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

FILE – A COVID-19 vaccine being prepared. (Olivia Sullivan/Sound Publishing)
B.C. seniors 80 years and older to get COVID vaccine details over next 2 weeks: Henry

Province is expanding vaccine workforce as officials ramp up age-based rollout

The avalanche came down on the highway sometime Sunday evening (Feb. 21) (Dawson photo)
Road to Bella Coola wharf reopens after large avalanche

The road was closed after a large avalanche covered a significant portion of the highway

Jenni Mueller lives near the wharf on the other side of the avalanche. She took this photo and thinks the avalanche happened around 8 p.m. last night (February 21). (Jenni Mueller photo)
Avalanche closes road to wharf at Bella Coola

A day and night of heavy rain resulted in avalanches across the region

Fisheries and Oceans Canada released it's 2021 Pacific Herring Integrated Fisheries Management Plan Feb. 19. (File photo)
Northern herring opportunities kept to a minimum

2021 management plan caps Prince Rupert fishery at 5 per cent

Williams Lake First Nation government staff are anticipated to return to work Monday, Jan. 25. (Rebecca Dyok photo)
Court orders new hearing over Williams Lake First Nation’s century-old land dispute

A three-judge panel unanimously set aside a 2018 finding by the Specific Claims Tribunal

Dr. Bonnie Henry talk about the next steps in B.C.'s COVID-19 Immunization Plan during a press conference at Legislature in Victoria, B.C., on Friday, January 22, 2021. THE CANADIAN PRESS/Chad Hipolito
456 new COVID-19 cases in B.C., 2 deaths

Since January 2020, 78,278 have tested positive for the novel coronavirus in B.C.

“Support your city” reads a piece of graffiti outside the Ministry of Finance office. (Jane Skrypnek/News Staff)
Slew of anti-bylaw graffiti ‘unacceptable’ says Victoria mayor, police

Downtown businesses, bylaw office and Ministry of Finance vandalized Wednesday morning

A health-care worker prepares a dose of the Pfizer-BioNTech COVID-19 vaccine at a UHN COVID-19 vaccine clinic in Toronto on Thursday, January 7, 2021. (THE CANADIAN PRESS/Nathan Denette)
Vaccinating essential workers before seniors in B.C. could save lives: experts

A new study says the switch could also save up to $230 million in provincial health-care costs

The late Michael Gregory, 57, is accused of sexually exploiting six junior high students between 1999 and 2005. (Pixabay)
Former Alberta teacher accused of sexually assaulting students found dead in B.C.

Mounties say Michael Gregory’s death has been deemed ‘non-suspicious’

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

According to a new poll, a majority of Canadians want to see illicit drugs decriminalized. (THE ASSOCIATED PRESS)
Majority of Canadians think it’s high time to decriminalize illicit drugs: poll

More than two-times the B.C. residents know someone who died from an overdose compared to rest of Canada

Photograph By @KAYLAXANDERSON
VIDEO: Lynx grabs lunch in Kamloops

A lynx surprises a group of ducks and picks one off for lunch

(Black Press Media file photo)
B.C. residents can reserve provincial camp sites starting March 8

B.C. residents get priority access to camping reservations in province

Most Read