WestJet travellers with cancelled flights deserve more than refunds and sympathy

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Ashley Nunes is a senior research associate at Harvard Law School and teaches economic policy at Harvard College.

Barely able to hide its glee over the financial concessions it extracted in contract talks, the WestJet mechanics union has expressed “regret” to the more than 100,000 affected passengers (union executives said striking during one of the busiest travel periods was “coincidental,” though you’re on your own if you believe that). Not to be outdone in the sympathy department are the airline executives. “We fully recognize the continued impact on our guests and sincerely appreciate their patience and understanding,” WestJet’s president said in a statement.

So there you have it. Canadians firmed up their travel plans months in advance, spent thousands of dollars and arrived at the airport early (as instructed by the airline) – given the summer rush – only to be greeted by hours of delays, a deluge of flight cancellations and absurdly long wait times at WestJet call centres (assuming they could get through to someone at all). What do passengers have to show for suffering these indignities? Union “regret” and C-suite “appreciation.” You know what flyers would like better? Cold, hard cash.

I’m not talking about a refund for cancelled flights. The Air Passenger Protection Regulations guarantee that right. If an airline cancels your flight, you are entitled to a refund, which explains why WestJet wasted no time in saying so. “In compliance with the Air Passenger Protection Regulations (APPR), in the event reaccommodation with WestJet or an alternative airline isn’t available within 48 hours of a guest’s scheduled departure, guests are entitled to request a refund to their original form of payment,” the airline notes on its website.

I’m talking about cash for out-of-pocket expenses incurred because of delayed or cancelled flights. Expenses such as food, water and hotels that passengers must pay for through no fault of their own. On paper, the APPR addresses this, too. Passengers can claim $400 in compensation from the airline if they experience delays lasting at least three hours. That figure rises to $1,000 if the delay exceeds nine hours. But – and this is important – those claims are only paid out if the delay is “within the airline’s control and not related to safety.” You don’t need a Harvard MBA to figure out what comes next.

To control costs, airlines will argue that any flight delays or cancellations are either out of their control or related to safety. Consider the case of a Saskatoon couple who were flying from Regina to Victoria. Their first flight was delayed by five hours; the second, cancelled. Neither the delay nor the cancellation was related to, for example, weather (outside the airline’s control) or leaking oil or jet fuel (safety-related). Yet the couple’s claim for compensation under the APPR was denied. Air Canada – the operating airline – argued that the cancellation was “due to crew constraints” linked to the pandemic and was “safety-related.” Evidently, failing to adequately staff your airplanes is a safety problem – one for which passengers, not management, must pay the price.

I had a similar experience recently. My Air Canada flight was cancelled for what the airline said was “unforeseen maintenance that does not include scheduled maintenance or mechanical problems identified during scheduled maintenance.” The language here – lifted predictably and almost verbatim from the APPR – is telling. If a flight is cancelled because of scheduled maintenance, the airline is on the hook for compensation. If maintenance is unscheduled, no compensation needs to be paid out. You know what comes next. Despite getting me to my destination 10 hours later than originally scheduled, Air Canada denied my compensation claim.

Where flying is concerned, the APPR is supposed to afford passengers a semblance of dignity. It does anything but. In fact, the APPR, often touted by Ottawa as protecting passengers, is explicitly written in a way that ensures legitimate compensation claims will be constantly and consistently denied. If delays occur because the engine is sputtering, claims can be denied (the airline will say the delays are due to safety-related issues). If cancellations occur because the toilets won’t flush, claims can be denied (the airline will argue the aircraft requires unscheduled maintenance and, for good measure, will cite safety concerns).

I’m admittedly not keen to fly on an airplane with malfunctioning engines or a clogged toilet. I’d like those problems to be resolved before I’m hurtling through the air at almost the speed of sound. But the fact that those problems arise does not – and should not – absolve an airline of its fiduciary duty toward its customers. You don’t get a financial pass for inconveniencing flyers because your intentions were good. Canadians deserve better. If we are going to have a passenger bill of rights, the bill must work for passengers.