The dispute over compensation claims for canceled and delayed flights has found its way to the federal appeals court.

Air Canada and WestJet have both initiated litigation to appeal separate decisions by the Canadian Transportation Agency (CTA), each ordering the airline to compensate one or more passengers for a canceled flight due to staff shortages.

The airlines each claim in court filings that they did not have to pay compensation because the CTA – Canada’s transportation regulator and quasi-judicial court – misinterpreted Canada’s transportation regulations.

Consumer advocate and attorney John Lawford said if the airlines win their appeals it could set a precedent for compensation claims related to staffing issues.

“Basically, any time the airline experiences a staffing shortage of any kind … it could be an event beyond its control and therefore all of these claims would fail,” said Lawford, executive director of the Center’s Public Interest Advocacy (PIAC). “I think these calls … signal that they, the airlines, are very reluctant to pay compensation.”

WestJet and Air Canada have informed CBC News that they comply with Canada’s Air Passenger Protection Regulations (APPR). WestJet said it has appealed to ensure the rules are fairly enforced.

“There is no single crew issue, and we believe the OTC seeks to make all crew issues equal,” said Andy Gibbons, WestJet’s vice-president of government relations.

WestJet fined $1,000

As part of the APPRAirlines are only required to pay compensation – up to $1,000 – if a flight delay or cancellation is within an airline’s control and is not necessary for safety reasons.

The CTA said it has received more than 16,000 complaints from airline passengers about flight disruptions since May.

CTA rulings in the WestJet and Air Canada cases, released last summer, should help clarify compensation rules for understaffed flight disruptions.

That’s what the agency says that personnel matters are under the control of the airline and cannot be classified as a safety issue unless an airline can prove otherwise.

The WestJet case involved passenger Owen Lareau, whose July 2021 flight from Regina to Ottawa was canceled, resulting in a 21-hour delay.

According to the CTAWestJet argued that a pilot called in sick about an hour before takeoff and a replacement could not be found in time, making the flight cancellation a safety issue that did not warrant compensation.

But the CTA found that WestJet had “failed to demonstrate satisfactorily” that the flight cancellation was inevitable and ordered the airline to compensate Lareau $1,000.

WestJet filed for leave to appeal the decision in August and received approval from the federal Circuit Court of Appeals last month.

“Basically, we believe that canceling this flight was a safety decision and we stand by it,” WestJet’s Gibbons said. “The original purpose of the APPR was to protect consumers from airline business decisions, not to penalize airlines for safety decisions.”

Gibbons also hinted that airfares could rise if the CTA continues to generalize that staffing shortages are under an airline’s control.

“We have a duty to keep our costs down and this needs to be balanced with the fairness of existing compensation plans.”

The CTA and passengers involved in the two cases declined to comment while the cases are in court.

Air Canada ordered to pay $2,000

In the Air Canada case, passenger Lisa Crawford and her son were delayed nearly 16 hours after the airline canceled their August 2021 flight from their home in Fort St. John, British Columbia, to Halifax.

According to the CTAAir Canada argued that a pilot failed to complete a mandatory training course on time and the airline could not find a replacement, leaving the flight cancellation out of its control.

But the CTA found that Air Canada had failed to provide evidence “that despite good planning, the crew shortage was inevitable,” so Crawford and his son should each be compensated $1,000.

Air Canada last month applied to the courts for permission to appeal the decision and is awaiting approval.

CLOCK | Air Canada and WestJet question customer compensation decisions:

Air Canada and WestJet question customer compensation decisions

WestJet and Air Canada are entering litigation to appeal recent rulings ordering them to compensate passengers. Experts say if the airlines are successful, it could impact other claims.

In its appeal motion, the airline argues that the CTA cannot presume that crew shortages are within the airlines’ control and then place on them the responsibility to refute it.

“He has interpreted the APPR in a way not envisaged by law and placed an impossible burden of proof on airlines,” Air Canada spokesman Peter Fitzpatrick said in an email.

WestJet makes a similar legal argument in its appeal.

PIAC’s Lawford suggests that the CTA’s request for evidence was fair.

“It’s a reasonable proposition for a regulator to say we expect you to have plans for staffing shortages,” he said. “The agency just asked them to provide evidence that they made an effort.”

another call

Canada’s passenger protection regulations are also the subject of another legal dispute.

In 2019, Air Canada and Porter Airlines, along with more than a dozen nominees including the International Air Transport Association, made an application in federal appeals court to strike down many of the settlements.

The plaintiffs argue that the APPR for international flights is “invalid” because it differs from it the Montreal Conventiona treaty adopted by many countries, including Canada, that establishes airline liability in the event of flight disruptions.

Under the Montreal Convention, passengers can only receive flight disruption compensation if they: prove that they have suffered financial loss.

A decision in this case is expected shortly.

Lawford said if all appeals are successful, it could mean few flight disruptions warrant compensation.

“It would certainly be a struggle for the average consumer to have their claim accepted.”