Nova Scotia man’s fight with airline brings curtain down on flawed passenger protection law, arbitrator says

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A Nova Scotia small claims court has denounced the complicated process passengers must go through to try to obtain compensation from airlines for delayed or canceled flights.

In a decision released Friday, Nova Scotia court adjudicator Darrel Pink laments that although the federally created Air Passenger Protection Regulations (APPR) of 2019 set out passenger rights who experience flight disruptions, the actual repair claim process is so convoluted and lengthy that hardly anyone could afford to initiate a claim.

Although he ultimately rejected the claim of Darrell Geddes, who sought compensation in the amount of $ 400 from Air Canada for the cancellation of the first leg of a January 2020 Halifax-Orlando flight, Pink insisted that the ‘APPR, while good in theory, is sorely lacking in practice.

“The APPR, which aimed to improve passenger rights, does none of this,” Pink wrote in its decision. “The language is complex and legalistic; detailed or specific knowledge is required to invoke the complaints system; and the compensation claim process, once invoked, does not lend itself to prompt resolution.

“Few would undertake such efforts to claim a few hundred dollars in compensation. Even if they wanted to, less could undertake such a claim. Almost 1,000 pages of paper were traded in a claim for $ 400.

This case, the first APPR case to be heard by a Nova Scotia court, was a classic example of this complexity, Pink wrote.

Passenger Geddes filed a claim with Air Canada on February 9, 2020; On July 4, 2021, Pink wrote down her decision.

This one-and-a-half-year claims process required the court to issue subpoenas to obtain detailed records from Air Canada on fleet information, maintenance records and other supporting material. of the complaint.

Gábor Lukács, president of Air Passengers Rights, a non-profit organization defending passenger rights, acted as Geddes’ agent, helping him navigate his way through the lawsuit.

Lukács has long argued that the APPR looks good on paper, but is woefully inadequate when it comes to its ultimate function – protecting the rights of passengers.

In a 52-page report released in February 2019, Air Passenger Rights outlined the shortcomings of the proposed RAPP.

“We predicted there would be a problem with the refunds; it happened, “he said.” We predicted it would be a real mess on compensation; it happened. “

“People shouldn’t go through subpoenas to be told in clear English and in reasonable detail, ‘This is what happened to your plane. “

The first leg of the January 2020 flight from Geddes to Orlando – a DASH-8 plane from Halifax to Boston – was canceled without explanation an hour before its scheduled departure.

By the time Air Canada managed to confuse Geddes – this time with stopovers in Ottawa and Toronto – it reached Orlando five hours after its initially scheduled arrival.

According to the APPR, if a passenger’s modified flight arrives at destination more than three hours late, the passenger is entitled to compensation of $ 400.

When Geddes filed a claim with Air Canada for the $ 400, the airline denied it, saying, according to court documents, “the delay was caused by an event beyond our control”, but without further specifying what. what was this event.

“I note that in order for the APPR to really achieve its goal, one would think that a passenger would be entitled to receive a full explanation from an airline,” the arbitrator wrote.

The case, he writes, hinges on the interpretation of the word “controllable” in the APPR, namely whether the cancellation of Geddes’ original flight from Halifax to Boston was “controllable” by Air Canada.

“This is a factual question, but reaching a conclusion on this has taken considerable time, effort and resources, which may have been essential, but which clearly show that a consumer-friendly environment does not have to be. not provided by the APPR. “

Pink’s ultimately ruled that the cancellation of the Air Canada Halifax-Boston flight was the result of a mechanical malfunction that was not under the airline’s control and denied Geddes’ claim for compensation.

One of the biggest issues with the APPR, Lukács said, is the second of the three flight cancellation cause categories described there. It is defined as: “under the control of the carrier but is required for safety reasons”.

In Lukács’ mind, this is a glaring loophole that allows Canadian airlines to avoid paying compensation for any mechanical or maintenance-related issues.

This is not how it works in Europe, Lukács said. Their passenger protection laws, he believes, are the gold standard for consumer protection in aviation, a model he thinks Canada should have broadly adopted.

Under European law, the burden of proof of the reason for the cancellation lies entirely with the airlines and not the passenger. And the airline should have something equivalent to an act of God – a snowstorm, a volcanic eruption, a flood – to avoid paying compensation to passengers for a canceled flight.

“Maintenance issues in Europe are not an acceptable excuse,” Lukács said.

“If you went to court, the court would say, ‘Show me there was an earthquake. No earthquake? Was there a volcanic eruption? No? Was there a terrorist attack? No? So what happened? It’s broken? OKAY. You have to pay compensation. Bye.”

“It would be an extremely simple half-hour hearing.”

Geddes has already appealed the decision to the Nova Scotia Supreme Court.

He argues, among other things, that although Pink has established that aircraft maintenance activities are the responsibility of the airline, he contradicts himself by asserting that the mechanical malfunction which caused the cancellation of the flight was not not under the control of Air Canada.

This appeal could take several more months before it goes to court, and months after that before a decision is rendered. Ultimately, it could cost Geddes more than two and a half years of battles – in case his appeal is successful – before seeing his $ 400.

Correction – August 6, 2021: An earlier version of this story incorrectly spelled Darrell Geddes name.

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