Canadian air passenger rights advocate Gabor Lukacs is one step closer in his efforts to obtain accountability and transparency from the Canadian Transportation Agency (CTA).
On Tuesday, the Federal Court of Appeals granted Lukacs the right to continue his previously dismissed application regarding the 2017 runway delays suffered by Air Transat passengers at the Ottawa airport.
On July 31, 2017, two Air Transat flights were diverted to the Ottawa airport and delayed there on the runway for several hours.. Passengers complained about the high temperatures inside the plane, the lack of food and drinks, and some passengers became ill.
In November 2017, the CTA ruled that Air Transat did not adhere to its own terms and conditions in its treatment of passengers and ordered the airline to indemnify all passengers for expenses incurred as a result of their failure to meet its fares. The CTA designated enforcement officer also ruled that Air Transat had to pay a fine of $ 295,000.
However, the enforcement officer allowed the compensation paid to the passengers to be considered a credit towards the fine, excluding reimbursements for out-of-pocket expenses.
Air Transat paid $ 500 each to passengers on four flights that were diverted to Ottawa, including the two subjects of the CTA investigation, the Canadian Press reported. Those payments appear to have counted toward the fine; Air Transat told the Canadian Press at the time that its payments to customers accounted for more than 80 percent of the $ 295,000 fine, and said the company was “paying the difference to the CTA.”
Lukacs received a document in April 2019 through an Access to Information and Privacy app, showing that Air Transat ended up paying just $ 55,000 of the $ 295,000 fine to the government.
The CTA and the Transportation Minister’s office declined to comment. Air Transat also did not respond to Star’s request for comment.
Lukacs sought to defy credit in December 2017, arguing that passenger compensation should not be used to reduce the fine Air Transat owes the government, and requesting further information from the CTA on its decision to do so. Air Transat tried to have his application dismissed, and was successful, as the Federal Court ruled that Lukacs’ case did not meet the public interest criteria.
He took the case to the Federal Court of Appeals for reconsideration in September 2019, and this week the court ruled that the Federal Court had erred in dismissing Lukacs’ original challenge.
So now the ball is back in Federal Court to hear Lukacs’ request. He said he is “very happy” to have earned the right to move forward with his case.
Lukacs argues that Air Transat should have had to pay the full fine, as well as compensate affected passengers, and says the law has no provision for such a credit to be applied to a fine.
The fine caused quite a stir at the time, Lukacs said, but characterized it as a “public stunt,” given that the airline paid the CTA close to the full amount.
One big issue that you would like to see addressed is the internal documents that you requested from the CTA as part of your initial application. Lukacs asked to see internal communications on sanction and credit to shed light on the decision-making process.
Otherwise, Lukacs is concerned that the Air Transat case could result in a slippery slope affecting sanctions in industries other than air travel.
“What we are looking for is accountability,” he said.
“What I’m trying to protect here is the integrity of the system that is supposed to protect passengers.”
John Gradek, former Air Canada executive and director of McGill University’s Global Aviation Leadership Program, said the 2017 decision to allow Air Transat consumer compensation to count toward its sanction was “setting a precedent”, and so is the appeal court’s decision to allow Lukacs’ case to proceed.
For Lukacs, passenger compensation and the company’s fine are “two separate issues,” with “two very different remedies,” Gradek said, noting that such a credit had never been applied to a fine before.
However, Gradek said he believes the issue of CTA’s internal documents is even more important. If Lukacs gets what he’s asking for, it could affect the way the CTA shares information about future decisions, an important element of its transparency, Gradek said.
In court, the CTA will have to explain why it is not sharing those documents, he explained: “it is notifying the CTA.”
Gradek said the issue of transparency with the CTA came up again last year, when the agency allowed airlines to issue credits instead of refunds for canceled flights related to the pandemic, although other jurisdictions were not doing the same.
Lukacs agreed that in the case of pandemic reimbursements, similar issues arose regarding transparency. He said that the idea of applying a credit based on client compensation to a fine owed to the Crown is not necessarily bad, but the law should describe how and when such credit could be implemented, which now is not the case.
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