New Canadian Air Passenger Protection Regulations

On July 15, 2019, portions of Canada’s new Air Passenger Protection Regulations (the “APPRs”) came into effect (with the remainder to come into effect on December 15, 2019). The Canadian Transportation Agency (the regulator responsible for drafting and enforcing the APPRs) has stated that the APPRs will “provide for clearer and more consistent air passenger rights by imposing certain minimum airline requirements in air travel”. The APPRs set out requirements with regard to:

1. Communication with passengers;
2. Delayed or cancelled flights;
3. Denied boarding;
4. Tarmac delays;
5. The seating of children under the age of 14;
6. Lost or damaged baggage; and
7. The transportation of musical instruments.

The APPRs are drafted with overly broad application, in that they purportedly govern “all flights [including connecting flights] to, from, and within Canada”. This is concerning, as it potentially results in the extra-territorial application of Canadian laws (i.e. the imposition of Canadian laws over other countries). The APPRs also govern international flights, even though our Supreme Court has already ruled that international carriage is exclusively governed by the Montreal Convention (an international treaty that was enshrined into Canadian law over 10 years ago). In addition, the APPRs contain numerous provisions that are vague and prone to inconsistent application.

Just prior to the APPRs coming into effect, a group of airlines and air carrier industry associations filed an application in the Federal Court of Canada seeking declarations that certain provisions of the APPRs have no force and effect over foreign air carriers and that certain provisions are of no force and effect because they purport to govern areas that are exclusively governed by the Montreal Convention. The progress and outcome of this court proceeding will be closely watched by all involved.

The interpretation and application of the APPRs is likely to be an issue of controversy over the coming years. Given the APPRs’ less than auspicious start, it appears that the regulator’s promise of a positive effect on air passengers’ travel experience may not “fly” (pun intended!).