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Consumer protection and liability

Airfares

Are airfares regulated in your jurisdiction?

Section 66 of the Canada Transportation Act (SC 1996, c 10) allows “a person” to file a complaint with the Canadian Transportation Agency that an air carrier operating a domestic route is charging a fare or cargo rate (or a range of fares or rates) that is unreasonable. Where the agency sustains the complaint, it may:

  • disallow the fare or rate;
  • direct the air carrier to charge a lower rate; or
  • direct the air carrier to refund unreasonable amounts with interest to overcharged persons.

However, complaints of this nature are rare and attract attention only on routes with little or no competition.

There is no such provision for international routes.

Passenger protection

What rules and liabilities are air carriers subject to in respect of:

(a) Flight delays and cancellations?

At the time of writing, no specific legislation defines compensation for flight delays and cancellations. However, when a passenger complains to the agency about such an event, the agency will review an international tariff filed by an air carrier and ensure that the carrier honoured its obligations to the aggrieved passenger as those obligations are set out in the tariff.

However, the federal government tabled Bill C-49 in Parliament in May 2017, which requires the agency, in consultation with the minister of transport, to make regulations on issues including the minimum standards of treatment of passengers that the carrier must meet and the minimum compensation to be paid for inconvenience when the delay or cancellation is within the air carrier’s control.

Bill C-49 is expected to come into force (with modifications) in late 2017 or 2018.

(b) Oversold flights?

As is the case with flight delays and cancellations, no specific legislative enactments deal with the issue of oversold flights. However, this issue will be explicitly addressed with the enactment of Bill C-49. The new provisions will set standards on how to deal with oversold flights and the compensation that is to be paid.

For now, the agency oversees complaints of this nature by determining whether the air carrier in question properly applied the relevant provisions of its tariff.

(c) Denied boarding?

At this time, the issue of denied boarding is left for carriers to address in their publicly filed international tariffs. However, denied boarding is also addressed in Bill C-49 (see (a) above).

In this regard, the agency, in consultation with the minister of transport, must make regulations or the minimum standards of treatment and minimum compensation payable to passengers who have been denied boarding where the relevant circumstances were within the air carrier’s control.

(d) Access for disabled passengers?

Part V of the Canada Transportation Act deals comprehensively with the accommodation of persons with disabilities. The issue is addressed in detail in the Personnel Training of the Assistance of Persons with Disabilities Regulations (SOR/94-42) and Part VII of the Air Transport Regulations (SOR/88-58). In addition, the agency has established accessibility standards for air carriers with 30 or more passenger seats and operators of aircraft with 29 or fewer seats. It has also prepared a Communications Code relating to removing communication barriers for passengers with disabilities.

When an application is made, the agency is empowered to inquire into a matter to determine whether an air carrier’s policy results in an undue obstacle to the mobility of persons with disabilities. The agency has broad powers to change an air carrier’s tariff to correct any such situations. A sizable amount of jurisprudence from the agency (and appeals of agency decisions) has resulted on issues as diverse as:

  • service animals;
  • the use of medical oxygen on board the aircraft;
  • passengers who are too large to occupy one seat;
  • passengers who require a medical attendant in flight;
  • the ability of a passenger to self-declare his or her own independence for travel;
  • allergies to food and pets on board the aircraft;
  • use and carriage of wheelchairs;
  • provision of accessible technology; and
  • passengers travelling on stretchers.

Accessibility issues continue to be controversial and the subject of the agency’s attention.

(e) Lost, damaged or destroyed luggage?

As set out above, at present the agency will ensure only that air carriers are complying with their tariffs when dealing with this issue. The matter will be addressed more specifically when Bill C-49 is passed in late 2017 or 2018.

(f) Retention and protection of passenger data?

Privacy issues relating to air carriers are overseen by the Office of the Privacy Commissioner of Canada under the Personal Information Protection and Electronic Documents Act (PIPEDA) (SC 2000, c 5). PIPEDA requires that “personal information that is no longer required to fulfil the identified purpose should be destroyed, erased or made anonymous”.

The retention period for passenger data will vary with the nature of the records and the purpose for which they were collected. For example, records relating to liability issues will likely be retained for a period consistent with the limitation period for commencing an action (eg, two years for international carriage under the regime under the Warsaw Convention (1929), the Montreal Additional Protocol 4 (1975) and the Montreal Convention (1999). The period may be longer for records relating to tax issues, given that the federal taxation authority has recommended in an information circular that such records should be retained for a period of six years beyond the tax year to which the record pertains.

Cargo

What rules and liabilities apply to the air carriage of cargo?

In the case of domestic carriage, the common law principles of tort and contract apply (except in Quebec, where such matters are determined by the Quebec Civil Code).

In the case of international carriage by air, where the Warsaw/Montreal liability regime applies, these conventions govern the liabilities of the air carrier as brought into force by the Carriage by Air Act (RSC 1985, c C-26).

Marketing and advertising

Do any special rules apply to the marketing and advertising of aviation services?

The Canada Transportation Act regulates the advertisement of fares in Part V.1 of the Air Transport Regulations. In short, the price advertised must be the total price, including all fees and charges that a passenger must pay to obtain the air service.

The advertisement must also indicate the point of origin and destination (cities, not countries), whether the service is one way or round trip and any booking limitations.

Complaints handling

Do any special rules apply to consumer complaints handling in the aviation industry?

No special rules apply to complaints handling. However, where a complaint is made to the agency by an aggrieved passenger, the agency’s role will be to determine whether the air carrier resolved the complaint in a manner that is consistent with that set out in its international tariff (which must be filed with the agency and kept up to date). Unless the relevant tariff provision is found to be unreasonable by the agency, the air carrier will typically prevail in the complaint if it acted in accordance with its tariff provisions.

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