A Westjet Boeing 737-800, left, taxis past an Air Canada Rouge Airbus A319 at Vancouver International Airport in Richmond, B.C., on Monday, April 28, 2014. Consumer rights advocates are criticizing the latest statement on airline refunds from the country’s transport regulator, saying it contradicts federal and provincial law to the detriment of customers. THE CANADIAN PRESS/Darryl Dyck

A Westjet Boeing 737-800, left, taxis past an Air Canada Rouge Airbus A319 at Vancouver International Airport in Richmond, B.C., on Monday, April 28, 2014. Consumer rights advocates are criticizing the latest statement on airline refunds from the country’s transport regulator, saying it contradicts federal and provincial law to the detriment of customers. THE CANADIAN PRESS/Darryl Dyck

Advocacy groups slam regulator’s latest statement on airline refunds

The Canadian Transportation Agency updated its statement on vouchers last week

Consumer rights advocates are criticizing the latest statement on airline refunds from the country’s transport regulator, saying it contradicts federal and provincial rules to the detriment of customers.

The Canadian Transportation Agency updated its statement on vouchers last week, writing that “the law does not require airlines to include refund provisions” in their passenger contracts — known as tariffs — for flights cancelled due to reasons beyond carriers’ control, such as the COVID-19 pandemic.

The CTA website post tops up its initial statement on travel credit from March, which suggested refunds are mandatory only if the tariff provides for it in certain cases.

However, passenger rights advocates say both statements go against federal and provincial law and legal precedent.

An airline’s terms of carriage must clearly lay out its policy on matters including “refunds for services purchased but not used … either as a result of the client’s unwillingness or inability to continue or the air carrier’s inability to provide the service for any reason,” according to regulations under the Canada Transportation Act.

The same terms and conditions must be “just and reasonable,” the Air Transportation Regulations state. In at least four decisions going back to 2004, the CTA has cited the phrase in upholding passengers’ right to reimbursement following flight cancellation.

A 2013 decision concerning Porter Airlines found that “it is unreasonable for Porter to refuse to refund the fare paid by a passenger because of its cancellation of a flight, even if the cause is an event beyond Porter’s control.”

“The refund has to be addressed in the tariff. And the tariff has to be just and reasonable,” said Gabor Lukacs, founder of the Air Passenger Rights group.

Provincial laws also go against the regulator’s statement, said Elyse Thériault, a lawyer for Quebec-based advocacy group Option consommateurs.

“For us, it’s nonsense, especially in Quebec. Because the rules in the Civil Code that are speaking about force majeure — act of God — say that if a merchant cannot deliver the service because of a force majeure, then he must give a refund.”

Provincial law applies to companies regardless of whether they are provincially or federally regulated, Thériault said, citing Supreme Court of Canada precedent.

“And I’m pretty confident that no province in their contract law and in their consumer protection laws allow a business to take your money without giving you any service.”

Passenger protection regulations rolled out last year stipulate that, in the event of a cancellation that is within the carrier’s control, airlines must “refund the unused portion of the ticket” if alternate travel arrangements do not suit the customer’s needs.

If a flight is cancelled for reasons outside an airline’s control, however, the Air Passenger Protection Regulations (APPR) only require alternate arrangements, not a refund — though tariffs at multiple airlines when the pandemic hit spelled out passengers’ right to a refund as an alternative.

“If the CTA is given the necessary authority, we will move quickly to make changes to the APPR to fix this gap in the framework. In the meantime, we encourage airlines to adopt policies providing for refunds if flights are disrupted for reasons outside their control and rebooking options do not meet a passenger’s needs,” the CTA said in an email.

“The CTA does not apply provincial law.”

As for case law, the agency said its past decisions “may have limited relevance in the face of new circumstances,” including last year’s passenger rights charter.

Lukacs argued the new batch of regulations does not nullify older ones that, when paired with previous CTA decisions, amount to a refund requirement.

Most Canadian airlines continue to offer travel vouchers rather than reimbursement for flights they cancelled as a result of the COVID-19 pandemic, with WestJet a notable exception since October.

Transport Minister Marc Garneau said earlier this month that an aid package now in the works for commercial carriers will hinge on them offering refunds to passengers whose trips were nixed — a long-standing demand by advocates and opposition parties.

READ MORE: Feds pledge customer refunds before ‘we spend one penny’ on aid package for airlines

The pandemic has devastated airlines and the broader tourism industry, with travel restrictions and collapsing demand prompting tens of thousands of airline layoffs and billions of dollars in losses.

But customers say they too are in need of funds they believe they are owed.

The CTA says it has received more than 10,000 complaints since March. Meanwhile Air Canada garnered more refund complaints to the U.S. Department of Transportation than any American carrier in August, the latest month for which statistics are available.

Passengers have also filed a handful of proposed class-action lawsuits and three petitions with more than 109,000 signatures that call for customer reimbursement.

The CTA said in March that airlines have the right to issue travel credit instead of a refund for cancelled trips in the “current context,” though it later clarified that the online statement was “not a binding decision” and that reimbursements depend in part on the contract between airline and passenger.

“The statement was issued in extraordinary circumstances and addressed the risk that passengers would be left with nothing in the event of flight cancellations outside of the airline’s control,” the CTA said Tuesday.

It added that complaints remain an avenue for travellers, though as of several weeks ago none of the 10,000-plus filed to the CTA had been handled due to an earlier backlog.

Christopher Reynolds, The Canadian Press


Like us on Facebook and follow us on Twitter.

Want to support local journalism during the pandemic? Make a donation here.

Air TravelCoronavirus

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Al Scholing of Scholing’s Produce served as our March Burger of the Month Guest Chef in Lacombe, and helped the “Loaded Potato Skin Burger,” an Alberta beef patty, two Scholing’s baked potato “buns”, with shredded cheddar, pepper bacon, green onion, sour cream, iceberg lettuce, beefsteak tomatoes, sliced onion and pickles. Tow dollars from every burger sold was donated to Scholing’s charity of choice the Team Jigger Foundation. (Photo Submitted)
Lacombe’s Cilantro and Chive makes a donation to Team Jigger Foundation

The restaurant donated nearly $1,000 to the foundation with proceeds from its Burger of the Month

File Photo
FCC report shows opportunity in changing food and beverage trends

Canada’s food and beverage sector may emerge even stronger in 2021

Supporters gather outside GraceLife Church near Edmonton, Alta., on Sunday, April 11, 2021. The church has been fenced off by police and Alberta Health Services in violation of COVID-19 rules. THE CANADIAN PRESS/Jason Franson
Hundreds gather to support Alberta church shut down for ignoring COVID-19 orders

GraceLife Church and its pastor, are charged for holding services that break health restrictions

Conservative leader Erin O’Toole holds a press conference on Parliament Hill in Ottawa on Tuesday, April 6, 2020. Top Tory leaders of past and present will speak with supporters today about what a conservative economic recovery from COVID-19 could look like. THE CANADIAN PRESS/Sean Kilpatrick
O’Toole to vote against Conservative MP’s private bill on ‘sex-selective abortion’

Erin O’Toole said he supports a woman’s right to choose and will personally vote against the private member’s bill

A health-care worker holds up a vial of the AstraZeneca Covishield vaccine at a COVID-19 vaccination clinic in Montreal, Thursday, March 18, 2021. THE CANADIAN PRESS/Paul Chiasson
PHAC receives first report of blood clot linked to AstraZeneca

The federal agency says the person is now recovering at home

A real estate sign is pictured in Vancouver, B.C. THE CANADIAN PRESS Jonathan Hayward
1 in 3 young Canadians have given up on owning a home: poll

Data released Monday says 36% of adults younger than 40 have given up on home ownership entirely

Dr. E. Kwok administers a COVID-19 vaccine to a recipient at a vaccination clinic run by Vancouver Coastal Health, in Richmond, B.C., Saturday, April 10, 2021. THE CANADIAN PRESS/Jonathan Hayward
Most Canadians plan to get COVID-19 vaccine, but safety fears drive hesitancy: poll

This comes as confidence in governments is plummeting in provinces being hit hardest by the pandemic

Marathon of Hope runner Terry Fox is shown in a 1981. (THE CANADIAN PRESS/CP)
Terry Fox’s legacy of resilience resonates during COVID-19 crisis, says brother

Fred Fox said his brother’s legacy of resilience has taken on renewed resonance as COVID-19 rages on

Madelyn Boyko poses along with a number of the bath bombs she makes with her mom, Jessica Boyko. Madelyn says she enjoys making the bath bombs with her mom as it is a special time for just the two of them. (Photo Submitted)
5-year-old Sylvan Lake girl selling bath bombs in support of younger brother

Madelyn Boyko is selling bath bombs for CdLS research in honour of her younger brother

A sign on a shop window indicates the store is closed in Ottawa, Monday March 23, 2020. The Canadian Federation of Independent Business is raising its estimate for the number of businesses that are considering the possibility of closing permanently. THE CANADIAN PRESS/Adrian Wyld
Small business struggling amid COVID-19 pandemic looks for aid in Liberals’ budget

President Dan Kelly said it is crucial to maintain programs to help businesses to the other side of the pandemic

The National Security and Intelligence Committee of Parliamentarians says that includes attempts to steal Canadian research on COVID-19 and vaccines, and sow misinformation. (AP Photo/Esteban Felix)
Intelligence committee warns China, Russia targeting Canadian COVID-19 research

Committee also found that the terrorist threat to Canada has shifted since its last such assessment

Parliament Hill is viewed below a Canada flag in Gatineau, Quebec, Friday, Sept. 18, 2020. A new poll suggests most Canadians are feeling more grateful for what they have in 2020 as a result of COVID-19 pandemic.THE CANADIAN PRESS/Sean Kilpatrick
Canada’s greenhouse gas emissions increased slightly in 2019: report

2019 report shows Canada emitted about one million tonnes more of these gases than the previous year

Most Read