Thank you, Mr. Chair.
Honourable members, my name is John Lawford. I'm the executive director and general counsel at the Public Interest Advocacy Centre. PIAC has advocated in the field of air passenger protection for over 20 years.
Until just before this Christmas travel season, PIAC had hoped that the air passenger protection regulations were adequate. Then we were concerned that this committee would overreact to airline pressure and either completely remove them or at least significantly amend them and actually weaken them in a misguided effort to fix them. We recommended “a dedicated administrative complaints agency with a regulatory overseer for systemic issues.”
Then December happened. Horribly, sadly and very predictably, conditions arose and the backlog of complaints to the CTA rose to over 30,000. I'm here to say that we were wrong. The problems with the APPR are not superficial, and it's not about improving them around the edges. They are structurally unsound.
The three conditions or aspects of events that define the effects of the APPR on consumers—namely, “within the airline's control”, “for safety” or “outside the control”—have shown themselves to be unnecessary complications that bring the complaints system to a practical halt and usually actually resolve against the interests of consumers.
We now believe, based on this experience, that this whole “control, safety, outside control” structure is completely unworkable and will always generate lengthy disputes that must be slowly and painfully decided. This creates more problems, as the APPR now generates more complaints than the prior CTA tariff review track yet must still be adjudicated formally and done so based not only on those three criteria but also with no clear burden on the airlines to bring forward their claim—and they have all the evidence of the claim within their control. Lastly, the regulations are not clear on these matters.
As a result, PIAC is now withdrawing our support for the APPR as drafted, and we are now recommending to this committee that you rewrite them in the format of the European rules, namely, that consumers are owed all of the refunds, care and compensation in the regulations, tariffs and the Montreal Convention, with the only exception being not paying out standardized compensation in “extraordinary circumstances”.
Assuming this committee will simply recommend those structural changes—maybe not—PIAC has concerns about the immediate travel challenge for Canadians: March break 2023. To avoid another travel Armageddon, we need to fix baggage delays; re-booking, rerouting and refunds for weather; and definitions of “denial of boarding” and “flight cancellation”, and we need to make clear that the evidentiary onus lies on airlines, not passengers, in all complaints.
Therefore, we recommend that this committee—and this is quite technical—invite the minister to issue a direction, under CTA subsection 86.11(2), to ensure the CTA makes regulations to compensate passengers for delayed baggage. Then we recommend that the committee—this is in two parts—invite cabinet, under section 40 of the Canada Transportation Act, to pass a new regulation based on the old delayed baggage one, which was subsection 23(2) of the APPR and which was wiped out by the Federal Court of Appeal pending eventual amendment by Parliament to fix the Canada Transportation Act, and to insert the word “delayed” in paragraph 86.11(1)(c).
We also invite you to invite cabinet to direct all carriers, including the small carriers, to refund, re-book and reroute—even on a competing carrier—all passengers for any cancellations or long delays. This may require an amendment to the definition of “carriers” as large or small. We note here that the threshold for passengers is two million a year. It may have to be lowered quite significantly.
Secondly, we invite cabinet to replace the APPR definitions with those of the EU for “denial of boarding” and “flight cancellation”.
Lastly, we ask that you recommend that Parliament amend the Canada Transportation Act to declare that in subsection 86.11(1), which is the source of all these regulations, it was always intended that the airline should bear the burden of proof in establishing exceptions to refunds, care and compensation.
Lastly, to do with the backlog, we believe that justice delayed is already being denied, and consumers with complaints in the 33,000-case backlog have no reasonable prospect of relief. The CTA must at least triage and categorize these complaints and issue directory decisions on each type in a show-cause style notice to the air carriers for all similar cases.
We note that this was done with some early COVID-based complaints. It could be done again.
I look forward to all of your questions.
Thank you.