Good evening, Madam Chair, and committee members. I would like to acknowledge that we are on unceded Algonquin territory.
Thank you for the opportunity to present and to bring a research perspective to the discussion of Bill C-49, particularly to the section on an air passenger bill of rights, which is undoubtedly an issue of importance to Canadians.
I am an assistant professor at the common law section of the faculty of law at the University of Ottawa, and my area of expertise is consumer rights in the contemporary cross-border network digital economy. My work covers areas such as consumer protection, dispute resolution, and access to justice. I am also a consumer groups' appointed director at the board of the Commission for Complaints for Telecom-television Services, CCST, which is Canada's communications industry ombudsman. However, I appear in my personal capacity, representing my own views.
Most recently, my work has focused on the wireless code, a bill of rights for Canadian wireless consumers, as well as dispute resolution, including ombuds schemes for consumer complaints. It is my expertise in these broad areas of consumer protection, particularly with the wireless code, that I'm bringing to the table.
While the telecommunications and air travel industries are definitely very different, there are significant parallels when it comes to consumer rights and consumer redress. My comments will focus on clauses 17 to 19 of the bill, which deal with the proposed regime to establish an air passenger bill of rights.
I will focus my remarks around three topics: the need for this bill of rights, the passengers' rights or carriers' obligations in the bill, and redress mechanisms related to the rights in the bill.
As to the need for the bill of rights, the current regime of complicated tariffs and related individual carriers' contracts is overly complex and ineffective. Consumer rights regarding air travel are varied and fragmented. They depend on a number of factors, and it is difficult, if not impossible, for consumers to know ahead of time what rights they have and what the appropriate redress mechanisms are. Market forces alone cannot resolve this issue. Canadians need an air passenger bill of rights that will provide uniform, minimum rights for consumers, or conversely, set minimum obligations for the carriers.
Similar regimes for air passenger rights exist in other jurisdictions, and in Canada they exist in other industries as well. As I already mentioned, as an example, the wireless code sets a mandatory code of conduct for the wireless service providers, and a recently established television service provider code sets minimum rights for consumers with respect to television services.
A mandatory code that would apply to the industry as a whole is the appropriate way to set minimum consumer rights. It is to the benefit of consumers, and it is to the benefit of the industry. For consumers, it provides a clear set of rights that are found in a single place. A clear set of rights builds and enhances consumers' trust in the industry. It also promotes competition in the marketplace. It offers the carriers an opportunity to distinguish themselves from the competition by setting higher levels of customer service. The bill of rights is the floor; it is not the ceiling.
This brings me to my next point on the actual passenger rights or carrier obligations in the bill. Bill C-49, in effect, does not establish the bill of rights for consumers. Proposed subsection 86.11(1) would set the broad parameters of issues that the future bill of rights in the form of regulation must cover. It is the foundational step for the bill of rights to come. These parameters, the list of issues that the bill of rights should cover, are thorough but the list is not an exhaustive one. It provides for ministerial discretion, both in breadth and in coverage, as well as in the form of future regulations.
Passenger rights on the list are similar to the rights in other regimes and correspond generally to the most common types of complaints that are increasingly being reported by the media. However, there may be other kinds of disputes about which we have not yet heard. It is therefore imperative that the list stay as is or be expanded. Similarly, the committee should not decrease the list. By doing so, certain rights would be chipped away, creating a multi-tier system, which is what we have today. That also includes the geographical scope to cover claims that include flights to, from, and within Canada.
Proposed subsection 86.11(4) provides that the rights form part of the carriers' tariff, unless carriers offer more advantageous terms. The spirit of this provision is that the bill of rights would set the minimum standards, and that the carriers may adopt a suite of rights that goes beyond this.
My concern, however, is with the drafting, which leaves a lot of discretion and does not provide information on who will assess—and when, how, and how frequently—whether individual carriers' terms meet the obligations of the bill of rights, exceed them, or are actually below them. The wireless code uses wording that in my view is clearer and more precise and does not leave room for discretion. It is a mandatory code of conduct for providers of certain regulated services.
My view is that this provision ought to be redrafted to ensure that the rights under the bill are always included in the tariff, so as to avoid case-by-case assessment, as well as that consumers cannot waive those rights by contract.
You may have heard or will hear concerns about the form and process by which the bill of rights will come into existence, from a broad list of topics in Bill C-49 to a detailed set of rights. I believe the Canadian Transportation Agency is best placed to lead this. However, it is imperative that the process be open and inclusive and offer an opportunity to all stakeholders, including individual consumers and public interest organizations, to participate in creating the bill of rights. A similar process before the CRTC, the Canadian Radio-television and Telecommunications Commission, has been used for both the wireless code and the TV service code, and it has worked very well.
I also believe that regulations, rather than an act, provide a more appropriate mechanism for the bill of rights. I have, however, some concerns about the timelines and the feasibility of getting a broad list of topics into the actual bill of rights. It is subject to political will, and sometimes priorities shift. There have certainly been instances in which the legislation required a regulation of this type and there have been years if not decades without it. I'm not suggesting a specific timeline, but I invite committee members to consider the impact of any delays.
Lastly, I would like to briefly address consumer redress under the new regime.
A bill of rights and an effective redress mechanism are essential components of a robust consumer protection regime. A set of rights without an effective redress mechanism is ineffective, in the same way that a redress mechanism without a clear set of guiding principles leads to different outcomes and creates different rights.
Under the proposed regime, the CTA retains its role as dispute resolution provider for air passenger claims. It will not be able to do that effectively without a significant change of its processes and staffing. While this is not on the table before you right now, I also invite you to consider whether there are aspects of Bill C-49 that may actually relate to this.
I strongly believe that proposed section 67.3, which provides that only an affected person can file a complaint, is very limiting. There is a significant body of empirical research that it is consumers themselves who pursue claims, mainly because the value of the complaint does not justify the transaction costs. Actually, very commonly the transaction cost is much higher than the value of the complaint itself. However, there is also research in consumer literature that provides that it is important to allow other parties, such as public interest organizations, to have standing to file complaints, perhaps as a mechanism to challenge systemic problems. I strongly believe that proposed section 67.3 should be amended to allow third parties to file claims.
Concerning the collective aspects of consumer claims, there are complaints that will be highly fact-specific to a single consumer but that there are events that will affect a number of consumers, most commonly all of those who were in the affected aircraft. Proposed section 67.4 gives CTA discretion to apply the decision to all of those affected, but it is not clear whether there will be a specific mechanism to trigger it or whether they would do so on their own.
Finally, proposed subsection 86.11(3) provides what is a common provision in other jurisdictions and other dispute resolution schemes, that consumers cannot double dip and obtain compensation for the same events through different compensation schemes.
In its brief, Air Canada proposed that this provision be significantly limited. My strong view is that the provision as it stands is broad enough to allow CTA to craft a rule to avoid this. For example, CCTS, the Canadian communications ombudsman, has a rule along those lines in its procedural code.
I hope that these comments and recommendations will be useful to the committee. I would be pleased to provide to the members a policy brief summarizing my key points and recommendations and any relevant documentation that may help you navigate—no pun intended—these issues and understand them from not only the industry's perspective but from the perspective of consumers who are your constituents.
Thank you for this opportunity. I will be happy to answer any questions.