• Canada Unveils Passenger Rights Initiative
  • December 12, 2009 | Author: Judith R. Nemsick
  • Law Firms: Holland & Knight LLP - New York Office ; Holland & Knight LLP - Tampa Office
  • On September 5, 2008, Canadian Transport Minister Lawrence Cannon announced the passage of Flight Rights Canada, a governmental initiative designed to strengthen consumer protection for the traveling public. This passenger rights initiative was launched after the House of Commons unanimously approved a motion (in a 249-0 vote) on June 12, 2008 to model an air passenger bill of rights after those currently in place in Europe1 and debated in the United States.

    Flight Rights Canada applies only to Canadian-based airlines and seeks to raise consumer awareness of their rights when traveling by air. According to Minister Cannon, “Through Flight Rights Canada, air travelers will be reassured that options are available to them if they are inconvenienced. Consumer protection is important to our government and that’s why we are taking further action.”2

    The Canadian initiative builds on a 2007 amendment to the Canada Transportation Act that requires airlines to prominently display their terms and conditions of carriage at their business offices and on their Web sites. An informal complaint process within the Canadian Transportation Agency also was made available by the amendment.

    Flight Rights Canada entitles air travelers to easily access information regarding air transportation services, including flight cancellations, delays, and services available for disabled passengers. The awareness campaign reminds travelers of their right to ask for and receive a carrier’s terms and conditions of carriage. The initiative requires carriers to address matters such as compensation for lost and damaged baggage and for denied boarding as a result of over-booked flights, delays, cancellations and passenger re-routing. Flight Rights Canada also explains the process for filing an informal complaint with the airline and with the Canadian Transportation Agency when a passenger believes an air carrier has breached its commitments or obligations. The agency, an administrative tribunal with quasi-judicial powers, may order an airline to take corrective measures.

    Comparison with Proposed U.S. Legislation

    In the United States, federal legislation,3 known as the Airline Passenger Bill of Rights Act of 2007, is pending in the U.S. House of Representatives (H.R. 1303) and U.S. Senate (S. 678). The bills require airlines, inter alia, to permit deplaning and provide adequate food, water, and restroom facilities on delayed departures.4 Two additional bills also have been introduced into Congress that incorporate airline passenger bill of rights provisions akin to those included in the above two stand-alone bills, but which are part of a much broader package of amendments to other acts. For example, the FAA Reauthorization Act of 2007 (H.R. 2881) was passed by the House of Representatives on September 20, 2007, and includes provisions that would require airlines and airports to create emergency contingency plans for lengthy on-board delays.5 Likewise, the Aviation Investment and Modernization Act of 2007(S. 1300) contains provisions that would require airlines to provide grounded passengers with adequate restroom facilities, food and potable water when a flight is delayed.6

    Flight Rights Canada has several similarities to H.R. 1303, which imposes greater obligations on air carriers than S. 678. For example, Flight Rights Canada and H.R. 1303 require airlines to:

    • make reasonable efforts to return lost baggage to customers
    • prominently display the consumer rights of passengers
    • establish and implement procedures for handling passenger complaints
    • notify passengers about delays, cancellations, flight diversions
    • provide an explanation as to the cause of the delay

    Unlike H.R. 1303 and S. 678, however, Flight Rights Canada imposes additional obligations on airlines during flight delays. For example, while the U.S. bills require airlines to provide passengers with an option to deplane the aircraft if a delay exceeds three hours,7 Flight Rights Canada allows passengers on an aircraft to disembark if “circumstances permit” when a delay longer than 90 minutes occurs. Additionally, if a flight is delayed for more than four hours, Flight Rights Canada requires airlines to give passengers a voucher for a free meal. Airlines are also required to provide customers with hotel accommodations if a flight is postponed for more than eight hours, so long as the delay is not weather-related and where the delay would result in an overnight stay for passengers that did not start their travel at the airport. The U.S. bills are silent on meal vouchers and complimentary overnight hotel accommodations.

    In the event of a flight cancellation or over-booking, Flight Rights Canada requires airlines to find passengers a seat on another flight operated by that airline or on another carrier with whom the airline has a mutual interline traffic agreement, or refund the unused portion of the passenger’s ticket. No monetary compensation is required.8 Again, pending U.S. legislation does not provide a similar remedy in the event of a cancelled or overbooked flight; however, these options of rerouting and refund are often provided for in the airlines’ conditions of carriage.

    Significantly, and similar to exceptions already in place in many airlines’ conditions of carriage, Flight Rights Canada does not hold air carriers responsible for acts of nature or third parties, including inclement weather or acts of government, air traffic control, airport authorities, security agencies, law enforcement or customs and immigration officials.9

    Reaction in Canada

    Transport Minister Lawrence Cannon said that legislation or regulations were not necessary to enforce the passenger rights initiative because Canadian airlines were on board with the plan. Critics, however, claim that Flight Rights Canada is toothless and falls short from truly protecting the flying public since the initiative basically acts as a reminder to consumers of pre-existing obligations of the airlines. Liberal MP Gerry Byrne, for example, stated that without corresponding legislation or regulations, the government has no way to enforce the provisions. “All they’ve done here is simply repackage the existing provisions, which have proven to be woefully inadequate,” he said. “The Flight Rights Canada won’t fly and it won’t help anyone fly any easier either.”10 The Canadian government also has been criticized for not imposing penalties when airlines do not comply with the provisions, and for failing to address the practice of advertising air fares that bear little resemblance to the final ticket price due to extra fees and surcharges.11

    A Continuing Global Trend

    Flight Rights Canada serves as another example of the global trend to provide consumers with enhanced protections through the passage of passenger rights initiatives and laws. It is likely that other countries will follow suit and, like Europe, Canada, and the United States, seek to enact legislation and regulations that will impose greater obligations and penalties on airlines for excessive flight delays, cancellations, overbookings and lost luggage.

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    1 See http://ec.europa.eu/transport/air_portal/passenger_rights/legislation_en.htm regarding EU passenger rights legislation, including EU261/2004 which sets forth airline obligations for denied boarding, cancellations and delays.

    2 Transport Canada, Government of Canada Announces Flight Rights Canada for Air Travellers, News Release, Sept. 5, 2008 available at http://www.tc.gc.ca/mediaroom/releases/nat/2008/08-h207e.htm.

    3 The passage of Flight Rights Canada comes on the heels of the U.S. Court of Appeals for the Second Circuit’s decision striking New York’s Passenger Bill of Rights and holding that only the federal government (as opposed to individual U.S. states) could regulate the airlines in this area. In Air Transp. Ass’n v. Cuomo, 520 F.3d 218 (2d Cir. 2008), the Second Circuit held that the Airline Deregulation Act of 1978 expressly preempted New York’s passenger rights law. The Cuomo decision is discussed in detail at http://www.hklaw.com/id24660/PublicationId2390/ReturnId31/contentid51197/

    4 A more detailed discussion of these bills appears in New York Enacts New Airline Passenger Rights Legislation: Preemption Challenge Likely, Aviation Newsletter (August 2007) and can be found at http://www.hklaw.com/id24660/PublicationId1591/contentid47438/

    5 The plans must describe how airlines intend to: i) provide food, water, restroom facilities, cabin ventilation and access to medical treatment; ii) allow passengers to deplane following excessive delays; and iii) share facilities and make gates available at the airport in an emergency. The Secretary of Transportation would be obligated to enforce these plans and assess civil penalties upon an airline’s breach. H.R. 2881 also would require the Secretary of Transportation to i) collect and publish statistical data on cancelled and diverted flights on the DOT’s website; ii) establish a consumer complaint hotline; iii) establish an advisory committee for aviation consumer protection; and iv) evaluate and adjust, if necessary, the specific amounts of compensation given for denied boarding every two years.

    6 S. 1300 is currently pending in the Senate. The bill also would require airlines to post a statement of its customer service policy and consumers’ rights under federal and state law on its website.

    7 S. 1300 would allow passengers in a grounded aircraft to deplane after three hours unless the airline filed with the FAA its own alternate plan for treatment of passengers in such situations.

    8 Compare EU Regulation 261, which provides compensation of C600 in circumstances where passengers are involuntarily denied boarding for flights of more than 3,500 kilometers.

    9 The initiative does not exclude additional rights available to passengers under an air carrier’s tariff provisions filed with the Canadian Transportation Agency, or legal rights available under international treaties, including the Warsaw and Montreal Conventions.

    10 Sarah Schmidt, Passenger Bill of Rights Toothless, Critics Say, CANWEST NEWS SERVICE, Sept. 6, 2008 available at http://www.canada.com/ottawacitizen/news/story.html?id=cdcda2f9-0e54-4c9b-2ff-c0223501585d

    11 See, e.g., Chris Sorensen, Flight Rights Plan Well Short of Goal, Politician Charges; NDP Wants Complete Passenger Bill of Rights on Top of Current Rules, TORONTO STAR, Sept. 6, 2008.