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Air Passenger Rights: The

First Canadian Efforts...
an Inauspicious Beginning
by P. Paul Fitzgerald*
Introduction
As our skies become more cluttered and more passengers demand more benefits for less money, the campaign for "Air Passenger Rights" rings out on both sides of the Atlantic. In Europe, EC
261/2004' promises a common standard in all Member States. In
the United States, various initiatives-mostly dealing with
tarmac delays-have been proposed but none has the force of
2
law.
A recent Canadian legislative initiative, Bill C-310, draws from
both European and American inspiration and would include additional requirements for transparency in airline advertising. Bill
'3
C-310, "An Act to Provide Certain Rights to Air Passengers,
was tabled in Canada's Parliament on February 10, 2009 by Jim
Maloway, the Member of Parliament for Elmwood-Transcona
and a member of Canada's fourth-largest political party, the New
Democratic Party, also known as the NDP. In normal times such
an initiative would have no chance of passing, but Canada's governing Conservatives have only 143 of the House of Commons'
308 seats.
* P. Paul Fitzgerald, LL.B., B.C.L., M.B.A., has lectured on the regulation of
air transport by governments at McGill University's Institute of Air and Space
Law and at Chicago's DePaul University College of Law.
1 It is formally called Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 Feb. 2004 establishing common rules on
compensation and assistance to passengers in the event of denied boarding
and of cancellation or long delay of flights, and repealing Regulation
(EEC) No. 295/91.
2
Various U.S. initiatives have been proposed or are pending but none has
the force of law. See infra notes 119-121 and accompanying text.
3
Bill C-310, tabled in the 2nd Session of Canada's 40th Parliament,
available at http://www2.parl.gc.ca/HousePublications/Publication.aspx?
Language=E&Parl=40&Ses=2&Mode= 1&Pub=Bill&Doc=C-3 10_1.
34
Issues in Aviation Law and Policy
[Vol. 9:1
As a result, the Conservatives are outnumbered by other parties4 and find themselves supporting initiatives that they might
not support in a majority government. 5 In this context, it is not
surprising that Bill C-310 was supported in principle by all four
parties when it was debated at second reading on March 5, 2009.6
On May 13, it was sent for consideration to the House of Commons Standing Committee on Transport, Infrastructure and
Communities and there exists therefore the possibility that Bill C310, or legislation very similar to it, will be passed by Canada's
7
current Parliament.
As we will see, the passage of Bill C-310 not only would be
troubling for Canada's airline industry, it could impose a strict
liability regime for other modes of transport as well.
Background
The campaign for passenger rights in Canada was inspired by
disruptive snowstorms in Canada in December 2008,8 in central
Canada during the March reading week of 2008,9 in Eastern and
4
This point was eloquently made on Dec. 1, 2008 when the second-place
Liberals (77 seats) and the fourth-place New Democrats (36 seats) signed
an agreement to form a coalition government with the tacit support of the
third-place Bloc Qu~b~cois (49 seats) and proposed to defeat the government during a vote scheduled for Dec. 8, 2008. Prime Minister Harper
had to ask the Governor General to prorogue Parliament and upon granting the request, she made the 1st session of the Canada's 40th Parliament
the shortest on record at just 16 days. (It lasted from Nov. 18, 2008 to
Dec. 4, 2008).
The Government's support of Motion M-465 is a case in point. See infra
note 19 and accompanying text.
See http://www2. parl. gc. ca/HousePublications/Publication. aspx? Pub =
Hansard&Doc=24&Language =E&Mode= 1&Parl=40&Ses=2#SOB-26422
07 (follow "debate" hyperlink).
It was passed by a vote of 139 in favor and 131 opposed, at 18:00 on May
13, 2009. The Conservative government members voted against it, but
they were outnumbered by the members of the three opposition parties.
The most severe and widespread winter weather across Canada in nearly
40 years wreaked havoc with travel coast to coast, causing numerous airport closures and record numbers of flights delays and cancellations. Vancouver airport received 12 inches of snow and ran out of de-icing fluid.
On Dec. 23, 2008 Air Canada flight 156 from YVR to YYZ was delayed
by roughly 12 hours.
Vacation Plan Whiteout; After Storm Leaves Thousands Stranded at Pearson, Travellers Are Told They Could be Stuck for Days, THE TORONTO
STAR, Mar. 10, 2008, at A06. See also A Stroll on the Beach? Only in
their Dreams; Flights Cancelled. Air Canada Says Backlog Could Delay
Travel until Tomorrow, MONTREAL GAZETTE, Mar. 10, 2008, at A3; Fli-
2009]
Air Passenger Rights: The First Canadian Efforts
35
Atlantic Canada during Christmas 2007,10 and in Toronto on December 24, 2004.11
In each of the above cases, snowstorms happened during peak
travel times, when airplane loads are at their highest and airlines
are already running extra flights to meet demand. 12 In such a
situation, the ability of an airline to fly the passenger to his/her
final destination within a reasonable timeframe may be extremely
limited. 13
The campaign began in earnest in January 2008, when two
Mayors from Newfoundland and Labrador, Conception Bay
South Mayor Woodrow French and Labrador City Mayor Graham Letto, called for a "bill of rights similar to ones used in New
York State and in the European Union. ' 14 At the time, neither
Mayor could have been aware that the U.S. Circuit Court of Appeals for the Second Circuit was about to strike down the New
York bill. 15
In any event, the Mayors' concerns were taken up by the Hon.
Gerry Byrne, (Liberal) Member of Parliament for Humber-St.
Barbe-Baie Verte, Newfoundland and Labrador, and he proposed Motion M-465 an "Airline passenger bill of rights" on
March 3, 2008. Motion M-465 called upon the government to "to
bring forward an airline passenger bill of rights similar in scope
ers' Bill of Rights is a Timely Idea, MONTREAL
GAZETTE, Mar.
12, 2008,
at A4.
10
Passengers Could be Stranded More Than a Week,
THE TELEGRAM (St.
John's), Jan. 3, 2008, at D1.

11
12
13
On Dec. 24, 2004 thousands of Jetsgo passengers were stranded in Toronto

when a storm forced that airline to cancel dozens of full flights, and
caused pilots to hit the limit of their daily maximum flying hours with the
result that flights could not resume when the weather improved. As a
result, many of Jetsgo's passengers were unable to reach their destinations
until several days after Christmas. See http://www.ctv.ca/generic/Web
Specials/jetsgo/timeline.html.
If four 100-seat planes are 98 percent full, they have collectively eight
seats to accommodate the roughly 98 passengers from a fifth cancelled
flight.
On Jan. 2, 2008 Air Canada told passengers from cancelled Air Canada
flight 647 that the next flight with seats available would be on Jan 10,
eight days later. See Passengers Could be Stranded More Than a Week,
supra note 10, at Dl.
John's), Jan.
14
Mayors Want Passengers'Bill of Rights, THE
15
13, 2008, at A3.

The New York bill, see discussion supra note 2, was struck down on Mar.
25, 2008.
TELEGRAM (St.
36
[Vol. 9:1
and effect to legal instruments being either proposed or enacted

'16
by jurisdictions within Europe and the United States.
The Motion was debated on April 17 and June 4, 2008 and in
his speech on June 4, 2008, Brian Jean, the Parliamentary Secretary to Canada's Minister of Transport, Infrastructure and Communities, stated the Government's position:
[I]t is important to understand that Canadian air
travelers have more legislated rights than travelers
in any other country in the world. That is right:
currently we have more legislated rights than anywhere else in the world.
[T]hrough the passage of Bill C- 117 just recently,
the government has strengthened the complaints
provisions in the Canada Transportation Act and
requires airlines to publish their tariffs or the terms
and conditions of carriage for both domestic and
international travel. The Canada Transportation
Act requires Canadian airlines to actually file their
tariffs with the Canadian Transportation Agency.
This makes those tariffs legally binding. The
United States does not have a realm of legally binding passenger rights at this time. The European
realm has inconsistent enforcement and, as I said,
does not cover baggage claims. In practical terms,
Canadian travelers already have far more rights,
with better enforcement, than travelers in either the
18
United States or Europe.
Despite this statement, for reasons more connected to politics
than law, the government voted for the motion on June 1219
Five days later, the House of Commons Standing Committee on
Transport, Infrastructure and Communities unanimously passed
16
17
18
19
See http://www.gerrybyrne.ca/pdf/passenger/The%20Motion.pdf.
Bill C-11, "An Act to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other Acts,"
see discussion infra.
For the text of the debate, see http://www2.parl.gc.ca/HousePublications/
Publication.aspx?Language=E&Mode= 1&Parl=39&Ses=2&Docld=3547
501#Int-2510697.
The fact a roll-call vote was requested by the Motion's proponent may
have influenced the government's position. See http://www2.parl.gc.ca/
HousePublications/Publication.aspx?Language=E&Mode= 1&Parl=39&
Ses=2&DocId=3574029#T 1035.
2009]
37
a motion calling on itself to "engage in a study of present legislation and regulation that could possibly be used to protect air
travel consumers and report the study to the House of Commons"
in order to advance the cause of an airline passenger bill of
2
rights. o
Parliament adjourned for its annual summer recess on Friday,
June 20, and was set to return on Monday September 15.21 During the summer, the Hon. Lawrence Cannon22 caused consultations to be held with Canada's major airlines and caused to be
drafted, "Flight Rights Canada," which included a "Code of Conduct for Canada's Airlines. '23 This document was based on the
airlines' tariffs and practices and included an effort to promote an
24
increased awareness of existing air passenger rights in Canada.
Minister Cannon launched Flight Rights Canada on September 5,
2008.25
The Code of Conduct was criticized by Motion M-465 proponent, the Hon. Gerry Byrne, who continued to call for "legally
binding" provisions, oblivious to the fact that in Canada airline
tariffs are legally enforceable and are the jurisdiction of the Canadian Transportation Agency. Similarly, Brian Masse, the NDP
transportation critic, said the Code of Conduct would not change
how the airlines did business because it was not legislation and
26
could not be enforced to give consumers any type of assistance.
In fact, 67(1) of the Canada Transportation Act, S.C. 1996 C10, requires Canada's airlines to make their tariffs available for
inspection by the public. In 2007, a new 67(1)(a.1) was added by
Clause 20 of "An Act to amend the Canada TransportationAct
and the Railway Safety Act and to make consequential amend20
21
22
23
24
25
26
See http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docld=
3583243&Language=E&Mode= 1&Parl=39&Ses=2.
In fact the House was dissolved by Royal Proclamation on Sept. 7, 2008
when Canada's Governor General, on the request of the Prime Minister,
called for a federal election to be held on Oct. 14, 2008.
He was then Canada's Minister of Transport, Infrastructure and
Communities.
See Code of Conduct for Canada's airlines, available at http://www.tc.gc.
ca/mediaroom/releases/nat/2008/08-h207e.htm#bg2.
The author of this paper was the initiator of the "Code of Conduct for
Canada's Airlines."
See http://www.tc.gc.calflightrights/menu.htm.
See http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20080905/
passenger-rights_080905?s name=&noads=.
38
[Vol. 9:1
ments to other Acts, S.C. 2007, c. 19.27 The new section requires
Canada's airlines to post their tariffs on their websites. On February 9, 2009, this requirement was extended to international air28
lines serving Canada.
Sections 67.1 and 67.2 of the Canada Transportation Act give
the Canadian Transportation Agency the power to amend domestic tariffs and order airlines to pay compensation to passengers if
tariffs are not respected or are found by the Agency to be unfair.
Sections 111 to 113.1 of the Air TransportationRegulations (SOR/
88-58) give the Agency similar powers with respect to trans-border and international tariffs.
Flight Rights Canada's Code of Conduct contains a clause in
which the airlines promise to let passengers off an aircraft if a
29
tarmac delay exceeds 90 minutes and circumstances permit.
Unfortunately, on December 23, 2008, passengers aboard Air Canada flight 156 from Vancouver to Toronto experienced a pretakeoff delay of over nine hours. 30 The delay easily exceeded the
90-minute limit in Clause 3(c) of the Code of Conduct. This event
prompted the Consumers Association of Canada to call for "new
31
rules to better protect airline travelers.'
Bill C-310
In the backdrop of misinformation, political opportunism, and
airline passenger grievances with Air Canada, Bill C-3 10 was debated for the first time in Canada's Parliament on March 5,
27
The amending act is also referred to as Bill C-11 of the 1st session of
Canada's 39th Parliament. See the Royal Assent version, available at
http://www2.parl.gc.ca/HousePublications/Publication.aspx?Language =E
&Parl=39&Ses= I&Mode= 1&Pub=Bill&Doc=C= 11_4.
28
Regulations Amending the Air Transportation Regulations and the Canadian Transportation Agency Designated Provisions Regulations, C. Gaz.
Part II, Vol. 143, SOR/2009-28, Feb. 18, 2009, at 214-22. The new regula-
29
30
31
tion sets a fine for non-compliance of $10,000. Id. at 215.

See Code of Conduct, supra note 23, Clause 3(c).
At the time, Vancouver Airport was receiving one of the worst snowstorms on record and was running low on airline de-icing fluid. Most
other flights were cancelled. See http://www.cbc.ca/canada/british-columbia/story/2008/12/23/bc-airports-stranded-travellers.html.
The delay has been described by Bruce Cran of the Consumers Association of Canada as "12 hours." See http://toronto.ctv.ca/servlet/an/local/
CTVNews/20081229/air-travel_081229/20081229/?hub=TorontoNew
Home. In fact the total delay was 11.7 hours of which 9.9 hours were
prior to takeoff.
2009]
39
2009.32 It was passed at second reading and referred to the House

of Commons Standing Committee on Transport, Infrastructure
33
and Communities on May 13, 2009.
The Bill is clearly inspired by EC Regulation No. 261/2004, 34

and by two identical bills before the U.S. Congress, H.R. 624 and
S. 213, both of which bear the title "Airline Passenger Bill of
Rights Act of 2009." 35 The U.S. bills have an objective similar to
the U.S. Department of Transportation's Notice of Proposed

Rulemaking, "Enhancing Airline Passenger Protections" of November 18, 2008.36
Unfortunately, Bill C-310 is more than inspired by European
and American texts; it borrows rather heavily from them and thus
Bill C-310's 'fit' with existing Canadian legislation is awkward at
best. For example, 2 of Bill C-310 defines "air carrier" as "any
person who operates a domestic service or an international service." This is borrowed from 2 of the Air TransportationRegulations.37
32
33
34
35
36
37
Bill C-310 does not propose to amend the Canada
The date was marked by a press teleconference in which Bill C-310's

sponsor was accompanied by Kate Hanni, the Executive Director of the
U.S. Coalition for an Airline Passenger Bill of Rights (CAPBOR), Conception Bay South Mayor Woodrow French, (who started the Canadian campaign in Jan. 2008), and Bruce Cran, President of Consumer's Association
of Canada. See http://strandedpassengers.blogspot.com/.
The previous day, May 12, 2009, the members of the House of Commons
Standing Committee on Transport, Infrastructure and Communities
passed a motion that the "Committee include, as part of its study on Bill
C-310, a comparison of the potential economic and consumer impacts of
these measures with international norms and practices; and evaluate these
impacts with respect to service levels, protection for consumers, air service
providers and on Canadian jobs and competitiveness." See http://
www2.parl.gc.ca/HousePublications/Publication.aspx?Docld=3893797&
Language=E&Mode= 1&Parl=40&Ses=2.
In an undated press release, Jim Maloway, M.P., Bill C-310's sponsor
says, "The legislation is inspired by a European Union law, where overbookings have dropped significantly. Air Canada is already operating
under the European laws for their flights in Europe. Why should an Air
Canada customer receive better treatment in Europe than in Canada?"
See http://www.jimmaloway.ca/airline.html.
H.R. 624, available at http://www.govtrack.us/congress/bill.xpd?bill=hl
11-624. S.213, available at http://www.govtrack.us/congress/bill.xpd?bill
=slll-213. Kate Hanni of CAPBOR had a hand in drafting both bills and
clearly provided input into Bill C-310.
Enhancing Airline Passenger Protections, 73 Fed. Reg. 74586 (proposed
Dec. 8, 2008) (to be codified at 14 C.F.R. pts. 234, 259, & 399).
See Bill C-310, supra note 3, 2. Bill C-310's definition of "air carrier"
does not refer to 2 of the Air Transport Regulations, it merely copies the
definition.
40
[Vol. 9:1
Transportation Act, and does not embrace the core definition that
gives that Act its enforcement power. Further, the definition of
"air carrier," which makes sense in the context of the Air Transport Regulations, loses its meaning outside that context because it
does not limit itself to "air service." Thus, while Bill C-310 could
potentially apply to any mode of transport, its enforceability is
38
less than certain.
Definitions
Section 55 of the Canada Transportation Act defines the term
"licensee" and it is with the "licensee" that the Canadian Transportation Agency has its relationship. It is through the issuance
of the domestic or international license to the "licensee" that the
Agency has the power to require tariffs, investigate the terms of
tariffs, modify tariffs and require the "licensee" to take action as a
result of Agency decisions. 39 In fact, the Canadian Transportation Agency has very little power over an "air carrier" as its January 28, 2009 warning to Go Travel indicates. 40 In that case a
travel agency had chartered a European airline to fly between
Canada and European points for which the foreign carrier did
not have a license.41 In its warning, the Canadian Transportation
Agency reminded Go Travel that 59 of the Canadian Transportation Act, requires a person to have a license if that person
38
39
40
41
See infra discussion of the Application of Canada Transportation Act.

Canada Transportation Act, S.C. 1996 C-10, 55, 67-67.2 and Air TransportationRegulations (SOR/88-58), 111-113.1.
News Release, Canadian Transportation Agency, Canadian Transportation Agency Issues Formal Warning to Go Travel Direct (Jan. 28, 2009),
available at http://www.cta-otc.gc.caldoc.php?did=2175&lang=eng.
Go Travel of Ottawa had contracted with Finnair OYJ to offer flights
between Canada and both London and Paris. In fact Finnair OYJ has
two licenses issued by the Canadian Transportation Agency. License Nos.
975122 and 977282 are for scheduled and charter services, respectively,
between Finland and Canada. Both were issued pursuant to the Sept. 1,
1999 Exchange of Notes constituting an Agreement amending the Agreement between the Government of Canada and the Government of Finland for Air Services between and beyond their Respective Territories,
done at Helsinki on May 28, 1990, E103303- CTS 1999 No. 56. Neither
gave Finnair OYJ the ability to fly nonstop between Canada and London
or Paris. That will probably change when the Agreement on Air Transport between the Government of Canada and the European Community
and its Member States, signed Dec. 9, 2008, goes into force.
2009]
41
wishes to "sell, cause to be sold or publicly offer for sale" a domes42

tic or foreign air service.
Bill C-310 never refers to "licensee," never incorporates any
text from the Canada Transportation Act, and uses the definition
of "air carrier," a term found nowhere in that Act, as a key definition and as a component of other definitions. 4 3 At the very least,
Bill C-310 would have an awkward fit with existing Canadian
Transportation legislation. At most, these oversights could affect
the enforceability of some of Bill C-310's provisions."
The definition
troublesome.
of "reservation"
in
Bill
C-310
is
also
It reads: "'reservation' means a ticket or other proof that indicates that a seat on a flight has been reserved for a particular
passenger by the air carrier. '45 This definition borrows heavily
from the definition of "reservation" used in Europe's EC 261/
2004.46 Unfortunately the definition, especially in Canada, overlooks the fact that the ticket 47 is meant to be the principal documentary proof of the contract of carriage between the passenger
and the airline and indicates the price paid, the points of departure and destination, and the names of the passenger and the air42
43
44
45
46
47
Canada Transportation Act, S.C. 1996C-10, 59.

The term "air carrier" is included in the definitions of "air crew," "passenger," "reservation," and "ticket." See Bill C-310, supra note 3, 2.
This could affect the applicability of 21 of Bill C-310, supra note 3, discussion infra.
See Bill C-310, supra note 3, 2.
The definition of "reservation" in EC 261/2004 is "'reservation' means the
fact that the passenger has a ticket, or other proof, which indicates that
the reservation has been accepted and registered by the air carrier or tour
operator."
In both the 1929 Warsaw Convention and the 1955 Hague Protocol, a
"ticket" was the primary documentary evidence of a contract of carriage
between a passenger and an airline. The ticket included date of issue, the
place of departure and destination, agreed stopping places, the names and
addresses of the carrier(s), and a statement that the carriage could be subject to the rules relating to liability established by this Convention. The
term "ticket" has been replaced by "document of carriage" in the 1999
Montreal Convention. See Convention for the Unification of Certain
Rules Relating to International Transportation by Air art. 3, Oct. 12, 1929,
137 L.N.T.S. 11 [hereinafter Warsaw Convention]. See also Protocol to
Amend the Convention for the Unification of Certain Rules Relating to
International Carriage by Air art. III, Sept. 28, 1955, 478 U.N.T.S. 373
[hereinafter The Hague Protocol]; Convention for the Unification of Certain Rules For International Carriage by Air art. 3, May 28, 1999, 2242
U.N.T.S. 350 [hereinafter Montreal Convention].
42
[Vol. 9:1
line(s). The reservation is generally more precise and shows flight

number, departure and arrival times, and connecting points. As a
point of distinction, the ticket shows that the passenger has a contract of carriage with the airline and the reservation is a confirmation of transport at a specific time and place. In North
America there are two types of airline tickets. A "positive-space"
ticket means the traveler may travel on a specific flight on a specific date. 48 A "space-available" ticket gives the passenger the
right to be placed on a reservations waitlist and requires that the
passenger stand by at the airport before receiving a seat assignment. 49 Thus a definition that confuses "reservation" with
"ticket" is problematic, especially when it could result in the imposition of new obligations on "air carriers."
An equally troubling definition in Bill C-310 is that of "passenger." It reads:
"passenger" means a person, other than a member
of the air crew, who uses, or intends to use, an air
carrier's domestic service or international service
by boarding the air carrier's aircraft pursuant to a
50
valid contract or arrangement.
Here, there is no requirement for the passenger to have a ticket
or even a reservation. Thus the passenger could be an airline employee, 5 1 a passenger traveling on a flight other than the one reserved, 52 or an employee of another airline or a family member of
an airline employee. 53 Further, the word "arrangement" gives rise
to other possibilities, such as the seat requirements of an air mar48
49
50
51
52
53
The vast majority of purchased tickets are "positive space."

Space-available tickets are issued for free or at discounted rates to airline
employees, their families, students (where Student Stand-by exists) and
foreigners visiting the U.S. and Canada using VUSA coupons purchased
overseas.
See Bill C-310, supra note 3, 2.
Airline employees, such as management and dead-heading crew (crew
traveling to operate as flight crew on another flight), often pay only nominal amounts, if anything, for their passage.
Often, business travelers will reserve one flight and travel on an earlier or
later flight. This is particularly common when a carrier offers several
flights per day over a specific route, such as Toronto-Montreal or New
York-Washington.
Many airlines give "space-available" passes to employees and their families as benefit. At any time these passengers can be bumped in favor of
paying passengers.
2009]
43
shal 54 or an attendant accompanying a passenger with reduced

mobility, 55 and whether such persons could bump another
passenger.
Scope
The same problems that plague the definitions also affect the
scope of Bill C-310. Bill C-310's scope is clearly inspired by Article 3(1) of EC 261/2004 but it does not follow the latter's elegant
form. EC 261/2004 applies to "to passengers departing from an
airport located in the territory of a Member State to which the
Treaty applies ' 5 6 and "to passengers departing from an airport located in a third country to an airport situated in the territory of a
Member State to which the Treaty applies ...if the operating air
carrier of the flight concerned is a Community carrier. '5 7 In simple terms, EC 261/2004 applies to round-trip travel on EU carriers and to flights departing EU airports on any airline.
Bill C-310, by contrast, would apply to "to all operations of
Canadian air carriers and to operations of all air carriers that
take place in Canada. 5'1 Bill C-310 does not define "operations"
but it has the potential to be much broader than may be intended.
For example, Statistics Canada's study of "Air Carrier Operations
in Canada" covers everything from the balance sheet to the num54
55
56
57
58
For example, in Canada, In-Flight Security Officers (IFSO), operating

with the Canadian Air Carrier Protective Program, may be deployed on
"national, transborder and internal" routes, and "they are assigned to
flights according to a 'threat matrix."' See http://www.rcmp-grc.gc.ca/gazette/vol70n3/air-eng.htm. Thus it is not unheard of for an air marshal to
be assigned to a flight at the last minute. The airline does not receive
payment for the IFSO's passage and it is unclear whether the IFSO requires a boarding pass or ticket. Certainly s/he would not be a 'passenger' in the normal sense of the word.
A Jan. 10, 2008 decision of the Canadian Transportation Agency requires
Canada's airlines to provide a free seat to the attendant of certain passengers with reduced mobility. See infra note 241.
See Regulation (EC) No. 261/2004, supra note 1, art. 3(1)(a). Here the
expression "Member State to which the Treaty applies" means "members
of the European Union." The treaty is the Treaty of Nice Amending the
Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Feb. 26, 2001, 2001 O.J. (C 80). It
entered into force on Feb. 1, 2003.
See Regulation (EC) No. 261/2004, supra note 1, art. 3(1)(b). This text also
includes words suggesting that EC 261/2004 does not apply if the traveler
received comparable benefits when departing from a non-EU country.
See 3(1) of Bill C-310, supra note 3.
44
[Vol. 9:1
ber of hours flown. 59 At a minimum, Bill C-310's scope would

include items absent in the European bill, such as the arrival of a
foreign aircraft at an airport, an emergency landing, or the diversion of an aircraft pursuant to the orders of Air Traffic Control.
Thus, had Bill C-310 been in force on September 11,. 2001, its
provisions would have applied to the 239 aircraft that were diverted to Canadian airports. 60 As drafted, it is conceivable that it
could even be applicable to foreign aircraft that overfly Canada. 6 1
Section 3(2) of Bill C-310 states that the Bill "shall prevail to
the extent of [an] inconsistency or conflict" with "any other Act of
Parliament or regulations made under that Act. '62 The drafters
appear unfamiliar with the operation of either the Canada Transportation Act or the Air Transportation Regulations, both dis-
cussed earlier in this paper. More seriously, there is a direct

potential conflict between Bill C-3 10 and Schedule VI of the Carriage by Air Act, R.S.C, 1985, c. C-26, with respect to interna63
tional passengers.
59
60
61
62
63
See http://www.statcan.gc.ca/cgi-bin/imdb/p2SV.pl?Function=getSurvey
&SDDS=2712&lang=en&db=imdb&adm=8&dis=2.
On Sept. 11, 2001, 53 intercontinental jets landed at Gander, Stephenville,
and Goose Bay, none of which receive scheduled trans-Atlantic traffic.
Another 78 intercontinental jets landed at Halifax, Moncton, and St.
John's, the biggest of which has only one year-round daily intercontinental flight. The 131 aircraft sent to these six airports represented 54 percent of all diverted flights to Canada and many of their passengers had to
wait on-board for several hours in order to be cleared by Canadian Customs officers. See http://www.navcanada.ca/NavCanada.asp?Language=
en&Content=ContentDefinitionFiles%5CNewsroom%5CBackgrounders
%5C91 lcrisis.xml.
The United States' Secure Flight Final Rule, 73 Fed. Reg. 64017, (Oct. 28,
2008), adds a new 1560.3 to 49 U.S.C, to require all airlines to submit to
the Transportation Security Administration, the full name, gender, and
date of birth of all persons on board aircraft over-flying the U.S. This
would suggest that there are circumstances under which, notwithstanding
the Convention on Offences and Certain other Acts Committed on Board
Aircraft, Sept. 14, 1963, 704 U.N.T.S. 219, [hereinafter Tokyo Convention], there may be situations where authorities have jurisdiction over activities on board over-flying aircraft.
See Bill C-310, supra note 3, 3(2).
Schedule VI of the Carriage by Air Act, R.S.C, 1985, c. C-26, implements
in Canadian law the Montreal Convention. The nature and extent of the
conflict will be discussed infra.
2009]
45
Cancellation
Section 4 of Bill C-310 deals with flight cancellations and is
clearly influenced by Article 5 of EC 261/2004. At first blush, 4
would largely be a re-statement of the existing tariff terms of Canada's major carriers. If a Canadian airline cancels a flight the
airline will undertake to ensure that the passenger is rerouted or
transported to his/her ultimate destination, as per the contract of
64
carriage, within a reasonable period of time and at no extra cost.
If this cannot be done, the passenger is offered credit for a future
flight 65 or a full refund. 66 Further, given that Canada's major
airlines offer multiple routings 67 and multiple daily flights on
most routes, Canada's carriers are generally able to get the passenger to his/her destination within a reasonable 6 8 amount of
time. 69
Section 4(1)(c)(i) of Bill C-310 mirrors Article 5(1)(c)(i) of EC
261/2004 in exonerating the carrier if it informed the passenger of
the cancellation two weeks before the departure date. 70 Both Bill
C-3 10 and EC 261/2004 require that the airline prove that they
64
Rule 240AC (C)(1)(a) of Air Canada's CanadianDomestic General Rules

Tariff No. CDGR-1 (Jan. 22, 2008).
65
Para. 3.4(a) of WestJet's Local Domestic Tariff (effective July 10, 2008).
66
Rule 260AC (A)(1) and (2) of Air Canada's Tariff, supra note 64, and Paragraph 3.4(b) of WestJet's Local Domestic Tariff, supra note 65.
If Air Canada cancels a Quebec City-Toronto flight, it can offer passengers (even those destined to points west and/or south of Toronto) connections via Montreal or Ottawa. Often, these connections are as fast as or
faster than the original itinerary. Obviously, if weather cancels all outbound flights at an airport this would limit the airline's ability to offer
connecting flights within a reasonable time.
In CTA Decision 171-C-A-2007 of Apr. 11, 2007, Robert Primeau v. Air
Canada, the Canadian Ttansportation Agency held that Rule 240 AC of
Air Canada'sTariff, supra note 64, was reasonable in that it requires the
airline to deliver the passenger to his/her destination within two hours of
the scheduled time. In that case, an Air Canada flight had made a lastminute detour to pick up passengers from a grounded sister aircraft, and
the passenger had missed his original connection. Air Canada had flown
the passenger on the next connecting flight, arriving at the stated destination within two hours of the scheduled time, but the passenger missed a
ground connection.
Obviously, if weather forces the cancellation of multiple flights at a peak
travel time, the airline's ability to reroute a passenger quickly may be
limited. See supra note 12.
See Bill C-310, supra note 3, 4(1)(c)(i). See also art. 5(1)(c)(i) of Regulation (EC) No. 261/2004, supra note 1.
67
68
69
70
46
[Vol. 9:1
made the passenger aware of the cancellation within the required

7
time. 1
Similarly, 4(1)(c)(iii) Bill C-310 mirrors Article 5(3) of EC 261/
2004 and excuses the carrier from this obligation to pay compensation if the "air carrier can prove that the cancellation was
caused by [unavoidable] extraordinary circumstances. '' 72 As a
general rule, mechanical breakdowns resulting from a lack of preventive maintenance do not constitute "[unavoidable] extraordinary circumstances. '7 3 Section 4(2) makes it clear (as if such
clarity were necessary) that "[unavoidable] extraordinary circumstances" include the closure of an airport due to weather
conditions.74
However, 4(1)(c)(ii) of Bill C-310 contains a concept not found
in any other legislation. It would force an airline that cancelled a
flight to pay a passenger the required compensation, $500 to
$1200 (depending on flight distance) 7 5 unless the passenger "accepted in writing the re-routing offered by the air carrier. '' 76 Section 4(1)(c)(ii) could result in cases where an airline cancels a
flight for financial or logistical reasons 77 and has to negotiate to
get the passenger's written permission to reroute him/her to the
71
72
73
74
75
76
77
See Bill C-310, supra note 3, 4(4) & Regulation (EC) No. 261/2004, supra
note 1, art. 5(4).
See Bill C-310, supra note 3, 4(1)(c)(iii). See also Regulation (EC) No.
261/2004, supra note 1, art. 5(3). The Europeans accept as "extraordinary
circumstances" "political instability, meteorological conditions incompatible with the operation of the flight, security, unexpected flight safety
shortcomings and strikes," as well as "delays to flights by an aircraft resulting from an air traffic management decision earlier in the day." See
Regulation (EC) No. 261/2004, supra note 1, recitals 14-15.
See Case C-396/06, Eivind F. Kramme v. SAS Scandinavian Airlines
Danmark AIS, ECJ Advocate General, 27 Sept. 2007. Canada is one of
the world leaders in the implementation of ICAO's Safety Management
Systems, a proactive approach that emphasizes prevention, through
hazards identification and risk control and mitigation measures, before
events that affect safety occur. Thus, by 2010, the bar will be raised as to
what kinds of mechanical breakdowns constitute, "[unavoidable] extraordinary circumstances." See http://www.tc.gc.ca/CivilAviation/SMS/
menu.htm; http://www.icao.int/anb/safetymanagement/.
The amounts are determined according to a formula laid out in 9 of Bill
C-310, supra note 3. Section 9 will be discussed infra.
See Bill C-310, supra note 3, 4(1)(c)(ii).
Section 4(1)(c)(ii) of Bill C-3 10 would not apply during "[unavoidable] extraordinary circumstances," as per 4(1)(c)(iii) of Bill C-310, supra note 3.
2009]
47
destination on the ticket, even where such rerouting would arrive

78
within 30 minutes of the time stated in the original itinerary.
Here Bill C-3 10 shows its lack of depth. Any legislative proposal aiming to compensate passengers whose flight has been cancelled needs to achieve one of two results:
a) reroute the passenger to the final destination stated in the
ticket within a certain number of hours of the original arrival time; or
b) give the passenger the money to buy a passage on another
airline.
When a flight is cancelled, rerouting is almost always the preferred option. Thus, Article 5(1)(c)(iii) of EC 261/2004 waives the
passenger's right to compensation if the airline can reroute the
passenger to the final destination, arriving not later than two
hours after the initially scheduled arrival time and departing not
earlier than one hour before the originally scheduled departure
time. 79 A European Commission background paper on Regulation (EC) No. 261/200480 makes the point that rerouting is not a
problem for major EU carriers that provide multiple daily flights
and many connection points over a large route network. The
problem is usually with the low-cost EU carriers that do not provide daily service to many destinations 8 ' or over many routes. By
78
79
80
81
On major routes, Air Canada has very frequent service. For example, in
Feb. 2009 (an off-peak travel period), Air Canada offered AC1, a B777300, and AC25, a B767-300, from Toronto to Vancouver at 9:00 and 9:30,
respectively, daily. From Toronto to Montreal, Air Canada offered flights
every 30 minutes from 6:30 a.m. to 9:00 a.m. See "Star Alliance Timetable, February 1st to April 19th, 2009," Star Alliance, 2009. Depending on
load factors and available aircraft, it might make sense to 'consolidate'
two flights into one. In such a situation, some of the passengers would be
delayed by roughly 30 minutes and others would arrive at the original
time.
See Regulation (EC) No. 261/2004, supra note 1, art. 5(1)(c)(iii). This standard applies if the passenger is given less than seven days' notice. If more
than seven days' notice is given, art. 5(1)(c)(ii) allows the departure and
arrival times to be two hours earlier and four hours later, respectively,
than the originally scheduled times.
See Communication from the Commission to the European Parliament
and the Council pursuant to Article 17 of Regulation [EC] 261/2004 on the
operation and the results of this Regulation establishing common rules on
compensation and assistance to passengers in the event of denied boarding
and of cancellation or long delay of flights, Commission of the European
Communities, Apr. 4, 2007.
In the summer of 2009, there were six points in easyJet's network that did
not receive daily service: Bodrum, Turkey; Dalaman, Turkey; Hurghada,
Egypt; Larnaca, Cyprus; Santorini, Greece; and Sharm El Sheikh, Egypt.
48
[Vol. 9:1
way of example, Ryanair serves its 862 mile route between BaselMulhouse and Stockholm, twice weekly82 and offers round-trip
fares of $103.97.83 In such a case, if a flight is cancelled, refunding the passenger's fare does not usually provide sufficient
84
funds to purchase a last-minute ticket on another carrier.
The problems associated with European low-cost carriers do
not occur frequently in Canada because most, if not all, of Canada's domestic carriers serve all of their destinations daily8 5 and
provide daily nonstop or connecting flights between most of the
major cities on their route network. 8 6 Given the relative ease of
rerouting the Canadian passenger, 87 there should be little if any
need for compensation, but where the provisions of EC 261/2004
would be satisfied, Bill C-3 10 would demand more.
Essentially EC 261/2004 requires the airline to reroute the passenger of the cancelled flight to his/her final destination within a
specified time period. 88 If this cannot be done, the amount of the
compensation is intended to facilitate the purchase of a ticket on
another carrier. 89
82
83
84
85
86
87
88
89
Ryanair offers an 80-minute nonstop flight between Basel-Mulhouse and

Stockholm on Tuesdays and Saturdays. The route is flown nonstop and
Ryanair does not offer connecting service via another city. See infra note
235 and accompanying text.
In this case of a ticket bought on May 8, 2009 for a departure on Tuesday,
May 12, 2009 and a return on Saturday, May 16, 2009, Ryanair would
have charged $166.46 (taxes included), of which the carrier would receive
$103.97.
If the flight were cancelled and the passenger needed to make the trip, the
lowest fare on a major carrier for travel on the same dates was $476 (taxes
included) on KLM/AF and required at least eight hours and 28 minutes in
each direction and an overnight in Paris on the return portion. The fare
on KLM/AF is $309.54 more than Ryanair on this route.
Air Canada, Air Canada Jazz, Porter, and WestJet, provide daily (Monday-Friday) service to virtually every city in their network. Airline service on Canadian North and First Air to some destinations in the high
Arctic is not daily in all cases.
Both Air Canada and WestJet have multiple hubs. They can route a
Montreal-Vancouver passenger over a nonstop flight, or via one or more
of Ottawa, Toronto, Winnipeg, Calgary, or Edmonton. This means that
in most cases a passenger can easily be rerouted via another connecting
point with minimum inconvenience. European low-cost carriers do not
offer this flexibility.
This is true in virtually every situation except where inclement weather
forces the cancellations of multiple flights during a peak travel period.
See supra note 12, infra note 112.
See Regulation (EC) No. 261/2004, supra note 1, art. 5(1)(c)(ii)-(iii).
In the case of the passenger from the cancelled Basle-Mulhouse-Stockholm flight discussed in notes 82 and 83 supra, rerouting on another Ry-
2009]
49
Quite simply the impact on a passenger in Canada of a cancelled flight is on average a fraction of the impact of the same
event on a European passenger and thus there are relatively few
complaints against Canada's airlines. 90 It is therefore quite surprising that Bill C-3 10 would require "reimbursement or re-routing"91 as well as "compensation '9 2 for any last-minute flight
cancellation that is not due to "[unavoidable] extraordinary circumstances" unless the passenger accepts the proposed rerouting
in writing.
It seems thus that one of the aims of Bill C-3 10 is to limit airlines' scheduling flexibility and punish them for past wrongs, real
or imagined.
Delay
Section 5(1) of Bill C-310 deals with Delay and is clearly influenced by Article 6 of EC 261/2004. An initial read suggests that it
would largely confirm the existing practices of Canada's major
93
airlines as stated in the Code of Conduct for Canada's Airlines.
However, deeper analysis shows that is a poor adaptation of a
European standard to another continent which shares neither
Europe's geography nor climatic conditions. 94 Thus, Article 6(1)
of EC 261/2004 would provide different delay thresholds for a
Montreal-Toronto flight,9 5 a Montreal-Winnipeg flight,9 6 and a
90
anair flight is not possible. Here, the compensation (provided for in art. 8
of Regulation (EC) No. 261/2004, supra note 1, and discussed infra) would
be sufficient to pay for the purchase of a last-minute ticket on another
carrier.
In 2007, the last year for which figures are available, the Canadian Transportation Agency received only 568 complaints against Canadian carriers.
See 2007-2008 Annual Report, Making Transportation Efficient and Accessible for All, Appendix C: Air Travel Complaints, Canadian Transportation Agency, available at http://www.cta-otc.gc.ca/aux-bin.php?auxid=
1020.
91
92
93
94
95
See Bill C-310, supra note 3, 4(1)(a).

See id. 4(1)(c)(ii).
See supra notes 23 and 24, and accompanying text.
See infra note 112 for an understanding of a winter storm in North
America. By contrast, a European snowstorm results in far fewer consequences and is a much less common event. See http://abcnews.go.com/
Travel/GMASkiReportwireStory?id=6578831.
Montreal-Toronto would be a flight of less than 930 miles (1,500 kin). See
Regulation (EC) No. 261/2004, supra note 1, art. 6(1)(a). After a two-hour
delay air carrier obligations would start.
50
[Vol. 9:1
Montreal-Vancouver flight.9 7 Section 5(1) of Bill C-310 makes no

such allowance; it obligates air carriers after a two-hour delay for
98
any flight.
Section 5(2) of Bill C-310 is essentially a re-statement of Article
6(1)(c)(ii) of EC 261/2004 and shares its flaws. Both would require an airline to pay for a passenger's hotel stay and return
transport from the airport in cases where "delay in the departure
of a flight will require the passengers to stay overnight at the
point of departure." 99 Both ignore the common situation where
passengers may be based in the departure city and therefore
would not normally use their own money to pay for a hotel stay.
Section 5(3) of Bill C-310 is a re-statement of Article 6(1)(c)(iii)
of EC 261/2004 and requires the air carrier, in the case of a departure delay exceeding five hours, to offer "offer to every affected
passenger reimbursement" or rerouting.
Given Canada's climate geography and the importance that
the airline industry play in trans-continental passenger transportation one might expect a subsection of 5 of Bill C-3 10 to include
language similar to that in subsection 4(2), absolving air carriers
from all responsibility where an airport is closed to all traffic due
to inclement weather conditions. 10 Absent such a clause Canada's airlines would not be in the "air transport" business; they
would essentially be in the insurance business.
In fact, Air Canada has already launched "On My Way," which
for $25 goes "beyond what airlines normally do, so you'll always
be prepared, no matter what setback you encounter.' ' 0 1 The program was announced on April 2, 2008102 and was held by the
Montreal-Winnipeg would be a flight of between 931 miles (1,500km) and
2,172 miles (3,500 kin). See Regulation (EC) No. 261/2004, supra note 1,
art. 6(1)(b). After a three-hour delay air carrier obligations would start.
97
Montreal-Vancouver would be a flight of more than 2,173 miles (3,500
kin). See Regulation (EC) No. 261/2004, supra note 1, art. 6(1)(c). After a
four-hour delay air carrier obligations would start.
98 See Bill C-310, supra note 3, 5(1).
99 See id. 5(2). Regulation (EC) No. 261/2004, supra note 1, art. 6(1)(c)(ii),
would require payment for a hotel stay "when the reasonably expected
time of departure is at least the day after the time of departure previously
announced."
101 See http://www.aircanada.com/en/travelinfo/traveller/onmyway.html.
102 See http://www.cbc.ca/consumer/story/2008/04/02/air-canada.html.
96
2009]
51
Canadian Transportation Agency to be "just and reasonable,")103

but the Agency directed Air Canada to "ensure that its rules
clearly indicate that when there is a flight disruption, OMW passengers and non-OMW passengers will have equal access to Air
Canada's call centers and customer service agents for the purpose
of rebooking passengers for next available flights" 104
It is likely that the applicability of 5 of Bill C-310 would be
challenged with respect to international and trans-border flights
as delay to "international" flight is covered by Article 19 of the
Montreal Convention, 10 which is enshrined in Canadian domestic law as Schedule VI of the Carriage by Air Act. 106 American
courts have rules that, with respect to international flights, foreign treaties take precedence over domestic laws. 10 7 A European
court has held that the Delay provisions of Article 6(1) of Regulation (EC) No. 261/200408 are valid only to the extent that they do
not conflict with the Montreal Convention and serve only to amplify its provisions.19 Thus, in cases where 5 of Bill C-310
would provide benefits in a situation identical or very similar to
one covered by Article 19 of the Montreal Convention, it is highly
likely that the provisions of the Montreal Convention would take
priority in any decision of a Canadian court. Indeed, as recently
as May 13, 2009, the Canadian Transportation Agency recognized
that Article 19 of the Montreal Convention applies to all claims
where baggage of a passenger on an international voyage is
delayed. 110
Further, several U.S. court decisions suggest that Article 19 of
the Montreal Convention applies to delays in departure as well as
delays in arrival.,ll
103
See CTA Decision No. 565-C-A-2008 of Nov. 3, 2008, In the matter of a

complaint filed by Public Interest Advocacy Centre against Air Canada.
lo4
Id.
105
Montreal Convention, supra note 47.

Carriage by Air Act, R.S.C, 1985, c. C-26.
Walker v. Eastern Airlines, Inc., 785 F. Supp. 1168, 1169 (S.D.N.Y. 1992).
Regulation (EC) No. 261/2004, supra note 1, art. 6(1)(c)(ii).
Case C-344/04, International Air Transport Association, 2006 E.C.R. I-
106
107
108
109
403.
110 See CTA Decision No. 208-C-A-2009 of May 13, 2009, In the matter of a
complaint by Gdbor Lukdcs against Air Canada. Here the Agency struck
down an Air Canada tariff that was not in compliance with Article 19 of
111
the Montreal Convention.

See Malek v. Air France, 31 Av. Cas. (CCH) 18,096 (N.Y. City Civ. Ct.
Sept. 8, 2006), Patel v. British Airways, 30 Av. Cas. (CCH) 16,379
(E.D.N.Y. Apr. 1, 2005), Lee v. American Airlines, Inc., 28 Av. Cas.
52
[Vol. 9:1
Tarmac Rights
Section 6(1) of Bill C-310 deals with "Tarmac Rights" or the
rights of passengers while on board an aircraft prior to takeoff or
after landing. In practical terms, 'tarmac rights' would apply to
the passengers of aircraft whose takeoff is substantially delayed
after boarding, or to passengers who cannot disembark from an
aircraft for a substantial period of time after the aircraft has
landed.
In Canada this campaign is largely motivated by the occurrences on two Cubana Airlines flights diverted to Ottawa, where
300 passengers were kept on the planes for 12 hours.112 However,
it must be understood that unlike taxi drivers, airlines have no
interest in keeping passengers onboard one second more than is
necessary.113
Quite simply, "airplanes make money in the air, not on the

ground,", 14 and thus Southwest Airlines invented the '20-minute
turn'11 during which incoming passengers and baggage would be
112
113
114
115
(CCH) 16,552 (N.D. Tex. Jul. 2, 2002), Cho v. Korean Air Lines Co., 28
Av. Cas. (CCH) 15,502 (C.D. Cal. Jun. 1, 2001).
Flights 170 and 172 of Cubana de Aviaci6n were diverted to Ottawa on
Mar. 11, 2008 during one of the worst snowstorms on record. At the time,
Ottawa was in the middle of receiving 52 cm of snow, there was thunder
and lightning in the area, and nearly 1,000 flights were cancelled in Montreal, Ottawa, and Toronto, as well as Cleveland and Columbus, Ohio.
The flights arrived at roughly 17:30 and there were no international gates
available for Customs clearance. Passengers were held on the aircraft for
over 12 hours until one passenger called the RCMP on his cell phone.
Customs clearance requirements, a rumored landing fee dispute between
the Ottawa Airport authority and Cubana de Aviaci6n and airport staff
who missed work because of the storm all played roles in the extraordinary and most unusual delay. See Fliers' Bill of Rights Is a Timely Idea,
MONTREAL GAZETTE, Mar. 12, 2008, at A4.
By contrast, Amtrak offers "early-boarding" and a pre-departure "Welcome Aboard reception," with "complimentary snacks and beverages in
the Dining car" to selected passengers on selected trains. See http://www.
amtrak.com/timetable/mayO9/P48.pdf.
Herb Kelleher, president and CEO of Southwest Airlines, quoted in Outlaw Flyboy CEOs: Two Texas Mavericks Rant About the Wreckage of the
U.S. Aviation Industry-and Reveal How They've Managed to Keep Their
Companies Above the Miserable Average, FORTUNE,Nov. 13, 2000, available at http://money.cnn.com/magazines/fortune/fortunearchive/2000/1 1/
13/291563/index.htm.
"Once an aircraft reaches its intended destination, it is unloaded and
loaded in 20 minutes," said Herb Kelleher, quoted in CNN MONEY, Apr.
30, 1998, available at http://money.cnn.tv/1998/04/30/travelcenter/biz
travel/.
2009]
53
unloaded, the outbound passengers, baggage and fuel would be

loaded, and the aircraft would depart.116 Given increasing air
traffic congestion and slot control at many airports, airlines have
many incentives to be on time.' 17 In almost every case where
'tarmac rights' might be invoked, the airline faces legal impediments to granting the passengers' wishes, 1 8 and well-informed,
concerned legislators would be wise to focus on eliminating these
impediments rather than on imposing new obligations on airlines.
It is therefore not surprising that no jurisdiction has adopted
legislation on 'tarmac rights.'
That said, 6(1) of Bill C-310 clearly is based on two identical
Bills before the U.S. Congress,' 1 9 and on New York State Bill No.
A08406B, 1 20 which would have "[c]reate[d] a consumer bill of
rights regarding airline passengers," had it not been stuck
down. 121
116
117
118
119
120
121
In fact, so important is punctuality that when Gus Fuentes delayed the

departure of Air Canada flight 869 from London to Toronto on Mar. 15,
2006 by over 30 minutes, Air Canada charged him $1,350, an action that
the Canadian Transportation Agency supported in CTA Decision No. 493C-A-2006 of Sept. 14, 2006, Gus Fuentes v. Air Canada.
Indeed, in July 2008, Britain's BMI thought of operating empty shorthaul flights in order to maintain slots at London's Heathrow airport. See
http://www.timesonline.co.uk/tol/travel/news/article4340518.ece. Punctuality is not just important for slot access; it is also a marketing tool.
These impediments range from air traffic control decisions to the need to
clear international arriving flights through Customs and Immigration
formalities.
Two identical measures, H.R. 624 and S. 213, are both called the "Airline
Passenger Bill of Rights Act of 2009." See supra note 35. On July 14,
2009, Sen. Rockefeller incorporated the terms of the "Airline Passenger
Bill of Rights of 2009" into the text of S. 1451, the "Federal Aviation Administration Air Transportation Modernization and Safety Improvement
Act," which contains the spending authorization for the Federal Aviation
Administration. However, before supporters claim victory they should be
aware that there are other FAA spending authorization bills before Congress that do not embrace passenger rights. A previous Congressional legislative attempt also involved two similar bills, S. 678 and H.R. 1303,
which were both called the "Airline Passenger Bill of Rights Act of 2007."
S. 678, available at http://www.govtrack.us/congress/bill.xpd?bill=sllO678; H.R. 1303, available at http://www.washingtonwatch.com/bills/show/
110_HR_1303.html. These measures were introduced in the Spring of
2007 but were never passed.
New York State Bill No. A08406 was signed by then-Governor Spitzer on
Aug. 1, 2007.
Air Transport Ass'n of Am. v. Cuomo, 520 F.3d 218 (2d Cir. 2008). The
Court held that New York's Passenger Bill of Rights was preempted by
the express preemption provision of the Airline Deregulation Act of 1978
54
[Vol. 9:1
Part of the measure that the court struck down is subsection 1

of Article 14-A, New York General Business Law, 251-g, which
reads as follows:
1. Whenever Airline passengers have boarded an
aircraft and are delayed more than 3 hours prior to
takeoff, the carrier shall ensure that passengers are
provided with
a) electric generation service to provide temporary power for fresh air and lights;
b) waste removal service in order to service the
holding tanks for on-board restrooms; and
c) adequate food and drinking water and other
refreshments.
Indeed, subsections 6(1)(a) to (c) of Bill C-310122 are copied directly from New York State Bill No. A08406B, however Bill C310 goes considerably further. Rather than limiting its application to the pre-takeoff situation described above, 6(1) of Bill C310 would cover the entire period "while the aircraft is on the
ground at an aerodrome. ' ' 123 This would include the takeoff as
well as a landing at either the destination or any other aerodrome

and would cover emergency landings, en-route fuel stops, and
virtually any other occurrence.
122
123
124
124
and that only the federal government had the authority to enact such
legislation.
See Bill C-310, supra note 3, 6(1)(a) to (c).
Id., 6(1).
On international flights these may include unscheduled landings in other

countries for reasons related to weather, security, safety, unruly passengers, medical emergency, or other factors. Since 2003, this has happened
to at least five Air Canada international services:
Air Canada 777 Sydney-Vancouver (Honolulu), Apr. 24, 2009, http://
www.theprovince.com/Canada+flight+makes+emergency+landing+Hawaii/1530922/story.html;
Air Canada 333 London-Toronto (St. John's), Apr. 2, 2009, http://avherald.com/h ?article=41768632;
Air Canada 767 Toronto-London (Shannon), Jan.28, 2008, http://www2.
canada.com/victoriatimescolonist/news/story.html?id=cd55c45d-e6ae-4e
a6-a0f6-e48956e3b008&k= 14039;
Air Canada 767 Toronto-Buenos Aires (Trinidad), July 6, 2005, http://find
articles.com/p/articles/mi-mOCWU/is_2005-July-7/ai_n 14726546/; and
Air Canada 744 Toronto-Frankfurt (Reykjavik), Aug. 18, 2003, http://
www.cbc.calworld/story/2003/08/18/aircan030818.html.
2009]
55
In addition subsection 6(1)(d) grants a right to "to disembark

from the aircraft if it is possible to do so without causing any
undue risk to the health or safety of the passengers or any other
person or to the safe operation of the aircraft or any other aircraft."''
25
This right does not exist in any bill that has been passed
by the legislature of any other nation.

Section 6(1)(d) is based on the "Right to Deplane" described in
the two identical U.S. Congressional Bills but goes much further.
The American Bills would require airlines to "submit a proposed
contingency plan to the Secretary of Transportation that identifies
a clear time frame under which passengers would be permitted to
deplane a delayed aircraft."''
26
It is important to note that while
the U.S. Bills would specify a three-hour timeframe, this only applies to the departure airport and the scheduled destination
airport.
This limitation exists for a very important reason; U.S. carriers
are presumed to have planned the departure and arrival of their
aircraft at the airports they serve but not at destinations that are
not scheduled. 27 Most U.S. delays happen as a result of predictable air traffic congestion or gate allocation problems at hub airports and thus the U.S. National Air Traffic Controllers
Association hosts a website showing pre-takeoff delays and arrival delays. 2 8 Similarly the U.S. Bureau of Transportation Statistics 1 29 has issued a report showing how taxiing onto and off the
runway was taking over 39 minutes at Newark airport in 2007.130

125
126
127
128
129
130
See Bill C-310, supra note 3, 6(1)(d).

See H.R. 624 and S. 213, supra note 35.
Thus, neither H.R. 624 nor S. 213 would apply a time limit at an airport
to which a flight was diverted.
See http://www.avoiddelays.com/default.aspx. For example, in Feb. 2008
the website shows that American Airlines had an average 35-minute delay
between the scheduled departure time and the moment of takeoff. It had
an average gap of 18.25 minutes between landing and arriving at the gate.
If these were the averages, some flights clearly were subject to substantial
delays. At the time, the percentage of delayed flights (all airlines) at
American's hubs at Chicago O'Hare, Miami, and Dallas-Fort Worth were
50.86 percent, 33.75 percent, and 29.48 percent, respectively.
Section 5109 of the Transportation Equity Act for the 21st Century, Pub.
L. 105-178, 112 Stat. 107 (1998), created the U.S. Bureau of Transportation Statistics.
BTS Special Report: Sitting on the Runway: Current Aircraft Taxi Times
Now Exceed Pre-9/11 Experience, Bureau of Transportation Statistics,
May 2008, at 4. The average taxi-out time at Newark was 29.6 minutes in
2007; taxi-in time for the same period was 9.5 minutes. In fact, delays in
the N.Y. area are so severe that Air Canada's website routinely notifies
56
[Vol. 9:1
The Bureau of Transportation Statistics' analysis of tarmac delays has helped frame the U.S. debate on tarmac rights because in
America, a proper understanding of the magnitude of a problem
is a necessary pre-condition to proposing a solution. Based on the
Bureau's research, the U.S. Department of Transportation tabled
a Notice of Proposed Rulemaking, "Enhancing Airline Passenger
Protections. '' 131 It will "require air carriers to adopt contingency
plans for lengthy tarmac delays and to incorporate these plans in
their contracts of carriage,' 132 and "declare the operation of flights
that remain chronically delayed to be an unfair and deceptive
1 33
practice and an unfair method of competition.'
The driving philosophy behind the U.S. approach is that the
root cause of tarmac delays is airline over-scheduling and that if
airlines are forced to adopt tarmac delay plans and show true ontime performance, they will schedule flights to arrive when gates
are available and make sure that they are punctual when using
slots at Slot Controlled airports. 134 The theory is that if airlines
plan to use airport infrastructure efficiently, tarmac delays can be
virtually eliminated.
The tarmac delay problem that plagues U.S. airports does not
appear to be as serious in Europe, as it not covered in EC 261/
2004. If tarmac delay is not a concern in London, Paris, or
131
132
133
134
N.Y.-destined passengers, "[p]lease note flights to/from New York, LaGuardia are delayed at times by Air Traffic Controllers due to traffic congestion or bad weather. Please allow extra time to reach your
destination." See http://www.aircanada.com/en/home.html.
Enhancing Airline Passenger Protections, 73 Fed. Reg. 74,586 (proposed
Dec. 8, 2008) (to be codified at 14 C.F.R. pts. 234, 259, & 399).
The Proposed 14 CFR 259.4(b)(1) will require a statement of "the maximum amount of time that the air carrier will permit the aircraft to remain
on the tarmac before proceeding to a gate and allowing passengers to
deplane."
The Proposed 14 CFR 234.1 l(b) would require the airline to disclose the
on-time performance of flights and indicated "the percentage of arrivals
that were more than 30 minutes late." It calls for "special highlighting if
the flight was late more than 50 percent of the time" and the disclosure of
"the percentage of flight cancellations." Already the websites of U.S. airlines show the on-time percentage beside flight numbers.
For example, on Oct. 19, 2007, New York's JFK Airport set a cap of 80 air
traffic movements (takeoffs and landings) per hour from 6:00 to 21:59,
with the exception of 81/hour from 15:00 to 19:59, in order to limit traffic
for the summer of 2008. Without the limits, the airport would have suffered from chronic delays. See FAA, NOTICE 4910-13, NOTICE OF AIRPORT LEVEL DESIGNATION FOR JOHN F. KENNEDY INTERNATIONAL
AIRPORT FOR THE SUMMER 2008 SCHEDULING SEASON (2008).
2009]
57
Frankfurt, it should not be a worry in Winnipeg, Ottawa, or Halifax, either. In terms of the domestic operations of Canadian carriers, it is hard to imagine how 6 of Bill C-310 is necessary.
Tarmac delays are rare occurrences at Canadian airports and occur principally for one of three reasons:
1) Weather at the departure or arrival airport affects the
air carrier's ability to fly safely and the Captain, usually on
the advice of Air Traffic Control, elects to delay the flight.
2) U.S.-bound aircraft are subject to a "ground-delay"
135
before departing from the Canadian airport.
3) Customs Officials do not allow passengers to disem136
bark from a flight arriving from outside Canada.
Thus, not only is 6(2) of Bill C-310 a solution to a problem
that doesn't really exist, it would actually do considerable damage to Canada's airline industry by making air carriers legally
responsible for events over which they have no control. It would
require an air carrier to pay a passenger $500 for each hour in
which an aircraft on the ground did not provide "adequate food
and drinking water and other refreshments"' 3 7 or give the passenger "an opportunity to disembark from the aircraft if it is
[practicable]. 138
Thus if an Air Canada flight from Newark to Toronto in January had to wait to accommodate a late arriving passenger with
reduced mobility 139 and then had to be de-iced 4 and finally had
135
136
137
138
139
140
The FAA's "Ground Delay[s] are implemented to "control air traffic volume to airports where the projected traffic demand is expected to exceed
the airport's acceptance rate for a lengthy period of time. The most common reason for a reduction in acceptance rate is adverse weather such as
low ceilings and visibility. Flights that are destined to the affected airport
are issued Expected Departure Clearance Times (EDCT) at their point of
departure. Flights that have been issued EDCTs are not permitted to depart until their Expected Departure Clearance Time. These ECDTs are
calculated in such a way as to meter the rate that traffic arrives at the
affected airport; ensuring that demand is equal to acceptance rate." See
http://www.fly.faa.gov/Products/Glossary-ofTerms/glossary-of-terms.
html.
See infra notes 156-160 and accompanying text.
See Bill C-310, supra note 3, 6(2) and 6(1)(c).
Id., 6(2) and 6(1)(d).

Id., 13(2), discussion infra.
De-icing takes an average of 15-20 minutes. See http://dispatchersdiaries.
blogspot.com/2009/01/de-icing-time.html. It could take longer if there is a
queue and aircraft have to wait for de-icing.
58
[Vol. 9:1
to taxi-on to one of Newark's runways,1 4 1 it is quite possible that

an hour might elapse between the scheduled departure time and
the moment of takeoff, in which case the air carrier would have
had to provide drinks and refreshments while on the taxiway or
pay each passenger $500. During this time, because the aircraft is
moving (albeit slowly) and is in many cases on an active taxiway,
subsections 605.25(1)(a) and (b) of the Canadian Aviation Regulations (SOR/96-433) prevent the flight attendants from serving
drinks. 14 2 In simple terms then, 6(2) of Bill C-310 would punish
Canadian air carriers for obeying Canada's existing laws.
The concept of providing the passenger with an opportunity to
disembark from the plane after an hour also deserves further exploration. It is true that 6(2) of Bill C-310 would not allow a
passenger to disembark where the disembarkation would pose
"undue risk to the health or safety of the passengers or any other
person or to the safe operation of the aircraft or any other aircraft. '143 Essentially, this would force an aircraft to return to the
terminal where the passenger(s) could disembark safely.
This means that after 55 minutes of tarmac delay, an aircraft
would have to return to the gate in order to spare the airline the
possibility of paying $500 each to any passenger who wanted to
disembark. Further, if the disembarking passenger was traveling
with baggage, the airline would have to off-load that baggage
from the hold, 4 4 and this in turn would delay the ultimate departure further. Worse, in cases where a U.S.-bound aircraft was
departing from a Canadian airport which has U.S. Preclearance
facilities, any aircraft returning to the gate would have to return
145
to a gate with Canadian Customs facilities.
141
142
143
144
145
Average taxi-on time was 29.6 minutes in 2007. See supra note 130.
Subsections 605.25(1)(a) and (b) of CanadianAviation Regulations, SOR/
96-433, prohibit the movement of "all persons on the aircraft" during taxiing (actually "movement on the surface") and takeoff or landing, and require them to fasten seatbelts.
For security reasons, Canada has had a policy of passenger/baggage reconciliation for nearly 20 years. See http://www.publicsafety.gc.ca/prg/ns/
airs/rep 1-6-eng.aspx.
Such a person returning to Canada would have to proceed through Canadian customs formalities. Quite simply, once a passenger has passed
through U.S. Preclearance, s/he is considered to be on U.S. soil. See
Agreement on Air Transport Preclearance between the Government of
Canada and the Government of the United States of America, 18 Jan.
2001, E103842- CTS 2003 No. 7. See also Customs Act, S.C. 1985, c. 1
(2d Supp.).
2009]
59
As a practical matter, returning to the gate may well result in

the cancellation of the flight.
Here Bill C-310 puts the airline on the horns of a dilemma;
whether the airline refuses to let the passenger disembark, or returns to the gate and cancels the flight, it is potentially liable to
pay that passenger $500.00.146 In many cases, such a fine would
greatly exceed the amount the airline had received for the fare. 147
Curiously, it is the desire of many passengers to get to their
destination, which results in a long, "creeping delay. ' 148 In almost
every case, the airline faces the choice of cancelling the flight or
trying to offer the service for which the passengers paid. 149 The
case of Air Canada flight 156 from Vancouver to Toronto on December 23, 2008 illustrates this. The aircraft, a Boeing 777, was
attempting to depart Vancouver during one of the worst snowstorms on record and in a situation where the airport was running
critically low on aircraft de-icing fluid. 150 It appears that there
were problems with weather, de-icing, and fuel loads, and that a
new crew was provided.' 5 , The aircraft was delayed for nearly 10
hours before departing Vancouver and arrived at its destination
nearly 12 hours late. 152 Due to the weather conditions, airlines
146
147
148
149
See Bill C-310, supra note 3, 6(2), 6(1)(d), 4(1)(c)(ii) & 9(a). This example presumes a one-hour delay or the cancellation of a short-haul flight.
Air Canada's yield (average passenger revenue) in 2008 was 25.2 cents per
Revenue Passenger Mile.
See Air Canada Annual Report 2008 at 72, available at http://www.air
canada.com/en/about/investor/documents/2008_ar.pdf. Newark-Toronto
is 346 miles. Thus Air Canada's revenue from an average Newark-Toronto passenger would be $87.19.
The 'creeping delay' is one which continues to extend. In almost every
case such delays are caused by a combination of factors making it almost
impossible to accurately predict the end-time.
The author of this paper has been subject to 'creeping delays' on several
occasions. In each case, the author was glad that the flight eventually
departed for the destination.
150 See supra note 30.

151
152
See http://www.cbc.ca/canada/british-columbia/story/2008/12123/bc-airports-stranded-travellers.html.
Track Flight shows that Air Canada flight 156 was due to depart Vancouver at 22:40 on Monday Dec. 22. It actually departed at 8:35 on Tuesday,
Dec. 23, 2008, after a pre-takeoff delay of 9 hours and 55 minutes. It was
scheduled to arrive in Toronto at 6:05 on Tuesday, Dec. 23. It arrived at
17:52 on Tuesday Dec. 23, 11 hours and 47 minutes late. See http://www.
flightstats.com/go/FlightStatus/flightStatusByFlight.do?id= 147469857&
airlineCode=AC&flightNumber= 156.
60
[Vol. 9:1
cancelled scores of flights and worked hard to offer trans-conti153

nental flights in order to get people home for Christmas.
While the long delay of Air Canada flight 156 on December 23
is unfortunate, few of the passengers would have been happier if
Air Canada had simply cancelled the flight. In this context, had
6(2) of Bill C-310 been in force, the decision would have been
simple; cancel the flight, and tell the passengers they could travel
after Christmas or get a refund of their fare. 154
Legislators should not be forcing Canada's airlines to make
this type of decision. Consumers want airlines to do their very
best to get passengers safely and quickly to their destinations. If
an airline is put in a situation where its potential legal liabilities
exceed revenue opportunities, it will either drop the route or raise
the fare.155 This reality is precisely the reason why no other country has embraced an idea such as 6(2) of Bill C-310.
However Bill C-3 10 could also put airlines in impossible situations where an emergency requires the diversion of an aircraft to
an underserved airport. On September 11, 2001 as a result of the
closure of U.S. airspace, 37 intercontinental flights with over
6,000 passengers were diverted to Gander, Newfoundland and
Labrador. 156 All passengers were arriving from Europe and some
had been on the planes for up to seven hours before reaching
Gander. 157 Section 11(1) of the Customs Act requires that "every
person arriving in Canada shall ...
1 58
[a Customs] officer.'
present himself or herself to
See http://micro.newswire.ca/release.cgi?rkey=1612244396&view=13213-0
&Start=30.
154 In this case, 6(2) of Bill C-3 10 would require $5,000 ($500/hr)for the 10hour pre-takeoff delay. Section 4(1)(c)(iii) would excuse the airline from
153
liability to pay compensation during such weather conditions, and the cost
of the airline's other obligations under subsections 10(1) and 12(1) of Bill
C-3 10 would not be as high as those under subsection 6(2).
155 Obvious routes where legal liabilities exceed revenue opportunities are
Kabul and Baghdad. Neither is served by major commercial carriers.
156
157
158
See http://www.tc.gc.calmediaroom/releases/nat2001/01_hll2e.htm.
In
fact, there were 6,117 passengers on 31 flights operated by eight European
and seven U.S. airlines. Another 484 passengers arrived on charter and
private flights, most of which were associated with U.S. military
operations.
Three aircraft from Italy arrived in Gander: Alitalia and US Airways
flights from Rome, and a Continental flight from Milan. Another arrived
from Budapest. In each case, a nonstop flight from these cities to Gander
is roughly seven hours.
Customs Act, S.C. 1985, c. 1 (2d Supp.) 11(1).
2009]
61
Although the lone Customs Officer worked around the clock,

and re-enforcements were brought in by road from St. John's,
which was also receiving diverted aircraft,159 it took over 24
hours to clear the 6,000 passengers. 160 The last passenger left the
last airplane some 30 hours after s/he had boarded, 16 , and over
that time, food had become scarce, toilets had overflowed, and
nerves had become frayed. 162
On September 11, 2001 Canada's Customs Act kept people on
planes for up to 24 hours, yet had 6(2) of Bill C-310 been in
force, it would have forced air carriers to pay some affected passengers up to $12,000 each.
If legislators are deeply concerned about 'tarmac rights' in Canada, it would make considerably more sense to abolish the impediments that air carriers face, rather than punishing air carriers
for respecting Canada's laws. If 6 of Bill C-310 is not deleted
from the Bill, the likelihood of legal action by the airlines, route
cancellations, and/or fare increases cannot be ruled out.
Denial of Boarding
Section 7 of Bill C-310 deals with Denied Boarding and is
clearly influenced by Article 4 of EC 261/2004. However it goes
much further than the European law and adopts a punitive
position.
Article 4(1) of EC 261/2004 would only provide, "re-imbursement or re-routing assistance" to passengers who willingly "surrender their reservations in exchange for benefits under
conditions to be agreed between the passenger concerned and the
159
160
161
162
See http://www.tc.gc.calmediaroom/releases/nat2001/O01_hll2e.htm.
St.
John's also received 4,200 passengers on 25 intercontinental flights operated by two Canadian, two European, and five U.S. airlines. In addition,
Stephenville, near Gander, received 1,095 passengers on eight aircraft operated by one European, one Mexican, and three U.S. airlines.
Because Canada's skies were closed, other agents had to drive from St.
John's 15 hours away. It took over 24 hours before CIC could allow the
final passenger to disembark from the last plane. See http://www.gander
airport.com/91 la.htm.
Some 11 flights from Germany, Italy, or Hungary had been in the air at
least 6.5 hours or longer before landing in Gander. In at least one of these
cases, passengers remained on board for 30 hours. Airlines do not provide
enough catering for 30 hours unless they are planning a 30-hour flight.
See http://www.ganderairport.com/911b.htm.
62
[Vol. 9:1
operating air carrier. ' 163 Section 7(1) of Bill C-310 would provide
"compensation" of $500 or more, in addition to "benefits agreed to
by the passenger and the air carrier."' 164 By contrast sub-articles
4(2) and (3) of EC 261/2004 would offer "compensation" only to
passengers who are denied boarding against their will,165 in a
manner similar to the way that 8(2) of Bill C-310 would provide
compensation in cases of involuntary denied boarding. 166
As written, sections 7 and 8 of Bill C-3 10 blur the distinction
between voluntary and involuntary denied boarding, giving both
the volunteer and the obliged passenger a level of compensation
that in most cases vastly exceeds the fare paid. 167 In such a scenario the level of 'voluntary' compensation would be reduced with
a corresponding impact on the number of volunteers.168 Moreover, there is no obligation for passengers to meet the air carrier's
minimum check-in time169 and this requirement is a pre-condition
170
to denied boarding benefits in almost every airline tariff.
The most curious thing about sections 7 and 8 of Bill C-310 is
that they would propose to fix a system that it not broken. In
2008 Air Canada's load factor was 81.4 percent' 71 and WestJet's
163
164
165
166
167
168
169
170
171
See Regulation (EC) No. 261/2004, supra note 1, art. 4(1).

See Regulation (EC) No. 261/2004, supra note 1, art. 4(2) and 4(3). Passengers who are denied boarding against their will also would qualify for
rebooking assistance and care if needed.
See supra note 147 and accompanying text. This point will be discussed
infra.
If an airline is obliged to pay $500 as a minimum to each denied passenger, their incentive to be more generous-especially in the case of low-fare
passengers-would disappear. In such a scenario, it would be faster and
cheaper to simply draft passengers and pay them the compensation, rather
than lure passengers with an offer of benefits and then have to pay compensation in addition to those benefits.
Even if passengers check-in via the Internet, they still have to meet the
boarding gate deadline. See http://www.aircanada.com/en/travelinfo/air
port/checkin.html; http://c3dsp.westjet.com/guest/travelTips.jsp;jsessionid
=ynyTKVGYJkLLR8c2gShs2 1TzJMSwmpybwBWpLWLdGBQhLSxS
sJM!- 1923663270#checkinMethods.
This is 20 minutes on WestJet (Para. 5.2 b ii of WestJet's Local Domestic
Tariff, effective July 10, 2003) and 60 minutes on Air Transat (Rule 17.1 of
Air Transat Tariff ContainingRules Applicable to Scheduled Services for
the Transportationof Passenger and Baggage or Goods between Points in
Canadaon the One Hand and points Outside Canada on the Other Hand,
effective Mar. 24, 2005).
See Air Canada Annual Report 2008, supra note 147, at C-11,
"Highlights."
2009]
63
was 80.1 percent. 172 This means that on an average day, one in
five seats in Canada's skies is empty. In such as scenario denied
boarding is very uncommon and involuntary denied boarding is
an extremely rare occurrence. At the present time, in situations
where an aircraft is oversold or a smaller aircraft is substituted at
the last minute, it is the practice of Canada's airlines to call for
volunteers to take a later flight. 1 73 Volunteers receive compensation which usually includes credit for future travel as well as on174
ward transport on a later flight.
In the case of involuntary denied boarding, a passenger typically is offered free transport on another flight 175 or a refund of
the fare paid.17 6 In cases where the airline's next flight is not
relatively soon, Air Canada and Air Transat will try to get the
passenger a seat on another airline's flight even if that seat costs
more than the amount the passenger paid. 177 In those rare cases
where the passenger has to wait another day to take the airline's
next flight, WestJet will pay for meals, hotel accommodations,
178
and airport transfers as necessary.
It is worth noting that because the above practices are confirmed in the tariffs of Canada's airlines, these tariffs are currently enforced by the Canadian Transportation Agency. It is
also worth noting that no proposed U.S. legislation would deal
with Denied Boarding; as the problem in that country does not
seem to be serious enough to warrant legislative attention. Indeed, U.S. carriers are being quite creative in their attempt to
172
173
174
175
See Aiming High, WestJet 2008 Annual Report, 1 at 4, available at http://

www.westjet.com/pdffileWestJet2008AR.pdf.
Specifically mentioned in Rule 17.1 of Air Transat Tariff, supra note 170.
Also specifically mentioned in Rule 245AC (F) of Air Canada's Tariff,
supra note 64.
Air Transat offers a minimum of $100 for flights less than five hours and
$200 for flights over five hours. See Air Transat Tariff, supra note 170,
Rule 17.3 (b). Air Canada will offer "compensation of Air Canada's
choosing." See Air Canada's Tariff, supra note 64, Rule 245AC (F).
Air Canada's Tariff, supra note 64, Rule 245AC (D)(1); WestJet's Tariff,
supra note 65, para. 5.2 b ii (1); Air Transat Tariff, supra note 170, Rule
17.3 (a).
WestJet's Tariff, supra note 65, para. 5.2 b ii (2).
177 Air Canada's Tariff, supra note 64, Rule 245AC (D)(2); Air Transat Tariff,
supra note 170, Rule 17.3 b).
178 WestJet's Tariff, supra note 65, para. 5.2 b iii.
176
64
[Vol. 9:1
avoid Denied Boarding situations by encouraging some passen179

gers to stand-by for earlier flights.
Right to Compensation
Section 9 of Bill C-3 10 deals with the "the right to compensation in case of cancellation or denied boarding" and is clearly
based on article 7 of EC 261/2004. However it goes much further
than the European law.
Both article 7 of EC 261/2004 and 9 of Bill C-3 10 base compensation on distance, and set compensation levels for "all flights
of 1500 kilometres or less,' '1 80 "flights between 1500 and 3500
kilometres, "'181 and "flights of 3500kilometres or more.118 2 However, the compensation proposed by section 9 of Bill C-310 is
much richer than that offered by Article 7 of EC 261/2004.
An initial glance shows that it is at least 23 percent more generous than EC 261/2004 as 9 of Bill C-3 10 simply doubles in Canadian Dollars, the amount in Euros specified by the
corresponding article of EC 261/2004,183 where a more accurate
currency conversion would lead to much lower amounts. 184
A deeper examination shows that Canadian payouts on average will be much higher than European payouts for the simple
85
reason that Canada covers over twice the territory of the EU.
For example there are no intra-EU routes longer than 2,172
179 One of the features of United Airlines' "EasyCheck-In" kiosks is the ability to stand-by for an earlier flight and "get a new boarding pass during
irregularities." See http://www.unitedeasy.com/main.html.
180 This is equivalent to 931 miles. Art. 7(1)(a) of Regulation (EC) No. 261/
2004, supra note 1, requires EUR 250 in compensation for flights of this
distance. Section 9(a) of Bill C-310, supra note 3, would require $500
CAD.
181 This is a range from 931 to 2,172 miles. Art. 7(1)(b) of Regulation (EC)
No. 261/2004 requires EUR 400 in compensation for flights of this distance as well as for any intra-EU flight exceeding 1,500 km. Section 9(b)
of Bill C-3 10 would require $800 CAD.
182 This is equivalent to 2,172 miles. Art. 7(1)(c) of Regulation (EC) No. 261/
2004 requires EUR 600 in compensation for flights of this distance. Section 9(c) of Bill C-3 10 would require $1200 CAD.
183 See supra notes 180-182.
184 Historically, it takes $1.62 CAD, not $2.00 CAD, to buy 1 Euro. See http:/
/www.actionforex.com/technical-analysis/daily-forex-technicals/daily-fxreport-2009031782095/.
185 The EU covers 4 million square km. See http://europa.eu/abc/keyfigures/
index en.htm. Canada covers 9.9 million square km. See https://www.
cia.govflibrary/publications/the-world-factbook/print/ca.html.
2009]
65
miles,186 while there are at least five in Canada.187 There are also
many Canadian domestic routes of more than 931 miles,18 8 but

not so many in Europe, 189 and a higher percentage of Canadian
passengers travel on longer flights than do Europeans.190
Both 9 of Bill C-3 10 and Article 7 of EC 261/2004 offer compensation based on the flight, 19 1 rather than the final destination
of the trip. A European court has concluded, correctly, that EC
261/2004 applies to a flight, and not to the overall trip as listed on
the ticket. 192 Thus a European flying between Larnaca, Cyprus
and Dublin would receive a maximum of 400 EUR in compensation for his/her cancelled flight, regardless of the routing, whereas
a Canadian flying the same distance would receive $1,200 or
In fact, the only potential intra-EU routes exceeding 2,172 miles (3,500
km) would be nonstop flights between Larnaca, Cyprus and points in Ireland and/or Scotland. There are no nonstop flights on these routes. Art.
7(1)(b) of Regulation (EC) No. 261/2004, supra note 1, essentially acknowledges this fact by limiting to 400 EUR compensation with respect to the
cancellation of "all intra-Community flights of more than 1 500
kilometres."
187 The five routes are: St. John's-Calgary, 2,675 miles; Halifax-Calgary,
2,315 miles; Halifax-Edmonton, 2,290 miles; Montreal-Vancouver, 2,290
miles; and Ottawa-Vancouver, 2,209 miles. The first and third of these
have nonstop service only in the summer, but the other three have at least
two daily nonstop flights year-round.
188 Domestic Canadian routes whose distances exceed 961 miles include all
nonstop flights from Newfoundland to Montreal and points West, all nonstop flights from Montreal, Ottawa, and Toronto to Winnipeg and points
West, flights from Vancouver to Winnipeg and Yellowknife, flights from
Calgary and Edmonton to points in southern Ontario, and nonstop flights
from Iqaluit to Montreal and Ottawa.
189 In Europe, routes such as London-Rome, Frankfurt-Madrid,
Prague-Dublin, and Copenhagen-Marseille are all under 931 miles; thus
the vast majority of intra-EU flights would fit into this range.
190 For example, calculations based on Official Airline Guide domestic schedules for May 2009 show that 42 percent of the flights and 43 percent of the
seats offered by Air Canada and WestJet were on flights of 932 miles or
more. The relative shortage of intra-EU nonstop flights on routes of more
than 932 miles would suggest that the percentage of EU passengers on
these routes would be far less than 20 percent.
191 Articles 4, 5, & 7 of Regulation (EC) No. 261/2004, supra note 1, when
read together. Also sections 4, 7, 8, & 9 of Bill C-310, supra note 3, when
read together.
192 E.C.J., Case C-173/07, Emirates Airlines v. D. Schenkel, (10 July 2008,
not yet published), para. 43, confirms that, unlike the Montreal Convention, supra note 47, EC 261/2004 does not apply to the entire journey, but
only to a nonstop flight "departing from an airport located in the territory
of a Member State" or to flights of a "Community carrier" as per art. 3 of
Regulation (EC) No. 261/2004.
186
66
nearly
85
percent
more
compensation
[Vol. 9:1
in
the
event
of
cancellation. 193
Further, where Article 7(2) of EC 261/2004, allows the airline
to reduce the amount of compensation by 50 percent if the passenger is rerouted to his/her original destination within specific
time periods, 94 Bill C-310 has no such provision, with the result
that the liabilities of Canadian carriers can be 270 percent more
than those of EU carriers under similar circumstances.95
Bill C-310's currency conversion factors combined with the
percentage of Canadian domestic flights that exceed 931 and even
2,172 miles, and the fact that 9 of Bill C-310 does not offer a
reduction of compensation for rerouting passengers has the potential to result in much greater liabilities than article 7 of EC 261/
2004.
Indeed, both Bill C-310 and EC 261/2004 would apply to
flights between Europe and Canada, as shown below:
193
194
195
Larnaca-Dublin is 2,309 miles, but even if there were a nonstop flight,

compensation for cancellation is limited to 400 EUR as per art. 7(l)(b) of
Regulation (EC) No. 261/2004. Vancouver-Montreal is 2,290 miles and
Air Canada and WestJet offer, respectively, four and two nonstops per
day over the route, a total of six daily nonstops. In the case of cancellation
of one of these flights, the passenger gets $1200 CAD as per 9(c) of Bill C310, supra note 3. That $1,200 CAD is worth roughly 740 EUR, or nearly
85 percent more than the European passenger would get for the same
cancellation.
Article 7(2)(a), (b), & (c) of Regulation (EC) No. 261/2004, supra note 1,
allow airlines to reduce compensation by 50 percent if the passenger arrives at the destination within two hours of scheduled time for a flight of
931 miles or less, and within three hours for a flight of 931 miles to 2,172
miles and within four hours for a flight of more than 2,172 miles.
Thus, if Air Canada cancels its 18:00 Montreal-Vancouver flight (AC 195)
and puts the passenger on its 19.55 flight (AC 129) arriving at 22:24,
within two hours of the scheduled arrival of AC 194 at 2030, Air Canada
must pay the passenger $1,200 or 740 EUR. In an identical situation an
EU carrier would pay 50 percent of 400 EUR or 200 EUR. Here, Air
Canada's liability is 270 percent more than that of an EU carrier in an
identical situation.
2009]
67
Airline
Route
Legislative Regime
Air Canada
Air Canada
Lufthansa
Canada-Europe
Europe-Canada
Canada-Europe
Bill C-310196
Bill C-310,197 EC 261/2004198
Bill C-310,199 EC 261/2004200
Lufthansa
Europe-Canada
EC 261/2004201
Thus both would apply to an Air Canada Europe-Canada

flight and both would apply to a Lufthansa Canada-Europe
flight. It is possible that the different compensation levels and
conditions offered by Bill C-310 and EC 261/2004 would result in
passengers claiming under the provisions of Bill C-310 in cases
2
where both were applicable. 2
Right to Rerouting or Refund
Section 10 of Bill C-310 deals with the "Right to Reimbursement or Re-Routing in Case of Cancellation or Delay" and is
clearly based on article 8 of EC 261/2004.
Both would require reimbursement within seven days, of the
"full cost of the ticket at the price at which it was bought, for the
part or parts of the journey not made-and for the part or parts
already made if the flight is no longer serving any purpose in relation to the passenger's original travel plan-together with, when
relevant, a return flight to the first point of departure at the earli'' 3
est opportunity. 20

197 Id.
198 See Regulation (EC) No. 261/2004, supra note 1, art. 3(1)(a).
200 See Regulation (EC) No. 261/2004, supra note 1, art. 3(1)(b).
201 Id., art. 3(1)(a).
202 Indeed, given that most Canada-Germany nonstop flights are code-share
flights operated by Air Canada and its Star Alliance partner, Lufthansa,
one can imagine a legal pleading alleging that a German passenger traveling from Germany to Canada on a Lufthansa ticket and boarding pass on
an Air Canada aircraft is really an Air Canada passenger and thus eligible
for benefits under Bill C-310.
203 See Regulation (EC) No. 261/2004, supra note 1, art. 8(1)(a); Bill C-310,
supra note 3, 10(1)(a). In Bill C-310, the 7-day payment limit is set out in
22, discussion infra.
196
68
[Vol. 9:1
Both provide the option of "re-routing, under comparable

transport conditions, to [the passenger's] final destination at the
earliest opportunity."'2 0 4
And both would provide the further option of "re-routing,
under comparable transport conditions, to [the passenger's] final
destination at a later date at the passenger's convenience, subject
'
to availability of seats. 205
Here 10 of Bill C-310 is largely confirming the practice and
20 6
tariffs of Canada's air carriers.
However 10(2) of Bill C-310 mandates compensation in the
amount of $1,000, in addition to reimbursement, in the case of a
passenger who is not offered reimbursement or rerouting. 2 7 Section 10(2) of Bill C-3 10 does not set a timeline, so it is not immediately clear how an air carrier could fail to offer one of the three
options:
1) Money back plus return to point of origin as appropriate;
or
2) Travel soon; or
3) Travel later.
The fact that it is difficult to conceive of a situation where a
carrier would fail to offer any of the above options raises concerns. Would the requirement in 4(1)(c)(ii) of Bill C-310 that airlines pay distance-based compensation,2 0 8 unless the passenger
"[accepts in writing] the re-routing offered by the air carrier," 2 9
allow a passenger unhappy with the proposed rerouting to claim
both the distance-based compensation as well as the $1,000 that
the airline would have to pay in compensation for its failure to
2
provide rerouting assistance? 10
If the answer is "yes," Canada's airlines have just cause to
worry. By way of example, both Air Canada and WestJet offer
204
205
206
207
208
209
210
See Regulation (EC) No. 261/2004, supra note 1, art. 8(1)(b); Bill C-310,
supra note 3, 10(1)(b).
See Regulation (EC) No. 261/2004, supra note 1, art. 8(1)(c); Bill C-310,
supra note 3, 10(1)(c).
See supra notes 64, 65, & 170.
Bill C-310, supra note 3, 10(2), states, "If an air carrier fails to comply
with subsection (1)," compensation will be paid, in addition to
reimbursement.
Bill C-310, supra note 3, 9. See supra notes 180-182 and accompanying
text for a discussion of these amounts.
See Bill C-310, supra note 3, 4(l)(c)(ii).
Id., 10(2).
2009]
69
fares as low as $197 for nonstop flights between Montreal and

Vancouver.2 11 If either were to cancel a flight and the passenger
refuse to accept the rerouting2 1 2 s/he would potentially be in a
position to claim $2,397.213 This compares to a maximum claim,
4
under similar circumstances in Europe, of 522 EUR.21
To the extent that 10(2) of Bill C-310 would punish air carriers
for failing to do what their tariffs require, its logic can be understood. However it is not clear that 10(2) of Bill C-310 actually
solves an existing problem and if so, whether the solution proposed does not give rise to potential abuses.
Section 11 of Bill C-3 10is based on article 8(3) of EC 261/2004.
Both would have an air carrier cover the cost of transport to a
second airport, "where a town, city or region is served by several
airports. '' 21 5 Bill C-310 does not define "region" so the potential
scope of 11 is unclear. For example, WestJet might consider
2
Vancouver and Abbotsford as serving the Vancouver region l6
2 17
and Toronto and Hamilton as serving metropolitan Toronto.
However, the air carrier might not consider the Region of Waterloo International Airport and London International Airport as
serving the same region, even though the two airports are just 49
miles apart.21 8 As long as the ability to offer a departure from a
second airport is entirely within the carrier's discretion, the fact
211
212
213
214
215
216
217
218
Fare for travel after Sept. 15, 2009, for bookings made in May 2009.
There are many reasons why a passenger might legitimately not like a
rerouting, including the fact that the passenger might miss an air or
ground connection to a destination not listed on the ticket. See CTA Decision 171-C-A-2007 of Apr. 11, 2007, supra note 68. In that case, the passenger's claim was based on the fact that even though he had arrived at
the destination stated on his ticket within two hours as per the airline's
tariff, he had missed a ground connection to his real final destination.
This is the reimbursement of the $197 fare and $1,000 compensation of
10(2) together with the distance-based compensation of 9(c), both of Bill
C-310, supra note 3.
Art. 7(1)(b) and 8(1)(a) of Regulation (EC) No. 261/2004, supra note 1,
would grant 400 EUR in compensation and a refund of 122 EUR for a
total of 522 EUR, or roughly $850 CAD under similar circumstances.
See Bill C-310, supra note 3, 11; Regulation (EC) No. 261/2004, supra
note 1, art. 8(3).
Both serve Greater Vancouver. They are 38 miles apart.
Both serve Greater Toronto. They are less than 39 miles apart.
Waterloo International Airport serves "the cities of Cambridge, Kitchener
and Waterloo." See http://www.waterlooairport.ca/en/. The London International Airport claims to serve the "region of Southwestern Ontario."
See http://www.londonairport.on.caJnews/WestJetdirecttoOrlandoWinter
2009.pdf.
70
[Vol. 9:1
that the carrier would be responsible to transport the passenger to

2 9
the second airport is not unreasonable. '
Right to Care
Section 12 of Bill C-310 deals with the "Right to Care in Case
of Cancellation or Delay" and is clearly based on Article 9 of EC
261/2004.
Both would require airlines to offer, without charge, "meals
22
and refreshments in a reasonable relation to the waiting time,1 0
"hotel accommodation in cases where a stay of one or more nights
is required, ' ' 221 "transportation between the airport and place of
accommodation, '' 222 and "a total of two telephone calls, telex or
''2
fax messages, or e-mails. 23
Here 12 of Bill C-310 is largely confirming the practice and
tariffs of Canada's airlines.224 Indeed, around the world, miscellaneous charges orders (MCOs) are routinely given to affected
2
travelers to pay for meals/hotel stays/transfers as required.2 5
However 12(2) of Bill C-310 sets an absolute obligation for the
air carrier to offer a passenger the required benefits or pay compensation in the amount of $500.00.226 In almost every case, the
$500 amount would greatly exceed the cost of providing the benefit to the passenger, but 12(2) makes no allowance for situations
where it might be impossible to provide the benefit. Restaurants
219
220
221
222
223
224
225
226
The flights of Porter Airlines, based at Toronto City Centre Airport, are
occasionally diverted to Toronto Pearson, 17.9 km away. Porter considers
such ground transportation to be part of its service to customers.
See Bill C-310, supra note 3, 12(1)(a); Regulation (EC) No. 261/2004,
supra note 1, art. 9(1)(a).
See Bill C-310, supra note 3, 12(1)(b); Regulation (EC) No. 261/2004,
supra note 1, art. 9(l)(b).
See Bill C-310, supra note 3, 12(1)(c); Regulation (EC) No. 261/2004,
supra note 1, art. 9(1)(c).
See Bill C-310, supra note 3, 12(1)(d); Regulation (EC) No. 261/2004,
supra note 1, art. 9(2).
See supra notes 64, 65, & 170. In this author's many trips, anytime an
unscheduled en-route hotel stay was required the airline paid for the hotel
bill and ground transfers between the hotel and the airport.
See http://www.usairways.com/awa/Content/traveltools/specialneeds/ticketingpolicies/altpayment/mco.aspx; http://www.arccorp.com/forms/pp/iah
5_.6.pdf.
Section 12(2) of Bill C-310, supra note 3, states, "If an air carrier fails to
comply with subsection (1), it shall pay compensation to every affected
passenger in the amount of 500 Canadian dollars."
2009]
may be closed 227 and hotels 228 might be full or too far
away.
71
229
Certainly, in cases where a storm would strike at a peak travel

time such as the start of reading week or at Christmas,230 it could
be impossible for an airline to find hotel accommodation for every
affected traveler. The same holds true for cases where an airport
23
is closed or substantially closed due to terrorist actions, 1
strikes,232 or an aviation accident. 233 In each of these cases, the
event affects many airlines and thousands of passengers.
At a minimum, 12 of Bill C-310 should have a 'force majeur'
clause, similar to 4(2), excusing the airline from liability-and
especially from liability from 12(2)-in cases where an airport is
closed to traffic "due to weather conditions234 or to conditions
beyond the airline's control. Absent such a clause, Canadians
could see a reduction in service to certain cities during winter or
policies that do not allow passengers to book connecting flights.
In Europe both Ryanair and easyJet have policies disallowing
connections235 and forcing customers to buy any connecting flight
227
228
229
230
231
232
233
234
235
Late every evening 'red-eye' flights leave Vancouver, Calgary, and

Edmonton for Toronto and other points in Ontario and Quebec, arriving
at their destinations between 6:00 and 7:00 a.m. Usually, the flights leave
at a time when the airport of departure is virtually empty and most, if not
all, restaurants and businesses are closed. If such a flight were delayed,
an airline might not be easily able to provide 'meals and refreshments' at
2:00 a.m.
Bill C-3 10 does not define "Hotel" but it would probably rule out other
forms of accommodation. Unfortunately, not every Canadian airport has
a hotel nearby.
When Zoom Airlines flight 615 from Port-au-Prince to Montreal was diverted to North Bay during a snowstorm on Mar. 8, 2008, the airline
found the passengers beds in military barracks because every hotel and
motel was full.
This has happened several times in the past; see supra notes 8-11.
On Aug. 10, 2006, London Heathrow was closed as a result of a plot to put
"fluid" bombs on U.S.- and Canada-bound jets. On June 30, 2007, Glasgow Airport was closed after a burning car crashed into the terminal. On
July 2, 2007, parts of Terminal 3 at Heathrow were closed over a suspect
package; this affected long-haul flights from Terminal 3.
On July 6, 2005, flights at Paris Charles de Gaulle Airport were cancelled
or delayed as a result of a strike by fuel-supply company employees.
On Jan. 17, 2008, Heathrow's southern runway was closed following the
emergency landing of a British Airways 777. This resulted in major delays but could also have resulted in cancellations.
Ryanair is a "'point-to-point' airline. We therefore do not offer, and cannot facilitate, the transfer of passengers or their baggage to other flights,
whether operated by Ryanair or other carriers. Passengers should not
book onward flights connections with Ryanair or indeed with any other
72
[Vol. 9:1
as a separate ticket.2 36 If the passenger misses the connecting

flight due to the late arrival of the first flight, the airline deems
the passenger to be a "no-show" and the passenger is not entitled
to any benefits whatsoever with respect to the connecting
flight.237 Given the fare/km in Canada is often lower than in Europe, 238 it is not inconceivable that Canada's airlines would have
a similar reaction to the new legal obligations of Bill C-310.
Section 13 of Bill C-310 deals with Special Needs Passengers
and is a re-statement of article 9(3) of EC 261/2004. Both would
require air carriers to pay particular attention to the needs of "unaccompanied children" 239 and "the needs of any passenger with
reduced mobility and of any person accompanying such a passenger."'24 However, where art 9(3) of EC 261/2004 would focus the
airline's care policy on the requirements of special needs passen-
236
air or surface carrier." See Ryanair, Terms and Conditions of Travel,

available at http://www.ryanair.com/site/EN/conditions.php.
EasyJet states, "If you have booked an onward flight with easyjet, this
represents a separate contract. Please note that easyjet does not operate a
connecting flight service, where you choose to book such an onward flight
this will be considered to be a separate Journey and therefore you will
need to check-in with your luggage for each Journey in accordance with
the check-in requirements." See http://easyjet.custhelp.com/cgi-bin/
easyjet.cfg/php/enduser/std adp.php?pfaqid= 1 1&p-created= 1074007602
&psid=Nmmrchyj&paccessibility=0&p-redirect=&p-lva=3012&psp=
cF9zcmNoPTEmcF9zb3JOX2J5PSZwX2dyaWRzb3JOPSZwX3Jvd l9jbn
Q9NSw lJnBfcHJvZHM9JnBfY2FOczOmcF9wdjOmcF9jdjOmcF9wYWd
1PTEmcF9zZWFyY2hfdGV4dD 1Db25uZWNOaW5n&p-li:&p-topview
= 1.
237
238
239
240
In practical terms, anyone needing to connect on either airline must plan a

connection time of three hours between flights, collect the luggage from
the first flight, and then check-in on time and clear security for the second
flight. This is very inconvenient but it allows Europe's low-cost carriers
to continue offering low fares while meeting their obligations under EC
261/2004.
Ryanair charges $103.87 for an 862-mile flight between Basel-Mulhouse
and Stockholm. See supra note 83. Both Air Canada and WestJet offer
fares of $197 for a 2,290 mile flight from Montreal to Vancouver. See
supra note 211. Here, Ryanair charges 12/mile while Air Canada and
WestJet charge 8.6C/mile.
See Bill C-310, supra note 3, 13(1)(a); Regulation (EC) No. 261/2004,
See Bill C-310, supra note 3, 13(1)(b); Regulation (EC) No. 261/2004,
2009]
73
gers, 24 1 13 of Bill C-310 makes the special needs focus a part of
"carrying out [the air carrier's] obligations under this Act.
'24 2
Here 13 of Bill C-310 goes much farther than art 9(3) of EC

261/2004. Potentially 13 of Bill C-310 could impact the carrier's
obligations with respect to cancellation, delay, tarmac rights, and
denied boarding for the attendant accompanying a passenger
with reduced mobility. A recent decision of the Canadian Transportation Agency requires Canada's airlines to give a free seat to
an attendant accompanying certain disabled passengers. 24 3 If 13
of Bill C-310 is meant to extend all of the benefits of Bill C-3 10 to
a passenger to whom the airlines must give free passage, this further distorts the relationship between the fare the airline receives
and the legal benefits that Bill C-3 10 would expect the airline to
provide.
Earlier in this paper the impact of cancelling a Montreal-Vancouver flight for which the passenger had paid $197
was explored.244 If 13 is meant to apply to the attendant of a
disabled traveler, the airline's maximum exposure, earlier identified as $2,397,245 could rise to as much as $4,597.246 As was noted
earlier, the maximum claim for a similar ticket under EC 261/
2004 was 522 EUR.247 Here the liability of a Canadian carrier
would be 440 percent more than that of a European carrier under
similar circumstances.
241
242
243
244
245
246
Art. 9(3) of Regulation (EC) No. 261/2004, supra note 1, reads "In applying this Article, the operating air carrier shall pay particular attention to
the needs of' minor children, etc.
In CTA Decision 6-AT-A-2008 of Jan. 10, 2008, Accessible Transportation

Complaint Against Air Canada,Air Canada Jazz, WestJet and the Gander
International Airport Authority: Additional Fares and Charges - "One
Person, one fare," the Canadian Transportation Agency ruled that Canada's airlines must provide a free seat to the attendant of a disabled
person who is required by the airline's tariffs to be accompanied by an
attendant. Id. para. 119. It also required that airlines provide without
charge a second seat for persons "disabled by obesity." Id. para. 128.
See supra note 211 and accompanying text.
See supra note 213.
Here, both the passenger and the attendant have refused the rerouting.
See supra note 212. The passenger claims $1,000 in compensation for
himself and another $1,000 for the attendant as per 10(2) of Bill C-310, as
well as making two distance-based claims of $1,200 each for himself and
his attendant as per 9(c) of Bill C-310, supra note 3. The passenger also
gets a reimbursement of the $197 fare.
247
See supra note 214. 522 EUR is roughly $850 CAD.
74
[Vol. 9:1
Section 13(2) of Bill C-310 essentially repeats 12(2) of the Bill.

Once again it sets an absolute obligation for the air carrier to offer
an "affected person" the required benefits or pay compensation in
the amount of $500.00.248 As with 12(2), 13(2) of Bill C-310
makes no allowance for situations where it might be impossible to
provide the benefit. For example, in the case of a passenger with
reduced mobility, arranging a wheelchair-accessible vehicle to
bring the passenger to a hotel and back may not be easy to do at
the last minute. 24 9
Moreover, Canada's airlines take their responsibilities to special needs passengers extremely seriously.
In December 2007, when a five-year-old unaccompanied minor
inadvertently left a WestJet plane in the company of a stranger,
mortified WestJet officials cancelled their program pending an investigation.250 After the investigation, WestJet decided not to relaunch the program and instead offers "Guardian fares" to relatives who escort young children. 25 1 WestJet based its new strategy on its concern for the safety of young children and a
realization that times had changed in the 50 years since unaccom25 2
panied minor programs were introduced.
On July 3, 2008, when Transport Canada would not approve a
special harness so a 15-year old spastic quadriplegic girl with cerSection 13(2) of Bill C-310, supra note 3, states, "If an air carrier fails to
comply with subsection (1), it shall pay compensation to every affected
person in the amount of 500 Canadian dollars."
249 On Feb. 16, 2005, the Subcommittee on the Status of Persons with Disabilities of the Standing Committee on Human Resources, Skills Development, Social Development and the Status of Persons with Disabilities in
Canada's Parliament, considered issues arising from the fact that Steven
Fletcher, a wheelchair-bound Member of Parliament, was having trouble
getting home at night and sometimes had to drive his wheelchair all the
way home. See http://www2.parl.gc.ca/HousePublications/Publication.
aspx?Docld= 1640392&Language=E&Mode= l&Parl=38&Ses= 1. The fact
that a Member of Parliament has trouble getting accessible transport late
at night in Ottawa shows the degree of difficulty an airline might face,
especially in smaller centers.
250 The little girl was fine, but WestJet re-examined all of its policies and
practices surrounding its handling of unaccompanied minors. See http://
www2.canada.com/calgaryherald/news/story.html?id=5d96b4d 4 -7 5fl- 4 e
22-8d30-c3ba0ac5238e&k=64602.
251 They launched their Guardian fare initiative on Apr. 4, 2008. See http://
www.marketwire.com/press-release/Westjet-TSX-WJA-8 4 0511 .html.
248
252
See http://www2.canada.com/calgaryherald/news/story.html?id=c
162-09f5-4e00-bb le-Ob2ecfa2998b&k=35162.
374 8
2009]
75
ebral palsy could fly on WestJet, the company paid for an air am25 3
bulance to fly her home.
In this context, 13(2) of Bill C-310 is completely unnecessary
and puts airlines in the awkward position of potentially being
fined, when third-party wheelchair taxi operators refuse to assist
airline passengers with reduced mobility.
Right to be informed
Section 14 of Bill C-310 deals with air fare advertising and reignites an unresolved debate over clauses 27 and 64 of "An Act to
amend the Canada Transportation Act and the Railway Safety
'254
Act and to make consequential amendments to other Acts.
The first reading version of clause 27 of that Act, had read as
follows:
27. The Act is amended by adding the following after section 86:
86.1(1) The [Canadian Transportation Agency]
may, on the recommendation of the Minister, make
regulations respecting advertising in all media, including on the Internet, of prices for air services
within, or originating in, Canada.
During consideration of the Bill, on Tuesday, December 5,
2006, the House of Commons Standing Committee on Transport,
Infrastructure and Communities adopted a motion by Liberal
MP David McGuinty replacing the words "may, on the recommendation of the Minister" with "shall. '255 During the Senate's
consideration of the Bill on May 16, 2007, the Standing Senate
Committee on Transport and Communications adopted a motion
by Liberal Senator Dennis Dawson to give Canada's Cabinet the
256
power to decide when Clause 27 would come into force.
253
254
See http://www.dose.ca/news/story.html?id=Oc5fc9a9-931f-4aec-b95d-87a
e2a7l4eOb. In that case, although Transport Canada was quoted as saying that the harness was not "banned" they would not "approve" it either.
Also referred to as Bill C-11 of the 1st session of Canada's 39th Parlia-
ment. See supra note 27.

255
256
For the debate, see http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docld=2571452&Language=E&Mode= l&Parl=39&Ses= l#Int1819009. It lasted about 35 minutes from 16:35 to 17:10.
The actual amendment was the insertion of Clause 64 of the Bill, which
reads "Section 27 comes into force on a day to be fixed by order of the
Governor in Council." See http://www.parl.gc.ca/39/1/parlbus/commbus/
76
[Vol. 9:1
While McGuinty clearly was concerned by the fact that an

airfare advertised as $95.00 can become $169.51 when it is purchased, 257 the Canadian Senate was concerned about the need to
ensure a level playing field between foreign and domestic airlines
and also between different distributions channels.258 They were
also aware that taxes and fees account for almost all of the difference between the advertised fare and the purchase price 259 and
that with the obvious exception of gasoline,260 virtually no other
advertised price of a product or service in Canada includes
taxes. 26' Further it is well known that the final payment for hotels 262 and especially car rentals can easily far exceed the adver2 63
tised price.
257
258
259
260
261
262
263
senate/Com-e/tran-e/15eva-e.htm?Language= E&Parl=39&Ses= l&comm_

id=19.
Here, we see a 78 percent increase between the advertised price and the
final ticket price. The increase is particularly noticeable on short-haul,
low-cost, trans-border fares to the U.S. In May 2008, there was an 85
percent increase between the lowest advertised fare and the final price on
this route. At the time, airlines were imposing a fuel surcharge, but the
Canadian dollar was close to the U.S. dollar in value.
See comments of Mike McNaney, Vice-President, Government Relations,
WestJet, and Joseph Galimberti, Director, Government Relations, Air Canada, to the Standing Senate Committee on Transport and Communications on May 9, 2007, available at http://www.parl.gc.ca/39/1/parlbus/
commbus/senate/Com-e/tran-e/13evb-e.htm?Language=E&Parl=39&Ses=
1&commid= 19.
See CBC, High Cost of Flying, available at http://www.cbc.ca/news/interactives/who-airline-fees/.
In Canada, roughly 37 percent of the cost of a liter of gasoline is made up
of provincial and federal taxes, a fact routinely highlighted by the Canadian taxpayer's federation. See http://www.taxpayer.com/bank/report/
206.pdf.
For example, most products sold in British Columbia are subject to seven
percent provincial Social Services Tax, available at http://www.sbr.gov.
bc.ca/individuals/ConsumerTaxes/ProvincialSalesTax/about.htm,
as
well as to the five percent federal goods and services tax (GST), available
at http://www.cra-arc.gc.ca/E/pub/gi/notice226/notice226-e.html.
These
taxes are almost never included in the advertised price and are usually
charged only at the point of purchase.
For example, an advertised $69.49 stay at a Montreal Hotel becomes
$80.27. This price includes the three percent Montreal-area hotel tax, and
provincial and federal sales taxes are based on the advertised amount plus
the Montreal-area hotel tax. See http://www.hotelassociation.ca/forms/
2008%20room%20taxes%20table.pdf.
The advertised rate for a compact car at Toronto Pearson International
Airport is $12.99/day, according to the website of Toronto-based Advantage Car & Truck Rentals. To this rate are added $1.04 in GST, $1.66 in
PST, $4.95 in License fee, $0.50 for "fuel conservation," and $2.28 for an
"airline access fee." The final total of $23.42 is nearly double the adver-
2009]
77
When Canada's airlines advertise a Toronto-New York ticket

for $95.00, they do so in the knowledge that U.S. carriers are offering the same itinerary for the same price. 264 Then, on top of
the $95.00 fare, the issuer of the ticket 265 is required to collect
$67.01 in taxes and fees on behalf of various foreign and domestic
governments and agencies. Twenty dollars is collected on behalf
of the Greater Toronto Airports Authority,266 $7.94 is collected as
per 12(l)(c) of the Air Travellers Security Charge Act,2 67 $5 U.S.
is charged for American Agriculture fees, 26 8 $7.00 U.S. is charged
for U.S Immigration fees, 269 $16.10 is charged for U.S. International Transportation (Arrival/Departure) Tax 270 and finally
G.S.T.271 is charged on the total.
Given that the airline does not collect these fees on its own
account, including them in the advertised fare could result in the
airline paying a travel agent a commission based on a price that
264
265
266
267
268
tised price. That price does not include an optional Loss Damage Waiver
of $19.99/day or an "under age fee" of $11.99/day. If both of these options
are taken the final cost increases to $64.01, nearly five times the $12.99
advertised price.
In this case, Air Canada flight 700 and American Airlines 4841 both offer
fares as low as $95.00. AC flight 700 departs at 6:20 and arrives at 7:49.
AA 4841 departs at 6:30 and arrives at 8:10.
This is usually the airline, but it could be a travel agent in certain
circumstances.
The Greater Toronto Airports Authority administers Toronto Pearson International Airport on behalf of Transport Canada. See http://www.tc.gc.
ca/programs/airports/index.htm. The $20 CAD fee rose to $25 CAD on
June 1, 2009. See also http://www.newswire.ca/en/releases/archive/February2009/13/c8394.html.
Air Travellers Security Charge Act, S.C. 2002, c. 9, 5.
21 U.S.C. 136a(a)(1)(A) allows the U.S. Secretary of Agriculture to "prescribe and collect fees sufficient to cover the cost of providing agricultural
quarantine and inspection services in connection with the arrival at a port
in the customs territory of the United States, or the preclearance or preinspection at a site outside the customs territory of the United States, of an
international . . . commercial aircraft." Agricultural Inspection and AQI
269
270
271
User Fees Along the U.S./Canada Border, 71 Fed. Reg. 50320 (Interim
Final Rule and Request for Comments Aug. 25, 2006) (codified at 7 C.F.R.
354, 354.3(f)) sets a $5.00 "fee for inspection of international passengers"
and requires the issuer of the ticket to collect the fee and remit it the U.S.
Department of Agriculture.
8 U.S.C. 1356(d) and (f) require the issuer of a ticket to the United
States to collect $7.00 for "immigration inspection of each passenger" and
remit that money to the U.S. Treasury.
I.R.C. 4261(c)(1).
The rate is currently five percent. See http://www.gst.gc.ca/.
78
[Vol. 9:1
included foreign and domestic taxes, 272 and could possibly result
in cases where airlines simply refuse to collect certain amounts on
7
behalf of third parties.2 3
The amount of taxation is so serious that airlines are making

sure that customers know the full extent of it274 and the U.S. Gov-
ernment Accountability Office conducted a study of International

Air Passenger Inspection Fees in 2007.275
Further, the amount of taxes on a fare may well vary according

to the routing used. For example, a Montreal-Mexico round-trip
ticket advertised for $298 will attract different levels of taxation
and fees, depending on whether it is nonstop, 276 via another Canadian city, 277 or via the U.S.278
On the other hand, fees that are paid by the airlines on other
than a 'per-passenger' basis are not 'flow-through' and an argument can be made for including them in the advertised fare. This
would include surcharges for NAV Canada, 279 fuel, 280 and insur272
273
274
275
276
277
278
279
Statistics Canada reports that Canadian Travel Agents earn a commission

of between five and nine percent (not including overrides). See http://
dsp-psd.tpsgc.gc.ca/Collection/Statcan/50F003X/50F003XIE.pdf.
Obviously, if the commission is based on the $95.00 fare, plus $67.01 in taxes,
it costs the airline considerably more than if the commission is based only
on the $95.00 that the airline receives.
For example, in 2003 many of Canada's authorities (including Vancouver
International Airport) had special kiosks to collect Airport Improvement
Fees. These kiosks disappeared when Canada's airlines agreed to include
these fees in the final ticket price. See Letter from the Hon. Lawrence
Cannon, Minister of Transport, Infrastructure and Communities to Merv
Tweed, M.P., Chair of House of Commons Standing Committee on Transport, Infrastructure and Communities, available at http://login.greatbig
news.com/UserFiles/23/documents/Minister%2OCannon_2.pdf.
See http://www.aircanada.com/shared/en/common/flights/pop-surcharge.
html; https://www.aa.com/aa/i 18nForward.do?p=disclaimers/taxfeedis
claimb.jsp.
See http://www.gao.gov/new.items/d07l131.pdf. In fact, travel agents
now have special manuals so that they can correctly calculate the taxes
and fees to be charged on an airline ticket. See also http://www.arccorp.
com/forms/pp/iah/current/iah7_6.pdf. Curiously, few of these bordercrossing fees apply to crossing at land borders.
On a routing that is nonstop in both directions, total taxes and fees will
amount to roughly $91 CAD.
On a routing via Toronto in both directions, total taxes and fees will
amount to roughly $107.60 CAD.
On a routing via the U.S. in both directions, total taxes and fees will
amount to roughly $141.50 CAD.
This represents an amount collected for "navigation fees" due to the fact
that Air Navigation Services are no longer provided by Canada's federal
government, but by a private company, NAV Canada. The $7.50 added
2009]
79
ance. 28 l However, given that landing fees are often based on aircraft weight, and that there is a relationship between aircraft
weight and passenger size, there is an argument to be made for
including these fees in the list of taxes and fees that airlines must
2 82
pay on passengers' behalf.
Section 14(2) of Bill C-3 10 would impose an "an administrative
monetary penalty in the amount of 10 000 Canadian dollars for
every day '283 that an air carrier publishes or broadcasts a price
for an air service that fails to include in the advertised price "all
fees charges and taxes that are collected by the carrier on behalf
' 284
of another person in respect of the service."
Section 14(2) of Bill C-310 would impose a double standard in
the marketing of airline tickets in Canada. Thus, while it would
apply to Air Canada, Porter, and WestJet, it would not apply to
Transat A.T. Inc., because Air Transat's parent is not an airline
but "an international company that owns an air carrier, provides
destination services, is active in the accommodation industry and
28o
281
282
283
284
to a Toronto-New York ticket represents the airline's attempt to allocate

this cost on a per-ticket basis.
Although fuel prices rose dramatically in 2008, they have fallen since and
it would appear that the application of a fuel charge to a route has more to
do with competitive factors than with the length of the route. For example, if a carrier applies a fuel surcharge to Montreal-Mexico City (2,308
miles), the same fuel charge should also apply to Montreal-Vancouver
(2,290 miles) and Montreal-Los Angeles (2,470 miles). This is not always
the case.
While there is no doubt that the cost of insurance has gone up as a result
of the events of Sept. 11, 2001, eight years have passed since that event.
At the same time, Canada's federal government has provided some terrorist and war insurance coverage to Canada's aviation industry for most of
the period since Sept 11, 2001. See http://www.marketwire.com/pressrelease/Transport-Canada-385077.html; http://www.tc.gc.ca/programs/air
ports/liabilityprogram/undertakingmay09.htm.
For many years, Toronto's Pearson International Airport had the highest
landing fees in the world. In 2001, it cost (in rough figures) $4,900 to land
a Boeing 747-400, $3,400 to land an Airbus A-340, $2,500 to land a Boeing
767, and $950 to land an Airbus A-320. See David Gillen, Len Henriksson, and William Morrison, Airport Financing,Costing, Pricing and Performance; Final Report to the Canadian Transportation Act Review
Committee, Apr. 2001, available at http://www.reviewcta-examenltc.gc.ca/
CTAReview/CTAReview/english/reports/gillen.pdf. At the time a case
could have been made for airlines to include a $10 "Pearson Landing Fee"
charge on all flights going through that airport. The fees have since come
down slightly, but on a per-passenger basis, a current charge probably
would exceed the $7.50 that some airlines allocate for NAV Canada.
Bill C-310, supra note 3, 14(2).
Id., 14(1)(b).
80
operates an extensive distribution network.
Transat Tours Canada,
286
[Vol. 9:1
'285
Quite simply,
a sister company to Air Transat,287
would not be subject to Bill C-310 as Transat Tours Canada

neither is, nor controls, nor owns an air carrier.
Indeed, any airline wanting to get around section 14 of Bill C310 would simply have to set up a parent company 288 and an
'arm's-length' sibling based in any of seven provinces. 289 Further, any truly independent broker of airline seats such as Expedia Inc., Sabre Holdings, Orbitz Worldwide, or Priceline.com,
is quite simply beyond the reach of Bill C-310.290 Enforcement of
14(2) of Bill C-3 10 could result in a situation where the websites
of Canada's airlines would not be able to compete with the prices
offered by travel-booking websites; airline marketing costs would
rise,291 and with it, the price of an airline ticket. The issue is further complicated by the fact that foreign based websites, TV stations, and radio stations routinely advertise products to
2 92
Canadians but are beyond the reach of Canadian laws.
285
286
287
288
289
290
291
292
See http://www.transat.com/en/about/about.aspx.
Transat Tours Canada is a tour operator based in Montreal and is therefore bound by 224(c) of Quebec's Consumer Protection Act, R.S.Q., ch.
P-40. 1, which prohibits a merchant from charging "for goods or services, a
higher price than that advertised."
Air Transat does not directly sell any of its services. Virtually all of its
seats are distributed through Transat Tours Canada and its associates.
See http://www.transat.com/en/about/outgoing.aspx.
Already, Air Transat has Transat A.T. Inc. and Air Canada has ACE Aviation Holdings Inc. See http://www.aceaviation.com/en/home.html.
Only British Columbia, Ontario, and Quebec have "price advertising"
provisions in laws applying to the promotion of goods and services in the
province. A tour operator based in any other province would not be
bound by "price advertising" legislation.
Canada's federal law cannot regulate the distribution of goods and services unless the distributor is an institution such a bank or telecommunications company, which is normally subject to federal regulation. See
Constitution Act, 1867, 92(16).
Air Canada has lowered distribution costs by $400 million per year and its
website features prominently in this strategy. See Montie Brewer, President and CEO, Air Canada, and Michael Rousseau, Executive Vice President and CFO, Air Canada, Presentation at the CIBC World Markets 7th
Annual Eastern Institutional Investor Conference, Sept. 24, 2008, at 15,
available at http://www.aircanada.com/en/about/investor/documents/sheraton-sep08.pdf.
Many TV and radio stations in Northern Washington and Upstate New
York can be picked up easily in Greater Vancouver and Southern Ontario.
The most extreme example of a potential problem here is KVOS-TV, a
Bellingham, Washington-based TV station that claims to serve the "Pa-
2009]
81
Section 14 of Bill C-310 has a laudable goal, but achieving this

objective would probably require a harmonization of provincial
price advertising standards and an agreement as to what costs
should be included in the advertised fare, and which taxes and
fares should be added afterwards as in the case with hotels and
car rentals.293
Section 15(1) of Bill C-310 would require an air carrier to
"make every reasonable effort" to provide passengers with information that "could have a significant impact on the travel plans
294
of that passenger" within an hour of acquiring the information.
This clause is not found in other legislation and seems to be
inspired by Item 1 of the "Code of Conduct for Canada's Airlines. '29 5 Thus, it would appear to simply confirm the usual customer service practices of Canada's airlines.
Section 15(2) of Bill C-3 10 would require the air carrier to pay
an affected passenger $500 in cases where the air carrier had
failed to "to comply with subsection (1)."'296 Given that 15(1) of
Bill C-3 10 does not define "every reasonable effort" it is not clear
under what circumstance the $500 compensation of 15(2) would
be payable.
Section 16(1) of Bill C-310 would require the air carrier to
"make every reasonable effort" to provide affected passengers
with information "of the location of [missing] baggage and the
measures that are being taken to return the baggage to the passenger" within an hour of acquiring the information.297
This clause does not appear in other legislation and appears to
be inspired by item 4 of the "Code of Conduct for Canada's Air'
lines. 298
Thus, it would appear to simply confirm the usual customer service practices of Canada's airlines.
an affected passenger $100 in cases where the air carrier had
cific Northwest" and has separate entries for Canadian and U.S viewers
293
294
295
296
297
298
on its website. See http://www.kvos.com/sites/kvos/select.aspx.

Advertised hotel prices rarely include tourist taxes, and advertised car
rental rates almost never include the cost of required insurance or airport
terminal fees.
See supra note 23.

Id., 16(l).
See supra note 23.
82
[Vol. 9:1
failed to "to comply with subsection (1). ' ' 299 Given that 16(1) of
Bill C-310 does not define "every reasonable effort" it is not clear
under what circumstance the $100 compensation of 16(2) would
be payable. Further, in cases where the luggage might be in a
different country or time zone than the passenger, the standard of
"reasonable effort" might be different than in cases where the pas3o
senger is on the plane.
Section 17(1) of Bill C-3 10 is again inspired by item 1 of the
"Code of Conduct for Canada's Airlines,"' 301 and requires an airline to make public announcements "respecting cancellations, delays and diversions of its flights" over the public address system
and airport television monitors within 10 minutes of becoming
3 2
aware of these events.
an "administrative monetary penalty of $1000in cases where the
air carrier had failed to "to comply with subsection (1)."3o3
Unfortunately, 17(1) of Bill C-310 does not require "every reasonable effort" but instead mandates a result. This might be understandable if the operation of the airport public address system
and the airport television monitors were always within the airline's control, but Bill C-310 would apply both to foreign air carriers in Canada as well as to Canadian air carriers abroad.
Further, there is the question of the language of the notice; ideally
it should be made in both of Canada's official languages, as well
as (for international flights) the official or major language(s) of the
3 4
destination country. 0
Section 18(1) of Bill C-310 would require air carriers to provide
bilingual signage at check-in to inform passengers of their rights
and reminding affected passengers to ask for a "written notice
299 Bill C-310, supra note 3, 16(2).

300 Obviously, an airline would have an easier job communicating with a passenger on one of its planes, than communicating the whereabouts of lost
baggage to a passenger who may or may not be easily reachable.
301
See supra note 23.
302 Bill C-310, supra note 3, 17(1).
303 Id., 17(2).
304 Several times, the author of this paper has witnessed a delay in posting
flight information on airport TV websites due to bilingualism requirements, and problems in both Canada and the U.S. apprising foreign-language passengers of flight changes.
2009]
83
setting out the rules for compensation and assistance under the
'30 5
Airline Passengers' Bill of Rights.
Section 18(1) of Bill C-310is inspired by an unfulfilled promise
that Transport Canada made when Minister Cannon launched
Flight Rights on September 5, 2008. At that time, Transport Canada promised, "Flight Rights Canada will make information
available to air travelers in several ways. It will inform Canadi' 30 6
ans of their rights through prominent signage at key airports.
Had Transport Canada kept this promise, 18(1) of Bill C-310
might not have been drafted.
The text of section 18(1) of Bill C-310 is drawn almost entirely
from article 14(1) of EC 261/2004.
Section 18(2) of Bill C-310 would impose an "administrative
monetary penalty of $1000 in cases where the air carrier had
failed to "to comply with subsection (1)." 307 Unfortunately 18(1)
of Bill C-310 does not require "every reasonable effort" but instead mandates a result. It is easy to imagine situations, particularly at rarely served foreign airports where providing such a
notice might be a challenge. Perhaps for this reason, Article 14(1)
of EC 261/2004 does not provide for a penalty for noncompliance.
The Montreal Convention, sections of which may conflict with
this act, has a more practical solution. Article 3(4) of the Montreal Convention requires that a "passenger shall be given written
notice to the effect that where this Convention is applicable it
governs and may limit the liability of carriers in respect of death
or injury and for destruction or loss of, or damage to, baggage,
and for delay. ' 30 8 The subsequent article makes it clear that the
airline's failure to provide the notice does not affect the applica3 9
tion of the Convention.
Rather than requiring an airport sign, 18(1) might require that
the notice be included in the terms and conditions of the ticket.
This would give the passenger earlier notice and reduce the airlines' costs as most tickets now are e-tickets.
305
306
307
308
309

See http://www.tc.gc.ca/mediaroom/releases/nat/2008/08-h207e.htm.
See Montreal Convention, supra note 47, art. 3(4).
Id., art. 3(5).
84
[Vol. 9:1
Section 19(1) of Bill C-310 would require an air carrier to "immediately provide" 310 affected passengers with a written notice
that contains the "rules for compensation and assistance, ' ' 311 the
"contact details of the Canadian Transportation Agency, '312 and a
"claim form. '3 13
Section 19(1) of Bill C-310 is based heavily on Article 14(1) of
EC 261/2004, except that the latter does not insist on 'immediate'
service.
Section 19(2) of Bill C-310 requires the air carrier to pay an
affected passenger $200 if it fails "to comply with subsection
(1)."3 14 When combined with the 'immediacy' requirements of
19(1) of Bill C-310, 19(2) of Bill C-310 could have unintended
consequences. In practical terms, it takes time to give a "written
notice" to anyone. In the case of 100 or more passengers in a
waiting lounge, it could easily take 20 minutes to give this notice
to everyone. Do Canada's legislators desire that airline staff
spend that 20 minutes on avoiding paying passengers $200315 or
on re-booking the passenger to their final destination with minimum delay? As written, 19 of Bill C-310 encourages the former
course of action.
Section 20 of Bill C-3 10 requires that the notices "referred to in
subsections 18(1) and 19(1) shall be provided to blind and visually
impaired persons in an appropriate alternative medium. '' 316 It is
based on Article 14(2) of EC 261/2004.
While 20 of Bill C-310 seems to be fair, if the 'strict liability'
provisions of sections 18 and 19 apply to 20, this would impose
additional liabilities on air carriers.
Increasingly, at airports other than at an air carrier's 'hub,'
317
and especially at foreign airports, air carriers use 'handlers
who invariably process passengers from various carriers. At the
same time, more airports are embracing "Common Use Terminal
310
311
312
313
314
315
316
317

Id., 19(1)(a).
Id., 19(1)(b).
Id., 19(1)(c).
Id., 19(2).
Time also could be spent in settling arguments as to whether the notice
was given on time, especially in cases of a long line-up.
Bill C-310, supra note 3, 20.
A handler, such as Fraport Ground Services, handles over 100 foreign and
domestic airlines at Frankfurt. See http://www.fraport-groundservices.
com/cms/default/rubrik/16/16054.profile-flash.htm.
20091
85
Equipment" which allows for the check-in of various passengers

for various flights at the same time. 318 Both of these developments have the effect of reducing the air carrier's contact with the
passenger and, especially at foreign airports, reducing the carrier's ability to "immediately provide" written notices" in an "alternative medium." In such situations, the application of sections
18-20 of Bill C-3 10 as written could have the effect of increasing
passenger fares. Perhaps for this reason the similar articles in EC
261 do not set time-lines or penalties.
Application of Canada Transportation Act
Section 21 of Bill C-310 attempts to apply the enforcement
powers of the Canadian Transportation Agency to sections 14, 17,
and 18 of Bill C-310. Specifically, 21 of Bill C-310 would ask
the Canadian Transportation Agency to enforce the 'air-fare advertising,' 'public announcements,' and 'signage' provisions of
Bill C-3 10 as though these sections were license conditions as per
177(1)(a) of the Canada Transportation Act.3 19 Sections 178 to
181 of that Act deal with administrative monetary penalties and
specify the powers of enforcement officers, the notice and procedure to be followed, and the right of any person "served with a
notice of violation" to file before the Transportation Appeal Tribunal of Canada 320 "a written request for a review of the facts of
'' 3
the alleged contravention or of the amount of the penalty. 21
Section 21(2) of Bill C-310 would make the Canadian Transportation Agency "responsible for the enforcement of sections 14,
17, and 18, including the collection of the administrative mone''3 2
tary penalties prescribed by those sections. 2
Section 21 of Bill C-310 shows the Bill's poor fit with the Canada Transportation Act. First, it limits the Canadian Transportation Agency's responsibility to only three of Bill C-310's
sections, none of which deal with air passenger rights, making it
crystal clear that it is the Bill's intent that the enforcement of any
other of its provisions be done in a matter of private dispute settlement between the air carrier and the passenger.
318
See http://www.industry.siemens.com/airports/en/solutions/itsolutions_
servicessoftware-systemscommonusefacilitiescute.htm?node= 1168.
319
See supra note 42.
320
See Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29.

Canada Transportation Act, supra note 42, 180.1.
321
322
86
[Vol. 9:1
Secondly, it would send the consideration of any 'administrative monetary penalty' to an appeal body that focuses almost entirely on the safety issue and medical aspects of pilots' licenses.323
Quite simply, if the "Airline Passengers' Bill of Rights" is to
have meaning, the Canadian Transportation Agency, not the
Transportation Appeal Tribunal of Canada should have jurisdiction over all matter covered by Bill C-310. Further, if the Canadian Transportation Agency does not have jurisdiction over the
matters raised in sections 3-13 of Bill C-310, there is no obvious
reason to provide affected passengers with the "contact details of
the Canadian Transportation Agency," as per 19(1)(b) of Bill C310.
Miscellaneous
Section 22 of Bill C-3 10 requires that any compensation or reimbursement be provided within seven days. 324 There is no similar clause in passed or pending legislation in any other
jurisdiction. As a matter of course, the air carriers will pay
promptly those benefits and compensations that are consistent
with their tariffs as amended. Amounts that air carriers dispute
will probably have to be collected through private right of action,
as the Canadian Transportation Agency's jurisdiction over 'air
carriers' is questionable. 32 5
Section 23 of Bill C-310 would measure applicable distances by
the "great circle method" and takes this idea from Article 7(4) of
EC 261/2004.
Section 24 of Bill C-310 is an attempt to 'inflation-protect' the
amounts of compensation and administrative monetary penalties.
Section 24(1) proposes to update the amounts based on the Consumer Price Index, and uses an approach inspired by election legislation in New Brunswick, 326 Newfoundland, and Labrador. 327
While such an approach may be suitable for determining election
323
324
325
326
327
In announcing the creation of the Transportation Appeal Tribunal of Canada on Sept. 26, 2001, the government said that the TATC "replaces current internal review processes in which enforcement decisions made by
inspectors are subject to review by senior officials." See http://www.tc.gc.
ca/mediaroom/releases/nat/2001/0 1_h 123e.htm.
It makes provision for various payment methods.
See supra notes 43-44 and accompanying text.
See Political Process Financing Act, SNB ch. P-9.3, 77.1(1).
See Election Act, 1991, SNL 1992 ch. E-3.1, 311(1).
2009]
87
spending limits, any adjustment of compensation under Bill C310 should be based on the price of airline stock or perhaps the
increase or decrease of average airline prices over a specific route
or collection of routes.
Section 25 of Bill C-310 states that the Governor in Counci3 28
"may make regulations in respect of any matter referred to in this
Act" 329 unless such regulation would "negate
fect of any of the provisions of this Act. '330
impossible that Canada's Senate would add
ing into force" clause as they have done with
33 1
dealing with passenger rights.
or diminish the efThis said, it is not

a Section 26, "comprevious legislation
Conclusion
Bill C-310 is a well-meaning Bill, but it has several serious
flaws.
It combines Delay provisions inspired from EC261/2004 with
Tarmac Rights inspired by proposed U.S. legislation. These provisions are potentially incompatible. This is precisely why they
do not co-exist in either current or proposed legislation elsewhere.
Bill C-3 10 requires air carriers to pay administrative monetary
penalties or compensation in twelve situations where no other
proposed or current law would require the same. 332 In two other
provisions, Bill C-310 sets much higher standards 333 and compensation levels up to 270 percent more 33 than any comparable legislation elsewhere. Bill C-310 contains a provision that is not
found elsewhere in Canadian federal law 335 and has sections
which potentially conflict with an international treaty Canada
336
has signed.
330
"Governor in Council" is the legal term used to describe Canada's

Cabinet.
Id., 25(2).
331
332
See supra note 256 and accompanying text.

See Bill C-310, supra note 3, 4(1)(c)(ii), 6(2), 7(1), 10(2), 12(2), 13(2), 14(2),
328
329
15(2), 16(2), 17(2), 18(2), & 19(2).

333 See id., 17(1) & 19(1). Compare the latter with art. 14(1) of EC 261/
2004, supra note 1. Further, Bill C-310 has no subsection similar to art.
7(1) of EC 261/2004, supra note 1.
334 See supra note 195.
335 See Bill C-310, supra note 3, 24 and 19(1).
336 See supra notes 105-111 and accompanying text.
88
[Vol. 9:1
It does not embrace the enforcement powers of the Canada

Transportation Act, and does not recognize the Canada Transpor7
tation Agency for complaint resolution.33
It would therefore require very substantial modification by the

House of Commons Standing Committee on Transport, Infrastructure and Communities. Supporters of Bill C-310 would be
wise to consider whether the Bill can be properly amended at
Committee, or whether the Committee should be asked to consult
with stakeholders and make recommendations that take into account tariff changes made by Canada's airlines and the need for
legislation to be compatible with, and perhaps amend, the Canada Transportation Act.
337
See discussion in the section, Application of Canada Transportation Act,

supra.

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Air Passenger Rights: The

Issues in Aviation Law and Policy

Air Passenger Rights: The First Canadian Efforts

Passengers Could be Stranded More Than a Week,

THE TELEGRAM (St.

John's), Jan. 3, 2008, at D1.

On Dec. 24, 2004 thousands of Jetsgo passengers were stranded in Toronto

Mayors Want Passengers'Bill of Rights, THE

13, 2008, at A3.

Issues in Aviation Law and Policy

and effect to legal instruments being either proposed or enacted

Air Passenger Rights: The First Canadian Efforts

Issues in Aviation Law and Policy

tion sets a fine for non-compliance of $10,000. Id. at 215.

Air Passenger Rights: The First Canadian Efforts

2009.32 It was passed at second reading and referred to the House

The Bill is clearly inspired by EC Regulation No. 261/2004, 34

the U.S. Department of Transportation's Notice of Proposed

Bill C-310 does not propose to amend the Canada

The date was marked by a press teleconference in which Bill C-310's

Issues in Aviation Law and Policy

See infra discussion of the Application of Canada Transportation Act.

Air Passenger Rights: The First Canadian Efforts

wishes to "sell, cause to be sold or publicly offer for sale" a domes42

Canada Transportation Act, S.C. 1996C-10, 59.

Issues in Aviation Law and Policy

line(s). The reservation is generally more precise and shows flight

The vast majority of purchased tickets are "positive space."

Air Passenger Rights: The First Canadian Efforts

shal 54 or an attendant accompanying a passenger with reduced

For example, in Canada, In-Flight Security Officers (IFSO), operating

Issues in Aviation Law and Policy

ber of hours flown. 59 At a minimum, Bill C-310's scope would

cussed earlier in this paper. More seriously, there is a direct

Air Passenger Rights: The First Canadian Efforts

Rule 240AC (C)(1)(a) of Air Canada's CanadianDomestic General Rules

Issues in Aviation Law and Policy

made the passenger aware of the cancellation within the required

Air Passenger Rights: The First Canadian Efforts

destination on the ticket, even where such rerouting would arrive

Issues in Aviation Law and Policy

Ryanair offers an 80-minute nonstop flight between Basel-Mulhouse and

Air Passenger Rights: The First Canadian Efforts

See Bill C-310, supra note 3, 4(1)(a).

Issues in Aviation Law and Policy

Montreal-Vancouver flight.9 7 Section 5(1) of Bill C-310 makes no

Air Passenger Rights: The First Canadian Efforts

Canadian Transportation Agency to be "just and reasonable,")103

See CTA Decision No. 565-C-A-2008 of Nov. 3, 2008, In the matter of a

Montreal Convention, supra note 47.

the Montreal Convention.

Issues in Aviation Law and Policy

Quite simply, "airplanes make money in the air, not on the

Air Passenger Rights: The First Canadian Efforts

unloaded, the outbound passengers, baggage and fuel would be

In fact, so important is punctuality that when Gus Fuentes delayed the

Issues in Aviation Law and Policy

Part of the measure that the court struck down is subsection 1

well as a landing at either the destination or any other aerodrome