Reconciling Airline Passenger Rights and Flight Safety: Will Canada Pick Up the Ball Dropped by the EU?

The post-war economic and travel boom of the 1950s and 60s, combined with the rapid development of commercial aircraft and related flight technologies, is often referred to as the “Golden Age of Travel.” Flying was the purview of a select few, and the experience was usually nothing short of elegant. Boarding an aircraft in shorts and flip-flops was not only unacceptable … it was scandalous. In short, life was good at 37,000 feet.

Airline deregulation changed all that. Air travel became affordable and available to the masses. This was a key element in driving global economic development, trade and commerce, connectivity, as well as cultural interaction and understanding. In brief, it made our world a global village.

However, it wasn’t long before one of the masses had their checked baggage damaged, or their flight delayed or cancelled. The airline passenger rights movement was born shortly thereafter and politicians looking for a cheap political win were in heaven.

Indeed, there has been an avalanche of new airline passenger rights laws introduced over the last two decades. Led by the spiritual mother ship otherwise known as EU Regulation 261-2004 (EU261), a long list of countries jumped onto this bandwagon including, most recently, Canada.

Despite the rapid development of these consumer protection mandates, potential impact on, and interaction of these costly new prescriptive compensation requirements on critical flight safety imperatives remain largely unexplored. In fact, prior to the adoption of Canada’s airline consumer rights law in 2018 – 19, the term “safety” never appeared in any similar legislative or regulatory texts anywhere in the world, except briefly in the preamble of EU 261.

The emergence of a potential and worrisome “silo” effect between these two important public interest mandates is both striking and undeniable. A brief overview as to how the EU and Canada have addressed this matter is therefore timely.

The EU and its judicial attempts to “square the circle”

In the early days of codified airline passenger rights frameworks, most notably EU261, the issue of how flight safety was impacted by such consumer protection mandates was almost considered an irrelevant point and was never usually discussed in polite company. Indeed, as an example of this curious aeronautical omertà, I was personally admonished at a major airline industry meeting in 2008 for daring to raise the matter and was quickly “advised” in hushed tones that airlines would never knowingly and willingly fly when it was unsafe to do so. I sheepishly acknowledged my faux pas and immediately resumed my place among the rest of the observer amoebas. Unfortunately, the wise industry veterans at the time spectacularly misunderstood my point.[i]

The legislative text of EU261 establishes a virtual strict liability regime for airlines with respect to the payment of compensation exclusively in the event of denied boarding due to commercial overbooking and flight cancellations.[ii] The scope of this requirement was eventually expanded to cover flight delays by what can politely be described as acrobatic judicial activism by the Court of Justice of the European Union (CJEU) that would normally leave proponents of parliamentary supremacy in spasmodic convulsions. The only prescribed exception in EU261 to the above-mentioned strict liability regime was the concept of extraordinary circumstances,[iii] which at one time early in EU261’s reign was deemed by several EU national enforcement bodies to include technical or mechanical issues.

However, these were eventually stricken from many such lists following an “overreliance” on such excuses by certain carriers for flight disruptions that, in fact, had little or nothing to do with such invoked causes. EU low-cost airlines, in particular, prior to the enactment of EU261 became notorious for denying many claims for compensation by simply involving a mechanical malfunction or technical fault without offering any serious evidence to this end. The major financial consequences of these missteps by industry are being felt to this day and are again being used in misguided attempts to mitigate the financial fallout of the operationally disastrous “Goodbye Covid!” 2022 summer travel of discontent, as is discussed further below.

Notwithstanding the foregoing, while nobody would argue that airlines should be forced to pay compensation for flight disruptions caused by matters clearly beyond their control, the issue becomes far more complex and debatable in the case of cancellations and delays caused by legitimate malfunctions or failures that may seriously impede or inhibit the safe operation of the affected flight. In brief, I recap here the point I was trying to make all those years ago. A consumer policy mandate may penalise an airline for flight cancellation or delay that is occasioned by the need to address a serious and unforeseeable aircraft technical failure. As such, that consumer policy mandate may be wholly inconsistent with the parallel flight safety objectives mandated by applicable aviation law and regulations.

A comprehensive safety culture is undermined by any external factors that may incite behaviour that seeks to minimise or avoid financial penalties. Such factors may come at the expense of total commitment to ensuring and maintaining the highest possible flight safety standards. Such human factors[iv] can seriously degrade flight safety standards and lead to accidents.

What constitute such serious and unforeseeable technical failures and related events that could qualify as exemptions from potential compensation liability or, in the case of EU261, as justifiable extraordinary circumstances? The unfortunate result in Europe was the Wallentin-Hermann ruling, where it was suggested that:

… Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’…unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control (emphasis added).

Consequently, what is inherent in the normal exercise of the activity of an air carrier and, conversely, not beyond its control?

• A cracked engine fan blade that was discovered upon landing and was previously inspected by ultrasonic equipment at a regular maintenance check a few weeks earlier and found to be structurally sound? Yes!
• A burst tire on the main landing gear that failed as a result of a hard landing in a windstorm? Of course!
• A bird strike that damaged vital control surfaces on the wing? Yes, er…no!

In the above circumstances, the airline would normally be forced to pay potentially hundreds of thousands of dollars in compensation to passengers on the affected flight if the repairs needed to ensure the aircraft was safe to fly took more than three hours. Moreover, while the EU’s approach could possibly be understood in the context of a poorly regulated transportation industry, it makes a mockery of the robust flight safety regulatory and oversight frameworks that are in place in almost every developed country. It also ignores the billions of dollars that airlines spend yearly on maintenance and training to ensure that commercial air transport remains the world’s safest mode of travel.

To put it bluntly, airlines put their money where their mouth is to ensure high operational reliability and safety. However, when an unexpected problem or malfunction occurs all this is swept aside by an almost fanatical commitment to consumer protection by courts and national enforcement bodies. There is no pretense to fairness or balance in this regard.

Canada’s regulatory attempt to balance consumer protection and flight safety

With the gradual elimination of COVID containment measures as of early spring 2022, the expected pent-up demand for air travel that had all been shut down since the beginning of 2020 exploded. Airlines that were desperate to make up for staggering pandemic losses were quick to add capacity to meet surging demand. However, this capacity flood swamped the global air transport system, which had spent the past two years running at barely quarter-capacity, along with chronic pandemic-induced employee shortages, supply chain issues, and lingering pandemic border control measures. The inevitable result: air travel chaos.

The resulting avalanche of cancelled and delayed flights, missed connections, and lost baggage was global in nature. Canada’s major airports stood out as prime examples of dysfunction. This has inevitably led to thousands of complaints and emerging legal issues fuelled by airlines desperate to minimise their financial exposure. It has also put the issue of airline consumer rights and their relation to questions of flight safety at the forefront of enforcement measures and legal interpretations to this end.

In 2019, Canada enacted its airline consumer protection regulatory framework known as the Air Passenger Protection Regulations (APPR). While the APPR was influenced and based in large part on EU261, it differed from its spiritual inspiration in one very critical aspect: it expressly addressed flight safety by defining a separate set of air carrier financial obligations and minimum standards of care vis-à-vis the passenger when the flight disruption i.e. denied boarding, cancellation or delay was required “for safety purposes, including in situations of mechanical malfunctions.”[v] Thus, Canadian regulators clearly recognised the need to ensure that flight safety was not compromised or undermined by the underlying consumer protection mandate of the regulation, contrary to EU261 approach outlined hereinabove.

Section 11 of the APPR outlines the air carrier’s obligations[vi] when the flight disruption is within its control but is required for “safety purposes.” This is defined by the APPR as follows:

required for safety purposes means required by law in order to reduce risk to passenger safety and includes required by safety decisions made within the authority of the pilot of the aircraft or any decision made in accordance with a safety management system [SMS]…but does not include scheduled maintenance in compliance with legal requirements (emphasis added).

The flight disruption must therefore be necessary to mitigate or eliminate the risk to passenger safety. It must also be the result of a reasonably unforeseeable problem or issue, and thus precludes any delays or cancellations resulting from scheduled maintenance. This recognises a fundamental reality of life i.e., despite all best and reasonable preventative efforts, things can still go wrong.

Consequently, given the above, and by specifically incorporating the concepts of the aircraft commander’s broad discretion and responsibility with respect to ensuring flight safety, as well as the varied list of elements usually found in a typical airline SMS,[vii] Canada has taken a very cautious approach to ensuring that the two policy mandates involved do not conflict or undermine each other. In fact, this becomes somewhat comprehensible when it is understood that the federal transport minister that signed off on the APPR, the Honourable Marc Garneau, CC, PC, MP, was the first Canadian to travel to space, and indeed did so for a total of three times on the US Space Shuttle. Presumably, when one is sitting atop two million litres of highly volatile liquid propellants and waiting for the controlled explosion of ignition and lift-off, a robust appreciation for the highest possible safety standards is quite likely near or at top of mind. All this may be a coincidence with respect to the broad regulatory scope of the flight safety exemption in the APPR, or it may not.

Post-pandemic air transport system chaos and the APPR put to the test

As outlined hereinabove, the massive and sudden return of air travel demand in 2022 led to enormous air travel disruptions worldwide, and particularly in Canada. The reasons were numerous: too many flights scheduled by airlines around peak departure times; airport, security screening, ground handling and airline staff shortages; lingering COVID restrictions and entry requirements that in many cases doubled or tripled the usual border processing times. The resulting flight disruptions led to enormous traveler discontent and, inevitably, many complaints. By mid-July 2022, the backlog of APPR-related formal claims filed with the CTA exceeded 18,200.

As a result, it would appear that Canada’s airlines have not been averse to denying many claims for compensation for delayed or cancelled flights resulting from the above-mentioned debacle on the basis of the APPR’s flight safety exemption. While most of the above-mentioned cases are expected to be settled amicably or through CTA-sponsored mediation, it is nevertheless likely that a significant percentage will ultimately need to be resolved through the formal adjudication and ruling process.

It is still relatively early at this writing to conduct a comprehensive review of such pandemic-driven complaint rulings and, in particular, those specifically addressing the applicability of the APPR safety exemption given the CTA’s enormous case backlog. However, a few interesting cases have begun to emerge, as one of the recurring justifications for safety-related denials of delay / cancellation compensation claims appears to be related to flight crew shortages, ostensibly as a result of the broader impacts of the COVID pandemic.

In its Decision No. 89-C-A-2022, the CTA dismissed WestJet’s attempt to avoid paying compensation on the basis of the APPR’s safety exemption for a flight that was cancelled as a result of the unavailability of a flight deck crew member who called in sick shortly before scheduled departure, and after ensuing efforts by crew schedulers to secure a replacement failed. While the CTA obviously accepted that it was unsafe to fly a modern commercial airliner without a first officer, the issue was in fact whether WestJet had satisfied its burden to establish the reasons, and to provide evidence to this end as to why its inability to secure a replacement first officer was unforeseeable and beyond its control, per the CTA’s Interpretative Decision No. 122-C-A-2022 in this regard.

Westjet thereafter sought leave to appeal the above-mentioned ruling to Canada’s Federal Court of Appeal. WestJet is claiming that the CTA erred in placing the burden on the air carrier to establish the circumstances that justified the invoked safety-related exemption with respect to compensation liability. For the reasons outlined hereunder, I modestly submit that this appeal should and will fail. Indeed, crying “Wolf!” too often does have its risks and shortcomings.

As briefly mentioned above, one of the motivating factors for the late 2000s hardening of the judicial line in Europe against air carriers was the addiction of certain carriers to shouting “Technical!” or “Safety!” in denying compensation claims without proper supporting evidence and justification. This exasperated courts and enforcement authorities. A trip to the judicial woodshed was therefore in order, as evidenced by the unfortunate ECJ rulings cited above, which to this day are still costing airlines serving Europe hundreds of millions of dollars per year in compensation payouts. At a minimum, this needed to be viewed as a cautionary tale by other jurisdictions.

Consequently, when Canadian federal authorities undertook their public consultation in advance of the drafting of the APPR, I had always understood in my subsequent exchanges with senior officials that the safety exemption would always be contingent on the ability of the air carrier to demonstrate that the relevant circumstances satisfied the regulatory standard to this end. This was seen as the minimum quid pro quo from the regulator’s perspective in attempting to balance legitimate safety considerations with the APPR’s underlying consumer protection mandate. From the air carrier’s perspective, or more precisely my own, this was needed to maintain the legitimacy and credibility of the safety exemption, as this exemption was already seen by consumer advocates as a sellout of passengers to corporate air carrier interests.

What if the Federal Court of Appeal upholds WestJet’s petition and reverses the burden of proof regarding the existence of circumstances justifying the safety exemption? This would simply add more fuel to the debate fire about amending the APPR in order to remove the safety exemption completely. Canada would then essentially match the EU’s approach that treats flight safety almost as an afterthought or a bothersome detail in the enforcement of consumer rights. That would be a truly regrettable development for all as Canada stands virtually alone in the world in sending the message that consumer protection and flight safety mandates must be compatible and not adopted and deployed in a vacuum.

It would also be a stellar example of being careful about what one wished for ...