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Air Passengers Rights in the Supreme Court News 

Air Passengers Rights in the Supreme Court

On the 23rd of December, the Supreme Court of Canada refused to hear an appeal stemming from the Federal Court of Appeal based on the Air Passengers Rights Group v. Canadian Transportation Agency (2020) case. The APR was seeking an order from a court to oblige the CTA to remove a statement from their website concerning cancelled flight refunds. The CTA had stated on their website that Canadian Airlines could offer “travelling vouchers” or travel credits for future air travel to passengers whose flights had been cancelled due to the COVID-19 pandemic. The APR believed that those statements excluded the possibility to offer full monetary refunds and were misleading airline passengers. Ultimately, the Federal Court’s decision stands, which allows the CTA to display the statements concerning “travel vouchers” for future air travel.

The CTA, in March of 2020, included a statement on their website which stated that all applications for refunds would be evaluated on “their own merits” but that it would be “generally appropriate” for airlines to provide travel vouchers to affected passengers that could be used in the next twenty-four months. The APR accused the CTA of violating their own code of conduct and wished, amongst other things, to disqualify all CTA personnel who were involved in drafting the statements, from evaluating future refund claims due to their bias. The Honorable Madam Justice Mactavish of the Federal Court of Appeals, in her judgment delivered last May, believed that it was reasonable to expect employees who had drafted the statements to have a bias against customers seeking refunds. Madam Justice Mactavish also agreed that the APR’s claims were serious and highlighted a critical issue. However, in order for a court to order an entity to adopt a certain behavior, it must satisfy the “irreparable harm” criterion. The learned Justice Mactavish held that the statements on the CTA’s website did not harm the APR’s rights, did not impose legal obligations on them or did not prejudicially affect the APR.

The APR could not argue to be defending a public interest since it is neither a charity nor had it requested to receive public interest standing from the court, pursuant to the case law in the Holy Alpha and Omega Church of Toronto v. Attorney General of Canada (2009) case. In addition, Justice Mactavish could not order the CTA to strike down the statements because they did not cause irreparable damage, given the ability for individual customers to pursue airlines in court if they felt harmed by an airline’s handling of a refund request. 

In the end, the Supreme Court’s refusal to take on the Air Passengers Rights v. Canadian Transportation case allows the CTA to display statements on their website that recommend travel vouchers that are usable for twenty-four months for customers that had been harmed by cancelled flights amid the pandemic. The CTA governs airlines which generally abide by the CTA’s statements. For the Canadian Air Passenger, a cancelled flight could lead them to receiving travel credit for a future trip, but refunds have not been excluded as a possibility. However, the statements describing the issuing of travel vouchers as appropriate could lead to many affected airline customers receiving travel credits for the future which could be uncertain given the precarious financial situation many Canadian Airlines are in.

by Mario Michas

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