OPINION: Air Passenger Bill of Rights – good politics, but why bother?

Canada’s Transport Minister Marc Garneau says as long as he’s been in politics, Canadians have talked about an air passenger bill of rights. As of July 15, we’ll finally have one, but was it really worth the bother? Or is it great politics dressed up as mediocre policy?

“We think we have it right,” Garneau told reporters Friday at Toronto’s Lester B. Pearson International terminal 3.

It’s great PR, with headlines such as “Everything you can be compensated for under Canada’s new air passenger regulations” in Calgary’s Daily Hive. Trouble is, the compensation already exists, and could actually be worse under the new regulations.

It’s worth looking at what exists now. Airlines large and small publish a tariff laying out what you get when you pay your airfare. They outline conditions such as how the airline will accommodate you if your flight is cancelled or whether you’re allowed to get up to go to the bathroom when your plane is delayed on the tarmac.

They used to be published in tiny print back when airlines issued paper tickets. Now, they’re in hard-to-find corners of their web pages. Scott Streiner, head of the Canadian Transportation Agency that regulates airlines in the country, says the tariffs can be hard or impossible to understand, so requiring them to be in plain English is the biggest gain in the regulations.

We’ll take that as a given. There’s no doubt plain language will make it easier for passengers to understand their rights (though a read of the regulations suggests even the phrase “plain language” can require some mental gymnastics).

Basically, the new regulations provide a floor under which airlines cannot go, a baseline of service, as it were. Though the floor is much lower than most airlines already provide.

Airlines don’t believe the regulations are necessary and may even prevent innovation

“We can’t compete on price anymore,” said Massimo Bergamini, President and CEO of the National Airlines Council of Canada. The council represents Canada’s largest airlines, Air Canada, Air Transat, Jazz and Westjet.

“So where do airlines compete? On service.”

Yet the politicians have obviously felt it would be popular to turn to regulations. So what gives?

Transport Minister Marc Garneau (left) announces new regulations will come into effect starting this summer at Toronto’s Pearson International (photo: Twitter/@Transport_gc).

Essentially, you can think of the new regulations as codifying what should be good business practices. Any airline that left its passengers in the lurch, in a perfect world, would soon go out of business (though, it has to be said, Flair Airlines has survived the disastrous PR of cancelling flights to the United States with little advance notice). Although, oddly, the regulations don’t seem to address that specific case.

But some monumental blunders by airlines have forced the government’s hand. Take, for instance the case of Sunwing airlines which was fined almost $700,000 recently for leaving thousands of passengers in the lurch when a late-season ice storm hit its Toronto base in April 2018. Flights were cancelled, and hundreds of passengers complained the airline left them to fend for themselves with precious little information to help them weather the storm.

Long and short, Sunwing delayed more than 60% of its flights over a three-day period by more than four hours as a result of the storm and staff shortages, and passengers on some flights were left stranded on the plane in Toronto in what are called “tarmac delays.” How would the new regulations have changed anything?

For one, the new regulations require airlines to provide clear communication and updates every 30 minutes. That’s something for which Sunwing can be faulted, both in the terminal and aboard planes. The need to communicate in a crisis is beyond question.

But there is a nuance. Sunwing, in defending its actions during the storm, said less than 20% of passengers signed up to receive e-mail or text alerts about their flight status, a paltry number by any measure. For that reason, it’s up to passengers to claim compensation, because airlines don’t necessarily have passenger contact information.

The regulator decided the argument didn’t hold water, and so fined Sunwing $175,000 for not communicating properly. That likely wouldn’t change under the new regulations, though the maximum penalties have been increased.

Let’s push this a little further. The regulations require airlines to limit so-called “tarmac delays” when passengers are on board, but the plane can’t take off for whatever reason. After that, they’ll have to allow passengers to get off. The maximum will be three hours plus a 45-minute grace period if it seems take-off is imminent.

Sunwing was fined $352,000 – more than half the total – for tarmac delays about four flights during the 2018 ice storm. But a closer look reveals it would pay a lot less under the new regulations.

The CTA found for example: “On or about the 15th day of April 2018, Sunwing Airlines Inc. did not apply Rule 16(c) of its Scheduled International Tariff by failing to offer the passengers on flight SWG218 who were on the aircraft when a delay exceeding 90 minutes (emphasis added) occurred, the option of disembarking from the aircraft until it is time to depart, thereby contravening subsection 110(4) of the Air Transportation Regulations.”

That particular flight was delayed four hours and 18 minutes, so the fine levied would still apply.

But two other flights that crossed the 90-minute threshold, and for which Sunwing was fined, were delayed less than three hours, meaning the airline wouldn’t be fined under the new rules.

So the penalty would actually have been $175,500 less under the incoming regulations, perhaps more because of new limits on individual incidents.

The penalty would actually have been $175,500 less under the new regulations

When asked, CTA chief Scott Streiner didn’t want to go into specifics applying new rules to an old case.

But it’s clear that in setting a new floor for Canada’s airlines, Garneau chose the basement.

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