On December 15^th, 2019, the second stage of the new Canadian Airline Passenger Protection Regulation will come into force. This article - the third part of our series - briefly guides through this section of the airlines' obligations and respective rights of passengers. The fourth part compares the Canadian and the European regime under the Regulation (EC) 261/2004.

As a reminder, rules regarding denied boarding, tarmac delays and lost or damaged baggage have already been in force since July 15^th, 2019.

The new set of regulations covers further obligations for canceled and delayed flights. The obligations in these events are similar and vary depending on the reason for the disruption (whether it has been within the carrier's control or not), the length of delay caused and the size of the carrier.

The Carrier's Control

A carrier's liability depends on its control over the reason for the flight disruption. The new Canadian Airline Passenger Protection Regulation distinguishes the situations 'outside the carrier's control', 'within the carrier's control but required for safety reasons' and 'within the carrier's control'. A disruption cause is:

'outside a carrier's control' e.g. in case of war or political instability, dangerous weather conditions, instructions from air traffic control, airport operation issues or labor disputes; 'within the carrier's control but required for safety reasons' when decisions (especially by the pilot) are made to reduce the risk to passengers; scheduled maintenance (and faults discovered during it) are excluded from that category; and

'within the carrier's control' in case of general operational issues.

This category aims at preventing the discussions that the European Regulation (EC) 261/2004 has caused. Questions of whether mechanical malfunctions, labor strikes, bird strike, and the likes constitute extraordinary circumstances inhibiting an airline's liability have occupied courts. However, the courts' decisions have led to general guidelines still enabling fair decisions in due consideration of the actual decision. Time will tell if the somewhat generous Canadian policy for airlines will establish 'world-class' protection for passengers.

Length of Flight Delay

The length of the delay caused by the flight disruption is determined by comparing the scheduled time of arrival at the final destination and the actual one. It is one of the main factors to determine the amount of compensation a passenger is entitled to. Passengers are entitled to compensation when the delay is at least three hours. The compensation ranges from CAD 125 up to CAD 1,000.

Large or Small Carrier

The obligations in case of flight disruptions depend on the size of the airline. The new Canadian Airline Passenger Protection Regulation distinguishes between so-called large and small carriers. The latter are defined as having transported globally less than two million passengers in the previous two years. The former are stipulated as all airlines with two million or more passengers in that period.

The regulation itself does not define further. It is therefore unclear whether the amount of passengers is only calculated per legal entity or if passengers of airlines under the same corporate 'roof' are included. The latter would put into consideration the ongoing strategy of airlines to market different brands for specific target groups and price segments yet still using the same corporate resources to operate. It would be the fairer approach with regards to the competitive advantage to the (actually) smaller airlines and the impact on passengers' choice.

Completion of Itinerary and Care

The obligations that airlines have to meet depend on a carrier's control of the disruption caused. They have to ensure in any way that the passenger completes the itinerary.

Additionally, when the cause is 'within the carrier's control but required for safety reasons' and when it is 'within the carrier's control' an airline has to:

provide food and drinks; means of communication; and

the accommodation should an overnight stay be needed.

These obligations vary in detail depending on the situation and are similar to the ones in case of denied boarding.

Compensation

Airlines also have to pay passengers compensation when disruption is 'within the carrier's control'. In these cases, the compensation for delayed or cancelled flights is as follows:

Note: No compensation is due when the flight schedule is changed more than fourteen days prior to departure. Passengers have up to one year to claim their compensation.

Summary

The new Canadian Airline Passenger Protection Regulation establishes a detailed system of care and compensation when flights are disrupted. It seeks to prevent discussions that occur under the European Regulation (EC) 261/2004. It is to be expected that Canadian courts will still have to deal with numerous cases as the new rules are not only open to discussions but because experience has shown the airlines' creativity in trying to avoid any additional cost.

Stay tuned for part four (Comparison of the new Canadian Air Passenger Protection Regulations and the European Regulation (EC) 261/2004) of our articles. Also, check out

part one (New Canadian Air Passenger Protection Regulations – Tarmac Delays, Cancellations, Denied Boarding) and part two (New Canadian Air Passenger Protection Regulations – Tarmac delay, Denied Boarding, Lost or Damaged Baggage).

This article does not provide legal consultation. It is solely intended to inform the public on a general basis. Please seek legal professional's advice should you wish to be informed about your personal situation. Neither Click2Refund nor the author is liable for any consequences of any decisions based on this article.

Written by: Christoph Przywara