Air Passenger Rights Advocate interview re Passenger Bill of Rights

Wednesday, 17 May, 2017

Transport Minister Marc Garneau - Passenger Bill of Rights news conference

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).

Air Passenger Rights Advocate interview re new Passenger Bill of Rights

Legal References:

Dr. Gabor Lukacs, Air Passenger Rights Advocate (FB page), notes references:

News References:

Government news release References:

(May 16, 2017 CBC News Live video, Transport Minister Marc Garneau takes questions about the government’s air passenger bill of rights bill)

Passenger rights advocate calls Federal Court of Appeal NewLeaf ruling a “Game Changer” as Court clarifies Flair Air is responsible

Friday, 16 December, 2016


(note: see Dec 20th news updates below with @FlairAirlines & @newleaftravel comments Win-win-win for #CDN travellers as a result from @AirPassRightsCA court challenge.)

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.

Lukacs explained in an in-depth Skype video interview with this reporter stating [emphasis added],

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 NewLeafFlair will have to face the consequences if anything goes wrong.”

Lukacs interview re 2016 Federal Court of Appeal judgement

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.

NewLeaf’s reaction to the judgement

NewLeaf’s reaction to the judgement via Facebook (screen capture & Facebook link),

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?

Flair’s reaction to the judgement

At press time, Flair has not issued any press release re this judgement yet and its publicly published “Tariff – Flair Airlines Ltd for NewLeaf flying” remains the July 22, 2016 version.

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?


note 1: Quoting from paragraph 8 of the judgement (2016 FCA 314) [emphasis added],

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.

Dec 16, 2016 Update: Quoting Financial Post “Both sides claim victory after Federal Court of Appeal dismisses NewLeaf case” report by Kristine Owram (with emphasis & reporter’s note added),

“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.

Dec 16, 2016 10:37pm Update: CBC Calgary has this report of NewLeaf Calgary launch, “Up in the air: Will Canada’s newest air travel company take off? – There will be a third option if you’re flying home for the holidays

Dec 20, 2016 11:01am update: Quoting CBC News to clarify NewLeaf and Flair Air’s positions, “Flair Air liable for passenger rights, not ticket reseller NewLeaf, judge says” (with emphasis and reporter’s notes added),

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.)

Chat with Air Passenger Rights Advocate Lukacs re: urgent NewLeaf injunction

Saturday, 23 July, 2016

Update July 29, 2016 report: “Ontario law governing NewLeaf internet sales has “deficiency”, Statutory Registrar acknowledges
Update July 28, 2016 report: “NewLeaf Travel blocks reporter after TICO Clarifies report
Update July 27, 2016 report: “TICO Clarifies NewLeaf Offers Ontario Flyers Limited Protection
This reporter got two chances this Friday July 22nd morning and mid-afternoon to interview Air Passenger Rights Advocate Dr. Gábor Lukács to talk about his urgent interlocutory injunction against NewLeaf Travel Company Inc. All of the legal files are public court records and Dr. Lukács has dated them and posted them in this directory.

One of the particular useful and detailed file is the 410 electronic pages PDF file “2016-07-21–Lukacs–motion_record–urgent_injunction_and_stay–DIGITAL-R.pdf“. See also the three referenced court documents below (sections highlighted in screen captures).

Here is the reporter’s Interview with Dr. Lukacs re: Urgent interlocutory injunction against NewLeaf Travel Company Inc. 

Highlight #1) How NewLeaf thinks credit card purchase will protect traveling Canadians. (with highlight added) (reference: court filing PDF file)

How NewLeaf thinks credit card purchase will protect traveling Canadians. (with highlight added)

How NewLeaf thinks credit card purchase will protect traveling Canadians. (with highlight added)

Highlight #2) How Air Passenger Rights Advocate Dr. Gábor Lukács disagrees with NewLeaf. (with highlight added) (ref: court filing PDF file)

How Air Passenger Rights Advocate Dr. Gábor Lukács disagrees with NewLeaf. (with highlight added)

How Air Passenger Rights Advocate Dr. Gábor Lukács disagrees with NewLeaf. (with highlight added)

Highlight #3) Latest Federal Court of Appeal directive to NewLeaf. (ref: court filing PDF file)

Latest Federal Court of Appeal directive to NewLeaf.

Latest Federal Court of Appeal directive to NewLeaf.

NOTE 1: This reporter sent an email out early Friday July 22nd morning to invite Jim Young, CEO of New Leaf Travel, to tell his company’s side of the story in a Skype video interview but have not received any reply as of press time (early morning 1:30am MST Saturday July 23rd).

NOTE 2: This is a developing story with NewLeaf being directed by the Federal Court of Appeal to “file its affidavit in support of its letter of response” by noon EST July 23, this reporter will try to post new updates as soon as practical.

Federal Court of Appeal gives sword of transparency to air passenger rights advocate

Monday, 8 June, 2015
Dr. Gabor Lukacs pix on twitter in Fed Court of Appeal

Dr. Gabor Lukacs pix on twitter in Fed Court of Appeal

Canadian Transportation Agency (CTA) took the position that its own “Public Record” is NOT “Publicly Available”. Dr. Gabor Lukacs, a Halifax-based Canadian air passenger rights advocate, disagrees and took the matter all the way to a judicial review and won the argument for all Canadians today.

A panel of three Federal Court of Appeal judges has unanimously agreed with Lukacs and concluded that the redactions of its Public Record (in this case, a dispute resolution proceeding between Air Canada and a family whose flight from Vancouver to Cancun was delayed) were “impermissible.” The panel held that since the documents sought by Lukacs were already on the CTA’s Public Record, they were Publicly Available, and thus the Privacy Act does not restrict their disclosure.

David vs Four Goliaths

The path to official recognition as a Canadian air passenger rights advocate by the court and the unanimous judgement did not come easy. Lukacs has spent over a thousand dollars of his own money, hundreds of hours of his spare time in research, documents filing, preparations, and moot courting with friends (one of the friends is a lawyer). All the hard work and money culminating in a March 17th, 2015 formal self-represented court room appearance (above picture) by Lukacs, a Mathematician, against four experienced lawyers representing the CTA, the Privacy Commissioner of Canada, and the Attorney General of Canada in front of the panel of three Federal Court of Appeal judges.

The judgment vindicates Lukacs, who wanted to view the complete file of the complaint to decide if the CTA’s decision was based on grounded reasoning or biased to benefit Air Canada. Common sense would lure people to believe CTA would not be so blatant in its bias to help Air Canada in a dispute resolution by redacting details such as the names of Air Canada’s lawyers. Yes, the names of the lawyers. Are those Air Canada lawyers 12 years old minors needing Of course, common sense is not common. And names of Air Canada’s lawyers were redacted under the pretext of compliance with privacy legislation.

Lukacs saw through the guise of “privacy” protection and challenged the redactions based on the fact that none of the documents were subject to a confidentiality order, and the open court principle, which requires adjudicative proceedings to be open and available for public scrutiny. “This principle has been hailed by the Supreme Court of Canada as one of the hallmarks of a democratic society, held to be tied to the freedom of expression and press guaranteed by the Charter, and is frequently invoked by the media to gain access to court documents.” states Lukacs.

Airlines’ dirty laundry, Cans of worms

Lukacs explains, “The CTA is a federal tribunal that adjudicates transportation-related disputes, such as passengers’ complaints against airlines. The CTA operates like a court, and its adjudicative members function like judges. According to the CTA’s own rules, all documents filed by parties must be placed on “public record,” unless a confidentiality order is granted.”

This landmark decision is like giving the advocate (and all Canadians) a can opener which may be used to open many cans of worms in CTA. Lukacs replied, “Certainly, I intend to open more cans of worms.” And tellingly, the official Air Passenger Rights tweeted, “CTA can no longer keep the airlines’ dirty laundry in secret.” Dirty laundry indeed should be Read the rest of this entry »

Porter Airlines ordered to stop discriminating bumped passengers departing from Canada

Tuesday, 4 February, 2014

*** Porter Airlines ordered to stop discriminating compensation based on departing country

According to a ruling the Canadian Transportation Agency (CTA) handed down on Friday (announced in a press release issued today Monday Feb 3rd), Porter Airlines has been ordered to compensate bumped Canadian passengers travelling to the US. This CTA order finally forced Porter to match the compensation if flights departing from the U.S. So the compensation will now be “$650 or 200% of the airfare for delays of less than four hours, and $1,300 or 400% of the airfare for delays of over four hours” for flights departing from the U.S. (existing now) and from Canada (“by February 28, 2014“).

This positive improvement for air passengers is again the direct result of a complaint by Dr. Gabor Lukacs, a Halifax mathematician and air passenger rights advocate. Lukacs says that he is “very glad that Porter can no longer discriminate against Canadian passengers nor can it pocket the money of passengers without providing them service.

*** The Puzzling “Code of Conduct of Canada’s Airlines”

Lukacs explained in Friday’s decision, the CTA ruled that Porter does not have to comply with the “Code of Conduct of Canada’s Airlines,” a code agreed to in 2008 by the Harper government and Air Canada, Air Transat, and WestJet, and which has since become an industry standard.

Lukacs is puzzled as to why the CTA gave special treatment to Porter. When asked to elaborate on and add colours to his puzzlement, Lukacs explains (emphasis added),

What were are talking here about is the right of passengers for hotel, taxi, and meal vouchers in the case of flight delays/cancellations that are within the airline’s control, and which involve an overnight stay.

The industry standard, incorporated into the Code of Conduct, is to provice such vouchers.

The Montreal Convention only requires reimbursement of such expenses after they were incurred, but claiming expenses from an airline is a tiresome and difficult process. So, the advantage of vouchers is that the airline has to look after the passengers.

Just imagine yourself trying to find a hotel in an unknown city where you are stranded. It makes more sense that the airline will arrange for your accommodation, because they do know the city, they have the resources, and they can be billed directly for your accommodation.

It is also a problem that passengers are unaware of their rights, so if they are not provided vouchers, they do not have the courage to stay at a hotel at their own expense and claim it later — instead, they sleep at the airport, which is awful and unfair to the passengers.

*** The Toothless “Code of Conduct of Canada’s Airlines

Based on paragraph 17 of this Porter ruling, the “Analysis and findings” section states,

The Agency notes, as does Mr. Lukacs, that the Code of Conduct is voluntary, and was agreed upon by Air Canada, Air Transat and WestJet. The word “voluntary”, in and of itself, is clearly indicative of a free and unrestrained will. In that sense, the Agency cannot force a carrier, through an Agency decision, to abide by that Code. In any case, the Agency agrees with Porter that its Proposed Tariff Rules provide, to the extent required, reasonable remedies for passengers who have been affected by flight delays. The Agency therefore finds that the absence from Porter’s Tariff of all of the elements of the Code of Conduct does not render the Tariff unreasonable within the meaning of subsection 111(1) of the ATR.

It may seem to be crystal clear to some observers that a “voluntary” code written in flowery words doesn’t worth the sheet of paper the code is written on. When the CTA has no power to enforce the code given the code is “voluntary“, the welfare of air passengers can be ignored by Airlines which seem to only care about their bottom-lines instead of total customer services and satisfaction.

Lone Canadian battled British Airways and won for all travellers in Canada

Tuesday, 21 January, 2014

Here is my new examiner article: “Lone Canadian battled British Airways and won for all travellers in Canada“. And my video interview with Dr. Gabi Lukacs.

Halifax mathematician gets bumped Air Canada passengers $200, $400, or $800 compensation

Friday, 30 August, 2013

In a decision released today, the Canadian Transportation Agency ordered Air Canada to increase, starting September 18th, 2013, its cash compensation when it bumps passengers off a plane.

Quoting the decision, “Air Canada now has to revise its denied boarding compensation regime by September 18, 2013, to reflect the following compensation provisions:

Less than 2 hour delay = 50% of the base amount [i.e. $200]
Between 2 and less than 6 hour delay = 100% of the base amount [i.e. $400]
6 hour delay or more = 200% of the base amount [i.e. $800]
* The base amount is established as $400

This compensation applies solely to involuntary denied boarding, and does not relate to situations where a passenger volunteers to be denied boarding for whatever compensation Air Canada wishes to offer.”

Canadians have Halifax mathematician Dr. Gábor (Gabi) Lukács to thank for because the decision today is a direct result of his 2011 complain against Air Canada. Lukács said in an extensive video interview,

This is a very very good news for all Canadian passengers, everybody who travels  by air within Canada because it recognizes that passengers are entitled to be treated with respect as equal parties to the contract.” While Lukács was reluctant to estimate the total hours he had spent to launch the complaint and reply to Air Canada’s submissions since 2011, one of the document submitted was 47 pages long including exhibits!

Upon hearing the interviewer suggesting this delay compensation should be named after Lukács, similar to mathematical theorems were named after Euclid or Gauss, Lukács paused to think for a moment and then thoughtfully insisted that,

“… it doesn’t matter where it was me or somebody else who got those [air passenger] rights. What is important [is] that those rights are put in place. And that people will now have better treatment. It doesn’t matter it was me, or my neighbour, or my friend or you, or that person in another city who made those changes. For me, it’s a question of I’ve learned enough about airlines to know that something are just wrong and against the law. And when I happened to see that, like in the case of what happened in Ottawa airport, I cannot just walk by and do nothing. I feel a responsibility.

Knowledge gives some responsibility. When you know that something is wrong, and you have quite a good idea of how to fix it, that does impose on you some level of moral responsibility, social responsibility. And so the issue of air passenger rights needs a face in Read the rest of this entry »

%d bloggers like this: