Proposed Changes to Canada’s Air Passenger Protection Regulations

After numerous chaotic periods of travel in the recent past, including a summer during which passengers were given yoga mats to sleep on in airports and had better success tracking luggage with AirTags than airlines could, the Canadian government has long spoken about the need to change the Air Passenger Protection Regulations (APPR) to close loopholes and amend them to be more in favour of passengers.

Earlier this week, it was announced that changes to the APPR are slated for later on this year, after proposed amendments to the Canada Transportation Act come into effect.

Proposed Changes to the Canada Transportation Act

In a press release, the Canadian government outlined a number of proposed amendments to the Canada Transportation Act that it has submitted as part of a broader budget bill. The changes will come into effect, at the earliest, on September 30, 2023, although it could be later.

Once these changes take effect, the Canada Transportation Agency (CTA) should be able to modify the APPR in such a way that closes loopholes, increases the ceiling on fines for non-compliance, and shifts the claims resolution process, amongst others.

In the government press release, the following highlights were noted, which would require the CTA to eventually make changes to the APPR in consultation with the Minister of Transport:

• Increasing the maximum fine for non-compliance with the APPR from $25,000 to $250,000
• Requiring airlines to shoulder the cost of complaints (instead of the CTA)
• Requiring airlines to develop an internal process to deal with complaints
• Replacing the current air travel complaint resolution process altogether
• Impose a greater burden of proof on airlines (compensation is presumed to be payable upon a delay unless the airline proves otherwise)
• Making compensation mandatory for all delays that are within the carrier’s control
• Ensure standards of treatment (provision of food and water) mandatory for all flight disruptions
• Establish requirements for delayed baggage
• Prescribe parameters around refund requirements as a result of a government-issued travel advisory

It’s worth noting that this is going to take some time to come into effect, as the CTA would need to make amendments to the APPR after the changes to the Canada Transportation Act take place. 

Until then, it’s business as usual, and we’ll likely see the backlog of complaints filed by passengers swell to an even higher level before it starts to subside.

Why Are Changes to Canada’s Air Passenger Protection Regulations Needed?

When Canada’s Air Passenger Protection Regulations (APPR) were fully implemented back in December 2019, the parties responsible for drafting them used words such as “world-leading” to describe the regulations.

However, shortly after they became live, a global pandemic and airlines finding loopholes to skip paying compensation quickly exposed many gaps in the regulations that don’t seem to give the very protections they were intended to provide.

Airlines are alleged to be skirting compensation payments to passengers in the event of flight cancellations or delays simply by claiming that the cause of the delay was either within their control but required for safety purposes or outside of their control altogether.

This way, passengers aren’t due any compensation for delays, since the cause wasn’t within the airline’s control and required for safety.

Critics of the APPR are quick to point to its equivalent in Europe, commonly referred to as EU261, which is widely seen to be the gold standard for passenger rights. In fact, one MP has proposed a private member’s bill, which also has a petition available for people to sign, which would set the stage for Canada’s APPR to mirror the EU261 regulations.

Some argue that airlines are using a very broad interpretation of factors that are outside of their control, including crew scheduling issues, thus absolving them from owing passengers compensation for delays. Passengers who cry afoul have to resort to either waiting forever for a complaint to possibly be resolved by the CTA or taking the airlines to small claims court for a faster decision.

Without any meaningful pushback or enforcement from the Canadian Transportation Agency, who is responsible for enforcing the APPR, airlines have been able to simply deny their obligations, which often leaves passengers in the lurch.

It’s worth mentioning that the CTA has an ever-growing backlog of complaints, which has ballooned to over 45,000, and a complaint can take up to 18 months to be resolved. The Canadian government recently announced tens of millions of dollars in funding to help alleviate the backlog; however, it continues to grow as passengers claim that airlines aren’t living up to their end of the deal.

The culmination of these effects has lead to the need for changes to the APPR.

Will These Changes Actually Be Meaningful?

After months of tweeting about the need for changes to be made, the Canadian government has finally tabled amendments to the Canada Transporation Act, which could pave the way for changes to the APPR. Whether or not the upcoming changes have any substance remains to be seen, and until then, we can only speculate about what might happen.

One of the main issues to date has been the apparent lack of enforcement of the APPR. While it’s great to have rules, if there aren’t any real consequences to breaking them, then there’s not really much of a point of rules in the first place.

For example, since the beginning of 2021, the CTA has levied less than $400,000 (CAD) in fines against airlines for claims related to compensation under the APPR. In that same time period, it has fined other entities almost $700,000 (CAD) for other infractions.

However, it’s worth noting that enforcement related to APPR compensation claims has stepped up recently, and airlines have been getting fined for failing to live up to their obligations under the APPR more than ever before.

Another weakness of the APPR is that actually finding out the cause for a delay is quite difficult, and is often shrouded in mystery. Whenever a flight is cancelled or delayed, it’s not uncommon for passengers to receive multiple reasons for the delay in a flurry of emails, making it difficult to ascertain exactly what happened.

In some cases, one passenger may have been approved for compensation on a flight, while another person was denied by the airline, which claimed that the actual reason for the delay was different. In this sense, there’s a complete lack of transparency about the actual cause for delays, and finding out the reason either requires some serious sleuthing or forcing the airline to provide proof in small claims court.

This shouldn’t come as a surprise, but reaction to the proposed changes from the airlines has not been warm.

Airlines are quick to point out that there is a myriad of reasons behind delays to passengers and baggage, such as mechanical breakdowns of airport infrastructure or long lines at security or customs, which aren’t reasons that they can control. They want to see greater accountability from other aspects of the travel experience that lead to delays.

Airlines also point out that they’ll have to pass along the burden of paying compensation to passengers through higher fares, which would inflate the already high cost of air travel in the country.

It will be interesting to see how this all plays out in the coming months. The APPR has been a contentious issue since its implementation, and it appears that we’ll see plenty more headlines before the dust settles.

Conclusion

The Canadian government has proposed amendments to the Canada Transportation Act that could pave the way for the CTA to make changes to the APPR in consultation with the Minister of Transport. The amendments will come into effect as of September 30, 2023 at the earliest, and any changes to the APPR would be after that.

The intention behind the changes is to close loopholes that airlines are alleged to be exploiting in an effort to skirt paying compensation to passengers for some flight delays. Not everyone is sold on the changes, though, and it remains to be seen if they’ll have any teeth.

For now, it’s business as usual, and we can expect the complaints backlog at the CTA to continue to balloon until changes happen.