Gavin Magrath, Magrath’s International Legal Counsel, Toronto, Canada
Perhaps because Canada’s Air Passenger Protection Regulations (SOR/2019-150) came into force just prior to the COVID-19 pandemic, many Canadian travelers are unaware of their ‘new’ rights – including rights to compensation for delay and for denied boarding – which add to and complement the existing liability regime under the Montreal Convention.
Large and Small airlines
Compensation and obligations differ depending on whether an airline is “large” or “small” within the meaning of the Regulations, based on number of passenger flights in the preceding two years. According to the Canadian Transportation Agency, Air Canada (including Jazz and Rouge), WestJet, Sunwing Airlines, Air Transat, Porter Airlines, and Flair Airlines are considered large airlines. All others are considered small.
Flight Delays and Disruptions
The obligations of the airline depend on whether the situation is within their control, and whether the situation is a safety issue. In all situations, including those entirely beyond their control, the airline is obligated to ensure the passenger completes their itinerary (e.g. through re-booking). Delays arising from situations within airline control but required for safety create additional services standards obligations (e.g. food and drink). Delays arising from circumstances within the airline’s control and not required for safety purposes entitle the passenger to compensation. These three categories are described further at the end of this article.
For all delays and disruptions, regardless of cause, the airline has an obligation to ensure the passenger ‘completes their itinerary’ and gets to their intended destination. After 3 hours, the airline has an obligation to re-book the passenger on the next available alternative flight operated by the airline, at the same class and level of service. If such a flight would not depart within 9 hours of the originally scheduled flight, then the airline must re-book the passenger on an earlier flight operated by another airline.
For delays and disruptions within the airline’s control, whether or not they are safety related, a passenger is entitled to a refund instead of rebooking if the rebooking does not meet their needs or if, as a result of the disruption, they no longer need to travel. Passengers receiving a refund are still entitled to compensation for delays within carrier control in the amount of $400 (large airline) or $125 (small airline).
Where delay at departure within the airline’s control exceeds 2 hours, airlines must provide reasonable quantities of food and drink as well as access to communications (e.g. free wifi) and washrooms. Where such delays require an overnight stay the airline must provide hotel accommodation and transportation to and from the hotel.
The Regulations set minimum compensation for delays or disruptions exceeding three hours within the airline’s control and not related to safety as follows:
| Delay | Large | Small |
| 3-6 hours | $400 | $ 125.00 |
| 6-9 hours | $700 | $ 250.00 |
| 9+ hours | $1,000 | $ 500.00 |
A passenger has one year in which to make a claim.
Tarmac Delays
Where flights are delayed on the tarmac the passengers must be provided with ‘proper treatment’ including, at a minimum, reasonable amounts of food and water and access to working washrooms. Tarmac delays may not exceed 3 hours after which aircraft must return to the gate and allow passengers to disembark. If, at three hours, the crew deems it probable that the aircraft will take off within the next 45 minutes, the period of tarmac delay can be extended to an absolute limit of 3 hours and 45 minutes, prior to which the aircraft must return to the gate.
Luggage Lost, Damaged, or Delayed
The Regulations adopt the Montreal Convention limitation on compensation for lost or damaged baggage, which is 1519 SDRs – approximately CAD$3000 at current exchange rates. This extends the existing liability regime to include non Montreal Convention carriage, so that the same regime now applies to domestic and international routes. Unlike compensation for delay, this is a limitation, not a minimum, and the claimant must prove damages. The airline also has to refund baggage fees paid for lost or damaged baggage. Claims for damage must be submitted within 7 days, and for loss within 21 days.
Delayed baggage is potentially lost and should be reported immediately; baggage not returned within 21 days is considered lost and a passenger should claim immediately. On international flights, compensation for delayed baggage will cover the purchase of necessary or replacement items during the period of delay, also up to the Montreal Convention limit – again, the claimant must prove those damages. Compensation for delayed baggage on domestic routes remains a matter of contract and the airline’s Tariff.
Denied Boarding
Denial of Boarding occurs when a passenger has a valid ticket but cannot board because there are no seats available (e.g. in situations of overbooking). Denied boarding does not include situations where boarding is denied based on lack of proper transportation documents or for passenger safety reasons. Passengers denied boarding for reasons within the airline’s control and not related to safety are entitled to minimum compensation for denied boarding as follows:
| Delay | Amount |
| 0-6 hours | $900 |
| 6-9 hours | $1,800 |
| 9+ hours | $2,400 |
What is within an airlines control? What is related to safety?
Readers will note that different obligations and liabilities arise where delays are caused by matters that are within the airlines control, or where they are related to safety. The CTA has provided the following guidance on what these categories mean:
- Situations outside airline control include: war or political instability; illegal acts or sabotage; meteorological conditions or natural disasters that make the safe operation of the aircraft impossible; instructions from air traffic control; a Notice to Airmen (as defined in the Canadian Aviation Regulations); a security threat; airport operation issues; a medical emergency; a collision with wildlife; a labour disruption within the carrier or within an essential service provider such as an airport or an air navigation service provider; a manufacturing defect in an aircraft that reduces the safety of passengers and that was identified by the manufacturer of the aircraft concerned, or by a competent authority; and an order or instruction from an official of a state or a law enforcement agency or from a person responsible for airport security.
- Situations within airline control but required for safety purposes are typically unforeseen events legally required to reduce safety risk to passengers. While this includes mechanical problems, it does not include scheduled maintenance or mechanical problems identified during scheduled maintenance. Safety decisions made by the pilot and those made under an airline’s Safety Management System would also fall into this category.
- Situations within airline control not required for safety purposes are any situations not covered by the two categories above, including: commercial overbooking; scheduled maintenance of an aircraft that is necessary to comply with legal requirements; or mechanical malfunction of the aircraft identified during scheduled maintenance.