PART 4 – DIVISION 23 CLAUSE-BY-CLAUSE

IMPROVING AIR PASSENGER RIGHTS

Clause 452 (1)

This clause would amend section 34(1) of the Canada Transportation Act to broaden the authority of the Canadian Transportation Agency (the Agency) to set fees and charges, in consultation with the Minister of Transport, to recover its costs for its various responsibilities in relation to the administration or enforcement of any provision of the Act or the regulations whose administration or enforcement is the responsibility of the Agency.

The intent of this amendment is to allow the Agency to introduce any type of fee, including regulatory charges to cost recover for its various responsibilities attributable under the Act, while tightening the Government’s oversight and control with respect to any type of fee put in place by the Agency. 

Clause 452 (2)

This clause provides that the Canadian Transportation Agency (the Agency) shall consult, before making rules respecting fees and charges, with any persons or organizations that it considers to be interested in the manner.

The intent of this provision is to allow interested parties to know about any proposed fees and charges, and to provide input about them in advance.

Clause 452 (3)

This clause provides that the fees or charges required to be paid under section 34(1) constitute a debt to His Majesty in right of Canada and may be recovered as such in a court of competent jurisdiction.

Clause 453

This clause would amend paragraph 67(1)(c) of the Canada Transportation Act to require the holder of a domestic licence, in addition to retaining a record of its tariffs, to publish them on its website for a period of not less than three years after the tariffs have ceased to have effect.

Clause 454

This clause would repeal section 67.1 of the Canada Transportation Act, which refers to the remedies that the Canadian Transportation Agency (the Agency) may order if it finds, following a complaint, that the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariff.

Given the proposed creation of a new process for resolving air travel complaints, which would be undertaken by complaint resolution officers, a similar provision has been introduced under clause 459 (85.07(1)) to establish the remedies that a complaint resolution officer may order if it finds that a carrier that is the subject of the complaint has failed to apply its tariff, in both the international and domestic context.

Clause 455

This clause would amend subsection 67.2(1) of the Canada Transportation Act, which refers to unreasonable or unduly discriminatory terms or conditions, to remove the requirement that the Canadian Transportation Agency (the Agency) must receive a complaint to assess whether the holder of a domestic licence has applied terms and conditions of carriage applicable to the domestic service it offers that are unreasonable or unduly discriminatory. As a result, the Agency would be able to do so on its own initiative and would continue to have the authority to suspend or disallow those terms or conditions and substitute other terms or conditions in their place.

This amendment would align with the non-complaint-based scheme for international licence holders, which would remain captured under the Air Transportation Regulations (section 111). The assessment with respect to the reasonableness or discriminatory nature of terms or conditions would continue to go to the Agency's Governor in Council-appointed members and the remedial authority would remain separate from the remedies available to complaint resolution officers.

Clause 456

This clause would repeal section 67.3 of the Canada Transportation Act, which provides that a complaint against the holder of a domestic licence related to any term of carriage concerning any obligation prescribed in the Air Passenger Protection Regulations (APPR) may only be filed by a person adversely affected. As a result of the creation of the proposed new process for resolving air travel complaints, this concept would be captured as an eligibility requirement under subsection (85.04(1)(b)).

Clause 457

This clause would repeal section 67.4 of the Canada Transportation Act, which provides the authority to the Canadian Transportation Agency (the Agency) to apply a decision to other passengers of a same flight, given that the Agency will no longer have the authority to adjudicate air travel complaints respecting a carrier’s obligations in the case of a flight delay, flight cancellation or denial of boarding. Going forward, these would be handled by complaints resolution officers under the new process for resolving air travel complaints.

While the Agency would no longer have the authority to apply a decision to some or all passengers of a same flight, the new complaint resolution process would establish that a complaint resolution officer shall take into account any prior decisions. Moreover, the Agency would have to make public a summary of each order, which would provide information to other passengers on that same flight as to whether compensation has been previously awarded as a result of a disruption.

Clause 458 (1)

This clause would amend subsection 68(1) of the Canada Transportation Act and clarify that the new complaint resolution process would not apply in respect of fares, rates or charges applicable to a domestic service under a contract between a holder of a domestic licence and another person whereby the parties to the contract agree to keep its provisions confidential. For example, as is already the case, if an individual charters an aircraft, they would be covered by the provisions of that contract that they agreed upon rather than the APPR.

Clause 458 (1.1)

This clause would amend subsection 68(1.1) of the Canada Transportation Act and clarify that the new complaint resolution process would not apply to the terms and conditions of carriage applicable to a domestic service provided for under a contract to which an employer is a party and that relates to travel by its employees. For example, as is already the case, if a member of a flight crew was supposed to work on a certain flight, which has been delayed, this employee could not seek compensation under the new process for resolving air travel complaints.

CARRIER’S OBLIGATION

Clause 459

This clause would amend section 85.1 of the Canada Transportation Act and set out the new complaint resolution process respecting a carrier’s obligations in the case of a flight delay, flight cancellation or denial of boarding.  

Clause 459 – 85.01 (1)

This clause provides that a carrier shall establish a process for dealing with claims related to a fare, rate, charge or term or condition of carriage applicable to the air service it offers.

Recognizing that the Canadian Transportation Agency (the Agency)’s proposed new complaint resolution process for resolving air travel complaints would establish that a passenger must have previously attempted to resolve the matter with a carrier as an eligibility criteria, this provision would create a legislative requirement for a carrier to have an internal process to deal with a claim.

Clause 459 – 85.01 (2)

This clause provides that the process established by a carrier for dealing with claims shall include an obligation for the carrier to deal with a claim, including communicating to the claimant its decision on the claim, within a period of 30 days following the day on which a carrier received a written request. This communication would allow a claimant to demonstrate to the Agency that they previously attempted to resolve the claim with the airline.

AIR TRAVEL COMPLAINTS

Clause 459 – 85.02 (1)

This clause provides that the Chairperson of the Canadian Transportation Agency (the Agency), or a person designated by the Chairperson, shall designate, from among the members and staff of the Agency, persons to act as complaint resolution officers for the purpose of the new process for resolving air travel complaints (sections 85.04 to 85.012).

As defined in the Canada Transportation Act and for the purpose of the new process for resolving air travel complaints, the Canadian Transportation Agency (the Agency) (the Agency) refers to the members appointed by the Governor in Council, including the Chairperson, and staff refers to other officers and employees that are necessary for the proper conduct of the business of the Agency, who shall be appointed in accordance with the Public Service Employment Act.

Clause 459 – 85.02 (2)

This clause provides that a member or staff of the Canadian Transportation Agency (the Agency) who acts as a complaint resolution officer would have the powers and duties of a complaint resolution officer and not of a member of the Agency.

Recognizing that Canada Transportation Act is set out in a way that when there is a refence to the Agency, it means the Governor in Council-appointed members, the intent of this provision is to ensure that it is clear that complaint resolution officers do not have the powers and duties of the members of the Agency, even if they are members.

Clause 459 – 85.02 (3)

This clause provides that proceedings before a complaint resolution officer are not proceedings before the Canadian Transportation Agency (the Agency).

Recognizing that Canada Transportation Act is set out in a way that when there is a refence to the Agency, it means the Governor in Council-appointed members, the intent of this provision is to ensure that it is clear that the new process for resolving air travel complaints would not be subject to the rules of procedure, timelines, and appeal processes that exist with respect to decisions of the Agency. There would be no formal adjudication process available under the new process for resolving air travel complaints.

Clause 459 – 85.03

This clause provides that sections 17 (Rules), 25 (Canadian Transportation Agency (the Agency) powers in general) and 36.1 (other mediation process) of the Canada Transportation Act do not apply in respect of any matter that may be dealt with under the new process for resolving air travel complaints. It reflects that the new complaint resolution process is intended to be more streamlined, with less procedural rules than other Agency processes, including the Agency’s adjudication process, which would no longer be available for air travel complaints.

Clause 459 – 85.04 (1)

This clause would establish the eligibility criteria for a complaint to be dealt with under the new process for resolving air travel complaints, which includes that:

  1. the person alleges that a carriers failed to apply a fare, rate, charge, or term or condition of carriage applicable to the air service it offers that is set out in its tariffs;
  2. the person is adversely affected by the failure to apply that fare, rate, charge or term or condition of carriage;
  3. the person seeks compensation, or a refund as set out in the carrier’s tariff or compensation for expenses incurred as a result of that failure; and
  4. the person made a written request to the carrier to resolve the matters to which the complaint relates but they were unable to resolve within 30 days after the day on which the request was made.

The intent of this provision is to establish the eligibility criteria for a complaint so passengers as well as airlines know whether a case is eligible for the new process for resolving air travel complaints.

  1. The person alleges that a carrier failed to apply a fare, rate, charge, or term or condition of carriage applicable to the air service it offers that is set out in its tariffs: This requirement captures the Canadian Transportation Agency (the Agency)’s existing jurisdiction to determine, in an air travel complaint, whether the air carrier has properly applied its tariff and limits the type of complaint that would be eligible under the new process for resolving air travel complaints to complaints related to a carrier’s tariff. Other types of complaints, including complaints dealing with accessibility matters, would not be eligible for this process and would have to follow the Canadian Transportation Agency (the Agency)'s existing dispute resolution processes to the extent they are eligible.
  2. The person is adversely affected by the failure to apply that fare, rate, charge or term or condition of carriage: This requirement reproduces an existing obligation (i.e., paragraph 86(1)(h)(iii) of the Canada Transportation Act for domestic air travel complaints and section 113.1 of the Air Transportation Regulations for international air travel complaints) specifying that a person who alleges an entitlement under the tariff or the APPR can submit a complaint under the new process for resolving air travel complaints, but this cannot be done on someone else’s behalf.
  3. The person seeks compensation, or a refund as set out in the carrier’s tariff or compensation for expenses incurred as a result of that failure: This criterion limits the types of complaints that can be made under the new system to those where the complainant is seeking monetary compensation as set out in the tariff or for expenses incurred as a result of the carrier’s failure to apply its tariff. Other types of complaints, such as those seeking damages for pain and suffering or an apology from the airline, would not be eligible under the new process for resolving air travel complaints. Other requirements under the APPR that are not subject to compensation, such as clear and timely communication in cases of flight disruptions, would be addressed by the Agency’s enforcement unit.
  4. The person made a written request to the carrier to resolve the matters to which the complaint relates but they were unable to resolve within 30 days after the day on which the request was made: This requirement would formalize an approach that is currently taken by the Agency whenever an air travel complaint is filed—namely, that the Agency asks that a passenger first attempt to contact the carrier to resolve their dispute and to wait 30 days before filing a complaint with the Agency.

Clause 459 – 85.04 (2)

This clause would establish what constitutes an ineligible complaint under the new process for resolving air travel complaints and allow a complaint resolution officer to refuse to deal with a complaint or, at any time, cease dealing with it, if of the opinion that:

  1. the eligibility criteria have not been met;
  2. it is clear on the face of the complaint that the carrier has complied with the obligations set out in its tariffs; or
  3. the complaint is vexatious or made in bad faith.

The intent of this provision is to set out the bases upon which a complaint resolution officer may either refuse to deal with a complaint at the first instance, or at any time throughout the complaint resolution process, cease dealing with it.

  1. The eligibility criteria have not been met: This requirement establishes that when one of the eligibility criteria prescribed in subsection 85.04(1) has not been met a complaint may be deemed ineligible.
  2. It is clear on the face of the complaint that the carrier has complied with the obligations set out in its tariffs: In certain cases, it is clear in light of information provided by the passenger and the carrier, specifically their applicable tariff provisions, that the carrier has already provided to the passenger the remedy to which they are entitled to under the tariff or the APPR. In such clear cases, there would be little utility going through the new complaint resolution process when no other remedy is available under the tariff or the APPR. In these specific cases, a complaint may be deemed ineligible.
  3. The complaint is vexatious or made in bad faith: This criterion captures, in part, the Canadian Transportation Agency (the Agency)’s existing broad and discretionary authority under section 37 of the Canada Transportation Act to determine whether a complaint should be considered by the Agency, including whether it is vexatious or made in bad faith.

Clause 459 – 85.05 (1)

This clause provides that a complaint resolution officer must start the mediation of an eligible complaint, under the new process for resolving air travel complaints, no later than the 30th day after the day on which the complaint is filed with the Canadian Transportation Agency (the Agency). 

Clause 459 – 85.05 (2)

This clause provides that an agreement that is reached as a result of mediation process may be filed with the Canadian Transportation Agency (the Agency) and, after filing, is enforceable as if it were an order of the Agency.

The purpose of this provision is to ensure that the Agency has the powers to enforce an order to pay compensation.

Clause 459 – 85.06 (1)

This clause provides that if no agreement is reached as a result of mediation process, the complaint resolution officer shall make an order requiring compensation or make an order dismissing the complaint no later than the 60th day after the day on which the mediation started.

Clause 459 – 85.06 (2)

This clause provides that an order issued by a complaint resolution officer is not an order or decision of the members of the Canadian Transportation Agency (the Agency).

Recognizing that the Canada Transportation Act is set out in a way that when there is a reference to the Agency, it means the Governor in Council-appointed members, the intent of this provision is to ensure that it is clear that when an order is issued under the new process for resolving air travel complaints, the order is not subject to the rules of procedure, timelines, and appeal processes that exist with respect to decisions of the members of the Agency.

Clause 459 – 85.07 (1)

This clause provides the remedies that a complaint resolution officer may order a carrier to provide, if it finds that the carrier that is the subject of a complaint has failed to apply a fare, rate, charge or term or condition of carriage applicable to the air service it offers that is set out in its tariffs, to:

  1. apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs; and
  2. compensate the complainant for any expenses they incurred as a result of the carrier’s failure to apply a fare, rate, charge or term or condition of carriage that was set out in its tariffs.

The intent of this provision is to provide the remedies that a complaint resolution officer may grant if it finds that a carrier that is the subject of a complaint has failed to apply its tariff, in both the international and domestic context. These remedies match the Canadian Transportation Agency (the Agency)’s existing authorities under section 67.1 of the Canada Transportation Act and establishes that a complaint resolution officer may order a carrier to apply its tariff and/or order compensation for expenses incurred.  

Clause 459 – 85.07 (2)

This clause would establish a greater burden of proof on air carriers by providing that if a complaint raises an issue involving a flight delay, flight cancellation or denial of boarding, it is presumed that the flight disruption is within the carrier’s control and not required for safety reasons, unless the carrier proves the contrary.

While this provision refers to the current three categories of disruption (e.g., within the carrier’s control, outside the carrier’s control and within the carrier’s control but required for safety), please note that this is a transitional provision and would be replaced by clause 460 on a day to be fixed by order of the Governor in Council to align with the proposed new regulation-making authorities of the Canadian Transportation Agency (the Agency) set out in clause 465. Recognizing that the new process for resolving air travel complaints would come into force prior to the updated APPR, this transitional provision, which reflects the current Agency regulation-making authorities, would increase the burden of proof on air carriers while the Agency works on updating the APPR to remove the three categories of disruptions and prescribe the list of exceptions under which compensation would not be required.

Clause 459 – 85.07 (3)

This clause provides that an order issued by a complaint resolution officer may be filed with the Canadian Transportation Agency (the Agency) and, after filing, is enforceable as if it were an order of the Agency.

Clause 459 – 85.08

This clause would establish that, in regard to the issue of whether a disruption is within a carrier’s control, is within a carrier’s control but is required for safety reasons or is outside a carrier’s control, a complaint resolution officer shall take into account any decision on that issue that is contained in a previous order made by a complaint resolution officer in respect to that flight.

While this provision refers to the current three categories of disruption (e.g., within the carrier’s control, outside the carrier’s control and within the carrier’s control but required for safety), please note that this is a transitional provision and would be replaced by clause 461 on a day to be fixed by order of the Governor in Council to align with the proposed new regulation-making authorities of the Canadian Transportation Agency (the Agency) set out in clause 465. Recognizing that the new process for resolving air travel complaints would come into force prior to the updated APPR, this transitional provision reflects the current regulation-making authority while the Agency works on updating the APPR to remove the three categories of disruptions and prescribe the list of exceptions under which compensation would not be required.

Clause 459 – 85.09 (1)

This clause would establish that all matters related to the process of dealing with a complaint shall be kept confidential, unless the complainant and the carrier otherwise agree, and information provided by the complainant or the carrier to the complaints officer shall not be used for any other purpose without the consent of the one who provided it.

Clause 459 – 85.09 (2)

This clause provides that while the new process for resolving air travel complaints would be generally confidential, it does not prevent disclosure of some information in certain circumstances, namely to communicate information to the Canadian Transportation Agency (the Agency), to other complaint resolution officers for assisting them in the performance of their duties and functions, for publishing the orders (if decision made by a panel of members) or a summary of the orders, and for including general information about complaints in the Agency’s annual reports.

Clause 459 – 85.1

This clause provides that a complaint resolution officer shall deal with complaints in the manner that they consider appropriate in the circumstances, subject to the binding guidelines that will be issued by the Canadian Transportation Agency (the Agency).

The intent of this provision is to allow a complaint resolution officer to be able to manage their own complaint resolution process in the absence of guidelines or in the case when the guidelines are silent with respect to an aspect of procedure for dealing with complaints.

Clause 459 – 85.11

This clause provides that the Canadian Transportation Agency (the Agency) may, at a complaint resolution officer’s request, provide administrative, technical and legal assistance to the complaint resolution officer for the purpose of assisting them in the performance of their powers, duties and functions.

The intent is to ensure that complaint resolution officers would have access to the support that could be provided by other employees that are necessary for the proper conduct of the business of the Agency, namely administrative, technical and legal assistance.

Clause 459 – 85.12 (1)

This clause provides that the Canadian Transportation Agency (the Agency) may issue guidelines respecting the manner and procedures for dealing with complaints filed under the new process for resolving air travel complaints and setting out the extent to which and the manner in which, in the opinion of the Agency, any provision of the regulations applies with regard to complaints.

These guidelines would be intended to assist the complaint resolution officer in carrying out the new complaint resolution process including the rules of procedure to follow, and provide guidance on how the APPR or other tariff matters are to be applied. These guidelines would be binding on complaints officers.

Clause 459 – 85.12 (2)

This clause provides that a guideline is, until it is revoked or modified, binding on any complaint resolution officer dealing with a complaint filed under the new process for resolving air travel complaints.

Clause 459 – 85.12 (3)

This clause provides that each guideline shall be published in any manner that the Canadian Transportation Agency (the Agency) considers appropriate (e.g., website).

Clause 459 – 85.12 (4)

This clause would establish that the Statutory Instruments Act does not apply to a guideline, which relieves the Canadian Transportation Agency (the Agency) from all obligations in the Cabinet Directive on Regulation, including being subject to a possible Governor in Council direction to publish in Canada Gazette.

Clause 459 – 85.13 (1)

This clause provides that if no agreement is reached as a result of the mediation process, the Chairperson of the Canadian Transportation Agency (the Agency), or a person designated by the Chairperson, may, at the request of the complaint resolution officer who conducted the mediation, consider whether the complexity of the complaint requires it to be referred to a panel of at least two members of the Agency. This clause also establishes that these members, none of whom is to be the complaint resolution officer who conducted the mediation, shall act as complaint resolution officers in respect of the complaint for the purpose of issuing a decision on the complaint.

The criteria for a referral to a panel of members would be set out in the binding guidelines, which would be developed by the Agency. The intent is to capture exceptional complaints that would be more precedent setting or have more of a public interest dimension warranting the implication of Governor in Council-appointed members. Although the panel would consist of Agency members, they would only have complaints resolution officer authorities when making the decision, given that they would be acting in their capacity as complaint resolution officers and that there would be no adjudication process available under the new process for resolving air travel complaints.  

Clause 459 – 85.13 (2)

This clause provides that a reference in subsection 85.02(3) and sections 85.06 to 85.12 to a complaint resolution officer is considered to include a reference to a panel of at least two members.

Clause 459 – 85.14 (1)

This clause would set the requirements for the publication of an order or the summary of an order once a decision has been issued.

In the case of an order made by a single complaint resolution officer, the Canadian Transportation Agency (the Agency) shall only make public a summary of the order, which would include:

  1. the number of the flight to which the order relates;
  2. the date of departure of the flight that is indicated on the complainant’s ticket;
  3. any decision contained in the order in regard to the issue of whether any flight delay, flight cancellation or denial of boarding was within the carrier’s control, was within the carrier’s control but was required for safety reasons or was outside the carrier’s control; and
  4. a statement as to whether or not the complaint resolution officer ordered the carrier to provide compensation or a refund as set out in the carrier’s tariffs or compensation for expenses incurred.

In the case of an order made by a panel of members acting as complaint resolution officers, the Agency shall make public the entire order. The intent is that these complaints would be more precedent setting or have more of a public interest dimension warranting the entire order being published.

While subparagraph 85.14(1)(a)(iii) refers to the current three categories of disruption (e.g., within the carrier’s control, outside the carrier’s control and within the carrier’s control but required for safety), please note that this is a transitional provision and would be replaced by clause 462 on a day to be fixed by order of the Governor in Council to align with the proposed new regulation-making authorities of the Canadian Transportation Agency (the Agency) set out in clause 465. Recognizing that the new process for resolving air travel complaints would come into force prior to the updated APPR, this transitional provision reflects the current regulation-making authority while the Agency works on updating the APPR to remove the three categories of and prescribe the limited list of exceptions under which compensation won’t be required.

Clause 459 – 85.14 (2)

This clause provides that the Canadian Transportation Agency (the Agency) may, on request of a complainant or carrier, decide to keep confidential any part of an order, other than the information referred to in the summary of an order (subparagraphs 85.14(1)(a)(i) to (iv)).

The intent of this provision is to ensure that the public interest in publishing an order is balanced against the potential harm that could come from releasing the information, especially in the case of a vulnerable complainant.

Clause 459 – 85.15

This clause provides that the Canadian Transportation Agency (the Agency) shall, as part of its annual report, indicate the:

  1. number and nature of the complaints filed under the new process for resolving air travel complaints;
  2. names of the carriers against whom the complaints were made;
  3. number of complaints for which an order was made; and
  4. systemic trends observed.

Clause 459 – 85.16 (1)

This clause provides that the Canadian Transportation Agency (the Agency) shall establish fees or charges for the purpose of recovering all or a portion of the costs that the Agency determines to be related to the process of dealing with eligible complaints under the new process for resolving air travel complaints.

Clause 459 – 85.16 (2)

This clause provides that the carriers that are the subject of eligible complaints are liable for the payment of the fees or charges established by the Canadian Transportation Agency (the Agency).

Clause 459 – 85.16 (3)

This clause provides that the Canadian Transportation Agency (the Agency) shall consult, before establishing fees or charges, with any persons or organizations that the Agency considers to be interested in the matter.

Clause 459 – 85.16 (4)

This clause provides that the Canadian Transportation Agency (the Agency) shall publish the fees and charges on its website.

Clause 459 – 85.16 (5)

This clause would establish that fees or charges required to be paid under this section constitute a debt to His Majesty in right of Canada and may be recovered as such in a court of competent jurisdiction.

Clause 459 – 85.16 (6)

This clause provides that the Canadian Transportation Agency (the Agency) may spend the amounts obtained under this section in the fiscal year in which they are paid or in the next fiscal year.

Clause 459 – 85.16 (7)

This clause provides that the Service Fees Act does not apply to the fees and charges established under subsection 85.15(1), which means that it relieves the Canadian Transportation Agency (the Agency) of certain obligations in the Directive on Charging and Special Financial Authorities (e.g., requirement for the Treasury Board Secretariat to review a Fee Proposal as well as requirement to publish in Canada Gazette, Part I, and to publicly report annually on revenues once a charge or a fee is in place).

Clause 460

This clause would repeal subsection 85.07(2) of the Canada Transportation Act on a day to be fixed by order of the Governor in Council and replace it with a new subsection that provides that if a complaint raises an issue as to whether an exception prescribed in the regulations applies, the exception is presumed not to apply unless the carrier proves the contrary.

This clause would replace a transitional provision and align with the proposed new regulation-making authorities of the Canadian Transportation Agency (the Agency) with respect to the APPR, and the coming into force would align with the regulations amending the APPR.

Clause 461

This clause would repeal section 85.08 of the Canada Transportation Act on a day to be fixed by order of the Governor in Council and would replace it with a new section that provides that a complaint resolution officer who is dealing with a complaint in respect of a flight shall take into account any prior decision on whether an exemption applies that is contained in an order made in respect of that flight.

This clause would replace a transitional provision and align with the proposed new regulation-making authority of the Canadian Transportation Agency (the Agency) with respect to the APPR, and the coming into force would align with the regulations amending the APPR.

Clause 462

This clause would repeal subparagraph 85.14(1)(a)(iii) of the Canada Transportation Act on a day to be fixed by order of the Governor in Council and replace it with a subparagraph that indicates that any summary of an order shall contain the decision in regard to the issue of whether an exception prescribed under the APPR applies.

This clause would replace a transitional provision, which currently refers to the three categories of disruptions, and align it with the proposed new regulation-making authority of the Canadian Transportation Agency (the Agency) with respect to the APPR, which would refer to the list of exceptions. In other words, the summary of the order would now include the decision on whether an exemption applied, as opposed to whether the delay was within the carrier’s control, outside the carrier’s control and within the carrier’s control but required for safety.

Clause 463

This clause would repeal section 85.16 of the Canada Transportation Act on a day to be fixed by order of the Governor in Council.

Clause 85.16 provides that the Canadian Transportation Agency (the Agency) shall establish fees and charges for the purpose of recovering all or a portion of the costs that the Agency determines to be related to the process of dealing with eligible complaints under the new process for resolving air travel complaints. This authority has been included to allow the Agency to set fees or chargers to recover, in the short term, the cost of the new process for resolving eligible air travel complaints. That said, should the Agency decide, at some point, to establish a broader regulatory charge under section 34(1) of the Act, which would allow the Agency to recover more costs associated with the administration and enforcement of the APPR, section 85.16 would be repealed.

REGULATIONS

Clause 464 (1)

This clause would amend paragraph 86(1)(h) of the Canada Transportation Act and repeal subparagraph (iii) and (iii.1). These regulation-making authorities would no longer be required as the new process for resolving air travel complaints would apply both internationally and domestically.

Clause 464 (2)

This clause would amend the regulation-making authorities of the Canadian Transportation Agency (the Agency) (section 86(1)) and provide that the Agency may make regulations with respect to the requirement for a carrier to establish a process for dealing with claims related to a fare, rate, charge or term or condition of carriage applicable to the air service it offers.

Clause 465 (1)

This clause would amend the regulation-making authorities of the Canadian Transportation Agency (the Agency) (subparagraphs 86.11(1)(b)(i) to (iii)) with respect to carrier’s obligations towards passengers and provide that the Agency shall make regulations respecting the carrier’s obligations in the case of flight delay, flight cancellation or denial of boarding, including:

  1. the minimum standards of treatment of passengers that the carrier is required to meet, including those that the carrier is required to meet when an exception specified by regulations applies;
  2. the minimum compensation the carrier is required to pay for inconvenience; and
  3. the carrier’s obligation to ensure that passengers complete their itinerary or, if they are not able to complete it within a reasonable time, receive a refund.

The intent with this amendment is to modify the Agency’s regulation-making authority with respect to the APPR by removing the three categories of disruptions (e.g., within the carrier’s control, outside the carrier’s control and within the carrier’s control but required for safety) and make compensation and standards of treatment mandatory for all disruptions, unless the disruption was caused by circumstances that are specifically defined in regulations and even in that case some standards of treatment would still be required.

Clause 465 (2)

This clause would amend the regulation-making authorities and provides that the Canadian Transportation Agency (the Agency) shall establish in the APPR the list of exceptions to the obligation for a carrier to compensate for inconvenience in the case of flight delay, flight cancellation or denial of boarding.

Clause 465 (3)

This clause would amend paragraph 86.11(1)(c) of the Canada Transportation Act to allow the Canadian Transportation Agency (the Agency) to prescribe the minimum compensation for delayed baggage, in addition to lost and damaged baggage.

Clause 465 (4)

This clause would amend the regulation-making authority of the Canadian Transportation Agency (the Agency) (section 86.11(1)) and provides that the Agency shall make regulations with respect to refunds in the event that a person who has booked a flight with a carrier cancels the reservation due to the issuance of a Government of Canada travel advisory.

The intent with this provision is to allow travellers to cancel their trips and be fully refunded if they no longer want to travel as a result of the issuance of a travel advisory by the Government following the reservation of their flight ticket. The specific requirements would be prescribed in regulations and the intent is to capture travel advisories when the Government is issuing/increasing the risk level of a travel advisory to indicate to travellers that they should avoid non-essential or all travel.  

Clause 466

This clause would amend subparagraph 177(1)(b)(ii) of the Canada Transportation Act to increase the maximum penalty for a contravention of the APPR in the case of corporations from $25,000 to $250,000.

Clause 467 (1)

This clause would amend subsection 180.1(1) of the Canada Transportation Act and add that if a person who has been served with a notice of violation of any provision of the APPR must either pay the amount of the penalty specified in the notice or file with the Tribunal a written request for a review of the facts of the alleged contravention or of the amount of the penalty.

Clause 467 (2)

This clause would amend section 180.1 of the Canada Transportation Act and add that if a person who has been served with a notice of violation of any provision of the APPR that was contravened and that sets out a penalty for the violation must:

  1. pay the amount of the penalty specified in the notice;
  2. file with the Tribunal a written request for a review of the facts of the alleged contravention or of the amount of the penalty; or
  3. request, within the time and in the manner set out in the notice, to enter into a compliance agreement with the Canadian Transportation Agency (the Agency) for the purpose of ensuring the person’s compliance with the provision of the APPR to which the violation relates. 

Clause 468 (1)

This clause would amend subsection 180.62(1) of the Canada Transportation Act to provide the authority to the Canadian Transportation Agency (the Agency) to enter in compliance agreements where an Administrative Monetary Penalty is issued for violations related to the contravention of designated regulatory provisions made under the APPR.

Clause 468 (2)

This clause would amend paragraph 180.62(4)(a) of the Canada Transportation Act and add the reference to the provision prescribing the maximum penalty for a contravention of the APPR.

Clause 469

This clause would amend subsection 180.63(1) of the Canada Transportation Act and add that if the Canadian Transportation Agency (the Agency) refuses to enter into a compliance agreement requested by a person who has been served with a notice of violation of any provision of the APPR, the person who made the request is liable to pay, in the manner specified in the notice of violation and within the time specified on it, the amount of the penalty specified in the notice of violation. As a result, if the Agency refuses to enter into a compliance agreement with a person who received a notice of violation of any provision of the APPR, that person would still be required to pay the penalty specified in the notice.

Clause 470 (1)

This clause would amend section 180.64 of the Canada Transportation Act and add a subsection to provide that if a person who has been served with a notice of violation of any provision of the APPR does not pay the amount of the penalty specified in the notice of violation, file a request for a review or make a request to enter into a compliance agreement, the person is deemed to have committed the contravention alleged in the notice of violation and the Canadian Transportation Agency (the Agency) may obtain from the Tribunal a certificate in the form that may be established by the Governor in Council that indicates the amount of the penalty specified in that notice.

Clause 470 (2)

This clause would amend subsection 180.64(4) of the Canada Transportation Act and add that, as is already the case, if the Canadian Transportation Agency (the Agency) refuses a person’s request to enter into a compliance agreement, and the person who has been served with a notice of violation of any provision of the APPR does not pay the amount of the penalty within the time and the manner required, the Agency may obtain from the Tribunal a certificate that indicates the amount of the penalty specified in that notice, which would give the government the power to enforce the penalty.

Clause 471

This clause would amend section 181 (issuance of notice of violation) of the Canada Transportation Act to increase the time limit for commencement of proceedings for violations related to the APPR from 12 months to two years.

TRANSITIONAL PROVISIONS

Clause 472 (1)

This clause provides that a complaint filed before September 30, 2023, the day on which the new complaint resolution process comes into force, that is in the course of being heard by the Canadian Transportation Agency (the Agency) on that day (adjudication with pleadings opened), is to be dealt with and disposed of in accordance with the current resolution process for air travel complaints and would not be transferred into the new process for resolving air travel complaints.

Clause 472 (2)

This clause provides that a complaint filed before September 30, 2023, and is not in the course of being heard by the Canadian Transportation Agency (the Agency) on that day (adjudication with pleadings opened), is to be dealt with under the new process for resolving air travel complaints, and in accordance with the APPR that would have been in force on the date of departure that is indicated on the ticket for the flight to which the complaint relates.

The intent is to transfer all the complaints, other than the ones in the course of being heard by the Agency, to the new process for resolving the air travel complaints. From there, the same process would apply to the entire backlog (i.e., 30 days to assess the eligibility of the complaint and 60 days process it).

Clause 473 

This clause provides that a complaint filed before the day on which the new regulation‑making authorities of the Canadian Transportation Agency (the Agency) with respect to the APPR come into force will be dealt with and disposed of in accordance with the APPR that would have been in force on the date of departure that is indicated on the ticket for the flight to which the complaint relates.

COMING INTO FORCE

Clause 474 (1)

This clause provides that sections 454 to 456, 458 and 459 (the new process for resolving air travel complaints) come into force on September 30, 2023, or if it is later, on the day on which the Budget Implementation Act receives royal assent.

Clause 474 (2)

This clause provides that sections 457 (repeal of section 67.4 (applying decision to other passengers) of the Canada Transportation Act), 460 to 464 and subsections 465(1), (2) and (4) (regulation-making authority of the Canadian Transportation Agency (the Agency) with respect to carrier’s obligations towards passengers) come into force on a day or days to be fixed by order of the Governor in Council. This order would have to be synchronized with the publication in Canada Gazette, Part II of the final regulations amending the APPR.

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