Close to four years after they filed a complaint with the Canadian Transportation Agency (CTA), Andrew and Anna Dyczkowski finally got a resolution — in their favour.
In November 2023, a CTA officer determined their 24-hour flight delay from Vancouver to Costa Rica in 2020 was Air Canada’s fault. The airline was ordered to compensate the couple $1,000 each, as per federal regulations.
“We were kind of happy that the system works,” said Andrew Dyczkowski who lives with his wife, Anna, just outside Kelowna, B.C.
But instead of getting cash, the couple was served with court documents in January. Turns out, Air Canada is taking them to Federal Court in an attempt to overturn the decision of the CTA officer. The agency is not named in the case.
Feeling stuck, the couple, who work in the construction industry, got a lawyer.
“We’re kind of numb,” said Dyczkowski, who believes the legal dispute should be between Air Canada and the CTA — not passengers.
“Leave us little folks alone. Like, we really don’t want to be in this business of courts, or hundreds of pages of legal documents,” he said. “Something is really wrong in the system.”
The CTA, Canada’s transport regulator, is tasked with settling disputes between airlines and customers. Both parties have always had the right to legally challenge CTA decisions but it rarely happens.
Tens of thousands of air passenger complaints have poured into the CTA over the past couple of years.
During that period, airlines appealed just six agency decisions involving compensation, according to the CTA.
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However, new federal government measures broaden the type of CTA decisions that can be contested in court. Some legal experts suspect airlines will take advantage and drag more unsuspecting passengers into legal disputes.
“It’s really unfortunate; there’s going to be a lot more of these [cases], I think,” said John Lawford, a lawyer and executive director of the Public Interest Advocacy Centre.
Airlines are going “to try to further gum up the process and make the complaints process look bad, even worse than it already does.”
New measures explained
Opening the door to more legal disputes wasn’t the intent of the new measures, adopted in late September 2023. They were designed to speed up the backlogged complaints process by allowing the CTA to hire complaints resolution officers who can issue decisions on behalf of the agency.
But a byproduct of the change is that airlines can no longer challenge the decisions in the Federal Court of Appeal. Instead, carriers now must request a judicial review in Federal Court, which has a lower bar for the kinds of cases that can be contested.
“The airlines will be able to attack these CTA decisions on more grounds than they could have before,” said Mark Mancini, an assistant law professor at Thompson Rivers University in Kamloops, B.C. “It’s a much easier process for the airlines.”
Even so, Air Canada disagrees with the notion that carriers will now flood the courts with cases. In an email to CBC News, spokesperson Peter Fitzpatrick said legal challenges “are complex and costly,” and only pursued for “serious questions of fact or law.”
He added that since the new CTA measures took effect, the airline has only contested the one case involving the Dyczkowskis.
Why did Air Canada launch the case?
Under federal rules, airlines pay up to $1,000 compensation per passenger if a flight cancellation or delay was within their control.
In court documents for the Dyczkowski case, Air Canada argues that bad weather — which was outside its control — was the main reason for the delay.
The CTA officer who ruled on the case disagreed. Air Canada claims the officer “failed to properly evaluate the evidence.”
Air Canada’s Fitzpatrick says launching the case was the only way the airline could get clarity on the new CTA officers’ obligations when assessing evidence. He added that the Dyczkowskis won’t be on the hook for legal fees if the airline is victorious.
Ottawa is moving to strengthen protections for Canadian air travellers in part because of a massive backlog of compensation complaints. Some proposed changes to the passenger bill of rights include airlines providing more timely information and compensating travellers for any delays deemed within the airline’s control.
Fitzpatrick said Air Canada didn’t target the CTA because that’s how Canada’s judicial system works.
“The original case was between the passenger and Air Canada, therefore the review of the decision is between the same parties,” he said.
The CTA has asked the court for permission to participate in the case but Air Canada is fighting the request.
The Dyczkowskis’ lawyer, Peter Choe, who is working pro bono, told CBC News a hearing will likely be scheduled in the fall.
The CTA responds
The CTA told CBC News that, so far, the new system is working well, with scores of newly hired officers tackling its backlog of more than 72,000 passenger complaints.
“We’re processing them faster,” said spokesperson Tom Oommen in an interview.
When asked about concerns that airlines may try to overturn more decisions in court, Oommen said it’s too early to tell.
“That’s not something we have a clear line of sight on for the moment,” he said. “If we need to adjust, then certainly that’s advice we would bring to the government.”
But consumer advocate Lawford argues a wait-and-see approach is unfair to passengers.
“They shouldn’t be using customers as guinea pigs to test their system,” he said. Lawford suggests the CTA should change its format to an ombudsman-type service where disputes are resolved with no legal recourse.
“The airline regulations should be free. They should be simple to understand. And it shouldn’t involve court ever for consumers.”
The CTA’s Oommen says that if a passenger is named in a judicial review case, they aren’t required to participate.
He said even if the passenger is a no-show, the judge will still review all relevant documents to determine if the CTA officer made the right decision.
Although he doesn’t want to go to court, Dyczkowski says if he didn’t, “that means that the judgment can be issued against you, without you having a chance to say anything.”