Flight Delays and Your Rights

Air travel during a global pandemic is akin to gambling. With airport congestion and labour shortages, there's a good chance that your flight will not take off on time.

Suppose you find yourself facing a significant delay in your flight or cancellation. Will the airline make sure you have another travel arrangement? If that's not possible, will you get your money back in the form of the original payment? Or will you have to settle for a time-limited credit for future flights? Finally, will you be compensated for your out-of-pocket expenses?

You have more rights under Canada's Air Passenger Protection Regulations (APPR), which took effect on December 15, 2019. The Regulations require airlines to give refunds and pay compensation if your flight is hit by disruptions that are within the airline's control.

What disruptions are within an airline's control? They include overbooking and scheduled maintenance, mechanical problems and safety calls made by the pilot.

What disruptions are considered outside an airline's control? They include bad weather, natural disasters, political instability, war, and security threats.

In public consultations, consumer rights groups argued that it was unfair to give airlines all the power to decide which situations came within or outside their control.

As a result, the Canadian Transportation Agency (CTA) has come up with new refund rules for flight delays and cancellations that are outside the airline's control. Here's how they work. 

• The amended APPR regime applies to all flights to, from or within Canada, including connecting flights, on or after September 8, 2022.
• If a delay of three hours or more or cancellation is outside the airline's control, and the airline cannot provide the passenger with a confirmed reservation on the next available flight operated by them or a partner airline leaving within 48 hours of the departure time on the passenger's original ticket, the airline will be required to do one of two things—at the passengers' choice:

(1) Provide a refund or

(2) Make alternate travel arrangements for the passenger, free of charge. Large airlines will have to rebook the passenger on the next available flight of any airline, including flights run by competitors.

• Airlines will be allowed to offer refunds in the form of vouchers or credits. However, they will only be allowed to provide a refund in another form if:

(1)        It does not expire.

(2)        The airline informs the person in writing of the value of the refund and their right to receive a refund in that amount by the original payment method.

(3)        The person confirms in writing that they have been informed of their right to a refund by the original method of payment and instead have chosen the other form of refund.

The APPR came into effect shortly before COVID-19 was declared a pandemic in March 2020. What's more, the amended rules are coming in at a time when worldwide travel demand has soared, and the labour supply has declined.

Many air passengers have been hit with a storm of turbulence that has yet to subside.

Here's a story about a family whose airline disrupted their travel arrangements in midstream, offered no help in getting them home again and made it difficult for them to get a refund instead of a flight credit.

Last November, Kasindra Maharaj booked return flights with WestJet from Toronto to Port of Spain, Trinidad and Tobago, for herself and her mother, Hafiza Maharaj. They planned to stay for two and a half months. The cost was $1,472 (Canadian).

After arriving at their destination on January 8, they were surprised to receive an email from WestJet on February 7. It informed them of important changes to their upcoming flight home on March 25.

"Due to adjustments of our flight schedule, we're sorry to advise you that it has been necessary to change one or more of your WestJet flights," the airline said. Moreover, it was not able to offer an alternative flight option.

This change turned out to be deeply upsetting to both women. They had to scramble to find a flight with another carrier and then ask WestJet for a refund to cover the fare.

Booking a return flight wasn't easy. The only way back to Canada was with Caribbean Airlines, which charged $2,100 (U.S.) for one-way flights on their original travel date. In a panic, they booked an earlier departure for $815 (U.S.) and kept checking for later travel dates. Luckily, they were able to change the flight to the end of March without any fees.

Getting a refund turned out to be much more difficult. WestJet, along with Air Canada, had suspended flights to many Caribbean destinations in January and February, reflecting the growth of the Omicron variant of COVID-19 and its effect on staffing levels.

"WestJet's email arrived at 8:48 pm (local time), and I was unable to sleep with the news," says Kasindra Maharaj. "First, I had to figure out what the change was. To my horror, from searching for flights on WestJet, all options to travel from POS (Port of Spain) to YYZ (Toronto) into the summer were blank."

Maharaj's health challenges have slashed her income as a career coach and consultant for the past few years. She was hoping for a quick refund so she could pay her credit card bill for the new return flights and avoid interest charges.

The airline was vague about her chances of getting money back for the cancelled flights. It said the full value of the ticket would go into a WestJet Rewards account for future use on any WestJet flight, valid for 24 months. But if she preferred a refund to the original form of payment, "you may be eligible for self-serve cancel by visiting Manage Trips."

Her attempts to apply for a refund while out of the country went nowhere. Since WestJet cancelled the flight and didn't reschedule it, her reservation code could not be found online. She was sent in circles, repeating the same tasks fruitlessly on WestJet's site and its mobile app.

As for making a phone call, "the long-distance charges are absurd and reaching a live agent on WestJet is a nightmare," she said. "I made two attempts to reach WestJet about a wheelchair before leaving Canada on January 7. I was on hold for over 110 minutes without any success. One of those calls was dropped after 70 minutes."

I asked WestJet's media contacts to review her case since she was short of cash and desperate to get her money back. To make things worse, the bank decided to put her credit card on hold after all her attempts to apply for a refund.

No response from WestJet, but I did get helpful advice from Gabor Lukacs, who is a well-known Canadian air passenger rights advocate living in Halifax.

His message to Kasindra Maharaj: Do not give up. You are entitled to a refund, as well as compensation, and you should pursue it.

Lukacs feels the original APPR (without recent amendments) shortchanges stranded passengers by placing the burden of proof on them, not the airlines.

"The airline can simply say that the delay or cancellation was due to maintenance issues or for reasons outside its control and refuse to pay," he says in an opinion piece at his site. You can find it at https://airpassengerrights.ca/en

"If you doubt what the airline says, you can complain to a federal regulator that is known for its cozy relationship with the airlines, the CTA. The CTA will require you, the passenger, to prove that the delay or cancellation was not due to maintenance issues and was not for reasons outside the airline's control. Good luck!"

Here's what Lukacs told the two real-life passengers, Kasindra and Hafiza Maharaj, about their rights.

• If WestJet cancelled the flight, WestJet was required to find them another flight. Under the rules, large airlines must book you on their next available flight or book you on an airline in their alliance. If that's not possible, they must book you on any reasonable route out of the same airport to your destination. This may mean buying a ticket for you on a competing airline.

• Since WestJet did not offer any other travel arrangements that met their needs, WestJet was required to give them a refund to the original form of payment. And even when passengers choose to take a ticket refund, they have a right to be compensated for the inconvenience—a payment of $400 by large airlines and $125 by small airlines.

• Since WestJet did not comply with its obligations, the passengers could buy a ticket on another airline and then sue WestJet in small claims court upon their return.

Some B.C. passengers did that, and WestJet paid up, Lukacs said, referring to a story from the Vancouver Sun about them.

Ryan Alguire and his wife felt cheated out of two days of their honeymoon trip to Montego Bay in 2021 when WestJet delayed their departure south for 48 hours, citing a staff shortage. They had to cancel the WestJet flight and rebook on Air Canada, leaving the next day.

What irked Alguire most was WestJet didn't notify them of the cancellation before they learned about it by checking online on the way to the airport.

The couple filed a claim with WestJet for the difference in the cost of the Air Canada flight, the overnight layover in a Toronto hotel with that flight (which wasn't necessary with the WestJet flight), baggage fees and compensation for the delay.

The airline denied all claims, arguing the staff shortage presented a safety issue and therefore exempted WestJet from compensating them under the APPR.

The couple then filed a small claims case in B.C.'s civil resolution tribunal. During a conference call with the tribunal mediator and a WestJet lawyer, the airline agreed to pay, including $400 each, for the inconvenience, and a tribunal hearing wasn't necessary.

Alguire hopes his story will help others learn about little-known air passenger rights.

"This wasn't fair," he told the Vancouver Sun, adding that airlines are legislated to do better and are not doing so. "That was my motivating factor" in pursuing a claim, he said.

Lukacs also appeared in a small claims court case in Nova Scotia in 2021 as a witness for a passenger (Darrel Geddes) who claimed compensation for a flight that Air Canada Jazz cancelled 90 minutes before takeoff. It rebooked him on a flight that arrived five hours later than the time on his original ticket.

Air Canada provided no explanation or reason for the cancellation while also denying his claim for compensation, saying "the delay was caused by events outside our control."

The small claims court judge dismissed the claim, finding that the airline had met its obligations under the law. But the judge was highly critical of the APPR and the way it was drafted.

"When consumer protection is the intended outcome of a regulatory regime, it should be assumed the regime will be in plain language, easy to understand and supports a simple claims process. The APPR, which was intended to accomplish enhanced passenger rights, accomplishes none of these," he said.

"The language is complex and legalistic; one needs detailed or specific knowledge to invoke the claims system, and the process to seek compensation, once invoked, does not lend itself to a quick resolution. This case illustrates that complexity, as lengthy pre-hearing processes involved the issuance of subpoenas to obtain detailed records from the defendant about aircraft fleet information, maintenance records and other matters to support the claim.

"Few individuals would undertake such efforts to seek a few hundred dollars in compensation. Even if they wanted to, fewer could undertake such a claim. Close to 1,000 pages of paper were exchanged in a $400 claim." 

The Geddes case turned on interpreting the APPR and one word in it, namely "controllable." Was the event resulting in the cancellation of his flight controllable by the airline?

"That is a factual issue," the judge said, "but to reach a conclusion on it consumed considerable time, effort and resources, which may have been essential, but clearly show that a consumer-friendly environment has not been provided by the APPR."

As for Kasindra Maharaj, she contacted me once she returned to Toronto last May. She had applied online for a refund and was rejected again for technical reasons. WestJet said the email address she used was different from one she'd used before, even though all her WestJet emails were going to that address.

Once again, I asked WestJet to expedite her refund, mentioning my association with Canadian MoneySaver magazine. It took only two days for a WestJet rep to call Maharaj with good news and not-so-good news.

A refund of $800.32 (Canadian) – equivalent to $635.63 (U.S.) –would show up on her credit card account within three to five business days, the rep said.

What about compensation? As Maharaj pointed out, their return flights on Caribbean Airlines had cost $941 (U.S.) – equivalent to $1,184 (Canadian)—, and she had to spend time finding another carrier after WestJet left them stranded.

The WestJet rep's reply: There is no compensation for a schedule change.

"Shocking," Maharaj told me later. "If there was a schedule change, when were we supposed to travel? I was unprepared for the call, doing some paperwork for mom, so I was not sharp enough to ask this question."

So, how can you protect yourself when hit by disruptions to your air travel plans?

• Consider paying more to buy a fully refundable ticket. This makes it easier to get money back without having to invoke the air passenger protection rules. Air Canada and WestJet made passengers wait up to two years to get refunds for flights cancelled because of COVID-19. But those who had fully refundable tickets were made whole right away.

• Document your interactions with an airline when you are subjected to delays and cancellations. Take photos of electronic messages on billboards. Make recordings of airport announcements and phone calls with airline staff. You may need them later as evidence if you fight for compensation in small claims court.

• Familiarize yourself with your rights under the new regime. Check the extensive list of FAQs at the CTA's website. This agency is responsible for enforcing the regulations.

• Follow Gabor Lukacs' consumer advocacy on Twitter (@AirPassRightsCA). Join his Facebook group, Air Passengers Rights (Canada), with about 72,000 members. Or go to the website, https://airpassengerrights.ca/en/, for a variety of practical guides and blog posts.

• Speak up when something goes wrong with your travel plans, and you don't think your legal rights are being respected. Start with a written complaint to the airline. If you get no results, you might want to seek compensation in small claims court.

• You can also contact the CTA with a complaint that an airline did not meet its obligation to provide timely, accurate information to passengers on the reasons for flight delays and cancellations.

Do you have a serious consumer complaint about a Canadian company to bring to my attention? Write to me at ellen@ellenroseman.com. I’ll get back to you, even if I can’t help you resolve it.

Ellen Roseman is a journalist, investing for beginners instructor at University of Toronto continuing studies and a board member at FAIR Canada, an investor advocacy group. @ellenroseman on Twitter.