Compensation for delayed flights can't be claimed by person who paid for the tickets, B.C. tribunal rules

B.C.'s small claims tribunal has ordered Air Canada to compensate two passengers whose arrival in Egypt was delayed by more than 56 hours, while three other family members who were travelling with them have been denied compensation for now.

The reason two members of the five-person party were eligible for compensation and the other three weren't – according to the Civil Resolution Tribunal decision posted online Tuesday – is that passengers can only claim payment under Canada's Air Passenger Protection Regulations for delays they experience themselves, not for delays experienced by others. 

"Here, the two named applicants claim a total of $5,000 in APPR compensation for not just themselves, but also their 3 other family members travelling with them," wrote tribunal vice chair Shelley Lopez, in the decision.

"Given I find the APPR’s compensation scheme is based on a passenger’s entitlement, I find the applicants have no standing to claim compensation for their 3 other family members."

Lopez awarded the two named applicants – Abdallah Mohamed and Ghada Ali – $1,000 each, plus pre-judgment interest and CRT fees.

She also specified that "nothing in this decision prevents the three remaining family members from claiming against Air Canada for their delayed flight, subject to the applicable limitation period."

DELAY WAS WITHIN AIRLINE'S CONTROL

For its part, Air Canada told the tribunal it shouldn't have to pay the family, arguing that the delay that caused them to miss a connecting flight was outside its control.

Mohamed, Ali and their three unnamed family members were scheduled to travel from Kelowna to Cairo on July 4, 2022.

According to the CRT decision, the first leg of the journey – from Kelowna to Vancouver – left two hours and nine minutes late, and did not make it to its gate until about 15 minutes after the next flight – which was to take them from Vancouver to London – had left.

This led to the family being rebooked on a new flight to London that departed on July 6, resulting in them arriving in Egypt more than two days later than they had initially planned.

Under the APPR, large airlines like Air Canada are required to pay passengers $1,000 in situations where delays within the airline's control result in them arriving at their destination nine or more hours later than planned. 

For situations outside the airline's control, the APPR does not require compensation to passengers for the inconvenience, though other accommodations – including rebooking or a refund – must be made.

In the case of Mohamed and Ali, Air Canada said the Kelowna flight was delayed due to "air traffic control restraints," which are an airport operations issue outside its control. In support of this claim, it submitted documents related to the flight that referred to a "ground delay program" that was in effect at Vancouver International Airport that day because of staffing issues. The documents also referred to "upline YVR sales agent constraints."

Lopez found this latter part of the explanation suspect, noting that Air Canada is the organization best positioned to provide evidence about the cause of a delay involving its aircraft, and that the onus is therefore on the airline to provide proof that the delay was out of its control.

"On the evidence before me, I find it more likely than not that the reference to 'sales agent' refers to Air Canada employees rather than airport staff," she wrote.

"I say this because there is no explanation before me saying that there are sales agents employed by the airport and no explanation how any such airport sales agents impacted a flight’s schedule. So, on the weight of the evidence before me I find it unproven all of (the Kelowna flight's) delay was outside Air Canada’s control."

DECISION 'HELPFUL,' ADVOCATE SAYS

Passenger rights advocate Gabor Lukács, the founder and president of the nonprofit group Air Passenger Rights, told CTV News this CRT decision is not the first to deal with the issue of who is entitled to compensation under the APPR.

Still, he said, it's "helpful" because it spells out that an airline's obligation is to the inconvenienced passenger, not the person who purchased the ticket on that passenger's behalf.

"(Lopez) got the law perfectly," he said. "Had I been sitting in her seat, I would've made the same decision."

Lukács said travellers filing small claims lawsuits seeking compensation under the APPR should be sure all members of their party who experienced the delay are either named as plaintiffs or file their own complaints.

He also praised Lopez for the extra information her decision provides for the travellers.

"She's basically telling them, 'Look guys, just re-file the same thing for the remaining three (people) and you're going to get it,'" Lukács said. "She's really going out of her way to be helpful to the parties. She's upholding the law, but providing them valuable information on what other rights they have."

Colloquially referred to as a "bill of rights" for air travellers in Canada, the APPR came into effect in 2019, but may soon see significant revisions amid a backlog of more than 52,000 complaints awaiting consideration by the Canadian Transportation Agency.

The CTA has been soliciting feedback on proposed changes to the regulations for the last month. 

On Wednesday, Lukács and his organization published a joint submission with the Public Interest Advocacy Centre and University of Ottawa law professor Marina Pavlovic in response to the CTA's consultation. 

The goals of their submission, they say, are to simplify and streamline the rules, to harmonize Canada’s rules with those of the European Union and other jurisdictions and to "decrease disputes and tension between passengers and airlines."