On September 13, 2017, Prof Marina Pavlović, member of the Centre for Law, Technology and Society, appeared before the House of Commons’ Standing Committee on Transport, Infrastructure and Communities (TRAN).
The Committee is currently examining a proposed regime to establish an Air Passenger Bill of Rights within Bill C-49, An Act to amend the Canada Transportation Act and other Acts respecting transportation and to make related and consequential amendments to other Acts.
Prof Marina Pavlović is an Assistant Professor at the Common Law Section, Faculty of Law of the University of Ottawa.
- See below for Prof. Pavlović’s speaking notes.
- The audio recording of the hearing is available here.
- Her interview on CTV Power Play is available here.
Good afternoon Madam Chair and Committee Members:
I would like to acknowledge that we are on unceded Algonquin territory. Thank you for the opportunity to present and bring research perspective to the discussion of Bill C-49, particularly to the air passenger bill of rights, which is undoubtedly an issue of importance to Canadians.
I am an Assistant Professor at the Common Law Section, Faculty of Law of the University of Ottawa. My area of expertise are consumer rights in the contemporary cross-border networked digital economy. My work covers areas such as consumer protection, dispute resolution, and access to justice. I am also an independent director, appointed by Canadian Consumer groups, on the Board of the Commission for Complaints for Telecom-Television Service, Canada's communication industry ombudsman. However, I appear in my personal capacity representing my own views.
Most recently, my work has focused on the Wireless Code, a bill of rights for Canadian wireless consumers, as well as dispute resolution, including ombuds schemes, for consumer complaints. It is my expertise in the broad area of consumer protection, and especially with the Wireless Code, that I am brining to the table. While the telecommunication and air travel industries are different, there are significant parallels when it comes to consumer rights and redress.
My comments will focus on sections 17–19 of the Bill, which deal with the proposed regime to establish Air Passenger Bill of Rights. I will focus my remarks around 3 topics:
- The need for a Bill or Rights as a mandatory Code that sets minimum consumer rights
- Passengers’ rights (or carriers obligations) under the Bill or Rights
- Redress mechanism related to the Bill or rights
1. As to the need for the Bill of Rights
The current regime of complicated tariffs and related individual carrier’s contracts is overly complex and ineffective. Consumer rights regarding air travel are varied and fragmented. They depend on a number of factors and it is difficult, if not impossible, for consumers to know ahead of the time, what rights they have and what are the appropriate redress mechanisms.
The market forces alone can not resolve this issue. Canadians need an Air Passenger bill or rights that will provide uniform minimum rights for consumers, or conversely, a set of minimum obligations for the carriers. Similar regimes for air passenger rights exist in other jurisdictions and in Canada, in other industries. As I already mentioned, the Wireless Code is a mandatory code of conduct for the wireless service providers or the Television Service Provider code, which came into force on 1 September.
A mandatory code that will apply to the industry as a whole is the appropriate way to set minimum consumer rights. It is to the benefit of consumers and the industry. For consumers, it provides a clear set of rights that are found in a single place. A clear set of rights builds and enhances consumers’ trust in the industry. It also promotes competition in the marketplace. It offers the carriers an opportunity to distinguish themselves from the competition by setting higher levels of customer service. The Bill of Rights is the floor, not the ceiling. Which brings me to my next point
2. Regarding Passenger rights or Carriers obligations under the Bill of Rights
Bill C-49 in effect does not establish the Bill of Rights for Consumers. Proposed section 86.11(1) sets the broad parameters of issues that the future Bill, in the form of regulation, must cover. It is the foundational step for the Bill of Rights. These parameters, the list of issues that the Bill of Rights should cover, is thorough, but is not an exhaustive one. It provides for Ministerial discretion both in breadth and coverage, as well as the form—future regulations. Passenger rights on the list are similar to the rights in other regimes and correspond generally to the most common types of complaints that are increasingly being reported by the media. However, there may be other kinds of disputes about which we have not yet heard. It is therefore, imperative that the list stays as is (or is expanded). Certainly, the Committee should not decrease the list. By doing so, certain rights would be chipped away, creating a multi-tier system—which is what we have today. That also includes its geographical scope—to include flights to, from, and within Canada.
Section 86.11(4) provides that the rights form part of the carrier’s tariff, unless carrier offers more advantageous terms. The spirit of this provision is that the Bill of Rights sets the minimum standards and that the carriers may adopt a suite of rights that goes beyond this. My concern however, is with the drafting, which leaves a lot of discretion and does not provide who, when, how, and how frequently will assess whether individual carrier’s terms meet the obligations in the Bill of rights, exceed them, or are below them. Wireless Code uses the wording that, in my view, is clearer and more precise and does not leave room for discretion—it is a mandatory code of conduct for providers of certain (regulated) services. My view is that this provision ought to be redrafted to ensure that the rights under the Bill of rights are always included in the tariff (to avoid case-by-case assessment), as well as that the consumers can not waive those rights by a contract.
You may have heard or will hear concerns about the form and process by which the Bill of Rights will come into existence—from a broad list of topics in Bill C-49 to a detailed set of rights. I do believe that the Canadian Transportation Agency is best placed to lead this. However, it is imperative that the process be open and inclusive and offer an opportunity to all stakeholders, including individual consumers and public interest groups, to participate in creating the Bill of Rights. Similar process before the CRTC for the both the Wireless Code and the TV Code has worked well.
I also believe that the regulation, rather than an Act, is a more appropriate mechanisms for the Bill of Rights. However, I have some concerns about the timelines and the feasibility of getting a broad of list of topics into the Bill of Rights. It is subject to political will and sometimes priorities shift. There have certainly been instances where the Legislation required a Regulation of this types, and there had been years, if not decades, without it. I am not suggesting a specific timelines, but I invite you to consider the impact of any delays.
3. Lastly, I would like to briefly like to address consumer redress under the new regime.
A Bill of Rights and an effective redress mechanism are essential components of a robust consumer protection regime. A set of rights without an effective redress mechanism is ineffective, in the same way that a redress mechanism without a clear set of guiding principles leads to different outcomes and creates different rights.
Under the proposed regime, the CTA retains its roles as the dispute resolution provider for Air passenger claims. It will not be able to do that effectively without a significant change of its processes and staffing. And while this is not on the table, I also invite you to consider whether there are aspects of Bill C-49 that may relate to this.
I strongly believe that the proposed section 67.3, which provides that only an affected person can file a complaint, is very limiting. There is significant body of research that it is consumers themselves who pursue claims, mainly because the value of the complaint does not justify the transaction costs (which may actually be higher than the very value of the complaint). However, there is also research in consumer literature that provides that it is important to allow other parties, such as public interest organizations, to have standing to file complaints, perhaps as a mechanism to challenge systemic problems. I strongly believe that section 67.3 should be amended to allow third parties to be able to file claims.
On the collective aspect of consumer claims. There are complaints that will be highly fact-specific to a single consumer. But there are events that will affect a number of consumers—most commonly all who were in the affected aircraft. Section 67.4 gives CTA discretion to apply the decision to the all those affected, but it is not clear whether there will be a specific mechanism to trigger this or would they do it on their own.
Section 86(3) provides, what is a common provision in other jurisdiction and other dispute resolution schemes, that consumers can not double-dip and obtain compensation for the same event through different compensation schemes. In its brief, Air Canada proposes that this provision be significantly limited. My strong view is that the provision, as it stands, is broad enough to allow CTA to craft rules to avoid this. For example, CCTS has such a rule in its procedural code.
I hope that these comments and recommendations will be useful to the Committee. I would be pleased to provide the members with a policy brief summarizing my key points and recommendations, and any relevant documentation that may help you navigate these issues and understand them from not only the industry’s perspective but the perspective of consumers-your constituents.
Thank you. I’ll be happy to answer any questions that you may have.