Transport Committee on Nov. 21st, 2022

[The Chair, Liberal, Peter Schiefke]

I call this meeting to order.

Welcome to meeting number 40 of the Standing Committee on Transport, Infrastructure and Communities.

Pursuant to Standing Order 108(2) and the motion adopted by the committee on Thursday, February 3, 2022, the committee is meeting to study air passenger protection regulations.

Today's meeting is taking place in a hybrid format, pursuant to the House order of November 25, 2021. Members are attending in person in the room and remotely using the Zoom application.

Members of the committee, appearing before us today we have, as an individual, Mr. John Gradek, faculty lecturer and academic programs coordinator of the School of Continuing Studies at McGill University. He is appearing by video conference. From Air Passenger Rights, we have Mr. Gábor Lukács, president.

We also have with us Mr. Jacob Charbonneau, president and chief executive officer of Late Flight Claim Canada Inc., as well as Ms. Sylvie De Bellefeuille, lawyer, budget and legal advisor at Option consommateurs.

Finally, from the Public Interest Advocacy Centre, we have Mr. John Lawford, executive director and general counsel.

I'd like to take this opportunity to inform members that all of today's video conference witness participants have completed the necessary audiovisual checks. I'm going to look over to our interpreters right now to get a big thumbs-up and make sure everything's good. Perfect.

We will now begin the opening remarks with Mr. John Gradek for five minutes.

Sir, the floor is yours.

[John Gradek, Faculty Lecturer and Academic Programs Coordinator, School of Continuing Studies, McGill University, As an Individual]

Thank you very much.

I'd just like to thank the members of the House committee for having invited me to speak to you today on the air passenger protection regulations.

Today I would like to address the issue of compensation, primarily to air travellers as a result of an airline's decision to disrupt a passenger's itinerary, and to provide you with my recommendations to address what I see as current shortcomings within those regulations. First, let me quickly walk through the history of that regime to make sure that we have the right context. I will then talk about my recommendations.

In May 2019, we had the introduction of the air passenger protection regulations, which stipulated certain minimum airline requirements for air travel, including things like standard treatment and, in some situations, compensation for passengers. These regulations were the result of extensive consultation with stakeholders in the commercial air travel industry, including airlines and consumer groups. These new regulations set out obligations to passengers for communication, delayed or cancelled flights, denied boarding, tarmac delays and transportation of musical instruments, among others.

These regulations were instituted by the Canadian Transportation Agency under the Canada Transportation Act, as amended by the Transportation Modernization Act. They were to be administered by the Canadian Transportation Agency and came into effect progressively through December 15, 2019. These regulations apply to all flights to, from and within Canada, including connection flights.

Some of the more contentious provisions in these regulations have been those concerning delayed or cancelled flights. My comments and observations today will focus on what I see as a definition of airline control and the interpretations that various stakeholders have taken of the airline control statement.

When you talk about the way in which the APPR has basically delineated scenarios, one provision in there seems to be causing the most grief. It is the things that are in an airline's control but are “required for safety purposes”. Based on that provision and those scenarios, passengers are exempt from compensation. It appears that disruptions with this characteristic have raised the ire of many travellers and consumer groups, which claim that airlines have been misusing this characterization to escape the compensation requirements of disruptions within an airline's control.

When we talk about some of those situations where airlines are claiming safety, we're talking about situations regarding maintenance and staffing. When we have those situations, the airlines are only obligated to provide a standard level of treatment, a completion of the passenger's itinerary and no compensation. The compensation, of course, varies depending on the type and length of delay, ranging anywhere from $400 for a three-hour delay to up to $1,000 for a delay of over nine hours.

I made some simplifying assumptions in how these conditions and regulations came into place. I'm pretty sure that a significant amount of consultation was going on with the airlines specifically and with consumer groups. I'm pretty sure there was agreement among all of these stakeholders that the regulations were, in fact, fair and could be applied readily. However, it has become very apparent that there are, overwhelmingly, situations now where airlines are looking at what's within airline control and required for safety as being a primary cause for not paying compensation.

Typically, in terms of the airlines designing their flight schedules, the resources required to fly that schedule—be they physical, human or financial—are deployed from established inventory and reflect the need to have the required resources at the moment the flight is scheduled to operate. Airline staffers recognize that absences and shortages are a matter of course. Things like vacations, leaves of absence, retirements and sicknesses are all part of the way staff are deployed. Planners already take into account the fact that these absences will be there by looking at creating reserves. Reserves are typically there for flight attendants and pilots. These reserves are deployed at the instant staffing shortages are apparent, even within a day of flight.

The number of airline employees that the airline says are reserve staff is very much at the airline's discretion. If the reserves are low and absences are high, flights are delayed and flights are cancelled. Welcome to 2022. Absences can be forecasted based on historical absences, and reserve levels did not reflect the realities of the 2022 absences.

While the CTA expressed the opinion that staffing levels are not grounds for delays that fall outside of the airlines' control, airlines continue to make such claims and have, in fact, gone to federal court. Both Air Canada and WestJet have gone to Federal Court looking for further exemptions from these regulations based on scenarios that they say are part of the Montreal Convention. These regulations are flying in the face of the ICAO Montreal Convention.

This leads me to submit that we need to overhaul these exemptions and that the rules by which airlines can deny compensation need to be addressed quickly. We have some models. We don't have to reinvent things from scratch.

My belief is that the European Union's regulations on compensation are probably in better condition than the Canadian ones. The outline of the rules in the European Union—

[The Chair, Liberal, Peter Schiefke]

Thank you very much, Mr. Gradek. Unfortunately, I'll have to cut you off there. I tried to give you a bit of leeway, but you will be submitting that, so we will have it on the record.

Next, from Air Passenger Rights, we have Mr. Lukács.

The floor is yours. You have five minutes.

[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 take no government or business funding, and we have no business interests in the travel industry. We speak for passengers, whom we help daily in their struggle to enforce their rights.

Back in 2017, we cautioned that the government's proposal would not adequately protect Canadian passengers and fell short of the rights provided by the European Union's regime. We thank you for the privilege of testifying before you again and assisting you in taking stock of the air passenger protection regulations, known as APPR, and their many shortcomings.

Mr. Darrel Pink, a small claims court adjudicator, held, “When consumer protection is the intended outcome of a regulatory regime, it should be assumed the regime will be in plain language, easy to understand and supports a simple claims process. The APPR which was intended to accomplish enhanced passenger rights, accomplishes none of these.” Mr. Pink was correct. Let's look at some examples.

Mia and Joel paid good money for their tickets on an Air Canada flight to Vancouver, yet when they presented themselves for check-in, they were denied boarding. The airline's agent mistakenly believed that Mia and Joel did not meet some travel requirements. As a matter of fact, they were both eligible to travel.

Common sense dictates that they should have received denied-boarding compensation. Indeed, in the European Union or with an EU carrier, Mia and Joel would have received denied-boarding compensation. In Canada, however, they got nothing, because the APPR provides for compensation only to passengers denied boarding due to overbooking and not for any other reasons.

Mia and Joel's experience highlights that the APPR's terminology does not reflect common sense. We recommend that Canada adopt the EU's common-sense definitions for “denied boarding” and “cancellation”.

Alex booked a round-trip ticket for a weekend getaway, leaving from Canada to go to Boston on Friday afternoon and returning from Boston on Sunday afternoon. On Friday, Alex's flight to Boston was cancelled due to a snowstorm, which was clearly outside the carrier's control. The airline offered to re-book Alex on a flight departing Canada on Sunday morning, rendering his travel devoid of any purpose. By the time Alex would arrive in Boston, they would have to check in for their return flight.

Alex works five days a week, as many Canadians do, and could not defer the return flight until Tuesday. Had Alex's cancelled flight been departing from Boston or Paris, Alex would have had no difficulty obtaining a full refund under the U.S. or EU rules. However, Canada's APPR, as amended this past September, offers Alex no protection. Why? It's because the airline offered a flight departing within 48 hours of Alex's original departure time.

We recommend that Canada harmonize its flight refund rules with those of the United States and the European Union.

Now let's look at Lisa and Owen, who were booked on Air Canada and WestJet respectively. They had the all-too-common experience of their flights being cancelled due to crew shortage. The airlines sold them, and many others, tickets without first ascertaining the availability of crew for operating the flights. When the airlines refused to compensate them under the APPR, the CTA ordered the airlines to pay. The airlines then took Lisa and Owen to the Federal Court of Appeal.

The airlines say before the courts that, first, it is not the airline but the passenger who has to prove facts relating to the flight cancellation's circumstances, and second, that cancelling flights for crew shortage is for “safety purposes”, and no compensation is owed to the passengers under the APPR. In the European Union, passengers do not have to defend against such absurdities. The EU regime is clear that it is the airline that has to prove extraordinary circumstances to avoid liability and that “safety purposes” is not a universal excuse. We recommend that Canada adopt the EU's clear language on burden of proof and remove the frequently abused “safety purposes” excuse for not compensating passengers.

We implore you, the lawmakers, to grant Canadians the same rights and protections that European passengers have been enjoying for more than 15 years.

Thank you.

[The Chair, Liberal, Peter Schiefke]

Thank you very much, Mr. Lukács.

Mr. Charbonneau, you have the floor for five minutes.

[Jacob Charbonneau, President and Chief Executive Officer, Late Flight Claim Canada Inc.]

Good afternoon.

I thank the committee for inviting me to appear.

I am the co‑founder and CEO of Late Flight Claim Canada Inc., a law firm dedicated to helping consumers obtain compensation following a problem with their airline.

I have been asked to speak today about improvements to the air passenger protection regulations. I will come back to that later.

I would like to start by saying that we need to look at the situation much more broadly: it is the whole system that is broken and flawed. This makes it almost impossible for travellers to access justice and compensation, and let me tell you why.

Firstly, far too much room is left for interpretation of the causes giving rise to claims. Compliance with the regulation is left to the goodwill of the carriers. You can have the best regulation; if it is not followed, it is useless. Unfortunately, the actions of carriers since the regulations were put in place have shown us that the system does not work.

The system in place makes it financially more advantageous for carriers not to facilitate access to compensation and to refuse applications on all sorts of grounds. It is important to note that this behaviour is not limited to Canada, but is widespread throughout the industry. For example, the U.S. Department of Transportation recently fined airlines more than $7.25 million for delays in refunding nearly $600 million to passengers.

The processes in place in Canada encourage this bad behaviour and are inadequate. The regulations and their three categories of causes of flight delay or cancellation leave far too much room for interpretation. These categories are causes attributable to the carrier, causes attributable to the carrier but necessary for safety, and causes not attributable to the carrier.

All too often, carriers put anything and everything into these categories, without giving details. For example, pilots had miscalculated the fuel requirement, resulting in a demand for additional fuel, causing a delay. This was put in the category of causes attributable to the carrier, but necessary for safety reasons. We all agree that the delay was necessary, but it was still an operational decision.

There are also the problems relating to crew shortages, which have affected a huge number of passengers this summer. Yet these types of problems are clearly described in the Canadian Transportation Agency's interpretation policy as being a situation attributable to the carrier. Yet these situations have been put in the category of carrier-caused, but necessary for safety reasons.

In addition, in their tariff, carriers require passengers not to submit their claims through specialized firms and not to be represented by legal counsel in their initial claim. As an example, Air Canada tariff rule 105, paragraph F(2) states that the “carrier will not process claims submitted by a third party if the passenger concerned has not submitted the claim directly to the carrier [...]”.

This misinformation, coupled with the carriers' practices, has the effect of prejudicing passengers' rights and treating passengers unequally. Indeed, an article appeared on the CP24 website on the weekend about a couple of WestJet passengers, one of whom received compensation while the other did not, despite both being on the same flight.

Carriers know very well that in general, passengers are not sufficiently aware of their rights and the carrier's obligations. They are unable to stand up to multinationals that have access to specialized lawyers. Most passengers will not go any further after an initial refusal by the carrier. Passengers' rights are therefore undermined. When a passenger decides to appeal a carrier's decision, the Canadian Transportation Agency will often take more than a year, or even two years, to process their application.

This agency is not efficient. It offers three services or avenues: facilitation, mediation and formal proceedings.

Passengers are automatically directed to facilitation, at which there is little or no validation of facts and the carrier's comments are simply repeated. Compensation is left to the discretion of the carrier, and there is no obligation to provide evidence. The mediation process does not require evidence either.

Finally, there is the formal procedure, which takes over a year. One has to invest more or less 10 hours in it, in addition to the time spent on analyzing the responses. Moreover, the judgment will only apply to the passenger concerned. The carrier will therefore not be obliged to contact all passengers in the same situation, for example in the case of a delay due to lack of crew.

Let us take an example of good practice instead. In Denmark, applications are simplified. Supporting documents are requested, the facts are validated and the decision is enforceable within six months. The first instance that deals with the applications has much more power.

In summary, in Canada, passengers are told just about anything and are forced to represent themselves. The challenge rate is low and it takes one to two years to be told pretty much the same thing by the Canadian Transportation Agency without any obligation to validate the facts. All this has the effect of encouraging bad practices by carriers to the detriment of the travelling public.

We therefore ask the government to review the procedures in place, the role of the agency and the powers granted to first responders. Secondly, we are asking it to look at the time taken by the agency to deal with travellers' complaints. We also want the government to require carriers to remove any provision in their tariffs that requires passengers to represent themselves in the event of a dispute. What's more, we want it to harmonize the different categories of cases with European regulations: either the situation entitles passengers to compensation, or it is an extraordinary circumstance that the carrier must prove.

On the other hand, we ask that technical and mechanical failures be included in the situations attributable to carriers. In addition, carriers must be required to provide physical evidence in the event of denial and require reasons beyond overbooking for denied boarding, such as an error in the person's name or a problem with the carrier's registration. Finally, compensation to passengers following an initial denial should be enhanced to include punitive damages.

Thank you.

[The Chair, Liberal, Peter Schiefke]

Thank you very much, Mr. Charbonneau.

Ms. De Bellefeuille, you have the floor for five minutes.

[Sylvie De Bellefeuille, Lawyer, Budget and Legal Advisor, Option consommateurs]

Thank you, Mr. Chair.

Good afternoon, members of the committee. Thank you for receiving me and allowing me to present my comments.

I have been a lawyer with Option consommateurs for 12 years. Our organization was created in 1983, and its mission is to help consumers defend their rights. As such, we receive thousands of requests for information each year from people who have problems with merchants, including the travel industry.

Since the start of the pandemic, the problems experienced by air passengers have highlighted the flaws in the regulations designed to protect them. Indeed, it is for this reason that the Air Passenger Protection Regulations have recently been amended to clarify passengers' rights to reimbursement, even if the cancellation or disruption of a flight is beyond the control of the carrier.

However, the chaos at Canadian airports, particularly in Montreal—which has made Canada the laughing stock of other countries—has proven two things to us. First, customer satisfaction is not a priority for airlines. Second, current regulations do not provide adequate protection for consumers.

In our view, the high number of complaints received by the Canadian Transportation Agency is only the tip of the iceberg and demonstrates that the current regulations present enforcement difficulties. We would therefore like to share with you some proposals to improve the regulations.

In the event of a flight delay or cancellation, the level of liability a carrier must assume depends on its level of control over the situation. While this makes sense in theory, it is problematic in practice. This is because the onus is still on the passengers to seek justice by seeking compensation from the carrier.

Yet, in order to do so, passengers are entirely dependent on the information provided to them by the carrier. The problem is that the carrier has a conflict of interest. When the reason for the disruption is within its control, it has an obligation to compensate passengers. Since it is expensive, it has an interest in not recognizing this. This was also the case during the air traffic disruptions that occurred this summer. Indeed, several carriers claimed that the pandemic was the cause of the problems in order to avoid paying compensation. In short, the pandemic had a very broad back, again.

Before the Canadian Transportation Agency, the passenger has the burden of proving that the regulations were not properly applied by the air carrier. This is nonsense and, in our view, the burden should be on the carrier. We also believe that compensation should be automatic, as is currently the case for overbooking cases.

In cases where a flight is cancelled for a reason outside the carrier's control, its primary obligation is to reroute the passenger and it has 48 hours to do so. Only if the carrier fails to do so can the passenger request a refund. However, this time limit is too long. In some situations, this delay negates the purpose of the trip, as in the case of a person who has to go on a cruise and whose flight cancellation means that he or she literally misses the boat. In such situations, passengers should be allowed to be refunded.

The final issue we would like to bring to the attention of the committee is overbooking. In our view, overbooking is certainly a breach of contract law. Normally, when one buys a good or a service, the supplier has the obligation to provide that good or service according to the agreed terms. In this case, the carrier has an obligation to take the person from one place to another.

The problem with overbooking is that it allows a carrier to withhold the agreed service from some passengers on the pretext of offering better terms to other passengers who have paid more for their tickets, thereby allowing it to increase its profits. In our view, the right to make a profit should not have the effect of relegating consumer rights to second place. For all these reasons, we believe that overbooking should simply be banned.

[The Chair, Liberal, Peter Schiefke]

Thank you very much, Ms. De Bellefeuille.

Finally, for opening remarks, we have Mr. Lawford.

Mr. Lawford, the floor is yours. You have five minutes.

[John Lawford, Executive Director and General Counsel, Public Interest Advocacy Centre]

Thank you very much, Mr. Chair and honourable members.

My name is John Lawford. I'm the executive director and general counsel at the Public Interest Advocacy Centre. PIAC is a national non-profit and registered charity, and we provide legal and research services on behalf of consumer interests, in particular vulnerable consumer interests, concerning the provision of important public services. PIAC has been active in the field of air passenger protection and policy for over 20 years.

The air passenger protection regulations are just fine. Removing them or amending them would not ease airport delays or reduce traveller frustration. They are not unfair and they are not overreach vis-à-vis the airlines. The APPRs are hard-won redress and fairness for the flying public. Modern air transportation regulatory schemes throughout the world have such rules, including, as we've heard, the EU and the U.K. The APPRs are Canada's answer.

There is currently a problem with the backlog of consumer APPR complaints at the Canadian Transportation Agency. We estimate there are somewhere between 16,000 and 20,000 that are at least a year old. This backlog is due in part to bad timing. The APPRs were proclaimed, as you heard, in force just ahead of COVID-19.

However, it has always been PIAC's position that the APPRs were going to generate a backlog. The CTA's facilitation, mediation and adjudication streams within a quasi-judicial formal framework are a ridiculous approach to dealing with high-volume, low-value consumer redress for such routine, and unfortunately now chronic, issues as flight delays and cancellations.

A better model is a dedicated administrative complaints agency with a regulatory overseer for systemic issues. This administrative model is currently in place for telecommunications and broadcasting, through the CCTS, and for banking and investments, through the OBSI. The government should not abandon the APPRs but should remove them from the formalistic tariff-based adjudication process and transition to a CCTS-like model.

We also note that consumer baggage complaints cannot be solved by changing or improving the APPRs, because they effectively say nothing about baggage. That's due to the Carriage by Air Act and the Montreal Convention, which stipulate that compensation for lost baggage or delayed baggage must be contained in the airlines' own domestic tariffs on baggage. This means that consumer frustration with baggage can only be solved with a directive for the airlines to meet a minimum standard in their tariffs from the minister or the CTA.

PIAC also wishes to underline that the present APPRs are under attack by the airlines, first by WestJet arguing that all crew shortages are safety cases, and more recently by Air Canada questioning whether crew training is out of their control in appeals from the CTA to the Federal Court of Appeal. We note that in the EU, under their passenger protection regime, staffing shortages generally must be planned for and compensation must be paid except in very unusual circumstances, with the implicit message from the regulator to the airlines not to schedule flights for which they cannot manage their labour supply.

Second, major Canadian as well as U.S. and European carriers, along with IATA, are challenging the entire APPRs, for international flights and domestic ones as well—I was just rereading some of the pleadings—at the Federal Court of Appeal, saying they conflict with the Montreal and Chicago conventions. This committee can and should, by contrast, express its support for the APPRs despite growing pains and challenges. Consumers need the APPRs as a counterweight to airline power. This committee should recommend future amendments to the APPRs and any other law or treaty to fill any gaps that these airline court challenges reveal.

Lastly, we note that the major airlines fired or retired workers during COVID-19. They made their own labour shortage despite taking large CEWS amounts that were intended to keep staff on the payroll. Most airlines also took some or all of the money offered as bailouts—not WestJet of course, and Air Canada only for consumer refunds—but were not required to rehire or be ready to restart at the start of this summer. This money only supported their balance sheets while COVID requirements faded away.

Thank you. I look forward to your questions.

[The Chair, Liberal, Peter Schiefke]

Thank you very much, Mr. Lawford, for your opening remarks.

We will begin our first round of questioning with Mr. Strahl.

Mr. Strahl, the floor is yours. You have six minutes.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Thank you very much to all of the panellists for their presentations. Certainly, I know members of Parliament are often very well versed in dealing with airports and airlines. We certainly hear from our constituents who have concerns when things go sideways.

For the first question I want to ask, perhaps I'll start with Mr. Lukács.

Numerous panellists mentioned the EU as a good model to follow. Another witness indicated that—I wrote down the language because it was excellent—chaos at the airports made us an international laughing stock. I think we saw a lot of issues with airplanes being held on tarmacs, for instance, because the customs halls were completely full. We heard a lot of those delays being attributed to the flawed $54-million ArriveCAN app. We heard about problems with CATSA causing massive security lineups, which had an impact as well.

Does the EU model that was referenced numerous times take into account all of the agencies, all of the parts of the passenger experience and the things that can go wrong with baggage, security, ground crews and airports? Does the EU model take those things into account, and is there any accountability for the agencies that provide services to passengers, in addition to the airlines? Obviously people pay the money to airlines and therefore expect to get rebates from them. Maybe you could comment on whether there are additional groups that are impacted by the EU legislation.

[Dr. Gábor Lukács]

The EU model deals with the relationship between passengers and the airlines. It is without prejudice to the airline's right, then, to recover costs from a third party for damages. What we need to bear in mind is that both under the EU law and under the Montreal Convention, which is an international treaty, the airline is the passenger's final address for issues.

For example, if the passenger's baggage, after it was checked in, is damaged by security, then the passenger claims the baggage damage through the airline. The airline can then talk to CATSA or any other security agency to recover those damages, but insofar as the passenger is concerned, it is a matter between the passenger and the airline.

We also understand that these are complex systems. The European Union's regime recognizes the notion of an extraordinary circumstance like a snowstorm or volcanic eruption, which relieves the airline from the obligation to pay compensation. However, most situations relating to ground crew, fuelling aircraft and ensuring they have sufficient crewing and that they planned their flights properly are within the airline's control.

Airlines, even in Canada, had all the information they needed to estimate the problems that would be happening in the summer. They had all the information they needed in order to know what would happen and to know that perhaps CATSA or the airport facilities were imperfect, but they were still not able to handle the volume of traffic reflected by the sales of tickets by airlines.

What happened this past summer was a situation in which airlines were overselling the airport facility's capacity and they knew it perfectly well. That would have been, in the European situation, within the airline's control. It would be a whole different situation if, for example, God forbid you had an air crash, you had to close one of the runways suddenly and it was not known in advance.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Thank you for that.

I had another question. With the EU, obviously there are examples of geographical issues. We can think of staffing issues as well. For instance, if you're at the airport that I fly out of often, Vancouver International Airport, you would expect that for the bigger airlines, there might be crew on site who could fill in if there was a delay that put the crew over their hours or if someone got sick.

Are there any provisions in the APPR—or do you think there should be—for when, for instance, your flight might be in the north or in a remote community? Should airlines be able to use as an excuse the fact that they're in a smaller airport in a small community, as opposed to flying out of some of the major centres where you might expect to have more crew available?

[Dr. Gábor Lukács]

Generally, when we are talking about crew shortages, we are talking about situations that the airlines could have known well in advance, like not having adequate training for crews probably months in advance.

I would support arrangements for special exemptions for airlines that operate north of a certain geographical point in very scarcely populated areas and territories. That, however, should not apply to an airline operating out of, say, Sydney, Nova Scotia, or Halifax, Nova Scotia, or similarly well-populated areas.

The assumption of any passenger protection regulation should be that the airline is responsible for the business decision that it makes, and that has to include adequate contingencies.

[The Chair, Liberal, Peter Schiefke]

Thank you very much.

Next we have Mr. Rogers.

The floor is yours. You have six minutes.

[Churence Rogers, Liberal, Bonavista—Burin—Trinity, NL]

Thank you, Chair.

Welcome to all of our witnesses online and the people in the room today. All of your testimony provided many examples of individuals and groups that have been denied refunds, and I note the other issues you've raised.

I think a number of factors unfortunately converged to create the perfect storm and a problem for air passengers. Very soon after the government introduced its new passenger rights system in 2019, there were, notably, the pandemic and subsequent shutdowns of most air travel, labour shortages that persisted and so on. Even after the public health measures were relaxed, we still had major problems.

Given that, would you say that on balance, we are still better off with the legislative and regulatory framework, as opposed to the situation that existed before, when each individual airline set its own system, including compensation amounts?

I'll start with Mr. Lawford and then go to Mr. Charbonneau. Then we'll ask a couple of people online.

[John Lawford]

Absolutely, we're better off having the passenger protection regulations than not having them.

I would have started them—instead of 2019, as Professor Gradek said—more like in 2003, or whenever the Canadian Airlines-Air Canada merger was. That's when PIAC started working on airline issues and the problems of consumers being treated more like baggage than passengers. We've been trying to get an airline bill of rights since that time. We have worked on this for more than 20 years and we finally have regulations. We're very fond of them.

I was trying to make the point that there were a lot of factors going against them. They need a chance to breathe and, unfortunately, the administration turnover is too slow at CTA now to catch up on the backlog. It should be like a parking ticket that the airlines are getting, not a big investigation.

I very much support them.

[Jacob Charbonneau]

Thank you for the question.

It is better to have a framework than not to have one. On the other hand, it's a bit like setting speed limits on the motorway, but there's no one there to enforce it. That leaves it open for people to drive at whatever speed they want.

That's kind of what we're seeing in this case. Even with the best of regulations, if proactive work is not done to ensure that these rules are followed by carriers, if we just wait for a complaint to come in and work one complaint at a time, we're not solving the situation.

[Churence Rogers, Liberal, Bonavista—Burin—Trinity, NL]

Thank you.

Go ahead, Mr. Gradek and Mr. Lukács.

[John Gradek]

I agree with Mr. Lawford. The Wild West we had prior to the APPRs was not acceptable in terms of the way we handle our passengers. The APPRs were an attempt to draw the line in the sand and say, “Here's a process that we think would work.”

Unfortunately, in my opinion, there are some elements of the language in those APPRs that still leave a lot of discretion, as far as I'm concerned, to the airlines in having the ability to escape the compensation clauses that are supposedly contained in there. I think it's incumbent on the committee and on the regulators to close some of those issues.

[Churence Rogers, Liberal, Bonavista—Burin—Trinity, NL]

Go ahead, Mr. Lukács.

[Dr. Gábor Lukács]

In my view, the APPR was written by the airlines for the airlines, and it's essentially a sham. It creates the appearance that there is passenger protection regulation in Canada. It serves as a way to provide answers to those legitimate calls to provide a European-style protection regime, but it was designed to fail.

We cautioned the government. We also cautioned the Canadian Transportation Agency in February of 2019 about all the flaws, and we predicted them. We predicted the refund controversy. We predicted the abuse of the “safety purposes” loophole. We predicted the concerns about denied boarding and so on.

We have 52 pages of this, which have been on our website for more than three years now. We knew it was coming. Everybody with minimal expertise in the area knew what would happen if those regulations were allowed to go forward in their present form.

What needs to happen now is for us to give Canada real air passenger protection regulations that provide meaningful protection to passengers.

[Churence Rogers, Liberal, Bonavista—Burin—Trinity, NL]

Ms. De Bellefeuille, at the moment, it strikes me that one of the main problems is there is not enough disincentive for airlines to go to the CTA, dragging out the process and discouraging travellers from exercising their rights.

Would you agree with this assessment? If so, what should be done to change this incentive structure?

[Sylvie De Bellefeuille]

Thank you for your question.

The process is indeed very cumbersome. The consumer has to fight like David against Goliath. He is the one who has to assert his rights, when he does not have all the necessary tools at hand. They have to fight against an air carrier that knows the ropes and has the information. That is why we believe that the burden of proof should be reversed. It should be up to the air carrier to justify that it does not have to compensate the passenger. This is problematic.

There is also another problem: we suspect that very few people will go through with the process. For a carrier, it is almost advantageous not to give the right information and not to admit responsibility. Consider a far-fetched scenario in which 10% of the passengers on a plane contest a decision. This would mean that 90% of the passengers would not be compensated. This is a very far-fetched scenario indeed, because in reality there are usually only one or two passengers per flight who claim compensation, if any.

The balance of power is really not balanced. The regulations should be reviewed to restore this balance of power.