who has 30 years of experience and whose primary concern is the optimal operation of his aircraft and the safety of his crew and passengers.

After 61 minutes, someone might tell the commander that there are other considerations. The company could be severely penalized if the commander did not return immediately to the gate because one of the passengers had had enough. They could demand that the commander exit the takeoff line to go to a gate that is perhaps not even available. We know very well how it works when there is a major snowstorm. We have no idea how long it could take to get back into the lineup after loosing the aircraft's initial place. It could take a very long time. So this could needlessly add another three, four or even five hours to the delay. Ultimately, because of duty restrictions, the flight would have to be cancelled.

This puts us in a bad position on many levels. Why should the ability to make the final decision be taken away from the commander? If there is no unnecessary risk or danger to passenger safety, the aircraft could return to the gate. However, that has nothing to do with safety, because it is a matter of the smooth operation of a flight, which would have an impact on 300 other people, who may not necessarily want to get off the aircraft after 61 minutes. So why does this measure exist?

The Europeans have realized that this is absurd. They have never implemented this kind of legislation, even if some of their airports are the busiest in the world. For example, Heathrow airport got 5 cm of snow last year. It was total chaos for three days. I would like to point out that clause 3 of this bill would make us liable for that. In a situation similar to that of Heathrow, companies such as Air Canada or Air Transat would be forced to pay compensation for such a delay, even if it occurred in London, whereas British, German and Dutch airlines would not. Canada would be the only country in the world to be penalized. It makes absolutely no sense.

I truly believe that we must get together in order to better understand the system.

[The Chair, Conservative, Merv Tweed]

Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, Mr. Chair.

My thanks to the witnesses for coming here today. Certainly, I believe that we could devote a lot more time to considering this bill, and I think that's what we're concerned about.

Would you think that this bill could be improved by detailing some of the extraordinary circumstances, whether it's weather, air field issues, the relationship of the airline companies to the airfield itself, or operational aspects like the availability of spaces in the de-icing line?

Having come out of Edmonton in the middle of winter and been stuck in a de-icing line for two hours, I know that it's not an airline's responsibility. So there are some equipment issues. Where exactly does the airline assume responsibility for an airplane's mechanical condition? Would there be a point at which that mechanical responsibility is associated with delays or cancellations?

Then there are the staffing issues. Sometimes they're out of your control. If you have a plane stuck in Vancouver, and the replacement crew is on that flight, and you have another flight in Edmonton, you have a problem that's out of your control. There are also regulatory issues.

Can you add to that list of things the extraordinary circumstances...that might be things that we could bring into the bill that would more clearly outline what is your responsibility and what is not?

[George Petsikas]

Extraordinary circumstances represent just one of the problems. It's one of the outs that's in the bill, but only in respect to cancellations. In the rest of the bill, there are ambiguous concepts such as “undue risk” that are supposed to define whether we're going to be liable for ramp delays.

We've talked about significant impact and what happens when we have to inform travellers that their plans will have to be changed. I'll say this clearly for the record: the National Airlines Council of Canada is not against a reasonable, balanced consumer protection framework. In fact, we support it. We want to do what we can to work with our partners in the aviation supply chain to improve the customer experience. But if we started with what you're proposing, we would have to rewrite the whole bill from A to Z.

[Dennis Bevington, NDP, Western Arctic, NT]

If we started with your proposal, we'd have to get the agreement of practically all the airline associations flying in Canada. That's a difficult task. You've given us a list of a whole bunch of different organizations representing the companies that fly in Canada. Don't you see that legislation will give surety to all the companies that they're on a level playing field and that everyone is under the same rules?

What are the good rules that should be included? The extraordinary circumstances issue should be attached to delay. This way you have some assurance that you are not responsible for delays if they're out of your control. That's what we're looking for in making amendments to this bill. We are trying to provide a level playing field across the whole industry that will result in competitive airlines with the best service and the highest probability of success. That is the competitive model that I'm sure all your members want to adopt.

[George Petsikas]

Sir, we are saying this: this bill has unfortunately not taken into account the realities of the air transport supply chain. It introduces concepts like extraordinary circumstances, which, as a lawyer, I can tell you, if you put 20 lawyers into a room and tell them to define those circumstances, you will get 20 different definitions. It establishes the courts as the final arbiters of what all of this means. We won't even know what our liabilities are under this legislation until the courts get through a lot of these things in many years' time.

The bottom line, or all that we're saying, is that this bill, unfortunately, establishes a culture of blame. It establishes a culture of penalizing. It does not come to grips with the reality of the air transport supply chain, and it does nothing to improve the customer experience. What we are saying is that we are willing to start discussions on a framework that does recognize all of the points that I'm telling you about. This doesn't do it. I can't sit here and say, we'll figure out a way to finagle a little bit the issue of extraordinary circumstances, undue risk, and all of those sorts of thing; but in the end, all that it's going to do is to make lawyers very happy, because that's what it has done in Europe.

Remember that while we've held up the European example here as a panacea, there are in fact many concerns right now in Europe with respect to how extraordinary circumstances, and a lot of other provisions, have been interpreted.

[Dennis Bevington, NDP, Western Arctic, NT]

You mentioned Europe, but there have only been two cases in front of the courts. Is that not correct?

[George Petsikas]

No, sir. You're referring to the validity itself of the E.U. directive. I believe that IATA—and I'm not sure who else—challenged the validity of the directive per se. But there have been many cases brought to the courts by consumers who have asked, well, how do you define a delay? Does an extremely long delay also become a cancellation?

[Dennis Bevington, NDP, Western Arctic, NT]

What's the aviation industry worth in Europe?

[The Chair, Conservative, Merv Tweed]

I have to stop there and go to Ms. Brown.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Mr. Petsikas, I just want to correct the record, if I may. If you get 20 lawyers in a room, you'll get 22 different opinions.

[George Petsikas]

I take your point.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

I just wondered if you could clarify for us how the voluntary flight rights are working for the industry. Maybe you can talk about them.

I'm sharing my time with Mr. Mayes, so this has to be very short.

[George Petsikas]

Thank you for the question.

As I tried to explain, we have filed the amendments to our tariffs, which are the contract of carriage with the passenger. It's not as the previous witness said: the tariff is fully enforceable when we don't respect our obligations under the tariff. Any consumer can go to the CTA--which, as you know, is quasi-judicial body--and complain that we have not respected it. The CTA has a wide range of options, including enforcement options, available to it to get us to respect our tariffs.

So it is legally or contractually binding in that respect, and it has been there, I believe, since the end of last April. I'm afraid I don't have the exact date of our filings. It has been in immediate effect as far as domestic tariffs are concerned. Unfortunately, there has been a little bit of a technical hiccup with respect to our international tariffs, because the CTA is reviewing some issues with respect to international conventions and how they apply in regard to some other similar issues.

I can tell you that as members of the NACC, we will be embarking on a very comprehensive communications campaign in the very near future to make sure people know this is there, because there's not much point to having these things here in some sort of document that nobody's ever heard of or understands. If you don't know it's there, then you can't use it. We want people to know it's there, and we want people to use their rights as we have proposed, because we think that's a reasonable way to go. And if we can't live up to those rights, then obviously the CTA should say, no, you have an obligation to do that.

These are the individual airlines, as you will understand, which the NACC is trying to coordinate, but it is each airline's call as to how they want people to go onto their websites and be able to access all of their customer service information and all of that. I hope very much that you'll be able to see that in the very near future. We are working on it with our communication subcommittee.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

So consumer protection does exist?

[George Petsikas]

Absolutely.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Mr. Mayes.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Thank you.

I'd like to direct this question to Mr. Petsikas.

On flight 32, you went through the whole scenario of what happened there. I appreciate that, as it gave me a better appreciation of what did happen. But did the captain communicate all of those things to the passengers?

[George Petsikas]

Unfortunately, I can't tell you that, as I don't have that information. In fact, the information I have was given to me by my colleague from Air Canada just a few minutes before I sat down with you. So he may know that, but unfortunately, I don't have that information.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Okay. I just think it's important that they make that communication so the passengers know.

Other than Mr. Bevington, maybe, I probably fly the most of anyone sitting around this table. I do about 120 flights a year. I've been doing this for four years and I've only had one cancellation....

Well, you go direct.

Anyway, that works out to a quarter of 1%. Is that pretty close to what your average is, or am I just lucky?

[George Petsikas]

In terms of cancelled flights system-wide?

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Yes.