Minister of Transport Hon. Marc Garneau (@MarcGarneau) is expected to testify again in front of the Senate committee next week to address some of the concerns. Dr. Lukacs hope the minister will be “asked some very tough questions about the air passenger rights issues“. Dr. Lukacs sees “no reason why tarmac delay should be more than 90 minutes“; “no reason why passengers should not be getting compensation for delays caused by the airlines’ own maintenance issues“; “no reason why third party complains by public interest advocates advocating for public interest should be barred“.
Dr. Lukacs and his Air Passenger Rights group have been more effectively using social media (Twitter: @AirPassRightsCA, Facebook page: AirPassengerRights, website: AirPassengerRights.ca) in raising Air Passenger Rights issues. In one recent tweet, a video clip of Minister Garneau was shown (see below) where he stated in his senate hearing testimony he has “never ever said that the Bill of Passenger Rights is contained in the legislation” and then followed by Hon. Garneau saying, in a House of Commons CPAC video clip, “and on top of that we’re providing a Passenger Bill of Rights“.
Government forced to admit: there's no passenger bill of rights #travel#SenCA#TRCM
— Air Passenger Rights (@AirPassRightsCA) March 19, 2018
In the above tweet, the one click weblink bill-c49.ca directs people to a AirPassengerRights.ca web page with a quick and easy way to send a letter of complain to senators expressing their concerns re Bill C-49.
Here is my video interview with Dr. Gabor Lukacs, Air Passenger Rights Advocate, re Supreme Court of Nova Scotia appeal of Small Claims Court of Nova Scotia decision (Paine et al. v. Air Canada – SCCH No. 460569).
[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?
1:35 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!
9:43 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.
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.
Dr. Gábor Lukács, Air Passenger Rights Advocate, presented his oral arguments at the Supreme Court of Canada for the first time. Have a watch of a video clip of Justice Russell Brown asking Dr. Gábor Lukács questions during the Supreme Court hearing.
The following is an interview with Dr. Lukacs soon after the hearing finished while he was still at the Supreme Court of Canada when everything were still fresh in his mind. Some linked timecodes and rough notes are included but all notes are rough, and the video is the real authority of what were said.
0:00 Reporter Kempton Lam (KL) thanks Dr. Gabor Lukacs (GL) for doing the interview. GL talks about where he is located. 0:30 [KL:] How do you feel right now after appearing in front of the 9 Supreme Court Justices? 1:03 [GL:] Particularly impressed by Justice Malcolm Rowe. 1:58 [GL:] Also impressed by how respectful the hearing was. And how interested the judges were in the case. 2:14 [GL:] On a personal level … 2:50 [KL:] The Judges’ probing questions and pointed comments/observations fascinated me, can you talk about your experiences? How do you feel about the case itself after the hearing? 4:27 [GL:] I think the star of the day is the Amicus Curiae Mr. Benjamin Zarnett. 4:37 [GL:] Also very impressed by Byron Williams, Counsel for Council of Canadians with Disabilities able to achieve in 5 minutes. 5:04 [KL:] I try to clarify if I had the right Amicus Curiae Mr. Benjamin Zarnett in mind. (note: I did) 6:15 [KL:] My impression of Amicus Curiae’s arguments and I ask GL to share his take. 6:53 [KL:] How do you feel about your own presentation? What is your main take away? Read the rest of this entry »
Here is my 2017/Oct/02 Audio interview with Dr. Gabor Lukacs, Air Passenger Rights Advocate, talking about his Supreme Court of Canada case with Delta Air Lines. Here are some rough notes and timecodes (link points) in the interview.
0:00 Independent reporter Kempton [K] asked Dr. Gabor Lukacs [G], Air Passenger Rights Advocate, how is he feeling two days before he appears in front of Supreme Court of Canada Judges? 0:49 [K:] Any special preparation one day before your first Supreme Court appearance? (Yes, G is scheduled to teach a match class Tuesday morning!) 1:20 [G:] Teaching twice a week this term helps my public speaking skills. 2:13 [K:] Not a good idea to lecture the justices? G explains how is it like appearing in front of Supreme Court justices. 4:25 [K:] Briefly explain what this case with Delta is about? And your role? 5:25 G gives a great analogy using a speeding car driving 160km/h down the highway. Who can complain about it? 6:35 G explains Federal Court of Appeal sided with his reasoning and ruled against the CTA (Canadian Transportation Agency) and said it was unreasonable to dismiss the complain. 7:15 G talks about the various PDF files (see reference) filed by him, Delta and other parties. [K’s apologies here re misunderstanding of the pages of documents filed.] 8:22 G explains to K an Amicus Curiae (an impartial adviser) is hired by the Supreme Court and paid for by Attorney General of Canada. And four interveners: ATTORNEY GENERAL (ONTARIO), CANADIAN TRANSPORT AGENCY, INTERNATIONAL AIR TRANSPORT ASSOCIATION, COUNCIL OF CANADIANS WITH DISABILITIES. 9:32 [K:] So the COUNCIL OF CANADIANS WITH DISABILITIES agrees with you and Delta against you. Are there some against you and with you? 11:17 [K:] So roughly how much time have you put into preparing for the case? 13:02 [K:] Have you been to the Supreme Court as a tourist before? How will you feel when you step into the court for the first time arguing a case? Read the rest of this entry »
The following is my video interview with Dr. Gabor Lukacs, Air Passenger Rights Advocate, to talk about the new Airline Passenger Bill of Rights (Bill C-49).
In a short/precise and yet powerful judgement (PDF file) by the Federal Court of Appeal today dismissing an appeal (2016 FCA 314) by Air Passenger Rights advocate Dr. Gabor Lukacs, the court effectively also clarified and defined the source of protection that Dr. Lukacs has been seeking for passengers. While the reseller, NewLeaf in this case, is not required to hold an air license, ultimately the licensed air carrier, Flair Air in this case, is responsible.
“The appeal was dismissed but the reasons [see note 1 below for more details] really resolved a very significant issue that now it is clear that passengers will have a recourse against Flair [note: Flair is the “licensed air carrier” in this court case] no matter what. […]
The Federal Court of Appeal made it clear that the fact that NewLeaf is involved in selling tickets still keeps Flair fully responsible for the entire operation. So Flair cannot walk away from any kind of responsibility on the basis that ‘it wasn’t us, it was NewLeaf’. If Flair choose to enter into this kind of relationship with NewLeaf, Flair will have to face the consequences if anything goes wrong.”
Lukacs looks at the judgement as a win for passengers because from the passenger’s point of view Flair is responsible and can no longer point at NewLeaf if things go wrong. The ruling makes it clear that Flair is responsible to the passengers whether they have a contract with them or not.
“The federal court of appeal ruling that has dismissed the case between Gabor Lukacs and the CTA/NewLeaf essentially means the courts rule in favour of Canadians continuing to save money on air travel with NewLeaf!!“
It is true that the case has been dismissed but one wonders if both NewLeaf‘s and Flair‘s legal teams have time to really carefully read and digest the full implications of the court ruling yet?
Given Mr. Chris Lapointe, Vice-President Commercial Operations for Flair stated a few months ago in July 2016 that “it’s not built into our financial model“ for Flair “to foot the bill and take the risk of people being stranded” (see “note 2 financial model” below). One has to wonder if there will be any serious business renegotiations between NewLeaf and Flair? Or is Flair now willing and able to accept the financial risks and responsibilities (e.g. “prescribed liability insurance”) that the Court of Appeal has now clarified it has?
“Further, the licenced air carrier [reporter’s note: Flair in this case] will be required to hold the prescribed liability insurance. Put more broadly, licenced air carriers are regulated under the Act when they provide an air service. The involvement of a reseller does not obviate the requirement that licensees comply with all of the obligations imposed upon them under the Act.”
note 2 “financial model”: In a transcript of a conversation between Lukcas and Mr. Chris Lapointe, Vice-President Commercial Operations for Flair Airlines Ltd taken on July 8, 2016 filed with the Federal Court of Appeal (top of electronic page 189 of this Motion Record (PDF file) – Court File No.:A-242-16) [emphasis added],
“Mr. Lukcas: […] And, you know, if Flair is willing to foot the bill and take the risk of people being stranded and look after —
Mr. Lapointe: No, we’re not. We’re not. I’m not — no, no, we’re not. We don’t — it’s not built into our — it’s not built into our financial model, Gabor. We’re not — I’m not saying that we’re going to — we did that once before, it cost us a quarter-million dollars, and we did it and because we did it — because we realized we had to do it, right.“
““I was thrilled that (the court) actually saw that the CTA had got their ruling correct,” said NewLeaf chief executive Jim Young. “We weren’t worried too much about it in the past because we knew we’d prevail but I was glad to see that it’s now closed.”
Lukacs said his main goal was to ensure passengers are protected, and he was relieved to see the court’s finding that “passengers will still be covered, and so protected, by the terms and conditions of carriage set out in the tariff issued by the licensed air carrier operating the aircraft on which the passengers travel” — in this case, Flair.
“This is a case of losing the battle and winning the war,” Lukacs said. “I was extremely pleased with how concerned the court was about protection of passengers.”
Flair president Jim Rogers did not immediately reply to a request for comment, but he indicated in July that his airline was not responsible for passenger protection since it is only supplying the aircraft. [reporter’s note: This echoes the transcribed phone conversation between Lukacs and Mr. Chris Lapointe, Vice-President Commercial Operations for Flair Airlines described in note 2 above.]
“The contract with the passenger is with NewLeaf and they have a passenger protection plan in place,” Rogers said at the time.“
“Jim Young, CEO of NewLeaf Travel Company, said he was happy with the appeal’s dismissal. He said Flair Air and NewLeaf had already been operating under the agreement that the airline was ultimately responsible for ensuring passenger rights. (reporter’s note: This clarification by Young is significant.)
“In fact, the tariff that we had published is still the tariff today. We’ve made no changes to it,” Young said.
Tariffs are the agreements between passengers and airlines that lay out rights and responsibilities. The Canadian Transportation Agency recommends airline passengers treat tariffs like a contract, and that they understand the terms and conditions spelled out in them.
Young said if passengers run into an issue such as a flight cancellation or lost baggage, they should first contact his company, NewLeaf, to resolve the issue. Young said the first response is referring passengers to the tariff.
“We operate on behalf of Flair as the passenger reservation system,” he said. “We accommodate them based on the terms and conditions in the tariff.”
Passengers who are not happy with NewLeaf’s response can still file a formal complaint with the Canadian Transportation Agency, but they would do so naming Flair, the airline operator.
Flair Air owner Jim Rogers confirmed his company is ultimately responsible for meeting the tariff agreement with passengers.
He said his company is “pleased to accept the decision as per our tariff.” (reporter’s note: This clarification by Roger is very significant and gets passengers the protection they deserve without ambiguity.)“
Posted by kempton 
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