In the past year, air passenger rights and the provision of timely and quality service by air carriers have gained attention not only in Canada, but also in other parts of the world. For example, several countries have adopted various forms of regulations and measures to protect air passenger rights.
The Canadian air industry, in part through the voluntary Flight Rights Canada initiative, has made progress in recognizing air passenger rights related to delayed or cancelled flights, loss or damage to baggage, tarmac delays and other problems associated with air travel. However, in some instances problems persist, resulting in complaints to the Agency.
The Agency has a mandate to address a broad range of consumer protection issues related to air travel, including baggage, flight disruptions, tickets and reservations, denial to board, refusal to transport, passenger fares and charges, cargo, and carrier-operated loyalty programs.
All complaints that the Agency can deal with are assessed against the air carrier's tariff (policy) as well as Canadian transportation law and applicable international conventions.
Where it appears a carrier has not met its obligations, Agency staff will approach the carrier and informally attempt to facilitate a resolution of the complaint. The vast majority of complaints are resolved in this manner.
The Agency does not have jurisdiction over issues related to safety, and generally refers these complaints to Transport Canada. The Agency also does not have the mandate to deal with complaints involving the quality of air carrier services, such as the attitude of airline staff: such issues are the sole responsibility of airline management.
The Agency is, however, required by legislation to report on the number and nature of all air travel complaints received.
In 2010-11, the Agency received a total of 527 air travel complaints, 508 for informal facilitation and 19 for formal adjudication. It also began the year with a carry-over caseload of 173 complaints which had not been resolved in the previous year, bringing the Agency's total active caseload to 700 air travel complaints.
422 of these cases were resolved through the Agency's informal resolution process.
27 were determined to be outside the Agency's mandate;
3 were determined to be about carriers which had ceased operations;
17 were withdrawn or dismissed;
374 were settled through facilitation;
1 was referred to the Agency's formal adjudication process; and
49 additional cases were still undergoing facilitation at year end.
In addition, 190 complaints submitted to Agency staff without first being brought up with the carrier were referred for resolution between the complainant and the carrier.
138 cases were resolved between the complainant and carrier;
39 cases were not resolved between complainant and carrier; and
13 cases referred to the carriers by Agency staff were still being reviewed by the carrier at year end.
22 air travel disputes were resolved through formal adjudication.
10 related to allegations that a carrier had failed to respect its tariff;
2 related to allegations that the provisions of a carrier's tariff were unreasonable;
1 related to allegations of unreasonable domestic airline pricing;
1 related to allegations that a carrier failed to provide adequate notice of a discontinuance or reduction of domestic service; and
8 related to other topics.
6 air travel disputes were withdrawn or dismissed from the Agency's formal adjudication process; and
11 cases were still in formal adjudication at year end.
Trends in air travel disputes monitored through the facilitation process
In the last year, there has continued to be an overall decline in the number of complaints received by the Agency.
Some of the decrease may be due to fewer people travelling in recessionary times, but the most important factor is likely the major changes the Agency has made to the way it handles complaints.
For example, over the past few years, the Agency has actively used communications and education initiatives in order to encourage passengers and carriers to work together first to find their own solutions before coming to the Agency.
The Agency has also used its Web site and other targeted materials to clearly spell out its processes, issues it can and cannot deal with, and what outcomes can be realistically expected.
This trend might also point to the success of improved customer service, greater consistency in the application of tariff provisions by air carrier staff and efforts to resolve issues when they first arise.
Categories of complaints
Quality of service was the most common issue raised in complaints received for facilitation in 2010-11, even though it is outside the Agency's mandate to resolve complaints about such matters. This issue was cited 233 times.
The second most common type of issue, flight disruptions, was cited 158 times.
Coming in a close third, having been cited 148 times, were baggage-related concerns, such as delayed, lost or damaged baggage.
Canadian air carriers
Most of the complaints in the facilitation process were about Canada's major carriers, with smaller carriers accounting for 13 per cent of all complaints. Specifically, in the past year, there were 219 complaints about 11 different Canadian carriers, compared with 235 complaints about the same number of carriers in 2009-10 and 448 complaints about eight carriers in 2008-09.
Overall, in 2010-11, there were fewer complaints about major air carriers than in the previous year. Notably, the number of complaints about Jazz fell from 22 to 16 last year, while Air Canada's numbers fell from 139 to 135. WestJet remained at 11 complaints. Only in the case of Air Transat were there slightly more (i.e., four) complaints than in the previous year.
In addition, the number of complaints about Sunwing decreased from 20 in 2009-10 to 16 in 2010-11.
Foreign air carriers
There was an increase in the number of complaints about U.S. carriers – from 21 in 2009-10 to 29 in 2010-11. This is due in part to the increase in the number of complaints about United Airlines, which rose from four to eight, and Continental, about which four complaints were received as compared to two last year.
In contrast, the number of complaints about European Union air carriers dropped from 48 in 2009-10 to 41 in 2010-11. This can be attributed in part to the fact that there were fewer EU air carriers subject to complaints – six in 2010-11, compared to 11 in 2009-10. Of those six, four had fewer or the same number of complaints. Only in the cases of Thomas Cook Airlines Limited and Lufthansa were there more complaints in 2010-11 than in 2009-10.
The number of complaints about all other foreign carriers also fell from 67 in 2009-10 to 49 in 2010-11. Again, fewer foreign (non-EU) air carriers were subject to complaints – 21 in 2010-11, compared to 26 in 2009-10.
Progress report on air disputes resolved through adjudication
In 2010-11, 22 cases were resolved through the Agency's formal process, eight of which were very complex. These involved specific tariff-related issues, required in-depth review, and in many cases were precedent-setting.
As was the case in other areas under Agency jurisdiction, many formal air disputes were filed by unrepresented parties. Additional time was required to gather the information the Agency needed to clarify the scope of the complaint and the remedy being sought, and to issue a ruling.
In several cases, multiple and novel issues were raised which required several rounds of pleadings. Interim decisions were issued before the final ruling to give the parties a better opportunity to address the issues identified by the Agency in the proceedings.
In addition, in some instances, Agency jurisdiction needed to be clarified and/or determined. The Agency conducts in-depth research into other countries, their conventions and their issues related to transportation, in order to inform its decisions.
In an effort to achieve more timely resolution of disputes, including those specifically related to air travel, the Agency is undertaking a review of its formal, quasi-judicial procedures, its guidance materials and its publications, to make them clearer and easier to understand.
Baggage liability of Canadian airlines
In 2010-11, the Agency handled several cases dealing with the baggage liability policies of Canadian airlines. In one Decision, following a consumer complaint about air travel in Canada, the Agency found that WestJet's limit of liability was too low. The Agency ordered WestJet to propose a higher limit, allowing passengers to declare excess value for a reasonable extra fee. The Agency also advised WestJet that if its proposal for a new, higher limit of liability was unreasonable, the Agency would direct the airline to use the same limit required under the Montreal Convention, the 1999 treaty governing international flights.
In November 2010, after receiving WestJet's proposal, the Agency ordered the carrier to raise its limit of liability to levels specified in the Montreal Convention (approximately $1,800). The case was precedent-setting as it involved further application of principles of the Montreal Convention to domestic travel.
The Agency made significant progress in reducing the backlog of air travel complaints, decreasing the carry-over from one year to the next by 11 per cent. At the close of 2010, 173 cases were carried over, compared to just 73 cases at the close of 2011.