TORONTO — As WestJet’s pushback against a $1,000 refund order works its way through the Federal Court of Appeal, one consumer rights advocate is calling for change, especially when it comes to empowering the Canadian Transportation Agency (CTA).

Earlier this month WestJet filed a motion in the Federal Court of Appeal in a bid to quash a directive from the CTA to pay a passenger $1,000 in compensation for a flight disruption caused by crew constraints.

Compensation claim refusals on the grounds of crew constraints, i.e. staff shortages, have become a major issue for airlines, passengers and the CTA over the past several months, as airlines  including WestJet and Air Canada argue that crew constraints are a safety-related issue, so no refund.

Broader rules under the APPR (Airlines Passenger Protection Regulation) are set to come into effect Sept. 8, 2022.

At the Aug. 19 hearing into Canada’s airport chaos, Minister of Transport Omar Alghabra said he didn’t want to pre-judge individual claims now in the hands of the CTA. “But I don’t feel that labour issues can be used” to reject compensation claims, he said.

The federal government then blasted the airlines in more pointed language, in its airport operations update issued last week: “In Canada, airlines must follow the requirements of the APPR, which outline compensation requirements for passengers for flight disruptions due to incidents within an airline’s control, including crew shortages if the airline could have prevented the flight disruption with proper planning.”

With the airlines arguing one side, and the federal government and the CTA arguing the other side – and with travellers and travel advisors caught in the middle – the crew-constraints-as-safety-related-issue loophole just keeps circling back on itself. When it comes to compensation claims, are flight disruptions due to crew constraints a safety-related issue and therefore ineligible for refunds, or not?

CLOSING THE LOOPHOLE

Yesterday an opinion piece in The Globe and Mail by educator and ConsumerRights.ca editor Daniel Tsai outlined potential courses of action to close the loophole.

Tsai notes that along with the airlines, the federal government shares the blame for Canada’s air travel chaos this summer.

Headlines were made last week when Annie Koutrakis, the parliamentary secretary to the minister of transport, told reporters that planning for a return to normal fell a bit short: “We did anticipate. Yes, the planning did start. What we underestimated, unfortunately, was the desire to which everyone wanted to travel and everyone wanted to travel at the same time.”

Tsai says Canada’s airlines need to be held accountable, with more transparency and trust, and he calls for a publicly accessible register of delayed flights to help make that happen. Airlines would be required to disclose the reasons behind each flight delay, with fines for carriers that fail to comply, he argues.

Tsai notes that the CTA’s current maximum fine is $25,000 and “has, astonishingly, never been handed out.” He calls for fines up to $250,000 for corporate penalties, with escalating fines into the millions of dollars for repeat offences. Far less likely to ever happen, he also says the CTA should have the power to penalize airlines further by using executive bonuses as compensation for out-of-pocket passengers.

Tsai also says the process for complaints to the CTA “needs to be held to strict standards”, and there should be a stipulation that complaints are decided within a reasonable amount of time.

The CTA is currently dealing with a backlog of thousands and thousands of air passenger complaints. In early August the CTA said the backlog was growing amid a staff shortage. Back in May 2022 the backlog exceeded 15,300.