Refused Compensation? You are Entitled to an Explanation (2024)

When your flight is delayed or cancelled, you may be entitled under Canada’s Air Passenger Protection Regulations (APPR) to:

rebooking on a competitor airline;
assistance (e.g., meals and accommodation); and
a lump sum compensation of up to $1,000 per passenger for your inconvenience.

Whether “may be entitled” materializes as “are entitled” depends on how the reasons for the flight’s disruption are classified under the APPR.

An important, albeit often overlooked, right you have as a passenger is your entitlement to an explanation: If the airline refuses to pay a lump sum compensation for your inconvenience, then it must provide a fulsome explanation as to why compensation is not payable (APPR, s. 19(4)).

Your entitlement to an explanation is a powerful tool in enforcing your rights and making airlines pay what is owed to you under the APPR. Asking the right questions is a persuasive way to escalate the matter within the airline. The airline’s answers or refusal to answer are both valuable evidence to show that the airline was acting unlawfully.

Information in the Airline’s Exclusive Possession

One of the greatest flaws of Canada’s APPR is that your entitlements depend on information that is largely in the airline’s exclusive possession. Indeed, your entitlements under the APPR are determined on the basis of the reasons for your flight’s disruption, which are classified into three categories:

outside the carrier’s control (APPR, s. 10);
within the carrier’s control but required for safety purposes (APPR, s. 11); and
within the carrier’s control and not required for safety purposes (APPR, s. 12).

Lump sum compensation for inconvenience is owed under the APPR only if your flight was disrupted for reasons within the carrier’s control but not required for safety purposes (APPR, s. 19).

To complicate matters further, the APPR recognizes the “knock-on effect” of previous flights on subsequent flights in classifying flight disruptions (APPR, ss. 10(2) and 11(2)). This provides additional grounds for airlines to refuse to pay.

Your goal as a passenger is to demonstrate that the airline’s basis for refusing to pay you compensation holds no water: the airline misrepresented the facts or misclassified the disruption on the basis of the facts it presented, or both.

You are, however, at a considerable disadvantage in this debate, because the true reasons and the relevant documents about your flight’s disruption are in the airline’s exclusive possession.

Your entitlement to an explanation may assist in leveling the playing field.

The Entitlement to an Explanation

If your flight was delayed or cancelled, you have one (1) year to make a written request to the airline for compensation for inconvenience owed under the APPR (s. 19(3)).

An airline that receives a request for lump sum compensation for inconvenience under the APPR must, “within 30 days after the day on which it receives the request, provide the compensation or an explanation as to why compensation is not payable” (s. 19(4)).

The explanation provided by the airline has to be fulsome. A mere bottom line conclusion about the classification of the flight’s disruption does not meet the airline’s obligation. Even the Canadian Transportation Agency acknowledged in Decision No. 122-C-A-2021 (at paras. 4(3) and 64) that:

Subsection 19(4) requires carriers to provide passengers with sufficient information in the explanation provided when rejecting a request for compensation for the passenger to decide whether they wish to challenge the carrier’s rejection of their request.

The airline must provide you with “sufficient information” to allow you to examine the veracity and the consistency of the airline’s stated explanation for refusing to pay. The airline must enable you to make an informed decision about whether to commence legal proceedings to enforce your rights.

If the airline’s initial communication “denying” your claim for compensation contains insufficient information, we recommend that you write back and ask for specific details, suggested below, to test the veracity and consistency of the airline’s explanation.

If the airline refuses to answer your questions, see the Your Recourse section below.

Unexpected Maintenance

One of the most common excuses cited by airlines for refusing to pay lump sum compensation for inconvenience is that the flight was delayed or cancelled due to “unexpected maintenance.” This excuse is one of the major loopholes in the APPR that we predicted in 2019.

Under the current APPR, a flight disruption caused by an “unexpected maintenance” would be within the carrier’s control but required for safety purposes (s. 11), and thus no lump sum compensation is owed (s. 19). However, airlines have been found to stretch this excuse beyond its permissible limits.

Swapping the aircraft assigned to your flight to another aircraft is an operational decision. If the original aircraft was operational but the swapped aircraft experiences a mechanical issue, then it is not a flight disruption “required for safety purposes” under the APPR, and lump sum compensation is owed (Lubky v. WestJet, CTA Decision No. 137-C-A-2022, para. 9).
Avoidable or preventable maintenance issues, such as rupture of pipes caused by turning off heaters in winter conditions, are not unexpected maintenance issues under the APPR, and lump sum compensation is owed (Anslow v. Sunwing, CTA Decision No. 20-C-A-2023, paras. 10-12).

If the airline claims that your flight was affected by “unexpected maintenance,” the objective of your questions is to ascertain which aircraft it was, whether it was the aircraft assigned to your flight originally, whether it was truly an “unexpected” issue, and whether there was a causal relationship between the issue and the disruption. We therefore suggest asking the airline the following questions:

What is the Mark and Serial Number of the affected aircraft? (This allows you to check the aircraft’s details on Transport Canada’s website.)
On what date and at what time was the affected aircraft assigned to your flight?
What is the description of the alleged maintenance issue?
On what date and at what time was the alleged maintenance issue discovered?
At what location was the alleged maintenance issue discovered?
How was the alleged maintenance issue discovered?
On what date and at what time did the repair of the alleged maintenance issue start?
On what date and at what time was the repair of the alleged maintenance issue completed?
Where was the repair of the alleged maintenance issue completed?
On what date and at what time did the aircraft return to service?

Weather

Another common excuse cited by airlines for refusing to pay lump sum compensation for inconvenience is “weather.”

Under the APPR, a flight disruption due to “meteorological conditions or natural disasters that make the safe operation of the aircraft impossible” would be outside the carrier’s control (s. 10(1)(c)), and thus no lump sum compensation is owed (s. 19). However, airlines have been found to stretch this excuse beyond its permissible limits.

If other airlines’ flights are able to take off and land at the same time at the same airport as your cancelled flight, then the flight disruption is likely not outside the carrier’s control under the APPR, and you are owed compensation (Beauchamp v. WestJet, CTA Decision No. 68-C-A-2023, para. 17).

If the airline claims that your flight was affected by “weather,” the objective of your questions is to ascertain the aircraft assigned to your flight and its model, where the weather issue took place, what was the nature of the weather issue, and what aspects made it impossible to safely operate the aircraft. We therefore suggest asking the airline the following questions:

What is the Mark and Serial Number of the affected aircraft? (This allows you to check the aircraft’s details on Transport Canada’s website.)
Where did the alleged weather conditions issue occur (origin/en route/destination)?
What was the nature of the alleged weather conditions affecting the flight?
When did the alleged weather conditions become known to the airline?
How did the airline learn about the alleged weather conditions?
Were the alleged weather conditions unusual for the season?
What “minima” or other regulatory requirements could not be met due to the alleged weather conditions?

Knock-On Effect from an Earlier Flight

A third favourite excuse of the airlines for refusing to pay lump sum compensation for inconvenience is the “knock-on effect” from an earlier flight. This means that a delay or a cancellation of a previous flight that was caused by reasons outside its control or was required for safety purposes affected your flight too because it was to be operated by the same aircraft.

Under the APPR, a flight disruption due to the “knock-on effect” from an earlier flight would be classified the same way as the reasons of the earlier flight if the airline “took all reasonable measures to mitigate the impact of the earlier flight delay or cancellation” (ss. 10(2) and 11(2)). Thus, if the earlier flight was delayed or cancelled for reasons that are outside the carrier’s control or that are within the carrier’s control but were required for safety purposes, no lump sum compensation is owed for your disruption (s. 19). However, airlines have been found to stretch this excuse beyond its permissible limits.

If the airline reassigns the crew originally assigned to your flight to mitigate the impact of a previous delay on another flight, then the disruption to your flight cannot be due to the “knock-on effect” but rather due to the airline’s operational decision, and lump sum compensation is owed (Paridon v. Sunwing, CTA Decision No. 16-C-A-2022, paras. 4-6).

If the airline claims that your flight was affected by “knock-on effect,” the objective of your questions is to ascertain the aircraft and crew assigned to your flight, the reasons for any change of aircraft and crew, the time the issues with the earlier flight were discovered, and the measures the airline took to “mitigate the impact” of the earlier flight’s delay or cancellation. We therefore suggest asking the airline the following questions:

What is the Mark and Serial Number of the aircraft originally assigned to your flight? (This allows you to check the aircraft’s details on Transport Canada’s website.)
On what date and at what time was the affected aircraft assigned to your flight?
On what date and at what time were the crew members assigned to your flight?
What is the number and date of the “earlier flight” whose disruption had the alleged “knock-on effect” on your flight?
What was the nature of the disruption with the “earlier flight” whose disruption had the alleged “knock-on effect” on your flight?
On what date and at what time was the disruption of the “earlier flight” discovered?
What contingency plans did the airline have in place to deal with such disruptions?
How many spare aircraft did the airline have available at the time the disruption of the “earlier flight” was discovered?
How many spare crew members did the airline have available at the time the disruption of the “earlier flight” was discovered?
Where were the spare aircraft located at the time the disruption of the “earlier flight” was discovered?
Where were the spare crew members located at the time the disruption of the “earlier flight” was discovered?
What methodology and statistical analysis did the airline use to ensure that its contingency plans, including the number of spare aircraft and crew and their locations, were adequate?
What steps did the airline take to mitigate the impact of the disruption of the “earlier flight” on your flight?

In addition, if the airline claims unexpected maintenance issues or weather affecting the “earlier flight,” we suggest that you ask the questions listed in the previous sections with respect to the “earlier flight.”

Your Recourse

If the airline refuses to both pay you lump sum compensation and to provide a fulsome explanation in response to your questions, your recourse is commencing a legal action against the airline in small claims court or its equivalent in your province. (We recommend avoiding the Canadian Transportation Agency due to its backlog and ongoing concerns about its cozy relationship with the airlines.)

The airline’s failure to provide an adequate and fulsome explanation and to answer your questions is in and of itself a violation of the APPR and a breach of the contract of carriage that is deemed by law to incorporate the APPR (see Canada Transportation Act, s. 86.11(4)).

You may want to expressly plead such a breach if you take your claim to small claims court, and rely on the breach as a separate basis for seeking damages and as a basis for seeking costs against the airline. Indeed, even if ultimately the judge decides that no lump sum compensation was owed to you, the airline still breached the contract and unnecessarily triggered litigation by failing to meet its contractual obligation of providing an adequate explanation.