Why passengers are not filing complaints and taking airlines to small claims court instead

As passengers continue to sound the alarm that airlines aren’t providing valid reasons when denying compensation for delayed and cancelled flights, the number of complaints filed with the Canadian Transportation Agency (CTA) continues to rise. 

A process that commonly begins with an email from an airline referring to a delay or cancellation as an event that “was out of the airline’s control” or a “safety-related issue”, ultimately denying the passenger compensation under Canada’s current Air Passenger Protection Regulation, leaving them feeling frustrated and helpless in determining the validity in the airline’s claim.

According to the CTA, in 2022 they received 26,840 complaints related to flight disruptions, ranging from flight and tarmac delays, flight cancellations, and denials of boarding.

And with the backlog of air passenger complaints sitting at over 47,000 and the estimated wait time for a case to be reviewed at 18 months, it’s no surprise that a number of travellers across the country are choosing to take airlines to small claims court in search of compensation, rather than filing a complaint with the CTA.

Natalie Kratchanov is one of those passengers.

In January, she boarded an Air Canada flight with her husband in Ottawa destined for Delhi with a layover in Toronto.

The delays began on the first leg of their trip, when they were rebooked for a later flight while en route to the airport -a flight that did not depart as scheduled, but still left them with enough time to catch their connection to India.

Kratchanov tells CityNews that they arrived at the gate in Toronto 35 minutes before their flight to India was expected to depart. Concerned about their luggage, the Ottawa resident inquired with an Air Canada agent.

“He pulls up our names on the computer and I see two big red X’s beside our names,” says Kratchanov, who was then informed that their seats had been sold and that they had been rerouted through Zurich.

According to the agent, they weren’t permitted to fly without their luggage.

Not satisfied with the response, she pressed for answers at the customer service desk until she spoke with a manager.

“He said I sympathize with you, but at this point there is nothing I can do but ensure your luggage makes it on the other flight,” suggesting the pair file for compensation upon their return and confirming with Kratchanov that it was due to an overbooked flight.

The couple, who had paid thousands more to fly directly to their destination in business class, was forced to take a second layover in seats that did not provide the same comfort.

“Since your original flight AC459 from Ottawa to Toronto was cancelled due to a safety-related issue, specifically non-scheduled maintenance, you were rebooked,” Air Canada said in an email to Kratchanov without specifying what the maintenance issue was. It went on to say that she was not going to make her connecting flight from Toronto to Delhi, resulting in the pair being automatically rebooked on the next available flight.

A response that according to Kratchanov did not align with the timing of the flights or what was confirmed to her by the manager at Pearson airport.

While she followed up with questions, she was ultimately denied compensation by Air Canada citing safety-related issues. In lieu, they offered a $200 voucher as a “good-will gesture.”

Kratchanov is no stranger to the complaint process with the CTA, having filed one with her daughter in the past, leaving her with little confidence in the process.

“The only thing they do is they try to mitigate with the airlines. So unless you want to go to formal adjudication, where you have no idea what decision they will render, I prefer to go to the court. I hope they are more just,” she explains.

A direction that Andrew Logan wishes he had taken.

“We made the mistake of going the distance with our CTA complaint, which dragged out two and a half years, and ended up with a CTA adjudication decision that does not make any sense and reads like it was written by Air Canada,” Logan tells CityNews.

Logan and his partner, who live in Australia, were scheduled to return home on June 27, 2020, after visiting his mother in Ottawa who had been hospitalized for emergency surgery. They’d experienced a total of five flight cancellations which the CTA determined were outside of Air Canada’s control, resulting in the couple returning home 45 days after their initial scheduled flight.

“The decision has also tied our hands and means we can no longer take our complaint to small claims, unless we somehow get the CTA decision rescinded. We did submit a petition to the GIC to rescind the decision, but this seems like a long shot.”

According to the CTA, 97 per cent of cases are resolved between the airline and passenger, with a CTA case officer leading an informal exchange, affirming that they typically do not have access to whatever decision a passenger makes with the airline during mediation.

As a result, the data confirming the total number of complaints filed with the CTA by passengers who argued that they were initially denied compensation for reasons that were later proven to be inadequate and “within the airlines control” is not available.

“Canadian Transportation Agency (CTA) enforcement officers have conducted several investigations into whether compensation owed was paid to passengers,” writes Vincent Turgeon of the CTA in an email to CityNews.

“Leading to compensation being paid to passengers who had previously been denied, as well as in Administrative Monetary Penalties being issued to Air Canada, WestJet, Swoop Inc. and Flair Airlines, which totalled $179,840.00.”

Airlines must only provide evidence to the CTA to support their claim in the formal adjudication process, in which the vast majority of cases do not arrive.

A new Canadian air passenger rights start up is hoping to put that evidence in the hands of the passenger at the start, when they first seek compensation from the airline.

“Our mission is to provide passengers with a fair fighting chance,” says John Marzo, Chief Executive Officer of airfairness. 

“Airlines exert control over every aspect, from flight data to decision-making, which often seems unjust. This is where we step in.” 

Airfairness co-founder Zohair Khan, who has an aviation background, says that his team works on both filing a claim with the airline by referencing Air Passenger Protection Regulations (APPR) rules that can sometimes be obscure for travellers, as well as pulling in flight log data that shows the reason a flight was delayed or cancelled. Information that is not readily available to all, providing the traveller with leverage if their compensation is denied and they choose to escalate the issue through the CTA or in small claims court.

“With comprehensive knowledge of global aviation standards and up-to-date flight logs, airfairness levels the playing field.”

Gábor Lukács, president of Air Passenger Rights, a non-profit that offers guidance to travellers seeking information on their rights, isn’t surprised that Canadians are choosing to go to small claims court as it offers a system that is impartial.

“The resolve of disputes have also been happening in the BC Civil Resolution Tribunal, which has been excelling lately in interpreting the Air Passenger Rights legislation fairly and properly,” Lukács tells CityNews.

This includes a May 25 decision in which Air Canada was ordered to pay two passengers for a flight delay, after denying compensation, citing crew restraints due to COVID-19. The BC Civil Resolution Tribunal concluded that generally airlines have control over their own staffing issues and found it insufficient for the airline to simply assert that it was outside its control, or due to safety concerns because of the COVID-19 pandemic.

“Every couple of months you see some really nice well written and well reasoned decisions coming out, holding airlines accountable to the law,” explains Lukács

In April, Transport Minister Omar Alghabra announced changes to the APPR, assuring Canadians that the amendment will close loopholes that prevent airlines from providing compensation to passengers and simplifying the complaint resolution process.

“Among the new changed amendments [one] would make compensation the default, unless specifically cited as a limited exception,” said Alghabra, adding that the burden of proof will be placed on airlines to explain why they would not have to compensate because of exceptional circumstances.

But Lukács argues that common sense dictates that the burden of proof to establish the cause of a flight disruption should always be on the carrier, as they normally have exclusive control over evidence of this nature.

Contrary to the government’s public promises to close the “required for safety purposes” loophole, the term continues to remain in Bill C-47 at this time.

But until those proposed changes come into effect in September, Canadians travelling this summer are hoping it won’t be as hectic as last year.