TORONTO — A new ruling from Canada’s Federal Court of Appeal could be the nail in the coffin for airlines citing cabin crew shortages as safety-related issues and denying reimbursement under the Air Passenger Protection Regulations (APPR).

The back-and-forth about whether or not crew constraints can be classified by airlines as a safety issue, with impact for passengers and compensation, has been brewing in Canada for years.

The APPR took effect in 2019. As reported by Travelweek in August 2022, WestJet filed a motion with the court in a bid to quash a directive from the Canadian Transportation Agency to pay a passenger $1,000 in compensation for a flight disruption caused by crew constraints.

As outlined in the courtʻs ruling, handed down yesterday (and with Air Canada  listed as an intervener), in July 2021 Owen Lareau was supposed to be a passenger on a WestJet flight from Regina to Toronto, from where he would then fly to his final destination in Ottawa.

As yesterdayʻs ruling notes, “though the flight was supposed to depart Regina at 11:30 a.m., it was cancelled less than an hour before its departure because of a crew shortage. WestJet rebooked Mr. Lareau on a flight to Calgary later that day. He stayed overnight in Calgary using vouchers provided by WestJet for his meals and accommodation and flew to Ottawa the next day. He arrived at his final destination approximately 21 hours later than originally scheduled.

Mr. Lareau submitted a request to WestJet for compensation for the flight disruption. WestJet refused this request, answering that it was “unable to approve [his] claim for compensation as [his] flight was impacted due to crew member availability and [the cancellation] was required for safety purposes.” Three days after this refusal, on August 17, 2021, Mr. Lareau submitted a complaint to the [CTA], requesting “more information regarding this safety situation,” since it seemed to him that WestJet was understaffed. He stated that he had had to miss a day of paid work, and that he could have made alternative arrangements had he been informed of the cancellation in the days or weeks preceding it. He sought monetary compensation to make up for his lost income.”

As noted by Business Intelligence for B.C., the CTA awarded Lareau $1,000 in compensation, and in yesterday’s  ruling from the court, a three-judge appeals panel upheld the CTAʻs decision, siding with the CTAʻs interpretation of the APPR.

As the ruling states, “in the decision on appeal to this court, the [CTA], also charged with investigating and adjudicating passenger complaints under the [APPR], stated that disruptions within the safety category should be limited to events that “cannot be foreseen nor prevented or, in other words, that cannot be prevented by a prudent and diligent carrier.” It held that a disruption resulting from a crew shortage should not be considered to fall within the safety category unless the carrier demonstrates that the disruption could not have been reasonably prevented, or was unavoidable, despite proper planning and did not result from the carrier’s own actions or inactions.”

The ruling noted that WestJet submitted “that the [CTA’s] interpretation ignores the plain and ordinary meaning of the [APPR], which essentially define a flight disruption required for safety purposes as one that is “required by law in order to reduce risk to passenger safety.” It argues that passengers should receive no compensation for any flight disruption that arises in response to a safety issue, regardless of the circumstances that have led to the safety issue, including a carrier’s failure to take reasonable measures to develop and implement a reasonable contingency plan to mitigate the disruption.”

WestJet had also argued that the CTAʻs interpretation of the safety category cannot stand because it puts pressure on carriers and their personnel to choose to operate flights unsafely in order to avoid paying their passengers compensation.

The ruling from the panel? “The [CTA] did not err in interpreting and applying the [APPR]. [WestJet’s] proposed interpretation of the safety category would effectively defeat the consumer protection scheme established by the Regulations to redress the acute imbalance in market power to which passengers have historically been subjected in relation to air carriers. It must be rejected.”

The panel also noted that a disruption “is within a carrier’s control but required for safety purposes” when the carrier incurs that disruption to reduce a risk to passenger safety despite having taken reasonable measures 1) to plan and conduct its day-to-day operations in such a manner as to avoid the occurrence of situations causing that risk and 2) to follow a reasonable contingency plan developed to effectively and expeditiously reduce the risk.”