They wanted refunds for cancelled flights. Instead, passengers say they’re being denied justice — and a broken system is letting airlines off the hook

Amber Bussey didn't have any diapers or infant formula left for her 13-month-old baby and she was at the end of her rope.

The long flight last August from Abbotsford, B.C., to Sydney, N.S., involved two layovers, and she was still far from her destination. What initially was a difficult trip to take alone soon turned into a nightmare.

The first leg of the flight with WestJet arrived in Calgary on time. But the next leg, a WestJet flight from Calgary to Toronto, had been cancelled and rebooked, leaving her stuck in the Calgary airport for 10 hours.

I had my two children with me, by myself; my baby and my stepson, who has autism," she said. I asked WestJet to rebook me on an earlier flight and they wouldn't do it because it was leaving too soon."

Distraught, Bussey asked WestJet if the company could pay for her to go to a hotel so she could safely watch her baby and handle her stepson's discomfort with noisy environments. Her request was denied.

I just broke down and cried, I didn't know what to do," she said. One of the service customer agents asked if I'd like a hug. Are you kidding? That's the last thing I want. I want to be compensated for the terrible delay."

Eventually, Bussey landed in Sydney - 12 hours after her anticipated arrival time.

She applied to WestJet to get a refund under the Air Passenger Protection Regulations (APPR). If a flight is delayed by more than nine hours and the reason is within the airline's control, passengers are entitled to $1,000.

But WestJet refused Bussey's claim, saying the delay was outside of its control due to a security concern." When she asked the airline to specify the security concern, it refused.

Undeterred, she decided to take her complaint to the Canadian Transportation Agency, the federal air travel regulator that settles disputes between airlines and passengers. Due to a backlog of more than 16,000 complaints, the agency said the file likely wouldn't be reviewed for 18 months.

It was just the worst experience," she said. Rather than pursue her complaint, she's decided to move on.

Bussey is one of thousands of air passengers who may be entitled to an airline refund, but find the claims process so onerous and time consuming, they eventually give up in despair. When a claim is made, airlines often unilaterally deny refunds without providing a reason or say that a delay or cancellation was out of the airline's control, which means compensation doesn't have to be paid.

If passengers then take their claim to the Canadian Transportation Agency, they face a wait of more than a year just to get the complaint heard.

Critics say a system that is meant to help air passengers is fundamentally broken, with the Canadian Transportation Agency's unreasonable wait times deterring consumers from filing complaints, leaving airlines off the hook all too often. Passengers who spoke to the Star feel they are being lied to, mislead and denied justice - by the airlines and the regulator.

They also say the burden of proof seems to rest unfairly on passengers to prove that delays and cancellations were within the airline's control, which can be almost impossible to do when they are given conflicting reasons or no reason at all for flight changes.

The Canadian Transportation Agency counters that it is impartial and follows the rules laid out in the Air Passenger Protection Regulations.

What you're entitled to as a passenger can only be confirmed after the journey is over and after the passenger has spoken to the airline or made a complaint to the agency," said Tom Oommen, director general, analysis and outreach branch, at the Canadian Transportation Agency (CTA). From there we follow the rules of the regulations and judge fairly."

However, despite receiving tens of thousands of complaints, the CTA did not levy a single fine against an airline for denying a refund between March 1, 2020, and Sept. 12, 2022, according to Matt Malone, assistant professor at Thompson Rivers University's faculty of law.

For a regulatory agency to be effective and for enforcers to operate in the public trust, the Canadian Transportation Agency needs to reverse its reputation, because its public image is one of an organization that doesn't do anything," said Malone. They need to appoint robust enforcers and regulators who are zealous in serving the public."

Pandemic turmoil

The Canadian Transportation Agency acts as an independent, quasi-judicial tribunal when deciding cases such as air travel or rail complaints. While the agency is independent, it is funded by the federal Ministry of Transportation, receiving around $34 million annually. In 2019, just prior to the pandemic, the agency created the Air Passenger Protection Regulations to establish minimum standards of treatment airlines have to provide to passengers.

Around half of Air Passenger Protection Regulations complaints sent to the agency are defined as flight disruptions, which fall under three categories: within the airline's control (overbooking of flights); within the airline's control but required for safety purposes (mechanical issues that need to be resolved for passenger safety); and outside of the airline's control (weather).

Under the regulations, airlines are required to pay passengers compensation for flight delays that are within their control. On Sept. 8, 2022, the regulations were updated to address the increase in delays and cancellations seen during the pandemic. Now airlines are required to rebook a flight within 48 hours of a cancellation, if the cancellation is outside of the airline's control. If the flight is not rebooked within that time frame, a refund must be offered.

The Sept. 8 amendment came into effect after a chaotic summer travel season that threw the agency into turmoil. It quickly became clear the agency was ill-equipped to deal with the surge of passenger complaints after thousands flights across the country were delayed or cancelled.

The CTA came out with its regulations right before the pandemic. It didn't plan for the worst period of air travel to come, the regulations weren't designed with the pandemic in mind," said George Petsikas, faculty lecturer at McGill University's Institute of Air & Space Law.

The agency dealt with more than 9,000 complaints in the 2018-19 measurement period, prior to the pandemic. But in 2019-20, complaints surged to 22,600 and remained elevated at 22,700 in 2020-21 and almost 29,000 in 2021-22.

The Canadian Transportation Agency has 73 full-time employees to process the complaints. To help the agency, the federal government has provided an additional $11.5 million to address the unprecedented number of complaints, said Sau Sau Liu, senior communications adviser for Transport Canada.

But the backlog continues to grow year after year and the resolution mechanism seems ineffectual at best.

A common complaint from passengers is that they feel that airlines are incorrectly classifying reasons for the flight delay or cancellation to outside of the airline's control," because in such cases, no refund is required.

In many cases, it's difficult for either passengers or the agency to prove otherwise, as doing so requires detailed knowledge of the situation leading to the delay or cancellation - details only the airline could know.

Cheryl Richards says such a flight misclassification happened to her on Nov. 5, when her WestJet flight was cancelled due to a power outage.

Her flight from Calgary back home to Kamloops, B.C., was delayed by two days. When she applied to be compensated $1,000, WestJet said the outage was due to an airport facility issue" and was therefore outside of its control. She appealed three times and each time compensation was denied.

It wasn't the airport, because other airlines were running, it was just WestJet," Richards said. I found their response completely unreasonable."

When the Star asked WestJet why Richards' compensation was denied three times, spokesperson Denise Kenny said, our guest support team has reviewed (the case) and is actively working to resolve directly with her."

Richards planned to take the claim to small claims court. But on Nov. 28, three days after the Star reached out to WestJet, Richards received $1,000 from WestJet without any explanation as to why she received compensation.

Joanne Jordan and Mike Bourget, who took an Air Canada flight in June 2022, say they were also subject to a flight misclassification when they were told their flight was delayed by a day due to a technical issue."

When the couple filed to get a refund for the delay, Air Canada refuted their claim, this time saying the flight was delayed because of crew constraints due to the impact of the pandemic, meaning the issue was outside of the airline's control.

I mean, it didn't add up, they said it was a technical issue and then they changed it," Jordan said.

The couple intend to take the case to small claims court.

To address the high number of cancellations and delays due to crew shortages, the Canadian Transportation Agency issued a decision in July 2022 that found that crew shortages are within an airline's control and can't be classified as a safety issue. Both Air Canada and WestJet have launched a legal battle to appeal the Canadian Transportation Agency's ruling.

When we adjudicate complaints, we take evidence from both sides, and in the process of doing so, we issue decisions which are an interpretation of the APPR," said Oommen. Some interpretations stand and sometimes it's challenged."

On Dec. 6, the Federal Court of Appeal dismissed an appeal from airlines earlier this year to challenge the validity of the Air Passenger Protection Regulations, claiming the regulations exceed the Canadian Transportation Agency's authority. The airlines also said the regulations went against the Montreal Convention, a multilateral treaty, by imposing extortionate compensation requirements for flight cancellations or lost baggage.

Air Canada, WestJet and Air Transat would not provide the Star with data on how many complaints have been filed by air passengers due to delayed and cancelled flights, and how many passengers received a full refund. But Air Canada spokesperson Peter Fitzpatrick said since the beginning of 2022, the number of APPR complaints we received represents less than one per cent of the total number of customers carried."

Lack of transparency on complaints filed

The Canadian Transportation Agency makes select data publicly available on the number of complaints filed and how many cases are processed. But the agency excludes showing data on how many airlines misclassified complaints and whether the agency sided with the airline or air passenger in its final decision, said Gabor Lukacs, consumer advocate and founder of Air Passenger Rights.

We have no transparency or accountability without this data to even know if air passengers are having their rights upheld," said Lukacs. We have no idea if in the process a passenger gave up, or went to small claims court instead, and that's a problem."

The agency's data shows that in 2021-22, more than 15,000 complaints were processed. However, just because the complaint was processed doesn't mean it was resolved, nor does it show the agency's decision.

Oommen said the data only shows how many flight disruptions there were for the year but not if it was within or outside of the airline's control. The reason for that is complicated, Oommen added. Sometimes a case involves multiple complaints from the air passenger. That could result in a mixed decision" where the Canadian Transportation Agency sides with the air passenger for one complaint but the airlines for the other complaint within the same case.

It's not binary when talking about who is and isn't successful," he said.

Agency doles out limited fines to airlines

Separate from the complaints process, federal legislation allows Canadian Transportation Agency enforcement officers to investigate airlines and individuals it believes may have breached the passenger protection legislation. In doing so, the officers can demand documents, search premises and issue fines of up to $25,000.

Critics say the agency doesn't exercise its regulatory power enough, failing to crack down on airlines defying the law.

Regulations are rules that implement, interpret and enforce laws. Their purpose is to advance the public interest, including protecting citizens' health, safety and the environment," said Bruce Campbell, adjunct professor at York University's faculty of environmental and urban change and senior fellow, Toronto Metropolitan University, centre for free expression.

Inadequate regulatory oversight and enforcement exists across a variety of sectors in Canada, he said, including the aviation sector.

Thompson Rivers University's Malone filed a freedom of information request to the Canadian Transportation Agency and found that only 27 fines, totalling $72,450, were handed out to airlines between March 1, 2020, to Sept. 12, 2022, for conduct such as false advertising and not providing a reasonable quantity of food.

Not one of the fines was for failing to provide a passenger with a refund that was owed.

The CTA did not issue a single fine to airlines for not refunding passengers for delayed or cancelled flights in that time frame. If it has any legitimacy, it needs to start doling out more fines," said Malone.

The reluctance of the Canadian Transportation Agency to hold airlines to account at a time when air passenger complaints are at its highest results in a public distrust of the institution that is meant to protect them, Lukacs said.

During the summer, Canadian Transportation Agency enforcement officers carried out blitzes to ensure airlines were following regulations. During that process officers had discussions with airlines and urged them to comply if a situation was within their control, Oommen said. The discussions resulted in airlines voluntarily admitting wrongdoing and providing the compensation owed in some cases, he added.

We're not here to punish airlines, but we can change their behaviour and ensure compliance. We prefer to have firm conversations with airlines," he said.

How can the system be fixed?

Lukacs said the gold standard" of air passenger rights exists in the European Union, where the default is to compensate a passenger.

In Europe, airlines must provide meals and accommodation, as well as cash compensation, if a flight is delayed or cancelled for reasons both within and outside of the airline's control. If the delay was caused by extraordinary circumstances" the airline must prove it to get out of compensating passengers. In Canada, the airline bares no burden of proof, Lukacs said.

And while critics agree that more funding is needed to support the Canadian Transportation Agency's enforcement and tribunal efforts, they also say the agency must be more transparent on how those funds are used.

In a freedom of information request, Malone found that the agency spent $178,000 in seven months to advertise the Air Passenger Protection Regulations in brochures and ads around airports.

To spend that much money on media costs but then only fine airlines $72,000 in two years ... that is the problem with the CTA," Malone said. They spend money to defend the rights of consumers and work in the public interest, yet their enforcement efforts are minimal."

The holidays are now fast approaching and Bussey, along with thousands of other Canadians, is planning to take to the skies again. She has another flight booked with her husband to Nova Scotia to see family. But she's dreading it.

We can only take WestJet or Air Canada to Sydney, we don't have many options," Bussey said. I'm just terrified the same ordeal will happen to us again."

Clarrie Feinstein is a Toronto-based business reporter for the Star. Reach Clarrie via email: clarriefeinstein@torstar.ca