Library:
Case Comment: Passenger Bill of Rights
Published in the November 2009 issue of Transportation Notes - View Article
In a month which saw the European Court of Justice, in the case of Sturgeon v. Condor, rewrite the EC regulation which addresses passenger rights in cases of delay, cancellation and overbooking, Canadian Parliament has taken a big step towards a more sensible approach. Bill C-310, An Act to Provide Certain Rights to Air Passengers, which was modeled on the EU regulation, is almost certainly dead.
We commented unfavorably on the Canadian initiative in the February issue of this newsletter and have included a table comparing the main provisions of the Bill with EC Regulation 261/2004 on our web site at http://www.lexcanada.com/lib-av-0902-01.html.
The Bill received first reading in the House of Commons on February 10, 2009, having been introduced as a private member’s Bill. It was debated between March and the middle of May when it narrowly passed second reading. At that point it was referred to the Standing Committee on Transport, Infrastructure and Communities. The Committee heard public testimony on November 2 and 18 and met for a third and last time to consider the Bill on November 23, 2009. On the occasion of that last meeting a member moved that “the Committee report that it recommends that the House do not proceed further with Bill C-310 because it makes air carriers responsible for passenger inconveniences and excludes the responsibility of other parties such as an airport authority, NAV CANADA, Canadian Air Transport Security Authority (CATSA), and the Canada Border Services Agency.” After debate this motion carried 7-4. The left-leaning New Democratic Party (NDP) and the Liberals on Committee voted against the motion (and thus in favour of the Bill) while the Conservatives, joined by members from the Bloc Québécois, voted in favour of the motion.
The Committee reported the Bill back to the House on November 24, 2009, with the recommendation that the House proceed no further. This being the case, the Bill will be debated for one hour on a future date, but it is most unlikely that it will proceed further.
Although this was a private member’s Bill sponsored by a member of the NDP, it did attract considerable attention and support and the outcome could have been different if the industry had not responded vigorously to expose the shortcomings of the proposed legislation. During the course of the first of the Committee’s hearings, on November 2, George Petsikas and Brigitte Hébert of the National Airlines Council of Canada put forward the position of the industry. (Representatives of the Air Transport Association of Canada and the Quebec Air Transportation Association testified at the second hearing but a transcription of the evidence of that session is not available at the time we are going to press.)
Among the objections raised against the Bill were that it aims at penalizing carriers rather than reducing passenger inconvenience, that it is modeled on flawed and ambiguous European regulation, that it fails to recognize the importance of service providers in the transportation chain, and that it fails to take into account the inevitability of weather induced delays. The industry representative also raised the significant point that such legislation “discourages and penalizes airlines for ensuring the safe operation of a plane. . . It is counterintuitive to the promotion of aviation safety for the Government of Canada to implement a system of penalties to be imposed on airlines precisely because they will not operate in instances when public safety could be jeopardized” as Ms Hébert put it in her testimony before the Committee.
The swing vote on the Committee came from the Bloc Québécois which was something of a surprise. In early days it was thought that the Bloc, which is known to take a left-leaning position on most policy issues, would vote with the NDP in support of the Bill. Curiously, one factor which seems to have driven the BQ members to oppose the Bill was an infamous instance of flight delay that occurred in March 2008 when a Cubana flight destined for Montreal was diverted to Ottawa during a snowstorm. Passengers, most of them from Quebec, were held captive on the ground for some 12 hours. This incident reverberated in Quebec and Mario Laframboise, the MP who moved to end consideration of the Bill, clearly saw that C-310 provides no answer to the problems faced by these passengers. As he stated in Committee: “I am far from convinced that it was the fault of the airline company. . . So I understand why air carriers complained that it is always up to them to pay for everything, when in Canada, many of the requirements and control measures are administered by a non-governmental organization.”
So, for now, and we believe for some time to come, this particular version of misjudged populism is dead in Canada.
Bill C-310: Requiescat in pace