Copyright © 2019 Senator Dennis Patterson.

Speech – 3R, C-49 (Transportation Act)

Honourable senators, I rise today to speak to third reading of 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.

As a senator from Nunavut, a jurisdiction with 25 fly-in-only communities, Nunavut residents have expressed a particular interest in this bill, particularly with the promised passenger bill of rights. And with no roads at all in our region, I think we are experts in air travel.

On October 31, 2017, in the other place, parliamentary secretary to Minister Garneau, Karen McCrimmon, described the passenger bill of rights as a tool to:

. . . strengthen air passenger rights that would apply consistently to all carriers. The regulatory process would allow . . . stakeholders to develop world-leading regulations, which is what Canadians expect and deserve.

However, colleagues, I would suggest that in one respect, this bill in fact limits the ability for the regulations to match current international standards, such as those in Europe. The Montreal Convention is an international treaty governing the rights of passengers travelling on international itineraries. Canada is a signatory and the convention was given the force of law in Canada under the Carriage by Air Act.

Under the convention, clear circumstances requiring carriers to compensate passengers for delays within the carrier’s control are outlined and a maximum liability of $8,800 Canadian per passenger was set. Article 19 of the convention — this is the thrust of my speech today and an amendment that I’ll propose — requires the carrier to pay compensation for delays or cancellations caused by mechanical malfunctions unless that carrier can prove that it “took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.”

In the European regime, the carrier can only be relieved from this liability by “extraordinary circumstances.” So what defines “extraordinary circumstances?”

According to the European Court of Justice in its 2004 decision in Friederike Wallentin-Hermann v Alitalia:

. . . the circumstances surrounding [a technical problem] . . . can be characterised as ’extraordinary’ . . . only if they relate to an event which . . . only if they relate to an event which . . . is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin.

. . . air carriers are confronted as a matter of course in the exercise of their activity with various technical problems to which the operation of those aircraft inevitably gives rise. . . . The resolution of a technical problem caused by failure to maintain an aircraft must therefore be regarded as inherent in the normal exercise of an air carrier’s activity.

(1550)

Justice Duval of the Court of Queen’s Bench of Manitoba also cited the Montreal Convention when awarding damages to an air passenger who incurred hardship due to “mechanical malfunction” in his February 6, 2009, decision regarding Gabor Lukacs v. United Airlines Inc. and Skywest Airlines Inc.

Dr. Lukacs has since gone on to found the national advocacy group airpassengerrights.ca, which I would encourage senators to visit for more information.

So colleagues, if Canada truly wishes to put forward a regime that allows for world-leading regulations, we must ensure that fair and timely compensation is provided to passengers who experience flight delays, cancellations or are denied boarding due to mechanical malfunctions.

As Ms. McCrimmon herself stated in that same speech of October 31, 2017:

Canadians understand that in certain circumstances airlines do not have full control over events, such as weather, emergency, and security incidents, or even medical emergencies, but even then Canadians have a right to a certain level of protection when they travel. In other circumstances, when the carrier makes commercial decisions that may have an impact on the passenger, Canadians expect fair compensation for any inconvenience they experience.

Yet, honourable senators, Bill C-49, as currently drafted, specifically excludes the right to compensation resulting from mechanical malfunctions that would have been within the carrier’s control to foresee and/or rectify during routine maintenance of the fleet. Which begs the question: Why would the government do this? Why would the government depart from a standard that is operating and working well in Europe?

In an interview with CBC’s David Common, Minister Garneau responded to this very question:

We do consider it to be within their control,“ responded Minister Garneau,” but for safety reasons, of course, we don’t want them to take off if there is a problem.

Mr. Common made it clear that in Europe there isn’t a choice between compensation and safety — passengers get both.

He then tried to ask the minister the same question, but phrased it differently:

. . .If you and I get on a plane and fly to anywhere in Europe, if there is a delay, a big delay from a mechanical malfunction on our way back from Europe, we do get compensation. Why should we as air passengers be treated differently depending on which direction we’re flying from?

Minister Garneau’s reply:

I think that we have to, yes, compensate passengers for certain things but at the same time we want to make sure that — that our airline can say remain competitive so they can keep the prices as low as possible.

Honourable senators, with the greatest of respect to the minister, I reject both those arguments.

First, I find it absurd, frankly, to suggest that a pilot would risk his life and the lives of all passengers on board in an effort to save the company from having to pay out compensation for mechanical failures. In fact, I would argue that by amending the bill to include fair compensation for mechanical malfunctions within the carrier’s control, it would serve as a further incentive to ensure that their fleet is properly maintained.

There is no evidence from Europe to suggest that this financial obligation has impacted flight safety or that any airline has ever allowed an unsafe aircraft to carry passengers to avoid paying compensation. They would not do that. Pilots would not take off in that situation.

I would draw your attention, colleagues, to a December 13, 2017, article from the Financial Post article titled “Cabin pressure: Are airline contractors cutting corners on safety to earn business?”

In it, reporter Tom Blackwell tells the story of Alan Eugeni, a former first officer with Air Georgian, “. . . a contract provider that transports 1.5 million passengers a year in North America under the Air Canada express brand . . .” who recounted several emergency landings that were required due to recurring mechanical failures. Other former pilots and flight attendants with Air Georgian have reported that “Defects are often left unfixed as long as legally possible . . . .”

So there are some carriers that may occasionally depart from the highest standards.

I believe that by requiring compensation for each passenger due to the delays and cancellations caused by these defects, it would become more cost-effective for airlines to properly maintain their fleet than to risk incurring potentially large payouts due to mechanical malfunctions within their control.

I’ve had a chance to discuss my proposed amendment with Senator Mitchell. He told me, and will tell you, that we have high standards of safety in air travel in Canada already, and I agree. I want to say I have full confidence in the pilots and the airlines which fly in one of the most challenging environments in Canada: the North.

Canadian airlines are safe and well maintained, so I say why should there be any concern about requiring them to pay compensation for delays caused by mechanical malfunctions if they are already so safe?

I hope this will be few times that this will occur, and if this provision is added to the bill by my proposed amendment, honourable senators, I think there will be a further incentive on air carriers to keep maintenance standards very high.

Second, I do not agree that the impact of a requirement to pay compensation as a result of mechanical malfunctions would impact the competitiveness of the aviation industry, as Minister Garneau suggested. How would the company be rendered less competitive if it were held to the same standards and expectations as every other company operating in that jurisdiction?

The inclusion of mechanical malfunctions as a circumstance requiring compensation to travellers when within the control of the carriers — and I emphasize that — only brings Canadian carriers originating out of Canada into alignment with requirements they must currently abide by when originating out of Europe. All air passengers in Canada, regardless of their point of origin, are deserving of the same basic rights and standards.

Colleagues, in the North we often encounter cancellations due to mechanical malfunctions. After having already paid a great expense to book the flight, additional expenses of transportation and accommodation, which are limited and very expensive, are oftentimes incurred and passengers are left with no recourse to be compensated for that.

Finally, it should be recognized that by buying a plane ticket we, as air passengers, are entering into a service contract with the airline. If that service is not rendered due to a circumstance within the carrier’s control, the passenger should be entitled to compensation. I believe that the list of circumstances should include mechanical malfunctions and that is why I am moving the amendment before you today.

There is no reason we should not have the same regime allowing compensation for mechanical failure as is in place and working well in Europe. There is no reason why Canada, too, should not honour the same provisions on compensation for mechanical failure as set out in the Montreal Convention Canada signed and put into force by the Carriage by Air Act.

This amendment is important to air travellers in Nunavut — where accommodations and restaurants are limited and very expensive — but it’s also good for Canada, as it has been for air passengers in the situation of flights delayed for mechanical reasons in Europe.

Therefore, honourable senators, and I must say with some humility, because I was not a member of the committee — I’m on four committees, but they do not include Transport — I have nonetheless prepared, with the able assistance of the Law Clerk, an amendment to require carriers to also compensate passengers for inordinate delays caused by mechanical malfunctions.

Motion in Amendment Negatived

Hon. Dennis Glen Patterson: Therefore, honourable senators, in amendment, I move:

That Bill C-49 be not now read a third time, but that it be further amended in clause 19, on page 15,

(a)by replacing lines 5 to 11 with the following:

“or denial of boarding is within the carrier’s control, including in situations of mechanical malfunctions that are within the carrier’s control,”; and

(b)by replacing lines 14 and 15 with the following:

“cellation or denial of boarding is established by the carrier to be due to situations outside its control, such as natural phe-”.

Thank you.

(1600)

The Hon. the Speaker: It was moved by the Honourable Senator Patterson, seconded by the Honourable Senator Stewart Olsen, that Bill C-49 be not now read a third time but that it be amended in clause 19 — may I dispense?

An Hon. Senator: Dispense.

The Hon. the Speaker: On debate?

Hon. Carolyn Stewart Olsen: When you are talking about delays, is there anything that I’m seeing in here as to length of delays? What would be the criteria that would trigger this? Because some people, if they are held up for 15 minutes, feel that’s an ungodly delay. I’m wondering how you would control that part of it.

Senator Patterson: Thank you for the question.

Yes, the delay is defined elsewhere in the bill and it’s been amended in the committee report to 90 minutes.

Senator Stewart Olsen: Thank you.

Hon. Grant Mitchell: Thank you. I’m going to vote against this amendment as honourable senators can probably imagine. It was well argued and I appreciate the discussion that Senator Patterson and I have had over this. It’s been very respectful and I appreciate that.

I’m very uneasy about this amendment for one particular reason, that the implicit assumption in this amendment is that somehow Canadian airlines might be negligent or at fault for mechanical failure that delays a plane.

In one sense, I believe that the Canadian airline industry has the highest standards of maintenance and service for which they should be given a great deal of credit. If there is a problem, it is not because they were negligent in their maintenance and service regime.

If they were, then we have a much bigger problem than delays on the runway. It just seems to me that because the standards are so high, and because the motivation to make sure that maintenance is done absolutely at the highest standards, that in fact when something happens mechanically, because it is the real world, and we’re delayed on the airport tarmac, that maybe we should just give a little bit of slack to these airlines. So for that reason, I would urge colleagues to vote against this particular amendment. It just doesn’t mesh with the reality of running an airline.

Some Hon. Senators: Question.

The Hon. the Speaker: Are honourable senators ready for the question?

It was moved by the Honourable Senator Patterson seconded by the Honourable Senator Stewart Olsen that Bill C-49 be not now read a third time but be amended — may I dispense?

Some Hon. Senators: Dispense.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: No.

Some Hon. Senators: Yea.

The Hon. the Speaker: All those in favour of the motion please say “yea.”

Some Hon. Senators: Yea.

The Hon. the Speaker: All those against please say “nay.”

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion the “nays” have it.

And two honourable senators having risen:

The Hon. the Speaker: Honourable senators, in order to have a vote now, we do need unanimous consent. Is there agreement on a 15-minute bell?

Hon. Senators: Agreed.

The Hon. the Speaker: The vote will take place at 4:20 p.m.

Call in the senators.