Background
Canada's Air Passenger Protection Regulations (the "Regulations")1 came into force in December 2019 and were created to provide a comprehensive air passenger protection regime relating to, amongst other things, flight cancellations, compensation, and clear communications. According to Transport Canada, the objective of the Regulations was "to create a more predictable and balanced approach to ensure that passengers know their rights; air carriers understand their obligations; operators do not face an undue burden or lose competitiveness that could negatively affect ticket prices for consumers; and proper complaint resolution and enforcement mechanisms are provided"2.
The effectiveness of the Regulations was tested during the surge in passenger demand following the COVID-19 pandemic. Unfortunately, owing in part to a lack of clarity in the Regulations and their application, the Canadian Transportation Agency (the "CTA") – the body responsible for the administration and enforcement of the Regulations – was left with a massive backlog of passenger complaints which are yet to be resolved.
In June 2023, the Budget Implementation Act, 2023, No. 1 came into force and amended the Canada Transportation Act (the "Act") to clarify, simplify and strengthen passengers' rights3. In accordance with the Act, proposed amendments to the Regulations (the "Proposed Regulations") were developed and published by the Federal government for stakeholder input on December 21, 20244. It is expected that the final amended regulations (the "Amended Regulations") will receive final approval and come into force in 2025 or 2026.
This bulletin examines how the Proposed Regulations may evolve between now and finalization owing to industry stakeholder feedback. It sets out the implications of the Proposed Regulations in three important areas: 1) airlines' liability to passengers for monetary compensation; 2) the requirement for airlines to provide passengers assistance; and 3) the requirement for airlines to communicate with passengers.
Proposed Regulations: Compensation for Inconvenience
Under the current Regulations, there are three categories of flight disruption. The current Regulations require compensation for inconvenience to be paid in accordance with the terms of the Regulations only in the case of category (3):
- Outside the airline's control
- Within the airline's control, but required for safety purposes
- Within the airline's control, but not required for safety purposes
As such, under the current Regulations, paying compensation is more of the exception rather than the norm. The Act now eliminates the three, highly contentious, categories above. Accordingly, the Proposed Regulations intend to provide minimum compensation for inconvenience payable by the airline to the passenger for all flight disruptions which satisfy certain other criteria (for example, the passenger was informed of the delay or cancellation 14 days or less before the departure time and arrives at their destination airport three hours or more after the scheduled arrival time) unless there are "exceptional circumstances"5. Section 18 of the Proposed Regulations defines exceptional circumstances and includes circumstances such as war or political strife; a collision with a bird or other object during flight that could affect flight safety and that requires immediate assessment and possible repair to the aircraft; an unscheduled partial or full closure of an airport; and a labour dispute involving the carrier or an essential service provider such as an airport managing body, air navigation service provider or ground handling service provider6.
According to a methodology set out in the December 2024 Regulatory Impact Analysis Statement7 itself, many flight disruptions such as delays and cancellations will, indeed, be caused by an exceptional circumstance and compensation for inconvenience will, therefore, continue, to not be payable by the airline. Accordingly, and as a result of resistance from passenger advocacy groups8, it is possible we could see a partly revised, more limited definition of "exceptional circumstances" in the Amended Regulations and one that focuses on truly unavoidable extraordinary situations, more generally in line with the European air passenger protection regime. Moreover, in respecting the spirit and intent of the changes required, where the idea was to make compensation mandatory for all flight disruptions unless the flight disruption was caused by "very limited circumstances" (emphasis added)9, we could, indeed, see a more narrowly defined list included in the Amended Regulations.
In any case, airlines should be prepared that claims for compensation may increase. Airlines should also be prepared for greater passenger expectations for the sharing of information respecting the nature of the asserted exceptional circumstances as the burden to prove the cause of the flight disruption has shifted to the airline10.
Proposed Regulations: Assistance
Under the current Regulations, airlines are required to provide assistance (such as food and drink, overnight accommodation if applicable, and access to a means of communication) in accordance with the terms of the Regulations only in the case of categories (2) and (3) above. Under the Proposed Regulations11, airlines would be required to give passengers assistance from two hours after the original departure time unless they were informed of the delay or cancellation at least 12 hours before the departure time irrespective of the reason for the flight disruption. In other words, even if there was an exceptional circumstance, airlines would still be required to provide assistance in accordance with the broader regime. However, in the case of exceptional circumstances, the obligation to provide assistance ceases to apply 72 hours after the flight disruption. Taken together, the Proposed Regulations impose greater obligations on airlines.
There has also been industry critique to the Proposed Regulations in relation to the assistance carriers are required to provide. Industry stakeholders have argued that assistance requirements need not be too prescriptive as the offering to passengers is often a marketing or competitive advantage for some larger airlines when compared to the offering provided by some budget airlines12. Moreover, Northern airlines highlighted that the requirement to provide assistance could be difficult or impossible in northern regions given the remoteness of the location and suggested that the Proposed Regulations should clarify that assistance only needs to be offered when feasible13. Additionally, a number of airlines noted that the 72 hour window for assistance in the case of exceptional circumstances was too high and should be limited to a maximum of 24 hours. Finally, passenger advocacy groups noted that the requirement that assistance need only be provided if the passenger is notified within 12 hours of the flight disruption limits the utility of the right to assistance and is subject to abuse by the airlines14.
Whether any specific changes are made to the Amended Regulations in relation to assistance remains to be seen. The CTA appears keen to strike a balance between airline interests in limiting assistance costs and passenger interests in getting reasonable protection during a flight disruption caused by an exceptional circumstance15. In any case, airlines should be well prepared to offer passengers' assistance without exception, as is generally the case in the European air passenger protection regime.
Proposed Regulations: Communications
Under the current Regulations, airlines are required to inform passengers in simple, clear and concise language of the reason for the flight disruption and their rights to compensation, assistance, other remedies, and filing a complaint with the CTA. However, under the existing regime, passengers complained that they were not receiving clear information in a timely manner. Under the Proposed Regulations16, airlines are mandated to obtain from the passenger a preferred electronic means of communication (e.g. cell number or email) at check-in for the purposes of receiving timely and detailed information (such as the reason for the disruption, compensation, specific food, drink, and accommodation entitlements and rights to remedies together with details on events which will trigger certain rights such as compensation) in the event of a flight disruption. Basic information would also continue to be relayed audibly at the boarding gate.
Industry stakeholders were largely in agreement that stronger communication regulations were important, with many requesting a 12 month implementation period to update technology and infrastructure to comply with the amendments17. In response, the CTA concluded no considerable infrastructure updates would be required by airlines and the changes concern the extent of information provided to the passenger rather than the systems used to deliver this information and necessitate only minor changes to airlines' existing communications policies and procedures for compliance with the proposed amendments. As such, airlines should be ready to make timely changes to their communication policies and procedures once the Proposed Regulations come into force.
Conclusion
The Proposed Regulations signal a further shift in Canada's approach to air passenger rights in favour of the passenger, with clearer and more streamlined rights. Airlines should remain proactive in monitoring developments, assessing operational impacts, and preparing for potential compliance obligations. Staying engaged will be critical to ensuring readiness once the Amended Regulations are published.
Footnotes
1. Air Passenger Protection Regulations SOR/2019-150
2. Air Passenger Protection Regulations (APPR), Transport Canada
5. See sections 15 to 18 of the Proposed Regulations
6. See section 18 of the Proposed Regulations for the complete list of exceptional circumstances
9. Air Passenger Protection Regulations (APPR), Transport Canada
10. Following the Budget Implementation Act's amendments to the Act, the burden to prove if a flight disruption was caused by an exceptional circumstance has shifted to airlines
11. See section 12 of the Proposed Regulations
13. Ibid
14. Analysis of the Proposed Amendments to Canada's Air Passenger Protection Regulations, March 2025
16. See section 11 of the Proposed Regulations
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
