Airline passenger rights for ticket refunds after flights cancelled due to COVID-19

So many areas of our life have been directly impacted by the COVID-19 pandemic, and the airline industry and airline passengers are no exception. International borders have been closed, non-essential travel has been banned, travel advisories have been implemented and airlines have cancelled many flights. In response to this ongoing pandemic, the Canadian Transportation Agency (CTA) released a public statement suggesting that it could be reasonable for airlines to provide passengers with travel vouchers when flights are cancelled for pandemic related reasons, instead of refunding the money passengers spent on their tickets.[1] Air Passenger Rights (APR) is a group advocating for the rights of the public who travel by airplane.

A Fokker 28 airplane, similar to the one hijacked in 1989. Photo by: Richard Silagi

The CTA contends that passengers who have no way of completing their trip should “not be out of pocket for the cost of cancelled flights.” However, airlines facing massive declines in passenger bookings and revenue “should not be expected to take steps that threaten their economic viability.” [2] The statement then suggests a 24-month period for the redemption of vouchers “would be considered reasonable.” [3] ARP argues that there is established CTA jurisprudence, consistent with the common law doctrine of frustration, that confirms passengers’ right to a full refund where air services are unable to provide air transportation, even in situations where flight cancellations are beyond the airline’s control.[4] APR contends the language in the CTA’s statement leans significantly towards permitting vouchers to passengers in lieu of refunds, thus creating a reasonable apprehension that CTA members will not deal with passenger complaints fairly. APR is seeking interlocutory injunctive relief to require that statements be removed from the CTA’s website.[5]

Scales of Justice and Judge`s gavel

The test for injunctive relief established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) is below: [6]

(1) Whether APR has established that there is a serious issue to be tried in the underlying application for judicial review;

(2) Whether irreparable harm will result if the injunction is not granted; and

(3) Whether the balance of convenience favours the granting of the injunction.

For the first part of the test, the threshold for establishing a serious issue is quite low. With that, the court concluded that APR satisfied the serious issue component of the injunctive test to the extent of the CTA not fairly dealing with passenger complaints based on a reasonable apprehension of bias existing on their part.[7] At the second step of the test, the court is not convinced that APR has satisfied the irreparable harm component of the injunctive test. The threshold for establishing irreparable harm is the party seeking interlocutory relief must demonstrate clearly with non-speculative evidence that it will suffer irreparable harm between now and the time that the underlying application for judicial review finally occurs.[8] APR has not argued that it will suffer irreparable harm if the injunction is not granted, instead it relies on the harm that will occur to airline passengers whose flights have been cancelled because of COVID-19.[9] As a general rule, only harm suffered by the party seeking the injunction will qualify under this part of the test. Even though APR is pursuing this matter as a public interest litigant, it has not been granted public interest standing.[10] Furthermore, no members of the CTA were involved in formulating the statements at issue here and there is no evidence of bias.[11] Therefore, the alleged harm is not irreparable because APR did not advance an argument in the context of an actual passenger complaint and there is no evidence of bias, thus making it unnecessary to deal with the question of the balance of convenience.[12] Ultimately, the courts dismissed APR’s motion for interlocutory relief.

 

This blog post was written by a CCLA-PBSC Rights Watch Student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.

[1] Air Passengers Rights v Canada, 2020 FCA 92 at 5.

[2] Ibid at 6.

[3] Ibid at 7.

[4] Ibid at 10.

[5] Ibid at 3.

[6] Ibid at 14.

[7] Ibid at 16.

[8] Ibid at 28.

[9] Ibid at 29.

[10] Ibid at 30.

[11] Ibid at 35.

[12] Ibid at 38.

1 Comment on "Airline passenger rights for ticket refunds after flights cancelled due to COVID-19"

  1. The article could be improved. First, it is not clear until the end that it is about a motion for interlocutory relief. Second, it fails to mention the subsequent ruling (2020 FCA 155):
    http://docs.airpassengerrights.ca/Federal_Court_of_Appeal/A-102-20/2020-10-02–FCA–REASONS–dismissing_motion_to_strike.pdf

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