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New Air Passenger Rights: What You Need to Know T.J. December 16, 2019

New Air Passenger Rights: What You Need to Know

Yesterday, December 15, marked the roll-out date of the final phase of the implementation of Canada’s Air Passenger Protection Regulations. This is subsequent to the first phase of regulations that were implemented on July 15.

The regulations that came into effect in July covered the ways in which airlines flying to, from, or within Canada must communicate with passengers, provide minimum standards of treatment during denied boarding and tarmac delays, provide compensation for lost/damaged baggage, and adhere to new standards of carriage for the transportation of musical instruments. 

Meanwhile, the regulations that came into effect today outline your rights in the event of flight disruptions and seating of children with their family. All airlines flying to, from, or within Canada are subject to these regulations, with some differences in compensation between large and small carriers. 

Seating of Children

The less controversial side of the new regulations is how airlines are required to seat children under the age of 14 near a parent, guardian, or tutor at no cost. The required proximity to the adult depends on the age of the child.

  • Children below the age of five must be seated next to their parent, guardian, or tutor.

  • Children between five and eleven must be in the same row and separated by no more than one seat from their parent, guardian, or tutor.

  • Children aged twelve and thirteen cannot be separated by more than one row from from their parent, guardian or tutor.

Airlines are subject to fines of $25,000 for each incident when the above rules aren’t followed.

While I don’t currently have any children, I imagine that it would be awful to be seated away from your children. These rules seem very reasonable, and offer families greater peace of mind when planning for an already stressful experience. 

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Flight Disruptions

The new Air Passenger Protection Regulations include provisions for what happens during flight disruptions on airlines flying to, from, or within Canada, covering both the compensation and the standards of treatment you are entitled to receive during a disruption.

Compensation

In the event of a delay in your arrival at your final destination, you may be entitled to receive compensation under the Air Passenger Protection Regulations. Whether or not you are eligible depends on the size of the airline with whom you are flying, the length of delay you have faced, and, importantly, the cause of the delay. 

Smaller airlines, such as Porter or Swoop, are defined as carriers who have served less than two million passengers over the last two years. The level of compensation they must pay is less than that of large carriers, such as Air Canada or WestJet, who are liable for higher levels of compensation.

  • If you are delayed by between three and six hours, you are eligible to receive at least $400 with large airlines and $125 with small airlines.

  • If you are delayed by between six and nine hours, you are eligible to receive at least $700 with large airlines and $250 with small airlines.

  • If you are delayed by nine or more hours, you are eligible to receive at least $1,000 with large airlines and $500 with small airlines.

Passengers must be offered monetary compensation, but airlines may also offer vouchers or rebates that are of a higher value than the monetary compensation offered. Passengers have the right to choose which form of compensation they prefer. 

The caveat here is that there are a host of situations whereby the reason for the delay may exclude you from being eligible for compensation. So, just because you were delayed in reaching your destination does not automatically net you some cold hard cash.

You are eligible for compensation if the reason for the delay is within the airline’s control. Examples of this include when flights are overbooked or oversold, when the delay is caused by routine maintenance to comply with legal requirements, or when a mechanical malfunction is identified during routine maintenance. 

However, you are not eligible for compensation if the cause of the delay is due to situations within the airline’s control but required for safety purposes (e.g. mechanical issues outside of what is covered above, any unforeseen event that is legally required to reduce risk to passengers, decisions made by the pilot or an airline’s Safety Management System) or situations outside of the airline’s control (e.g. unfavourable weather conditions, political/civil unrest, security threats, and a long list of other exclusions). 

If you are eligible for compensation, you have one year to file a claim with the airline, who has to respond to your claim within 30 days of submission. There isn’t any description of what happens if the airline doesn’t respond within that time period, so it remains unclear whether there is any penalty for untimely responses.

Standards of Treatment

The new Air Passenger Protection Regulations also set out standards of treatment to which passengers are entitled in the event of a flight delay/cancellation. 

After two hours of delays that are either within the airline’s control or within their control and required for safety purposes, passengers must be provided with food and drink “in reasonable quantities” and a means of communication (e.g. free wifi). If the delay goes overnight, passengers must be offered a hotel or other comparable accommodation and free transportation to the accommodation.

  • If your flight is delayed by three or more hours, airlines are required to rebook you on the next available flight. If the delay is within the airline’s control or is for safety reasons and if the next available flight is nine or more hours after the original departure time, a large airline must rebook you on a different airline. 

  • If you no longer need to travel because of a flight disruption that is within the airline’s control, you are entitled to a full refund as well as compensation ($125 for small airlines, $400 for large airlines) for the inconvenience. 

  • Lastly, if you are affected by a disruption outside of the airline’s control, and if the next available flight isn’t within a period of 48 hours, you must be rebooked on another airline.

Are These New Regulations Good for Passengers?

With these regulations for flight disruptions now defined, let’s discuss if they are a significant improvement to the status quo or not.

Firstly, I think it is important to note that having minimum standards of treatment and minimum levels of compensation is definitely a step in the right direction. Disruptions to your travel plans can be very frustrating, and I think it is good to know that there are at least some protections in place in the event of irregularities. 

With that said, I think that some of the language used in the new regulations leaves a lot to be open to interpretation by the airlines, which could result in passengers not being compensated in situations where they should be.

For example, there don’t seem to be any clear, independent ways of verifying the exact cause of a flight delay or cancellation. Rather, it seems that the airlines have been placed on an honour system, which could lead to them painting situations that are within their control as situations beyond their control. After all, there is a lot of money at stake here.

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In particular, the provision that airlines do not have to pay compensation when a delay is within the airline’s control but required for safety purposes (i.e. what’s often referred to as “mechanical issues”) gives airlines a very wide scope for characterizing delays as such and thereby absolving themselves of the responsibility to pay compensation.

This stands in stark contrast to Europe’s EU261 regulations, under which airlines must indeed pay out compensation for controllable mechanical delays, and which does a much better job of balancing the interests of the industry and the consumer.

Despite the Air Passenger Protection Regulations’ ostensible shortcomings, however, remember that the Montreal Convention (which wouldn’t apply to flights within Canada but would apply to flights between two member states) already covers delays to passengers and baggage, and is always available to you as a means of compensation if you are travelling on a covered itinerary.

While the Montreal Convention doesn’t provide compensation in the form of a cash payout, it does require airlines to reimburse you for any damages you incur (e.g., costs related to hotel stays and food/drink/transportation) as a result of a delay for up to 4,694 Special Drawing Rights (approximately $8,500 in Canadian dollars).

Conclusion

The final roll-out of the Air Passenger Protection Regulations defines minimum standards of treatment and compensation for disruptions to air travel to, from, or within Canada. This marks a shift towards passengers having more protection when travelling by air. 

It is a good idea to become familiar with these new regulations so you can claim compensation. It is also a good idea to become familiar with other protections, such as the Montreal Convention, as they may provide greater levels of compensation than these new regulations. 

It remains to be seen how airlines will adapt to these new regulations and whether the process of making a claim will be easy for passengers. It will be interesting to see examples of how airlines communicate the cause for flight delays and cancellations under these new regulations, and with the busy holiday travel season fast approaching, there should be a host of data points from passengers affected by disruptions to their travel plans.

Have you filed a claim for compensation under the new Air Passenger Protection Regulations, the Montreal Convention, or EU261? What do you think of these new regulations? Feel free to leave a comment below.

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3 Comments
  1. Avatar
    Alex B

    Does this apply to award flights as well? So far I have a 3h+ delay on my YYZ-LIM flight, and it’s unclear when we’ll take off
    And does anyone know of a third party that helps with these claims? Thanks

  2. Avatar
    Matt

    Wondering what the protocol is when a flight is canceled and the airlines offers OTHER forms of transport. I booked my wife and son a flight from Winnipeg to Sarnia, ON via Toronto on RBC Rewards. The Sarnia-Toronto flight ended up being canceled but Air Canada booked them a bus from Toronto to Sarnia via London at no cost. I am assuming that the points and taxes for the Toronto-Sarnia portion of the booking will be reimbursed despite AC actually getting them to their destination (within a few hours of when they had originally supposed to have arrived, despite going by bus and not plan). Am I correct in that assumption?

  3. Avatar
    Nicholas

    I have filed an EU261 compensation from a Swiss flight from ZRH to BCN. One of the Airbus’s engine wouldn’t spool up. We had to deplane and board another aircraft. The whole process took a long time and in the end we were 4 hrs late. Swiss wouldn’t pay when I complained using their website. Since I was on vacation, I decided to go thru a third party claiming service (airhelp.com) and it took them around 2.5 weeks to get the 900 euros compensation money which was deposited into my bank account in CDN$.

T.J.

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