Airline Ordered to Pay $295,000 Penalty for Tarmac Delay

View PDF: 2017-01 (Feb 8-18)

On July 31, 2017, at the height of summer, an unexpected thunderstorm caused 20 flights destined for Toronto or Montreal to be diverted to Ottawa International Airport. The result for some passengers on two Air Transat flights was that they were stranded on the tarmac in the aircraft they boarded in Europe for almost five and six hours, respectively. As the situation unfolded, several eventually took to Twitter to seek answers from the airport and airline. It was 2017, so as you might expect, both organizations responded on Twitter in real time.

According to the Ottawa Citizen, the Ottawa Airport’s Twitter account responded to one passenger who tweeted that, after more than five hours on the tarmac, the situation was not “humane”, with:

I’m sorry to hear that—it’s up to the airline to determine whether to deplane or wait it out when a flight diverts.

The Air Transat Twitter account was reported as providing a different take:

[We’re] waiting for airport authorities. We have no control over that. YOW received more than 30 non-expected flights.

A few days later, the Canadian Transportation Agency (the “Agency”) decided to look into what happened with two of the flights that were diverted to YOW on July 31: Air Transat flights 157 (from Brussels to Montreal) and 507 (from Rome to Montreal).

While the Agency issued updates on Twitter, its inquiry was not conducted via social media.

Initially, the Agency required Air Transat to provide a written explanation of the circumstances of the two delays. It then convened a two-day oral hearing at the end of August (available by webcast) and appointed an enforcement officer to investigate.

On November 30, 2017, the Agency issued Determination No. A-2017-194, as well as a Notice of Violation, accompanied by a cover letter.

Air Transat was found not to have complied with its tariff with respect to the provision of drinks and snacks or the passengers’ ability to disembark during the tarmac delay. In addition, the disembarkation provisions of its tariff were found to be unreasonable; it was ordered to revise this part of its tariff as a result.

In its Determination, the Agency ordered the carrier to compensate each of the 590 passengers on the two flights for any expenses incurred as a result of the failure to properly apply its tariff. In the Notice of Violation, Air Transat was ordered to pay a CAD$295,000 penalty. However, in the cover letter accompanying the Notice of Violation, the Agency’s designated enforcement officer stated that “[a] credit up to the amount of the penalty will be applied and accepted as payment in lieu …of the amount of compensation provided to passengers on the affected flights, excluding the refund of out of pocket expenses.”

After the Agency’s decisions, Air Transat, which previously said that it would pay CAD$400 to each passenger affected, announced it would be paying CAD$500 to each of the 590 passengers affected, but that compensation would take into account any money already paid to a given passenger. (By early January, Air Transat said that it had paid 80% of the $295,000 to passengers and would be paying the rest to the Agency. It has also been reported that Air Transat has offered to pay $500 to passengers not only on flights 157 and 507, but also on two other flights not investigated by the Agency.)

Before the Agency, Air Transat argued that it was not solely responsible for the delay and discomfort experienced by its passengers and that it should not be held liable in the circumstances. That argument did not succeed, as discussed below.

There is no indication that Air Transat will be challenging the orders imposed by the Agency, but, nevertheless, the Federal Court of Appeal has been asked to look into the situation – not by any of the 590 passengers on the two Air Transat flights, but by air passenger rights advocate Gábor Lukács.

On December 29, 2017, after a weeks-long exchange of correspondence, Lukács filed a judicial review application challenging the reasonableness of the $295,000 penalty and the Agency’s jurisdiction to order that any portion of that penalty paid to passengers constitutes a “credit” and thereby a reduction of the penalty imposed.

By all accounts, the conditions on flights 157 and 507 became quite unpleasant. Many of the passengers onboard the two flights testified and filed submissions with the Agency. On one of the two aircraft, the air conditioning failed at a certain point. One passenger called 911 and paramedics boarded and treated one of the passengers. The cargo hold was opened and a passenger’s pet dog given some water.

Before the Agency, Air Transat argued that it was continually told by the airport that it would have its aircraft refuelled and on their way within 30 minutes. The airport’s position was that it has no involvement in the contract between a carrier and its fuel service providers, or with the carrier’s responsibility to ensure proper passenger care. The passengers argued, essentially and in part, that at a certain point enough is enough.

The Agency agreed with the passengers by finding:

  • While Air Transat’s tariff provisions relating to provision of snacks and drinks during a delay like this were reasonable, they were not complied with. In particular, the Agency found that the flight directors and flight attendants on both flights were unware of the tariff’s provisions and that the carrier failed to take proactive steps to provide passengers with adequate drinks and snacks, given the length of the delay.
  • While Air Transat’s provisions relating to disembarking when a delay exceeds 90 minutes, which grant the aircraft commanders wide discretion, are reasonable, there was no evidence that disembarkation was even contemplated here. That was determined to contravene the tariff.
  • Further, the Agency held that once a delay exceeds four hours, the commander must disembark passengers, unless there are safety, security or air traffic control issues that prevent it, and that updates be provided every 30 minutes. This order is in line with Air Transat’s contingency plan for lengthy tarmac delays at US airports.

The Agency’s decisions are noteworthy in themselves. There is little or no precedent for this sort of situation being the subject of an investigation or order by the Agency.

The challenge to the Agency’s Notice of Violation by Lukács, who is not representing any of the 590 passengers implicated, may raise additional questions separate and apart from those raised in his judicial review application, including whether he has standing to bring such a judicial review application, and on what basis.

CTA Determination No.  A-2017-194
Notice of Violation, File No. 17-05835