A portion of the new Air Passenger Protection Regulations went into effect earlier this week.  Although these new regulations were created to help air passengers, they are being met with criticism from both traveller advocacy groups and the airlines themselves.

NEW AIR PASSENGER PROTECTION REGULATIONS

The first phase of the new regulations require airlines to provide compensation up to $2,400 to passengers who are bumped from flights for reasons within the airline’s control.  Those passengers whose luggage is lost or damaged will be eligible for up to $2,100, and a refund for their baggage fees.

According to the regulations, airlines are required to adhere to standards of conduct during tarmac delays and allow passengers to leave the aircraft after a three-hour delay if take-off is not impending.  Airlines must also create clear policies with regards to the handling of musical instruments, and provide passengers with information about their rights and regular updates with respect to any delays and cancellations.

Additional requirements are to come into effect starting on December 15, 2019, including compensation of up to $1,000 for flight delays and cancellations that are within an airline’s control, but not related to safety.  There will also be a requirement that airlines rebook or refund passengers when flights are delayed.  This may include providing a ticket for another airline, providing food, drink and/or accommodations during flight delays, and making sure that children under 14 years of age are able to sit near their parents at no extra charge.

The key phrase included in these regulations is  “within an airline’s control”.  Thus, circumstances such as bad weather, emergency maintenance, airport operational problems or medical emergencies are not considered within an airline’s control and in these circumstances airlines will not be subjected to pay compensation.

CRITICISM OF THE REGULATIONS FROM BOTH SIDES

Gabor Lukacs, a passenger rights advocate, maintains that these new rules are making things worse for Canadians and is challenging the new regulations in court.

He states:

The government is duping the public.  Proving that a flight is overbooked is virtually impossible without access to the airline’s reservation system.

Lukacs is advocating for tarmac delays to be capped at 90 minutes and for refunds to be offered for all delays and cancellations outside of extreme circumstances.

The advocacy group, Air Passenger Rights, have argued that the new rules fall short of European Union passenger rights standards regarding delays caused by maintenance issues.

Both Air Canada and Porter Airlines (and 17 other applicants) filed an application for the new rules to be struck down and argued that the required payments violate international standards and could cause confusion for passengers.

According to the Air Transport Association of Canada, the national trade association for commercial aviation and the flight training industry, the compensation grid is “very high” and the new rules are “outrageous”.  The association maintains that these new regulations will lead to increased fares.

The government has not yet issued a formal response to the airlines’ legal challenge.

INJURIES DUE TO TURBULENCE

A recent Air Canada flight traveling from Vancouver to Australia was forced to make an emergency landing in Hawaii after 37 passengers on board were injured during turbulence.  Upon landing, thirty passengers were rushed to a local hospital, including flight crew, children and the elderly.  Nine of these passengers suffered serious injuries, and 21 suffered only minor injuries.  The remaining passengers opted not to go to hospital.

Michael Bailey, a passenger on board the turbulent flight, described the incident:

A lot of people hit the ceiling… It must have dropped like, 100 feet or something because everyone went up to the ceiling throughout the plane.  It was pretty scary.

Aviation analyst Phyl Durdey explained that injuries can occur when passengers’ seatbelts aren’t securely fastened.  If a plane hits unexpected turbulence, passengers who are not wearing seatbelts may hit the overhead bins resulting in neck and head injuries.  He emphasized the importance of always wearing your seatbelt while in the air throughout the entire flight.

Air Canada has confirmed that all injured passengers have been treated and released from hospital.

Passengers who have been injured during flights may be entitled to compensation for their injuries.

Passengers who are flying domestically may retain a lawyer and commence a claim against the airline in a similar fashion to any other civil claim commenced in Canada.  There is no cap on the compensation a passenger may receive.

Personal injury claims made by passengers who are flying internationally are regulated by a treaty called the Montreal Convention.  In order to file a claim for injuries sustained on an international flight, the passenger must have sustained an actual physical injury (emotional distress or inconvenience can not be the basis for a claim).  Passengers may be able to obtain compensation for the following types of damages:

• Past and future medical expenses;
• Lost wages and lost earning capacity;
• Pain and suffering;
• Emotional distress;
• Travel expenses to and from medical appointments;
• Property damages; and
• Expenses related to childcare and/or housekeeping expenses.

The onus is on the individual bringing the lawsuit to prove that the aircraft or airline was negligent in the circumstances.

There is also the possibility that the passenger may have done something to contribute to the injuries.  This is called “contributory negligence” and it may result in compensation being reduced.  For example, if a passenger was not wearing his/her seatbelt while the seatbelt light was flashing.

If you or a loved one have suffered serious personal injuries or damages as a result of an airplane-related incident or accident, you deserve to be compensated.  Please contact the experienced personal injury lawyers at Cuming & Gillespie LLP for more information about your legal options.  For a free initial consultation with one of Calgary’s award winning personal injury lawyers, please contact our office online or at 403-571-0555 today.