Proceedings of the Standing Senate Committee on
Transport and Communications
Issue No. 32 - Evidence - March 20, 2018
OTTAWA, Tuesday, March 20, 2018
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-49, An Act to amend the Canada Transportation Act and other Acts respecting transportation and to make related and consequential amendments to other Acts, met this day at 9:32 a.m. to give consideration to the bill.
Senator David Tkachuk (Chair) in the chair.
[English]
The Chair: This morning, the committee is examining Bill C-49, the transportation modernization act. We have two panels of witnesses. For the first panel I would like to welcome Mr. Allistair Elliott, International Representative, Canadian Federation of Musicians. He is accompanied by Ms. Francine Schutzman, President, Ottawa-Gatineau, Canadian Federation of Musicians; and Marina Pavlovic, Assistant Professor, University of Ottawa, Faculty of Law, Common Law Section.
I would like to congratulate you on your recent promotion to assistant professor, starting on May 1, Marina. Thank you for being here. I would like you to start for your presentation and then we will follow with Mr. Elliott. Please proceed.
[Translation]
Marina Pavlovic, Assistant Professor, University of Ottawa, Faculty of Law, Common Law Section, as an individual: Good morning, Mr. Chair, honourable senators. I would like to mention that we are on unceded Algonquin territory.
Thank you for giving me the opportunity to testify and to bring a research perspective to the discussion of the air passenger bill of rights, included in Bill C-49.
[English]
I am an assistant professor, still, in the Common Law Section, Faculty of Law at the University of Ottawa. My area of expertise is consumer rights in a cross-border digital economy. My work covers subjects such as consumer protection, consumer redress, complaints handling and access to justice. I’m an independent director appointed by Canadian consumer groups on the board of the Commission for Complaints for Telecom-Television Services, which is a mouthful for Canadian communications industry ombudsman. However, I appear in my personal capacity representing my own views, and it is my expertise in the broad area of consumer rights and especially related to the wireless code and consumer redress that I’m bringing to the table.
While telecommunications and air travel industries are different, there are significant parallels when it comes to consumer rights and redress. My remarks focus on the following three issues: the need for an air passenger bill of rights; the form of the air passenger bill of rights; and redress mechanism.
On the need for the air passenger bill of rights, the current regime of complicated tariffs and related individual carriers contracts is overly complex and ineffective. Consumer rights regarding air travel are varied and fragmented. They depend on a number of factors and it is difficult, if not impossible, for consumers to decipher what rights they have, and what are appropriate redress mechanisms. The market forces alone cannot resolve this issue. Canadians need an industry-wide mandatory air passenger bill of rights that will provide uniform minimum rights for consumers or conversely, a set of uniform minimum obligations for carriers.
The bill of rights benefits both individual consumers and the industry. For consumers, it provides a clear set of rights that are found in a single place. A clear set of rights builds and enhances consumers’ trust in the industry. It also promotes competition in the marketplace. It offers the carriers an opportunity to distinguish themselves from the competition by setting higher levels of customer service. The bill of rights is the floor, not the ceiling.
With respect to the form of air passenger bill of rights, Bill C-49 does not establish an air passenger bill of rights. Section 86.11(1) is the foundational step for the bill of rights. It sets a broad list of issues that the future bill of rights, in the form of regulation, must cover. You may have heard or will hear concerns about the form and process by which the bill of rights will come into existence. I do believe the CTA, as the industry regulator, is best placed to lead this. Similar processes, before the CRTC, have worked really well for the wireless code.
With respect to consumer redress under the new regime, a bill of rights and an effective redress mechanism are essential components of a robust consumer rights regime. A set of rights without a strong redress mechanism will be ineffective, and a redress mechanism without a clear set of guiding principles in a bill of rights leads to different outcomes and creates differential rights.
There is a significant body of empirical research demonstrating that it is consumers themselves who pursue their claims primarily because of the value of the complaint, which does not justify the transaction costs. However, there is also significant research in consumer literature which highlights of importance of allowing third parties, such as public interest organizations, to have standing to file complaints as a mechanism to challenge systemic and industry-wide problems. As drafted, proposed section 67.3 is limiting and may lead to compartmentalization of systemic issues into individual complaints. Therefore, it should be amended to allow third parties to file claims.
The bill is a unique opportunity to improve rights of Canadian consumers. There is rarely political will to proactively regulate consumer interests. This opportunity should not be missed. Thank you, and I will be happy to answer any questions you may have.
[Translation]
Allistair Elliott, International Representative, Canadian Federation of Musicians: Good morning. Thank you for giving us the opportunity to appear before your committee today.
[English]
The Canadian Federation of Musicians is the Canadian national office of the American Federation of Musicians of the United States and Canada. We represent 80,000 professional musicians, 17,000 of whom live in work and in Canada. We have been representing the interests of musicians for 121 years.
[Translation]
Francine Schutzman, President of the Musicians’ Association of Ottawa-Gatineau, Canadian Federation of Musicians: We are here today to enthusiastically applaud the Honourable Marc Garneau and Transport Canada for the inclusion of musical instruments as part of the passenger rights in Bill C-49, An Act to amend the Canada Transportation Act.
[English]
Mr. Elliott: When we began our work on this issue, our goal was to pursue harmonization with the United States FAA Modernization and Reform Act of 2012 regarding the carriage of musical instruments and commercial air carriers. This has been life changing for musicians flying for business purposes in the United States. We are eager to see the same kind of legislation in Canada. We have included for you the AFM Guide to Flying with Musical Instruments, a pamphlet produced after consultation and legislation for our musicians in the U.S.
Please also find the CATSA fact sheet for musicians prepared in collaboration with CATSA to address security procedures and the new CATSA Plus already in place at several Canadian airports.
[Translation]
Ms. Schutzman: Musicians who travel for business have oddly shaped briefcases. Players of smaller instruments generally have no issues with carrying their instruments on board. The problems arise with the larger instruments.
Cellos are the ones that have the most problems. Many instruments are made of wood, are fragile, and are affected greatly by temperature, which in itself can damage an instrument beyond repair.
Instruments belonging to professional musicians are often old and very expensive. Cellists flying with their instrument typically purchase a second seat for that instrument, but are sometimes told that they may not take the instrument on board. Any problem can cause lost job opportunities, lost work and lost income.
Some of you may be familiar with a song called “United Breaks Guitars.” This song was generated by an incident when guitarist David Carroll was forced to check his instrument, which arrived at its destination in pieces.
Instruments are a part of us. When we have to check an instrument, it is like checking a baby.
[English]
Mr. Elliott: We applaud Air Canada for its leadership in dealing with these issues and the Government of Canada for its inclusion of musical instruments as part of passenger rights. We look forward to this implementation. We are eager to get to work in the development of these regulations so the issues for musicians flying with instruments are minimized while keeping safety and security paramount.
We look forward to a well-advertised, consistent, industry-wide policy so that musicians may plan according for travel with the tools of their trade, giving them confidence they will make the job interview or performance on time without incident.
I would like to conclude with comments made by one of our well-known member musicians, Dr. Buffy Sainte-Marie, in the Senate of Canada when she was given special recognition for her contribution to Canadian music. During her remarks, she asked the government to help connect the dots so that musicians could travel with their instruments. She cited the example of paying $1,367 for an underweight guitar and a suitcase.
On behalf of all musicians across Canada, we thank you for this inclusion. We applaud your efforts, and we urge you to move as quickly as you can so we can develop regulations that will be effective for everyone. We look forward to your questions.
The Chair: What do the Americans allow?
Mr. Elliott: The American FAA legislation gives musicians the ability to carry on instruments if it fits in the overhead bin without a specific restricted size. There’s also a weight restriction of, I think, about 160 pounds. Once it’s in the overhead bin, they can’t be asked to remove it. They get priority boarding, and they get odd sizes to be able to put in the overhead bin.
[Translation]
Senator Cormier: My first question was asked by the chair, but I want to first congratulate you and thank you for your work, both as an advocate for musicians and as a musician yourself. You are doing a lot for our country.
You told us that you are very excited to work on the regulations. In your opinion, what should be included in these regulations to really meet musicians’ needs?
[English]
Mr. Elliott: The biggest ask we have is for consistent policy across the board. The biggest issue right now is inconsistency. So in its most simplistic form, a consistent policy.
[Translation]
Senator Cormier: Inconsistency, at what level?
[English]
Mr. Elliott: With regard to every airline playing in the same playing field so that staff are well trained and know the policy, and when a musician is travelling, they understand what their rights and protections are.
[Translation]
Ms. Schutzman: Airplanes are required to have luggage nets, and sometimes they do not have this equipment.
[English]
They are supposed to, but they don’t. That would hold a large instrument in place in the seat — something like a cello.
[Translation]
Senator Cormier: Some members of the public were surprised when they realized that we were including musical instruments in this bill. What can you tell us about insurance for musical instruments?
[English]
Mr. Elliott: Musicians have the ability to have insurance on instruments. We’re simply asking for a consistent policy. We’re not seeking anything further than that at this point.
Ms. Schutzman: Instruments are also very personal. One cello is not the same as another. One bassoon is not the same as another, even though they are made at the factory. That’s our funny explanation for saying, “I can’t tune; it’s tuned at the factory.” Every instrument has its own personal qualities.
There is actually an insurance company in Canada — I believe it’s not available in the States — that covers change of tone. The fact is no matter how much money you are given for that change of tone, the tone has changed. The instrument is damaged. The varnish is melted. You can’t replace those things.
The Chair: What do they do here in Canada now?
Mr. Elliott: With regard to the airlines?
The Chair: Yes.
Mr. Elliott: Each airline has its own policy, and their policies are not consistent. Within their own policies, there are still issues of staff not knowing what the policies are. It can be a bit challenging when you go to an airport with an instrument — if you have an odd-sized instrument. I have had calls from musicians who have been told they can’t take the instrument on board, and they can’t take it in cargo. They have to go ship it in cargo, but if they are not a business, cargo won’t deal with them.
These people are going for a job somewhere across the country. They go into panic mode. It’s a very anxious experience. As Francine said, instruments are very personal. It’s not like you can go from Vancouver to Toronto and just rent an instrument and perform your concert. It’s a very personal, individual thing. It’s like each one of us taking our briefcase and our documents and going on a plane. “I’m sorry you can’t take that with you.” You get to the other end, and what do you?
At that point, musicians have to make a choice: Do they not get on the flight? How do they deal with that? There is a real hodgepodge inconsistency in place at the moment.
The Chair: I have one short question. When Delta Airlines flies from Saskatoon to Minneapolis, do they operate under American rules or Canadian?
Mr. Elliott: That I don’t know.
The Chair: Okay.
Senator Bovey: Thank you for your presentations. The transportation of musical instruments is a big one. I very much appreciate what you’ve had to say.
My question is for Ms. Pavlovic, regarding her presentation. I was interested that you talked about the bill, regulations and the role of CTA. Are you confident the required regulations will be developed to go with the bill?
Second, with the three points you mentioned, which is the most important? Is the most important the third-party amendment? If you could have one, which would it be?
Ms. Pavlovic: I’m going to start from your second question. If I were to only pick one, I think it would be to actually pass this bill and achieve uniformity for all consumers. There are considerable differences between different airlines. If you travel one week on airline A and then next week on the same route with airline B, your rights are very different. My choice would be to pass the bill and then get the regulations — and I will get to your first question — so that we have a uniform set of rights that apply to everybody across the board.
With respect to the regulations, I’m prepared to give the government the benefit of the doubt. The minister and the CEO of the CTA have spoken on the record that the regulations will be put into place in a very short period of time. The concern that the actual rights are not in the bill is not the concern I have, because the Canadian Radio-television and Telecommunications Commission has developed a wireless code, which is a similar code, for consumers without any legislative intervention. It was entirely within the regulatory body. The process worked well. It was very inclusive. There was a lot of public input. The wireless code has been working, and it has made a marked difference.
Based on what we have heard and what has been said on the record, I have no reason to question that these regulations will not be put into place.
Senator Bovey: May I ask one quick follow up?
The Chair: Yes.
Senator Bovey: The third party —
Ms. Pavlovic: It is essential. The concerns expressed by the industry — you have heard as well — that it will enhance the cottage industry of third party interveners on behalf of consumers. My view is that if the system is put in place the way it’s supposed to be, where the rights are clear and consumers know their rights, there really wouldn’t be a need for intervening people to file on behalf of consumers.
It is essential to allow for some form of third-party intervention to question systemic practices, and there are different ways in the regulation to disincentivize an industry of complaint handlers yet allow third parties and public interest organizations to file complaints.
Senator Plett: Thank you, witnesses. In my previous life as a contractor, I would many times send staff up into northern Manitoba and northwestern Ontario communities, and they would bring their supplies with them or their toolbox with them and they would go into fix a heating system that had failed to work in the middle of winter. They needed to get up there and fix the heating system.
They would get on an airplane and they would get to the other end and their toolbox was left in Sioux Lookout or Winnipeg, and there they were with no way of doing anything. I can, in a small way, identify with the musician getting to the other end and his or her cello or instrument isn’t with them. What do they do at the other end? I can identify with that.
You’re saying you want consistency, and I appreciate that. But consistently leaving instruments behind, if all airlines do it, clearly that isn’t what you want either. We can have consistency. That’s not good.
Ms. Schuzman was talking about having these instruments in a seat. So I guess my question is: Would the musicians with happy to pay $600 to fly that instrument in a seat beside them? That’s one question. Another question is: We fly animals in baggage compartments, so air pressure and temperature are controlled. Is there not a way of securing that instrument properly in a baggage compartment as well? I can’t imagine that people want to pay $600 or $700 for an instrument to fly with them. Maybe they do.
Mr. Elliott: Let me answer a couple of different ways. Thanks for the question. We thanked Air Canada for their leadership because we started this process about three years ago with the previous government, and the Honourable Lisa Raitt, when she was Minister of Transport, her office had encouraged us to put a submission in to the David Emerson report, which we did, and that was the start of this process for us.
During the process, Air Canada changed their policy. Obviously, all instruments are different. We have to talk specifically, but we’ll use the example of a cello, which is a big instrument that is not going to fit in any overhead locker in any plane.
Senator Plett: Will it fit in a seat?
Mr. Elliott: Yes, it does. There is a policy in place. In fact, Air Canada changed their policy because cello players quite consistently buy two seats, one for themselves and one for their instrument. Now, we have had cases where the instrument got bumped.
Senator Plett: The instrument couldn’t put up a fight either.
Mr. Elliott: Neither does it eat nor drink. But Air Canada changed their policy and put a policy in place for the person to be able to buy a seat for their instrument at a reduced price.
Ms. Schutzman: Half price, I think.
Mr. Elliott: Half price if they pay at a certain fare level for their own seat, so there was a step forward there. So I guess to answer your question about whether musicians are prepared to pay, some do in that instance.
You had a second part to your question.
Senator Plett: Well, it had to do with the baggage compartment being a completely controlled area. But before you answer that question, the cello fits in there. I don’t know what you call the huge guitars, is it a bass guitar? That clearly, in the case, would have a real problem fitting in many of the airplanes that we fly with.
Mr. Elliott: Correct.
Ms. Schutzman: There are travel cases for basses that are very, very firm. There are travel cases for cellos but the cellos, being smaller, are more vulnerable to the changes and to being damaged. The wood is thinner. As for animals, I don’t know if you have read recent reports, but the animals do not always fare well when they are being transported.
Senator Plett: They sometimes get transferred to the wrong airline.
Ms. Schutzman: And to the wrong place, yes, and there have been deaths. But I have known of several cases of people who bought full-price tickets for their cellos and they were able to fly to someplace with the cello but not back, because all of a sudden the crew that day said no, we’re not going to allow this. That’s why we need consistency.
Senator MacDonald: I have questions for both groups. I think I’ll go to Ms. Pavlovic first. You mentioned that you’re agreeable with referring the question of a passenger bill of rights to the CTA for them to come up with some regulations and guidance. When it comes to the idea of extending wait times from 90 minutes to three hours, what is your position on that?
Ms. Pavlovic: As a law professor, I’m going to go back to law books. The 90-minute tarmac delay originated in the code of conduct for air carriers, which is a voluntary industry code and is not a piece of legislation. It only becomes effective if it is implemented within a tariff.
So I would like, with your permission, to read you the Air Canada tariff right now, which I printed this morning, which says:
Air Canada will not permit an aircraft to remain on the tarmac at a Canadian or US airport for more than four (4) hours. Prior to reaching four (4) hours, Air Canada will return the aircraft to the gate or another suitable disembarkation point . . .
Air Canada does not actually implement a 90-minute tarmac delay. WestJet does, but it’s conditional. It says:
If the delay exceeds 90 minutes and circumstances permit, WestJet will offer passengers the option of disembarking from the aircraft until it is time to depart.
It is the same thing with Air Transat. Actually, Air Transat has 90 minutes at the gate and four hours on the tarmac, and Sunwing has the same conditional language. The 90 minutes delay is in the voluntary industry code of conduct, which is not law. From that perspective, the rights are not being clawed back because they are, again, different across airlines.
We’re also operating in a data vacuum. We do not have sufficient information to know how many airlines do return to the gate after 90 minutes, how many disembark passengers and how many actually provide access to facilities and to food, et cetera. From that perspective, I think a clear set of guidelines, whether it’s 90 minutes or three hours or five hours, is an arbitrary number for working in a vacuum. But I think saying that we’re clawing back something is not necessarily true, because if you look at the tariffs it’s actually currently inconsistent.
I can’t put a number on it because we don’t have the data. But I’m confident once we put this into place, if it turns out that three hours is too much, there will be a process to challenge and change that in the future.
Senator MacDonald: I guess that somewhat answers my question. I would still like to know what you think is a reasonable time period or time frame. I know it’s arbitrary, but if I was stuck on the plane for 90 minutes or stuck on the plane for five hours, I think I know which one I would prefer.
Ms. Pavlovic: I can’t give you a number without having data about what is happening right now. I mean, from my perspective, we don’t have the data per airline and for each airport on how frequent these tarmac delays are.
Senator MacDonald: You must have an opinion on what is a reasonable amount of time.
Ms. Pavlovic: I do, but it will be an arbitrary opinion and I am not prepared to give you a number without actually knowing what is going on.
The Chair: You mean you can’t tell us when you would go nuts after, what, an hour and a half or two hours?
Ms. Pavlovic: Obviously, any delay is a problem, right? But 90 minutes is clearly better than three hours. But it really depends on what happens in those 90 minutes or what happens in those three hours.
Senator MacDonald: I have one more question.
The Chair: Go ahead.
Senator MacDonald: Yes, about the musical instruments, I guess what we’re really speaking about here in terms of the real challenge are large, mobile musical instruments. Obviously, you’re not going to drag your piano from coast-to-coast. A cello is a fairly large instrument. A harp is a fairly large instrument too, if it’s mobile, but probably too big to bring into a plane. But that certainly can be transported by a plane.
What are the limits here? What are the reasonable limits we should expect from an airplane to move these types of instruments?
Mr. Elliott: I think the airplane dictates that. I mean, I travel quite a bit, and I have gotten smart to look and see what kind of aircraft I’m going on to get a little bit more room.
We can educate our musicians as to part of that. I also think that’s something that probably is for the regulation process.
The big difference now is that we’re looking for harmonization with what happened in the U.S. If we get harmonization and if the plane is going from Saskatoon to Minneapolis, it’s fluid. I think the size of the aircraft dictates that.
The thing that’s efficient about the FAA Modernization and Reform Act in the States, where they’ve been through this process, is if it fits in the overhead bin, it can be brought on the plane. There is also a facility for things like cellos to purchase a second seat. We’re aware that security and safety is paramount for the airlines. Whatever it is, it must be secured properly and not endanger any other passengers. We’re certainly able to work with that. That’s very reasonable.
Senator Galvez: Thank you very much for being here with us. My question is to Professor Pavlovic. You said the air passenger bill of rights is essential. It’s very important. You also say that Bill C-49 does not establish this bill of rights and that you are ready to give the benefit of the doubt to the government. You further said that in proposed section 86.11(1) there is only a broad list of issues and you think that CTA is the group in the best place to lead this.
First, among the issues brought in section 86.11, which are essential? You’re saying they’re broad, so there are probably some priority issues and others that are not as important. After the bill is passed, how long will it be before we see this passenger bill of rights put in place? One year? Five years?
Ms. Pavlovic: I think as soon as possible. Based on my experience that I have observed through the wireless code, the providers need a certain period of time to implement the particular bill of rights. For the wireless code, the initial period was six months. From the moment the wireless code came into force, it was six months until the providers had sufficient time.
The regulator, in public consultation, determined what would be the appropriate time. Once the bill is passed, I think the regulations need to be passed as soon as possible. From that point on, it is up to the CTA, through the public consultation about the regulation, to determine the appropriate period of time to allow the industry to implement all of these changes.
The nature of the changes matters. For telecommunications, it requires changes in the system and billing systems. Here, it depends on whether it requires infrastructure changes or changes in policies and staff training, et cetera. That would be my answer to your question about how soon.
With respect to the list of issues, I’m of the view if you want to add issues, I would welcome them. However, I don’t think there are any issues on the list that should be clawed back.
Senator Galvez: So what would you have?
Ms. Pavlovic: You will hear from the panel after us. I think accessibility issues are very important. Transportation of accessibility devices, such as wheelchairs and walkers, et cetera, is very important.
There were issues with no-fly lists for kids which are being addressed through a different mechanism, but there are other issues that could possibly be added. From my perspective, accessibility issues are really important.
My answer to your question is nothing on the list is actually worth being on the chopping block. You might want to add issues but don’t take anything away.
The Chair: How long will the hearing process take, do you think?
Ms. Pavlovic: For the wireless code, the CRTC has very different procedural mechanisms. The hearing took about a week but there was a period before that of initial submissions. It usually takes the CRTC about six months to issue the decision.
The Chair: Are they public?
Ms. Pavlovic: They are all public. There was significant participation by individuals and groups, which I think is essential for this kind of regulation to pass. You’ve had the CEO of CTA on record to say they will pass it within three months.
Senator Manning: Thank you for your presentations this morning. I have a couple of questions on musical instruments. Coming from Newfoundland and Labrador, most musicians — unless they get the ferry or learn to walk on water — have to fly, so it’s a big issue. I’ve heard from many musicians over the years about damaged and lost instruments, not being able to carry their instruments on board, and so on.
I have a couple of concerns. I understand what you’re saying with regard to consistency, but sometimes regulations don’t come back to us, as a committee. Legislation is what we deal with. Is there any concern within your industry about the time limit for the regulations to be put in place? Sometimes in pieces of legislation we can have an amendment, as in this case — or whatever the case may be — stating that there’s a time limit that we ask the government to put the regulations in place. Has your organization given that any consideration?
Mr. Elliott: We haven’t. We’ve been working at this for three or four years and we know it took several years in the U.S. to go through. We’re trying to be patient. We want to work together, not cause conflict. With the regulations that went through in the U.S.,we know it’s a different country but the planes are the same size and the issues are very much consistent. We think a lot of that work has been done and can be used, hopefully. The documentation we shared with you today, we’ve shared already with the CRTC and they came back and said, “We really like this.” It’s going to take however long it takes. In Newfoundland, people tend to be fairly patient too. I don’t know that there’s a great answer, but obviously sooner is better than later.
Senator Manning: Have you been given any indication from the CTA on what date they think regulations will be in place?
Mr. Elliott: No, I haven’t.
Senator Manning: I know that if I’m travelling today and my luggage is lost or damaged, there’s reimbursement. You have to go through a system to get that. Just last year, I heard from a musician in Newfoundland who had a $2,000 piece of musical equipment that was damaged and he’s still fighting with the airline. The pictures show it was broken.
I know they can have insurance, but in this case he didn’t have it. Is there anything we need to do or even suggest how musicians can be reimbursed if a piece of equipment is in top-notch order when put on the plane but when you land it’s destroyed and you have to fight a battle that’s sometimes very difficult to win?
Mr. Elliott: That’s a good question. Again, we do encourage our musicians to carry insurance. We understand there are going to be limits. I doubt that any limits set will cover the value of a lot of musical instruments. I don’t think that’s particularly realistic. It would be wonderful, but I think we have to live with being realistic and whatever the compensation rules come down to be, we will have to live with. But again, we encourage musicians to carry personal injury insurance. Those are two different things.
Senator Mitchell: Thanks to all of you for your presentations. I’m very pleased to hear about the initiatives with respect to musical instruments. I ride a bicycle in various places in the world and it’s a finely tuned machine, too. I’m wondering if we should have regulations for that. I was struck by the analogy that Senator Plett drew with tools. I have this image of Senator Plett sitting one seat over with a box of wrenches strapped into the seat between us. I’m wondering if we can work that into the regulations.
The Chair: Driving a bicycle? There’s a big difference there.
Senator Mitchell: You sound like my wife.
The Chair: Smart lady.
Senator Mitchell: Absolutely. On the issue, Ms. Pavlovic, of consequences for wait times and the difference in wait times, just to clarify, you’re saying that in some cases, at least, three hours would be an improvement and in other cases where 90 minutes seems to be the goal, three hours will still be an improvement because the 90 minutes is by no means definitive. Just confirm that? I see that you are by nodding your head.
Ms. Pavlovic: Yes, I’m confirming that.
Senator Mitchell: There are two features of three hours. One is if we’re going from 90 minutes to three hours, the three hours is definitive and there will be consequences, whereas if you miss the 90 minutes, not so much, so a little leeway might not be inordinate.
It’s also true that it’s important to find a balance in this policy area because this can really affect flight cancellations and the ability to make connections and other flights that go empty, so costs go up because people got off and couldn’t get back in time to make that flight. Is that true?
Ms. Pavlovic: Yes, and I’m going to venture out and say no airline will keep people on the tarmac on purpose for the sake of keeping them on the tarmac. It’s usually because of weather or congestion at the airport or failure of the computer system that happened a couple weeks ago, et cetera.
You’re right. I think the balance is both in finding the appropriate time but also finding the appropriate enforcement mechanism so that we know that once it gets into minute 91 or gets into three hours and five minutes, there are both compensation for passengers and penalties for the airline. I think that’s the improvement in the system. We all hope there will be automatic compensation for passengers and there will be additional penalties for the airlines, which are supposed to be a deterrent to encourage them to help improve customer service.
Senator Mitchell: And people like you in the regulatory review process will be watching vigilantly to make sure that happens.
Ms. Pavlovic: I hope to participate and will bring whatever I know to the process. But we can only participate, and you know better than I do how the process works and how the regulation comes out at the end.
Senator Mitchell: With respect to third party complainants, first, I think it’s safe to say a great deal of the pressure for that will be reduced because there will be definitive regulation, consistent and formal because of the Charter of Rights and Freedoms. Is that not the case?
Ms. Pavlovic: In theory, yes. If the system is such that there is a specific bill of rights that is clear — I will just say that public awareness measures are robust so consumers actually know that they have rights — and the process is simple enough for them to file individually. There won’t be a need to help consumers do that, but there is still a need to challenge systemic practices that individual consumers may not have an interest or even ability to do.
Senator Mitchell: Of course, if I have a complaint, I can go to a third party group who can help me. That’s half the problem. If something that is not yet in tariff isn’t going to be in the bill of rights, third parties can still present. That has not been changed. Isn’t it a logical truth that if I don’t have a direct complaint of my own, then what I have is a policy problem? In the course of how governments work, there are hundreds of policy areas that are certainly not all served by the CTA, which is a regulatory body.
So if I am a third party, a consumer institution or organization, and I don’t have a specific concern because it wasn’t my item that was lost or damaged, then I have a policy problem. Do I not, in our democracy, have many ways of developing that policy initiative, through my MP, Senate committees, through the minister, through building public pressure? That’s how policy is developed. There aren’t CTAs for every public policy area.
Ms. Pavlovic: I’m going to be very careful how I respond to this. Consumer interests are very diverse and very dispersed. Consumers do not have lobbying groups and incredible funding to hire lobbyists. So while there are other processes, like this one, which is not very welcoming and takes persistence, individual consumers do not have that power. There is really no single group that represents all consumers in Canada for all consumer issues.
On policy matters, while they can be resolved in other places, access to the regulator through a third party standing is incredibly important because that’s the most immediate way to change those policies. If we can find a system that will provide more funding for consumer groups and public interest organizations, I would be very happy to discuss that off the record. But in this current climate, there really is no particular power by consumer groups to effect that kind of change through pressure that industry has.
Senator McIntyre: Thank you all for your presentations. My question is to Ms. Pavlovic.
Ms. Pavlovic, in the fall of last year you submitted a brief to the house committee regarding this matter in which you made eight recommendations, which I believe are all worthy of consideration. For example, in recommendations 6 to 10, you covered good points, such as the CTA acting as a dispute resolution provider, third party standing, collective redress, overlapping regimes and enforcement measures.
Now, Bill C-49 would require the CTA to establish new regulations regarding air passenger rights. However, some would argue that the bill does not set out sanctions for failure to comply with those regulations. As well, we don’t know what sanctions, if any, airlines would face for not complying with those future regulations. It boils down to sanctions, as far as I’m concerned, and I would like your thoughts on that.
Ms. Pavlovic: I would say it comes down to the question of enforcement and compliance monitoring. Those are the measures that the regulator is, in theory, best placed to judge, based on the public consultation. Again, these are the mechanisms that exist in other areas, so I will again refer you to the CRTC, which through various mechanisms also does compliance monitoring and enforcement.
I think if you want to look at adding some of those issues into the bill, you have to look at carefully drafting it because we don’t know what the regulation is going to look like and what kind of enforcement we’re looking at. In theory, all airline tickets could be through a block chain contract where it would be automatically enforced but we’re not there yet.
There are different measures that could be put in place and I think at this point, one step at a time. This might need to be an iterative process. If there are concerns about the CTA, the bill is not necessarily the right place to address them, from my perspective. There may be, but there are other places to address that.
Senator McIntyre: In a criminal trial, when a judge holds a trial with a jury, he is master of the law and the jury is master of the facts. But it seems to me that here the CTA wants to act as judge and jury. They want to do both.
Ms. Pavlovic: I would also caution not to compare criminal and civil matters because they are very different.
Senator McIntyre: I’m just making an example.
Ms. Pavlovic: But I think there may be concerns that the regulator is also the dispute resolution body, and in telecommunications, that’s not the case. There’s a completely private industry ombudsman, funded by the industry, with a stakeholder board on which I sit to make sure it’s independent from the industry. So the dispute resolution is at arm’s length. That is one option. But in other jurisdictions in different areas, not necessarily only in airlines, you have both models and both can work.
My concern with CTA is that the volume of complaints based on this bill is going to be huge and they will have to change internal dispute resolution policies to become more effective. But the volume is going to drown them if they continue with the process as it is.
The Chair: Once they decide what should be in the bill of rights, does that then require legislation?
Ms. Pavlovic: No. It will all be in the regulations, which makes it easier to amend. That’s a very important point: If it were all in legislation, the amendments would take a long time. In the European Union, they started their amendments to the directive in 2013, and they’re not there yet. It’s been five years.
Regulations are easier to amend. They’re much more agile and can respond better to the market changes.
The Chair: Senator McIntyre, sorry. Do you have any more to add?
Senator McIntyre: No.
The Chair: Okay, we’re done, unless there is someone on second round.
Senator Bovey: May I ask one on this second round?
Thank you for what you said. I’m going to come back to the EU for a moment, if I may. My colleagues have heard me talk about this before: the timing of reimbursement. I’ll be honest and say this is a personal case with a family member who is a cyclist. The plane was delayed, reimbursement was to come and he wasn’t worried about getting the reimbursement. The bike finally turned up and the baggage finally turned up, but the claim was fairly significant. He applied for the reimbursement.
Three months later, he got a cheque for a third of the money. He then reapplied. Three months later, he got a cheque for the second third. He then reapplied, and three months later, got a cheque for the last third. He happened to be savvy enough to do this and just kept pushing.
My concern is about the traveller who doesn’t know to do it and who may not be as savvy and aware to know they had to apply for the second and third rounds.
I’d like you to talk about that time frame and that process, particularly if we get to if point where there’s no third party.
Ms. Pavlovic: I will just say that while we look at the European model as an excellent model, in any consumer-related issue, there are always issues of consumers being aware they have rights and actually pursuing redress. So a couple of years ago, the European Consumer Organization polled consumers and found only 30 per cent of consumers know what rights they have when they fly, and of those 30, only 35 per cent actually filed.
Enforcement of consumer rights is always a problem. It really boils down to my immediate area of research — and thank you for asking that question — to actually making informed consumers. A lot of work will have to go into ensuring consumers know what their rights are, because if you don’t know what rights you have, you don’t even know they’ve been infringed in the first place. It’s then about ensuring the dispute resolution process is accessible and easy for people to file. Then people can make choices whether it’s worth their while to do that or not.
From my perspective, if I get to participate in the regulatory process, my biggest contribution will be about how we make informed consumers. I’ve done a lot of research on that in the telecom area, which is all transferable to this area as well. It will boil down to having information available constantly. In the age of technology, it will be around having an app where you can file a complaint as you’re getting off the plane. That would make it much easier.
We need to get there first before we can even look into the enforcement.
The Chair: Thank you, witnesses. If there are no further questions, I’m going to say goodbye to the witnesses.
We will now continue our study of Bill C-49. I would like to welcome Diane Bergeron, Vice President, Engagement and International Affairs, Canadian National Institute for the Blind, who is joined by Thomas Simpson, head of public affairs.
We also have Bob Brown, Transportation Committee Co-Chair, Council of Canadians with Disabilities; and Terrance Green, Transportation Committee Co-Chair, Council of Canadians with Disabilities. And from Air Passenger Rights, we have Dr. Gábor Lukács, Founder and Coordinator.
Thank you for coming to the meeting today. I invite Ms. Bergeron to start her four-minute presentation.
Diane Bergeron, Vice President, Engagement and International Affairs, Canadian National Institute for the Blind: Thank you very much. I appreciate the opportunity to come and speak to you all today. I am the vice-president of engagement and international affairs for CNIB and as the chairman stated, Thomas Simpson, Head of Public Affairs, is here with me today.
CNIB was founded in 1918 to provide services to blinded war vets and also people who were blinded in the Halifax Explosion. For the last 100 years, we have been providing services to help individuals who are blind and partially sighted to be able to navigate their environments and be safe in their own homes through rehabilitation services and through some of our community and peer support programs. Tomorrow night, we are having a big celebration at the War Museum. I hope you will all join us to celebrate our one hundredth birthday.
In 2012, there was an estimated 750,000 people who indicated they were living with sight limitations. That is a lot of people with sight loss who travel in this country. In fact, I travel several times a year internationally and many times, even in a month, domestically. As a person with sight loss, I face many barriers, and so do many of the people who have varying disabilities.
Many of the people who I know who travel with sight loss face barriers around access to extra space for a guide dog or a service dog on a flight. Trying to fit a dog that is 70 pounds underneath the seat in front of you and still having space for your feet is unsafe and, in my opinion, inhumane.
Another barrier we face when travelling by air is that the call button for the flight attendants is often on the touch screen, completely inaccessible to somebody who can’t see that screen. I recently went to Japan and the call button was on the screen. Luckily I had my family members with me but several times a year I travel independently with no one else to help me to access such buttons or even being able to access the screen itself.
This creates so many barriers and there are so many other things that we face on a regular basis when we travel by air and I would be happy to answer any questions about those barriers when you have the time to ask questions.
In the meantime, I would like to ask Thomas to talk to you a little bit about our brief.
Thomas Simpson, Head, Public Affairs, Canadian National Instutute for the Blind: Thank you, Diane. Thank you for highlighting some of the issues Canadians with sight loss face when travelling. CNIB supports the creation of the passenger bill of rights within Bill C-49. However, we recommend that amendments be made to the legislation to include a disability lens. While the legislation aims to provide rights to Canadians when travelling by air, it misses the mark to make strengthened regulations that should be in force for persons with sight loss and for persons with disabilities.
Quickly, CNIB proposes that Bill C-49 be altered to ensure that terms and conditions of airline carriers, as well as recourse made available against an airline carrier, be made in an alternate format. This would include Braille or an accessible electronic or online format.
Additionally, CNIB proposes the addition of subsections to include and provide accommodations for persons with sight loss, specifically with sight loss and disabilities and, for those who use a guide dog, access to information and increased standards for online reservation systems. The recommendations can be found in the briefs provided to you in English and French.
CNIB thanks for your time and we look forward to your questions.
Gábor Lukács, Founder and Coordinator, Air Passenger Rights: Mr. Chair, honourable senators, thank you for the privilege to appear here today.
I am the founder and coordinator of Air Passenger Rights, an independent and non-profit network of volunteers devoted to empowering travellers through education, advocacy, investigation and litigation.
We bring a unique perspective to the committee because we accept no government or business funding and we have no business interest in Bill C-49.
We represent the consumer perspective, the passengers whom we help daily in their struggle to enforce their rights.
Although the government portrayed Bill C-49 as improving passenger rights, this is clearly not the case. The bill seeks to remove or reduce rights that passengers already have.
Imagine this committee being held captive in a metal tube with wings for three hours with scores of other people, with limited or no food or water, possibly clogged toilets, limited fresh air or heat and absolutely no say in the matter.
You would never impose that even on your worst enemies, would you?
Yet that is what the bill seeks to inflict upon Canadians. The bill seeks to double the length of time passengers may be confined to an aircraft without water or food from the current 90 minutes to three hours. This is not only unreasonable but also inhumane.
The current 90-minute rule is binding. An airline that breaks the rule can be fined, as we have seen it happen last year. For nearly 10 years, passengers and airlines were both content with the current 90-minute rule. Please keep the current 90-minute rule and amend the proposed paragraph 86.11(1)(f) to reflect 90 minutes.
The bill also creates a new category of flight disruptions that are within the airline’s control, but nevertheless no compensation is owed to passengers. This category is to include mechanical malfunctions. This is a step backwards. Currently, under the Carriage by Air Act, which incorporates the Montreal Convention, an airline is liable to approximately CAD$8,800 per passenger for delay in transportation. That’s a uniform limit for all airlines.
Canadian courts confirmed that maintenance issues do not relieve the airline from liability for delay, and European courts reached the same conclusion. In Europe, airlines are required to pay specific compensation for flight disruptions due to maintenance issues, and yet they have a healthy, competitive market and profitable airlines.
Please, give Canadians the same protection as European passengers. It has been tested, and it works.
Successful public interest complaints bridge the chasm between existing consumer protection laws and the airlines’ policies and practices that often blatantly disregard and misrepresent the law to the public.
The Supreme Court of Canada recently confirmed that the law permits such complaints brought in the public interest. This judgment was handed down after the bill’s third reading in the House of Commons and second reading in the Senate.
Bill C-49 would reverse the Supreme Court of Canada’s ruling by legislation. It would close the door to public interest advocacy and nail it shut by restricting the right to complain to those who are adversely affected.
The proposed restriction, introduced at the request of the airlines, targets air passenger advocacy groups and the efforts of the Council of Canadians with Disabilities.
Please protect public interest advocacy and delete these measures aimed at silencing us from the bill.
In closing, the bill, as currently written, would be an attack on, and greatly erode, the existing hard-fought-for traveller rights. Please be a “sober second thought,” and do not let this happen to Canadians.
Please listen to the 100,000 e-mails of Canadians that were sent to you, all asking for the same thing — fairness. Please amend Bill C-49.
Terrance Green, Transportation Committee Co-Chair, Council of Canadians with Disabilities: On behalf of the Council of Canadians with Disabilities, I first want to thank the committee for giving us the opportunity to speak on behalf of Canadians with disabilities.
The Council of Canadians with Disabilities has been around for more than 40 years. It came together because of transportation issues in Canada and still today is pushing the fact that transportation for Canadians with disabilities is not accessible.
Canadians with disabilities are members of the public, and Canadians with disabilities do believe that we have the same rights as every other citizen in Canada to transportation. Transportation should be accessible so that any Canadian can enjoy all of Canada and the transportation systems to get them there.
We do have some problems with the bill. We do agree with Dr. Lukács and CNIB on many of the things that they have put before you today, specifically the three-hour wait. That is doubling the time airlines can stay on the tarmac, and it can cause severe problems for persons with disabilities.
We did outline, in our submission to you, some of the issues that can occur when people with disabilities are stuck in a seat for three hours and have no opportunity of getting to the washroom, et cetera.
We also believe that the right of organizations like the Council of Canadians with Disabilities to bring issues before the CTA in light of public interest is a valuable aspect to keep in the bill, and Bill C-49 takes that away. It is our position that this committee cannot allow the bill to do that.
CCD has brought court challenges respecting transportation issues after going through the CTA process, and transportation is changing in a positive way as a result of the interaction of CCD.
CCD is also putting forward the position that this bill should give enhanced powers or authority to CTA. Right now, the complaint process deals with one complaint, one airline usually, and it is not systemic. The complaint does not deal with the issue from a systemic basis. The CTA may be able to fix the problem with one airline, but all of the other airlines are still allowed to practise discriminatory practices. That has to stop. It has been 40 years that Canadians with disabilities have put up with that. This committee has the opportunity now to make the difference and change it.
Last is the fact the Supreme Court has made the decision that issues dealing with transportation go to the CTA. This removes the right of Canadians with disabilities who have a transportation issue to take them to the Canadian Human Rights Commission, as an example. Therefore, many of the remedies available through the Canadian Human Rights Commission are not available in the Canadian Transportation Agency, and this committee has the opportunity to correct that so all remedies that are available to any other member of the public can be available to persons with transportation issues as well.
I am going to give Bob Brown the opportunity to add anything. I think we still have about a minute and a half left. Bob?
Bob Brown, Transportation Committee Co-Chair, Council of Canadians with Disabilities: I think Terry covered most of the areas we did want to talk about, especially the rights or the power of the agency to award costs and damages which is not available at the moment. The Human Rights Commission does have that authority. The previous speaker, in the previous group, talked about mobility aids being able to travel. This is more talking specifics on the regulations, but it should be known. It says a suitable replacement if a mobility aid is lost or damaged. That doesn’t exist. It’s kind of like, if your suit doesn’t show up, here is another suit. It may or may not fit. These are very custom-made and built seating and orthotics for individuals.
There is a case going on I shouldn’t speak to, but, anyway, there is an issue about a person developing pressure sores and things like that and ending up in hospital. What about those kind of damages? Under the present regime, there is no recourse for, as Terry mentioned, damages other than just replacing the chair.
Under the Montreal Convention, there is some argument about whether it’s baggage. We would like to contend that a mobility aid is an extension of the person. It’s not baggage. It is like your legs; it’s an integral part of the person. That needs to be remembered.
I think our time is just about up.
Mr. Green: Bob started to identify some examples. I’m going to add to that a bit. You notice that I have a guide dog with me. I do travel frequently. I am slightly retired now, but, when I travel, I have to take everything for my guide dog with me. His food, any medicines that he is receiving, everything. That more than doubles the weight in my baggage. That puts me in the category where I have to pay often unusually high rates just to have my bag carried on the aircraft.
In January, there was a person who travelled from Ottawa to Florida for a vacation. Their son actually bought a week’s vacation for her and her husband, and she is in a wheelchair. She flies to Florida. When she gets there, her wheelchair is not there. Out of the seven days that she was to be in Florida, she spent four of them in the hotel room not able to go anywhere until the hotel was able to find a wheelchair she was able to get around in.
The airlines took no responsibility whatsoever, but, when she arrived back in Ottawa, she found her wheelchair — luckily — in the group of wheelchairs the airlines had for passengers coming in and requiring a wheelchair.
Just last Tuesday, in fact, I was travelling back from Vancouver. I got to the ticket counter. My wife was with me. The ticket agent dealt with my wife. Then she says, “And does he have a passport?” There is a matter of each passenger being entitled to dignity. If she asked me, I would have given her my passport, but it’s an assault to dignity not to recognize a person. This, I thought, was dealt with years ago with the airline industry and sensitivity training, which I was involved in giving the airline industry, but it’s still out there. These things have to change.
You have the opportunity to change it. Those are our comments from the Council of Canadians with Disabilities.
Senator McIntyre: Thank you all for your presentations. My question is directed to Mr. Lukács. As I understand your presentation, and in reading the material that was given to us, it seems your position is not to punish airlines for their normal business. That is not your goal. The goal is to punish airlines that fail to abide by the rules, and when rules are broken and passengers are victimized, and are not receiving compensation or proper compensation, legal action in the civil courts is the only recourse.
In the civil courts, a lawyer has to prove two things: liability and damages. On the issue of damages, he’ll be seeking special damages, general damages and costs, which can be huge.
On the issue of costs, would you go so far as recommending solicitor-client costs?
Mr. Lukács: First, I agree with the statement that airlines should not be punished for things beyond their control. If a flight is cancelled or delayed due to a snowstorm, we would never advocate for an airline to face a consequence. The problems we are talking about are those airlines who blatantly mislead the public about the public’s rights and where they don’t obey by the law which already exist in law books.
Access to justice is a serious issue. A mandatory solicitor-client cost against airlines that have failed to follow the rules and, as a result, the passengers have no choice but to take the airline to court, would be a very good step forward and strong consumer protection measure.
Senator McIntyre: Would you propose mandatory compensation and fines for violation of passengers’ rights?
Mr. Lukács: Yes, that would also be a step forward. Currently, under section 180 of the Canada Transportation Act, the Canadian Transportation Agency’s enforcement officer may issue a notice of violation unless, as you see in the statistics, they have not been using that power. In fact, until November 2017, we are not aware of even a single case where the agency issued a notice of violation for an airline breaking the rules with respect to passenger rights.
Senator McIntyre: From what I can see, the main problem is lack of enforcement.
Mr. Lukács: That is correct.
Senator McIntyre: Bill C-49 does not address the key issue of lack of enforcement of the rights of passengers.
Mr. Lukács: That’s one of the key issues, absolutely. I agree with that statement. Actually, Bill C-49 entrusts the fox with guarding the hen house. The Canadian Transportation Agency is known for its close relationship with the airlines. Documents revealed through court proceedings show that even during the Air Transat inquiry, the Canadian Transportation Agency tipped off Air Transat about the inquiry and the upcoming fine confidentially before the public knew about it. After that, on the same day that they issued the fine, they also waived the fine.
Senator McIntyre: There is a problem with regulations.
Mr. Lukács: There is. We have here a regulatory capture problem. We have a Canadian body which is supposed to be acting in the public interest which has been criticized by the courts and by civil liberties organizations and which does not act in the public interest but acts in the private interest of airlines.
The Chair: Should there be a separate section under the rights given to passengers for people with disabilities?
Mr. Lukács: Absolutely. We strongly support the rights of passengers with disabilities. We wholeheartedly agree with what we have heard here in relation to that. In my submissions to the House of Commons committee, my comments were that the bill as it stands leaves passengers with disabilities, figuratively speaking, on the side of the tarmac.
The Chair: Yes. I know Ms. Bergeron had a meeting with me. She had given me some of the information about how difficult it is with a seeing eye dog and some of the problems. These are all very unique and interesting issues that should be addressed. It seems to me in a civilized society, they would be rather important. You would recommend a separate section under the same sort of bill of rights, or whatever we call it, for passengers?
Mr. Lukács: I would first recommend the actual rights be set out in the primary legislation. It should not be delegated to the Canadian Transportation Agency. However, within the proposed framework we have already, I would consider an amendment to further protect the rights of passengers with disabilities, which include seeing eye dogs, large passengers and the one person, one fare rule and a number of other issues important to passengers with disabilities. This would be the bare minimum, as a civilized society, we should do in the 21st century.
The Chair: You would disagree then with Ms. Pavlovic who said it’s proper that the CTC, the Canadian Transportation Commission, would actually do the regulations and that it would be problematic if it was in legislation because it would be difficult to change? I thought that was a pretty good argument but maybe you can help me out of it.
Mr. Lukács: Sure. Ms. Pavlovic’s experience and the research is primarily based on telecommunications. The CRTC has done a great job. The Canadian Transportation Agency used to do a reasonably good job until approximately 2013, when a former airline lobbyist was appointed to be a vice-chair. The Canadian Transportation Agency of 2018, I wouldn’t trust with a cup of water. They are not acting in the public interest. With respect to this bill, we have evidence, namely, court affidavits, that show they have already consulted about what should be in the regulations, although the bill has never passed and there has not been public consultation. They did the consultation just with the airlines.
In a perfect world — that is, if we had an impartial regulator — it could be a regulation. But when we look at the European experience, they do have it in primary legislation. That’s one of the reasons it works. It makes sure it cannot be quickly changed at the whim of a different regulator, but takes a lengthier process and creates stability. In Europe, they created a strong and functional system which helps not only airlines, in the sense of enforcing uniform standard, but also passengers, because they get to their destination fast.
Senator Bovey: I’m going to carry on in this line of discussion. You have asked some of my questions, but I want to come back to legislation versus regulation. I think I’m sitting on the fence. What I have heard today is very compelling. I agree there are issues that need to be dealt with.
How will adding too much detail in the bill hamper this, three or five years down the road, when it’s determined that the detail perhaps was wrong? I hear what you’re saying about the CTA and it having gone off the path. Should we be burying or putting a lot of detail in the bill because the current composition of a regulatory body isn’t appropriate, or should we be looking at ensuring the regulatory body collectively is up to the job that has to be done? How would that change what you feel the amendment should be?
Mr. Lukács: I certainly understand your concern. There could be a compromise where more details are put in the bill, for example, some basic definitions, some basic amounts the regulator can then modify upwards.
The concern I have is the lack of accountability with the Canadian Transportation Agency. It allows elected officials to say it wasn’t us, no. It was the arms-length body. So even if the regulations were made by the minister and not by the Canadian Transportation Agency, it would be a step forward, because that way we do know there is a person who is accountable, namely, an elected official, an elected representative who, if Canadians disagree with the regulations, can be voted out of office. With the Canadian Transportation Agency, we cannot vote them out of the office.
Senator Bovey: This is a big bill, right? Many people have referred to it as a transportation omnibus bill. We have heard from farmers. We have heard from grain producers. I happen to be from the West, so we have heard about the urgency to get this bill through. I’m not questioning what amendments you want in the bill. I’m trying to be practical in terms of time.
If this bill is going to meet the needs of the grain farmers when they are planting their crops in the next, we hope, month or two — and there are a lot of amendments — what’s more important to you?
Is it the timing of getting the bill through or taking the time to get everything in it? Or is there a compromise of the recommendations that you’ve collectively put forward? What’s the one priority?
Mr. Lukács: I would say the fact that this is an omnibus bill is a problem. I’m personally also concerned about farmers’ interests, who by the way also expressed concern about the Canada Transportation Act’s lack of impartiality. We share many of those concerns.
With respect to farmers, they need emergency measures. They need help today but that doesn’t mean we should sacrifice the rights of passengers and rush this. In my respectful opinion, we should get it right the first time. If that means we take another six months or a year, it would be preferable. Even if those sections were excised from this bill as it currently stands, studied by this committee and this committee was doing more consultations with the Canadian public, which has not happened so far, it would be preferable than just rushing it through.
If there is a desire to rush it through, I provided 10 amendments that are simple, straightforward and can be done without upsetting the whole bill. That would be the second preference.
Senator Bovey: Thank you.
Senator Galvez: Thank you very much. I think you were right in that maybe we don’t consult the public enough and we have only our experiences. What I heard today worries me a lot.
I’m a professor, a scientist, so I’m considered a geek and an introvert. I have travelled around the world. I never got any miles or points. I’ve never used any of this. But I realize when I lose a plane not because of me but because of the airline, I have a plan B and a plan C because I’m insured in so many ways that I can always find my way and I won’t pay; my insurance will pay.
But I worry that the common person doesn’t have plan B, plan C or plan D and the common person doesn’t know how to argue or to get their way around and they need a representative. In this case, your associations and groups. I worry this bill is cutting you off. It really worries me because there are so many occasions in which people with disabilities, young people who travel, older people have problems and people with lower education who don’t know their rights.
As Senator Bovey was saying, there’s a long list of amendments and we have Minister Garneau very worried, and he’s ahead of you by saying to these amendments, “I have these answers.” So in your case, they are saying there are not enough cases to justify your presence or your input. Can you please give us a sense of the number of cases you deal with and the type of cases and how you are useful?
Mr. Lukács: Thank you for the question. We have a Facebook group of over 7,000 members where we help passengers daily with just getting around with the airlines, how to file a claim, how to focus their claim. What this bill targets, indeed public interest advocacy to silence us, with respect to us taking systemic complaints to the Canada Transportation Agency. I would like to give you a simple example which demonstrates why just having a law in place is not enough.
My first complaint, how it all started, was that in 2008 Air Canada had those big signs next to its lost baggage counters saying they’re not responsible for damage to the handles, wheels, almost nothing that they would be responsible for under the law. This was illegal. This was against the law. It was against the Carriage by Air Act, which incorporates the Montreal Convention. The law was present and the airlines were deliberately, knowingly disregarding it, even though the Montreal Convention was right in their own tariff.
I brought a complaint and ordered the airlines to change their practices and remove those misleading signs. So having just the laws in place is not enough. It will not actually result in compliance. It will not result in the airlines following the law and actually carrying out the spirit of the law in its day-to-day operations. We still see situations, even after many years, where an airline would put something into its tariff but not implement it in practice. Just think of the Air Transat tarmac delay case and the 90-minute rule that they have to let passengers off after 90 minutes. It was in their tariff. That’s the reason Air Transat was eventually fined.
As we heard from the inquiry, the crew weren’t trained about that; they didn’t know they had this obligation. This is what characterizes the whole industry. The obligations exist on paper and very much reminds one of anti-democratic societies where, of course, you have rights on paper, but in practice you cannot exercise them.
It comes back to what Senator Bovey mentioned with the relative and the bicycle where airlines will give you some money in hopes that you will go away.
The Chair: Is that because of training?
Mr. Lukács: It is because the airlines realize they can save money this way.
The Chair: I was talking to some former stewardesses and stewards and they said the amount of training they receive now is not anywhere near what they used to receive. It used to take two years of training to become a stewardess or a steward on an airline, where now basically there’s barely any training at all. Is that true?
Mr. Lukács: It relates to safety questions that I’m not comfortable commenting on today. With respect to the issues I’m talking about, we are talking about the customer service centre or the baggage service centre of the airlines —
The Chair: Obviously they were untrained because they weren’t aware of it.
Mr. Lukács: It’s not because they were untrained. They do have a training manual, which outright gives false information. When you call Air Canada —
The Chair: So they were trained improperly?
Mr. Lukács: They are trained to mislead passengers. The airline itself has manuals that contain false information. Just call up Air Canada’s baggage centre and ask them what your rights are if your bags are delayed. They will tell you that they’ll pay you $100 or $150, depending on what kind of air miles you have. The reality is that they owe you way more than that under the Montreal Convention or under the tariff, at least 10 times as much.
But they will tell you false information hoping you will be scared to incur expenses and therefore when you figure out what your rights are, you won’t have receipts for many expenses to claim. There’s a whole industry around misleading passengers to not exercise their rights, and that is happening under the nose and eyes of the Canada Transportation Agency, which is ignoring those issues, even though it has all the tools, the budget and the legal tools to actually go in and investigate airlines. It could subpoena documents and appoint an investigation officer. They don’t do it.
I’ve been providing the Canada Transportation Agency, formally and also informally, evidence of what is happening for the past year. No investigation has been launched, to my knowledge.
The Chair: Are you finished, Senator Galvez?
Senator Galvez: You were answering about the number of cases, the statistics of this.
Mr. Lukács: In terms of the number of cases I have taken to the Canada Transportation Agency as a public interest complaint, you will see in the appendix to my submission that we have secured a total of 26 successful regulatory complaints since 2008. So the numbers are not many, but each of them target important issues, such as denied boarding compensation.
Air Canada, until I filed a complaint, used to provide only $100 in cash when you were bumped from a flight. The Canada Transportation Agency ordered Air Canada to provide up to $800 in cash depending on the length of the delay. That was a complaint that I launched, and maintaining the ability to question airlines, even on matters already addressed by the regulation, to ensure what is in the regulation matches what happens in practice, is vital. Otherwise, we’re just going to have more papers without rights.
The Chair: How much compensation is there if you’re sitting on a plane for four hours?
Mr. Lukács: Currently, for sitting on a plane for four hours, there is no fixed amount of compensation. Under the Montreal Convention, if you are travelling as part of an international itinerary, the airline is liable up to $8,800 per passenger for delay.
That’s a liability limit, but you don’t have to prove liability; you have to prove damages only. Under the Montreal Convention, liability is presumed. That is already part of the Carriage by Air Act.
Yet, when passengers complain to the CTA, they are being sent away and told they have no rights. Just last week, I received an email from a passenger telling me that he was supposed to be on an international flight. The flight was delayed, and he missed about a day of his trip. The Canada Transportation Agency, when he went to them, forgot to mention there is such a thing as the Montreal Convention. They just looked at the other rules that airlines have. The Montreal Convention, which is also part of the rules — explicitly in the airlines tariff — was never mentioned. The passenger was told he was owed just small expenses.
Senator Mitchell: I’d like to pursue that further. Many of the concerns you’ve indicated anecdotally, which are of consequence and good for you for fixing them, are actually being addressed by the solution that’s implicit in what you’re talking about. They weren’t specified. They weren’t widely known. They weren’t raised to the level of rights. Now they will be. I expect — I don’t know, but I expect — there will be a great deal more awareness consciously — education and so on. But by virtue of their existence, they will have greater presence, so they will solve a good deal of the problem.
You might say the issue is that they should be in the legislation, not the regulations. We’ve had a number of witnesses who say it’s fine to have them in the regulations.
My question revolves around something else. You say the bill seeks to double the length of time that passengers may be confined to an aircraft without water or food from the current 90 minutes to three hours, and that’s unacceptable. I read that’s all perfectly addressed — to be handled — by regulation under the parameters of this bill. For example, the thing you mentioned, proposed paragraph 86.11(1)(f), says:
(f) respecting the carrier’s obligations in the case of tarmac delays over three hours, including the obligation to provide timely information and assistance to passengers, as well as the minimum standards of treatment of passengers that the carrier is required to meet; and
That question has not been settled. It’s quite the contrary: It’s required that those standards be settled.
Earlier, in another feature of this, it more generally establishes how it requires that regulations need to be established as to the treatment of passengers for any delay.
You’re concluding in your presentation that all of that’s over, and people will not be treated adequately. We don’t know. Those regulations have yet to be specified, and they’re provided for in this piece of legislation.
Mr. Lukács: I think there’s some misunderstanding about proposed paragraph (f).
Senator Mitchell: I agree.
Mr. Lukács: Currently, after 90 minutes, the airline has to offer passengers the option of disembarking, food and water. Passing this bill will mean that the point in time after which the obligations kick in is pushed to three hours instead of 90 minutes. Currently, for 90 minutes, the airline doesn’t have to do anything. After 90 minutes, they have to do something.
You’re saying if that limit is pushed to three hours, there will be another hour and a half during which the airline has no obligations. As the bill currently reads, it imposes less obligations than the current Canadian standard. This is what we’re concerned about. Right now, if the bill is passed in its current form, the airlines will not have any obligation to provide food or water, or allow passengers to disembark after three hours.
Senator Mitchell: I’m saying we don’t know that. It says right here —
Mr. Lukács: No, we do —
Senator Mitchell: I’m speaking here, Mr. Lukács.
The Chair: He’s the witness, Senator Mitchell.
Senator Mitchell: I want to make this clear; I don’t know if I’m making it clear enough. It says right here that regulations need to be established under this piece of legislation to govern the treatment that airlines are obliged to offer passengers during delays.
Mr. Lukács: No.
Senator Mitchell: It doesn’t say anything about less than 90 minutes. It may say up to three hours — it does — but they still have obligations all the way up to three hours.
If I might add, it isn’t clear that 90 minutes is everywhere in the industry in any event.
Mr. Lukács: Senator, first, the bill says it will deal with tarmac delays over three hours. In the English version, it uses the word “over.” This means the regulations will not address anything that happens for tarmac delays less than three hours. This is the common, ordinary reading of the text.
In terms of what’s happening in the industry —
Senator Mitchell: No.
Mr. Lukács: This says “tarmac delays over three hours.”
Senator Mitchell: And then you go on and say “as well as minimum standards of treatment.”
Mr. Lukács: Which refers to minimum standards of treatment for tarmac delays when they exceed three hours.
Senator Mitchell: I would argue that it doesn’t.
Mr. Lukács: If you think it already includes 90 minutes, then let’s put it in the bill. Instead of having something ambiguous — If you are right, then let’s put that wording to make the language clearer.
As to the other points with respect to the delays, you may be overlooking that we already have a Carriage by Air Act that incorporates those rights in very clear language. It’s just that the current government does not wish to talk about why it isn’t being enforced. The Montreal Convention is Schedule VI of the Carriage by Air Act, which applies by subsection 2(2.1) of the Carriage by Air Act. Why we are not hearing about it, I don’t know.
There are the Air Transportation Regulations. Paragraph 107(1)(n) deals with what has to be in the tariff, including what happens in the case of schedule irregularities and failure to perform on schedule. It is also in subsection 122(c) for international carriage. All of those things are already in the regulations.
What I’m questioning here is that this whole bill ignores the existing body of law that has been on the law books. By creating this whole new category of mechanical delays or maintenance problems for the airlines creates a situation where passengers who were in the past able to claim compensation now will not be able to.
The Chair: Why would they put that in in the first place? If they’re asking the CDC to develop a set of regulations or a bill of rights, why would they have put that three hours in?
Mr. Lukács: I would like to know that too. I am very concerned about it. It makes no sense to me, and I have not heard any evidence why the current 90 minutes should not be the standard in the bill. I think putting the 90 minutes in the bill would be a good idea, because currently this 90 minutes is derived through section 67.2 of the Canada Transportation Act and subsection 110(4) of the Air Transportation Regulations. Many regulations together lead to this.
The Chair: I’m sure we’ll ask the minister on Tuesday.
Mr. Lukács: I will surely be listening attentively.
Senator MacDonald: All of the witnesses today come under the umbrella of passenger rights, so I think I will direct my question to Dr. Lukács.
Just for the record, your doctorate is in what discipline?
Mr. Lukács: Mathematics.
Senator MacDonald: I find it interesting how the government can defer to other jurisdictions, such as the EU, when it comes to certain initiatives, but it ignores the EU completely when it’s in regards to the design of the air passenger bill of rights.
Last week, Air Canada announced changes of the tariff to a four-hour delay. The previous witness took no issue with this, saying the CTA would take care of it. What is your opinion of this change announced by Air Canada?
Mr. Lukács: Air Canada recently changed its tariffs from the Canadian standard of 90 minutes to four hours of tarmac delay, which is simply unlawful, in my opinion. We will be taking issue with that shortly, because under some sections of the Air Transportation Regulations and Canada Transportation Act, this is something that falls within the CTA’s jurisdiction to review for reasonableness. Given that the Canadian standard has been 90 minutes for the past 10 years, and that’s what all airlines, passengers and the community has agreed to, a significant departure from that kind of well-established standard would render Air Canada unreasonable. We do intend to take legal action on that.
Senator MacDonald: When we hear all the discussion about these delay times, and we’re showing that the government is going to accept a delay from 90 minutes to three hours as a starting point, why would Air Canada come out and say they want four hours?
Mr. Lukács: It appears the timing is quite interesting. Certainly, it creates the impression that Air Canada is trying to angle to the three hours and is therefore putting out something more egregious so it will provide some argument for the government to allow this bill to pass in its present form. It strikes me as some of the problematic issues that I see of industry and government perhaps being too close to each other.
Senator MacDonald: Thank you.
The Chair: If there are no further questions, thank you, witnesses.
I’ve been particularly impressed and moved by some of your comments, especially on the disability side. You’ve made some very good points here that we should consider.
Did you have a point to make, Mr. Brown?
Mr. Brown: If I may. I know our time is up. I want to ask the panel to remember this is about people. The demographics in Canada are changing. There are more people over 65 years of age — the baby boomers — than under 15 years of age. We’re not looking at the demographics we were looking at 40 or 50 years ago. It’s changing very much. I believe that’s why it is so important to get it right the first time.
I sympathize with the grain farmers. That is an issue, but it’s a little late to split the bill. It is about people, and we are changing as Canadians. That’s why I just wanted to impress upon you to remember that, if possible.
The Chair: Thank you, Mr. Brown. Thank you, witnesses.
We’re going to go in camera for just a few minutes.
(The committee continued in camera.)