Air Transat $295K penalty for tarmac delay deemed agency’s “publicity stunt” by Rights Advocate

Here is this reporter’s extensive video interview with Air Passenger Rights Advocate Dr. Gabor Lukacs re Air Transat Tarmac Delay $295,000 Penalty (legal notice of violation) (press release). An extensive timecoded-links (allowing user to directly jump into the video)  with extensive notes and transcripts of the interview has been included below for your ease of references.

[Note: the video itself should be the authority of what were said as accidental transcription errors are quite possible.]

0:18 Reporter (KL) asks Dr. Lukacs (GL) to explain the CTA’s (Canadian Transportation Agency) Air Transat Tarmac Delay $295,000 Penalty. How the $295,000 was likely decided? Is it a good decision for Canadian Air Passengers?

1:24 Dr. Lukacs (GL) sees the $295,000 penalty as a “publicity stunt by the CTA to support the government’s effort to pass Bill C-49 [commonly known as passenger bill of rights (CBC news article) (read the text of bill (searchable via Parliament), PDF image via CBC)].”

1:35 KL: Why would you say this is a “publicity stunt”?

1:38 GL: The CTA “pretends it has teeth, pretends it issues a big fine while in reality, the fine has been waived.”

1:46 KL: How come? On paper and the press release, Air Transat has been fined $295,000. Even around the world, BBC news has been reporting the same $295,000 fine.

2:13 GL: “According to the media release, Air Transat will not have to pay money that it pays passengers. In other words, it can take the amount of the fine and pay that to passengers. However, it comes out to $500 per passenger and Air Transat has already pay to many passengers $400 as I checked back in August [2017].”

2:40 KL: I see in the previous CTV report you sent me. Air Transat already paid $400 to some passengers. Now $500 is like nothing [not much more]?

3:00 GL: Two problems. 1) Under the law, CTA cannot waive or reduce the amount of penalty that has been set out in notice of violation. Once the notice of violation has been …

3:46 GL (2) The notice of violation has been botched. It identifies two violations and each violations can only carry a maximum fine of $10,000.

4:00 KL: Notice cites only two violations and it cites specific sections of the law (which the reporter admits he isn’t clear about them and their legal limitations) but from GL’s reading, each violations can ONLY be fined up to $10,000?

4:28 GL: “If they treat a WHOLE AIRPLANE LOAD OF PASSENGERS being locked without water and food and air as a SINGLE violation as it transpires from the notice of violation, then each of those violations can only carry $10,000 penalty. What I think is breach of each passenger’s right is a separate violation and therefore for each passenger [of the 590 passengers in total] the agency can issue $10,000 for a total of $5.9 million which makes us see how little penalty has been issued if you look at things properly.”

5:25 GL: Two simple questions for the CTA: Q1) How the fine was determined? Based on what calculations? Q2) What gives the agency any authority to waive the fine that has been issued under the notice of violations? GL is not aware of any such power in the Canada Transportation Act.

6:00 GL: Whatever penalty they [CTA] put in the notice of violation, they cannot after the fact … waive part of [the fine]

6:13 KL: You are saying CTA has no power to say, within the $295,000 fine, if Air Transat has or will pay any amounts to passengers, those amounts can be deducted from the fine. (It should be NOTED that in this CTV August 4, 2017 news “Air Transat offering $400 to passengers stranded in Ottawa“, Air Transat has already “offered monetary compensation ($400) as a gesture of good faith” long before the hearings and the new “penalty”.)

6:41 GL: Further discussions about the fine calculations and maximum penalties.

7:11 GL: If CTA counts each passenger as a separation violation, then it is only $500 per violation, then by CTA’s own guideline, it would be exceptionally low! If treated as 590 separate violations, then it would be unreasonable in each case to fine the airline only for $500.

7:38 GL: Personally GL thinks each passenger should be treated as a separate violation but if one looks at the notice of violation, it is NOT how the notice reads.

7:50 KL: Ask about precedent setting power of such a big and high profile case.

8:13 GL: Discuss the numerical side of the fine calculation … vs the actual “Notice of Violation” (the legal foundation of the fine as the reporter understands from GL’s explanation) which states TWO violations. […] Either way you look at it, the penalty doesn’t make sense! TWO violations: Max $20,000. If seen as 590 separate violations, then the fine should be close to a few million dollars!

9:08 KL: Some passengers were unhappy of the CTA’s penalty. The reporter imagines himself in the shoes of the trapped and locked up passengers (for over 5 hours) and he would be unhappy with a $500 “penalty” or compensation!

9:37 GL: Very troublesome.

9:43 KL: What do you expect to see happen? Air Transat has no problem agreeing with CTA’s determination and paying the penalty. Are there any recourse for passengers that got stuck on those planes?

10:49 KL: How will a challenge benefit those affected passengers? Will the passengers be able to get more [monetary compensation]? Individually negotiate a higher amount …

11:07 GL: The message has to be clear that “the penalty is issued and waived at the same time”! ‘We issue the penalty but also waived it is what happened! “Thats what I would like to put a stop to.” […] “The agency cannot play fast and loose to show some good statistics that we issued a big amount of penalty but at the same time say we are not collecting it, we are waiving the amount. Thats dishonest. Thats a form of intellectual dishonesty. Something that borders on fraud to the public because the public hear, ‘Oh, there is a big fine issued.’ but actually the fine is not being collected. So if you are ti fine a person, the fine has to be collected.”

11:59 KL: Just to clarify. Is GL using waive because money paid or to be paid to passengers, etc can all be deducted from the $295,000 fine? Sooner or later, with whole bunch of deductions, Air Transat may not pay anything or very little as fine to CTA?

12:39 GL: “Yes. And there is an important issue of the Rule of Law here! That if the law says the agency can NOT waive penalty, then the agency cannot waive penalty. There is nothing in the law that permits doing this. So it is difficult to understand how this came to be. And what type of arrangement, what type of communication took place between CTA and Air Transat that lead to this outcome. What negotiation took place? It is troubling. I’m concern that something inappropriate happened in the background.” […]

13:41 KL: Obviously, you have no evidence that Air Transat and CTA had made any backroom deal or anything?

13:49 GL: The timing looks suspicious that they waive the penalty and Air Transat is going to comply. The way that the amount seems to be very close to what they already paid. It looks suspicious. We don’t know for sure but one thing I like to make sure that this type of backroom deal is not possible because the law doesn’t permit that. So even if they want to make this kind of backroom deal, the law is there to ensure that if a fine is issued then a fine has to be collected.”

14:22 KL: You want to appeal because of the precedent setting power of cases like this?

14:32 GL: “It is MORE than precedent setting power. It concerns the Rule of Law. The Parliament decides to grand the agency certain power, the agency cannot overstep those boundaries. If they issue a notice of violation, the have to stay within the confine of the law. The law says they can issue notice of violation. Nothing in the law that would allow them to rescind a notice of violation on the basis of some amount that has been paid. Thats not the power the enforcement officer has. The notice of violation has been issued at that point. They become functus officio. They’ve done their jobs.”

15:13 KL: Would you worry about unintended consequence that if you challenge the decision, and then the court agree with you that the fine can be $20,000 maximum which amounts to next to nothing?

15:31 GL: “It would show how inadequate the legislation is for sure. And it will also uphold the rule of law. The Rule of Law as a principle is more important than any kind of Air Passenger Rights. It is a far bigger, it is the corner stone of democracy. If we abandon the Rule of Law as a principle for some financial benefit, then we loose the backbone of our society!”

15:56 KL: Thats an interesting claim. Will see what GL decides in the coming days. Thanks a lot Dr. Lukacs for explaining the decision to me and the viewers. This, to me, is an important and precedent setting and obviously you mentioned Rule of Law is at stake here.

16:21 GL: Thank you very much.

P.S. Traditional news media like CBC, CTV, Global, TorStar, BBC have done different reporting of this story (some including background and some with passengers interview). Worth a read and watch.

P.P.S. Since this reporter first wrote about the 2009 Supreme Court of Canada “Grant v. Torstar Corp., 2009 SCC 61” decision,  this reporter has tried his best to keep the idea of “Responsible Communication” in mind in all his reporting.

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