Air Canada ordered to pay B.C. family $3,000 over missed flight under new regulations

A Comox Valley family was among the first travellers in Canada to be compensated by an airline for messing up their travel plans under new federal regulations designed to protect the rights of air passengers.

Robert and Adrianne McNabb hope their successful small-claims suit for $3,000 after the airline’s delays caused them to miss a connecting flight en route from Florida will help others with similar claims in future.

“Absolutely. I’m staging a class-action lawsuit without a class action with hopes that others can use it in their claims,” said Robert McNabb, who with his wife runs a bed and breakfast in Royston, B.C. “I was pleasantly surprised. It was like David versus Goliath.”

The couple filed the claim under the small-claims division of B.C.’s Civil Resolution Tribunal after they failed to reach an agreement with Air Canada on compensation for delays that caused them to miss the final leg of their pre-COVID-era flight from Fort Lauderdale, Fla., via Montreal and Vancouver.

The couple, travelled with their adult son, Jonathan McNabb, also named in the claim, and each was awarded $1,000. The couple had a second claim for $1,000 for a delay on their outbound flight denied by the tribunal.

The family had planned their trip for the first two weeks of January 2020, with at least two-hour layovers in case of delays.

But Air Canada’s delayed departure from Montreal on Jan. 13, 2020, caused them to miss their flight from Vancouver to Comox, and they had to overnight in Vancouver.

“When a flight is delayed or cancelled (including before the day of travel), an airline has minimum obligations to passengers that could include standards of treatment, rebooking or refunds and up to $1,000 in compensation for inconvenience,” according to the website of the Air Passenger Protection Regulations.

The compensation is payable when reasons for delay are within an airline’s control, such as “staff issues, aircraft preparation activities and decisions to consolidate flights because of low demand,” as well as those disruptions caused by routine and scheduled maintenance.

Delays caused by situations outside of an airline’s control, such as weather, or those “within the airline’s control but required for safety” would not require compensation.

The Air Passenger Protection Regulations became law in July 2019, and the provision mandating the $1,000 payment for delays came into affect on Dec. 15, 2019, two weeks before the McNabbs’ trip.

“This is one of the first decisions that deals with an application (for compensation) under the (regulations),” said Gabor Lukacs, who runs Halifax-based Air Passenger Rights website.

“This is the first time I’ve seen a decision come down so clearly (in favour of passengers),” he said. “In terms of precedent, it sets a good precedent.”

In their claim, the McNabbs said, “Air Canada misrepresented the cause of the delays and breached its contract to transport them to Vancouver in time to meet their connecting flight to Comox,” Civil Resolution Tribunal member Rama Sood wrote in the decision.

Sood accepted Air Canada’s evidence that the plane leaving Montreal was delayed 40 minutes by a situation out of its control — the late arrival of the plane from an unrelated route.

But Sood didn’t accept the airline’s explanation of an additional 33-minute delay, called “vague” and varying, from the necessity for additional plane preparation time to scheduling issues to mechanical failure on the crew’s previous unrelated flight.

“Air Canada did not explain what the mechanical failure was, and so I find it has not proved the delay was beyond its control, or within its control but due to safety purposes,” Sood wrote.

“We will decline to comment,” Air Canada said in an email.

The airline has 28 days to file a “notice of objection,” which could force the issue into provincial court, said Lukacs.

“I can well see Air Canada wanting to appeal it,” he said. Civil Resolution Tribunal members aren’t required to rely on previous cases for future cases, as judges are in higher courts, but future claimants can include them to bolster their case, he said.

McNabb said “we would have to see” if they would fight it in a higher court, but he hoped his claim would show airlines they should compensate customers for breaking a contract.

“What is troubling is people have to go to court to get their rights enforced,” said Lukacs.

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