Transportation Notes: Air Passenger Rights Group Challenges CTA Statements On COVID-19 Vouchers

• Published date: 10 November 2020
• Subject Matter: Transport, Coronavirus (COVID-19), Aviation, Operational Impacts and Strategy
• Law Firm: WeirFoulds LLP
• Author: Mr Carlos Martins and Emma Romano

In the wake of travel restrictions and sweeping flight cancellations due to the COVID-19 pandemic, the Canadian Transportation Agency ("CTA") issued two public statements on its website suggesting that it could be reasonable for airlines to provide travel vouchers for flights cancelled as a result of the pandemic, rather than providing refunds to passengers.

An advocacy group called Air Passengers Rights ("APR") commenced an application for judicial review of the CTA's public statements, asserting that they were in violation of the CTA's Code of Conduct, and they misled passengers as to their rights when flights are cancelled.

APR sought a temporary injunction for the following relief:

1. An Order requiring that the statements be removed from the CTA's website; and
2. An Order preventing the members of the CTA from dealing with passenger complaints regarding refunds on the basis that a reasonable apprehension of bias exists on their part as a result of the CTA's public statements.

Justice MacTavish of the Federal Court of Appeal dismissed the motion, concluding that APR had not met the high bar for ordering a temporary injunction.

The CTA's Statements

On March 25, 2020, the CTA posted a statement on its website regarding flight cancellations relating to COVID-19.

The "Statement on Vouchers" noted that that passengers who have no prospect of completing itineraries "should not be out-of-pocket for the cost of cancelled flights".

The statement also noted that airlines facing sharply declining passenger volumes and revenues "should not be expected to take steps that could threaten their economic viability".

The statement provided that any complaint brought to the CTA would be considered on its own merits. However, the statement notes that "an appropriate approach in the current context could be for airlines to provide affected passengers with vouchers or credits for future travel, as long as these vouchers or credits do not expire in an unreasonably short period of time", suggesting that a 24-month period for the redemption of vouchers "would be considered reasonable in most cases".

On the same date, the CTA also published an amendment to a notice previously published on its website entitled "Important Information for Travellers During COVID-19", which referenced the "Statement on Vouchers".

Position of the Applicant

APR argued that previous CTA decisions confirm that passengers have the right to a refund where air carriers are unable to provide transportation...