Many Canadians who had their flight plans disrupted by the novel coronavirus pandemic are turning to a United States travel authority to back them up as they request refunds from airlines.
Thousands of flights were accordingly cancelled, with passengers receiving varying degrees of compensation.
A common offer from the airlines was a voucher for future travel, an option that frustrated many passengers.
Ottawa resident Edith Kehoe tells Global News her 94-year-old stepfather was offered a voucher for future travel when his trip to San Diego, planned in January to attend a military funeral for his brother-in-law, was cancelled by the airline.
Kehoe says the total cost of the flight was roughly $1,000 — not necessarily exorbitant, but significant for a pensioner.
Though her stepfather is in good health, she notes that to give a customer in their 90s a travel credit is “kind of useless.”
The flight, booked through Expedia, was to be code-shared between United Airlines and Air Canada.
Kehoe says she called and emailed the airlines to ask for a full refund but heard nothing in response.
She started looking for other options online and found Canada’s Air Passenger Rights group on Facebook.
There, dozens of Canadians have been asking for the best course of action to push airlines for refunds since the pandemic began.
Among the top advice? For flights that depart from, travel to or transfer through the United States, submit a complaint to the U.S. Department of Transportation (DOT) — not the Canadian Transportation Agency (CTA), the travel authority’s counterpart north of the border.
“I thought, what the heck, I’ll give it a try,” Kehoe says, though she notes she wasn’t hopeful given that the flight originated in Canada.
She submitted a complaint through an online form in about five minutes and heard back a few weeks later from the DOT requesting more information on dates and flight numbers. A few weeks after that, she learned her complaint had been referred to United Airlines.
Two days later, she was told she’d be receiving a full refund to her credit card.
“I frankly was flabbergasted,” she says.
Kehoe’s story is echoed by dozens of Canadians posting daily on the Air Passenger Rights Facebook group.
Many note that they tried for months to press airlines for refunds rather than vouchers, only to be bounced around from agent to agent or authority to authority. Once the U.S. DOT gets involved, however, refunds often seem to come through in a matter of days.
Gábor Lukács, president of the Air Passenger Rights non-profit and moderator of the Facebook group, says the power of the U.S. DOT to get results for Canadian air travellers comes down to its reputation for enforcing regulations.
The U.S. DOT issued an enforcement notice in April reminding airlines of passengers’ rights. In short, if the airline cancelled the flight, the customer is entitled to a full refund.
If they don’t pay up, they can expect to hear from the DOT in the form of hefty fines.
The U.S. authority has been “very clear” on the question of flights cancelled due to the pandemic, Lukacs says, as has the European Union.
The CTA, on the other hand, has muddied the waters on the acceptable course of action, he says.
A March statement from the CTA said that vouchers or credits for future travel could be an “appropriate approach” for compensating passengers without drastically damaging airlines’ businesses during an unprecedented global pandemic.
But Lukács says the statement shows the federal government has “sided with airlines” and left Canadians to foot the bill to keep planes flying post-pandemic.
“Canadian airlines have been using the money of Canadian passengers as an interest-free, non-refundable cash advance,” he says.
Lukács has tried to get the CTA to remove the original statement from its website, arguing it gives Canadians a false impression of their rights to push for a refund.
A Federal Court of Appeal has since ruled that the CTA statement does not alter Canadian passengers’ rights to a refund, but earlier this month Lukács filed to appeal the issue to the Supreme Court.
The CTA told Global News in a statement that Canadian legislation does not give the CTA authority to force travel companies to provide full refunds when flights are cancelled for reasons outside the airline’s control, as is the case in Europe or the U.S.
Canada’s Air Passenger Protection Regulations (APPR), which came into force in July 2019, require airlines only to complete a passenger’s itinerary when a flight is cancelled for reasons beyond the company’s control.
The CTA said individual airlines might include refund policies in their respective tariffs, but these declarations could include force majeure provisions that exempt them in instances where flights are cancelled for reasons beyond the company’s control.
Lukács disputes the CTA’s interpretation of the law, and points to four previous court challenges in which the CTA played a role in forcing an airline to provide refunds for cancellations beyond its control.
In a 2013 case concerning Porter Airlines, the CTA’s decision read that “it is unreasonable for Porter to refuse to refund the fare paid by a passenger because of its cancellation of a flight, even if the cause is an event beyond Porter’s control.”
Vouchers also do not satisfy the APPR, Lukács says, because the value of a flight today is likely to be lower than the cost of the same ticket two years from now.
Not to mention, Canadians have also been significantly affected by the pandemic’s economic disruptions.
“People need the money now,” he says.
As such, in counselling any disgruntled traveller who has been stymied by individual airlines and whose itinerary included a stop in the south of the border, Lukács believes it is the U.S. DOT that can best represent Canadians in their disputes with airlines.
The DOT recently released data showing Air Canada received the third-highest number of complaints in April, outpacing 80 carriers in the same category.
“It’s really an awkward situation. Canadians have to go to a foreign authority that’s owed to them,” he says.
“The government has the tools available to it to deal with the situation, but are not using them.”
Kehoe says she’s not sure if she would have received a refund from the airlines if she hadn’t gone to the DOT.
“I was having no luck reaching the airline on my own,” she says.
Kehoe, a 42-year veteran of Canada’s public service, says she’s disappointed the Canadian government hasn’t taken action to draw a harder line on the issue of refunds.
“It’s really rather sad that the Canadian government feels they need to stand behind the airlines as opposed to the travellers who are out of pocket,” she says.
“To suggest, as CTA has, that a credit is somehow a suitable alternative is really quite laughable.”
Legal aid for travellers
There are two kinds of complaints travellers can file with the U.S. Department of Transportation to push for regulatory action against airlines.
There’s a complaint form on the U.S. DOT website, like the one Kehoe filled out for her stepfather, that begins an informal process to put pressure on an airline without escalating to legal action.
But for more serious issues that require a legal response, there’s a formal complaint system, which might require the help of a lawyer to submit.
“That process is not user-friendly at all. You are on your own,” says Lukács.
Lukács was approached a few weeks ago by a team of law students at the University of Ottawa who were completing a course in legal technology. As part of their studies, they had to automate a solution to a legal issue.
Taylor Bain, a second-year law student at uOttawa, says she and her classmates saw the issues with passengers seeking refunds for coronavirus-related travel disruptions and set out to streamline the process.
“A lot of people think it’s difficult to put a complaint like that in, that they might need a lawyer for it,” Bain says.
She and her classmates created Formidable Solutions, an app based on the Documate platform that can draw up a formal legal complaint for submission to the U.S. DOT by inputting just a few documents such as flight confirmations and cancellation notices.
Lukács says he’s impressed with the quick work of the students, who turned around the solution in just two weeks’ time.
Bain says tech like this can expedite “tedious” tasks common in the law and help complainants feel more connected to the legal system.