You had been eagerly anticipating your business trip, knowing it could be a turning point for your career. Arriving at the airport well ahead of time, you were stunned to find out your flight was canceled by the Airline due to the chance that the Airline’s employees might strike in a few days. This meeting was the key to securing a major deal, and the cancellation felt like a devastating blow. Unfortunately, many Canadians have been left in a similar situation over the past few years, as it seems looming strikes have become a major cause of disruption in Canada’s air travel industry.
In May 2023, WestJet preemptively cancelled around 111 flights, stranding or delaying thousands of passengers, due to the looming threat of a pilot’s strike[1].
In June of 2024, WestJet reused this same tactic when they faced the threat of a mechanic strike, cancelling around 120 flights and impacting over 20,000 travelers[2].
The pattern seems clear: WestJet is not afraid to lock out its employees when faced with collective action, even though this has a major detrimental impact on its passengers.
Unfortunately, WestJet also fights passengers who seek compensation due to such delays under the Canadian Air Passenger Protection Regulations SOR/2019-150. Under these regulations, WestJet is obligated to compensate passengers, including up to $1,000.00 to each passenger who is delayed by 9 or more hours in arrival at their destination; but only when the delay is within the airline's control.
An employee lockout is an action done by WestJet but what does the law say about whether preemptive cancellations are “within the airline’s control”?
Unfortunately, very little case law, legislation, or regulation exists to clarify this important question regarding preemptive cancellation of flights under the looming threat of a strike.
A recent small claims case at the BC Civil Resolutions Tribunal Boyd v. WestJet Airlines Ltd., 2024 BCCRT 640 (“Boyd”), may give some insight as to how the court will view claims of this nature going forward.
In Boyd, the passengers had their flight cancelled even though the Airline and its employees reached an agreement prior to the strike, and thus no strike or lockout ever occurred. The Plaintiffs were advised that the Airline cancelled the flight in anticipation of the strike which ended up causing the Passengers to arrive in Rome over 24 hours after their originally scheduled arrival time.
Decision
Section 10(1) of the APPR states a “labour disruption within the carrier” is not within the airline’s control. Therefore, the court was asked to determine whether the issuance of a strike notice or lockout notice qualified as a “labour disruption” under the meaning of the APPR when no strike or lockout actually occurs.
The CRT sought to determine the intent of legislators in drafting Section 10(1) by reviewing statements on the CTA website.
The statement reviewed by the CRT is the Air Passenger Protection Regulations - Regulatory Impact Analysis Statement.
c) Labour disruptions
Air industry stakeholders feel that the regulations should explicitly indicate that labour disruptions within an airline are "outside the carrier's control" to avoid influencing collective bargaining processes. The CTA agrees that it would be appropriate to give clarity in this area and has adjusted the regulations to specify that disruptions resulting from labour disruptions within the carrier or at an essential service provider (e.g., an airport) are considered outside the carrier's control.
In Boyd, the CRT goes on to find that:
[this] statement refers to concerns around “influencing the collective bargaining process” as a reason for including “labour disruption” as being outside an airline’s control. There is no explicit mention of strikes or lockout orders. I find this supports WestJet’s argument that “labour disruptions” should not be interpreted only as an active strike.
The Tribunal then determined that strike notices qualify as labour disruptions, and ordered that the Plaintiffs’ claim could not succeed as the delay was not within the control of the Airline.
Analysis
Despite the adverse decision, this is open for determination in other courts. We do not feel that legislators intended to allow airlines to avoid their responsibilities under the APPR when cancelling their flights before a strike or lockout occurs. Preemptive cancellations done by any airline in Canada ought to be the responsibility of the airline, instead of being considered out of the airline’s control. Cancellations due to a strike should only be outside of the airline’s control if the strike or lockout actually occurs and causes the necessary processes in the airport to be stalled. Negotiations within an airline’s own workforce are entirely within the Airline’s control, until a strike or lockout occurs.
Despite the BC Civil Resolutions Tribunal taking the stance that pre-emptive cancellations are outside an airline’s control, Boyd is the only case of its kind, and the law may look differently in the future. Further, the BC CRT is a small claims tribunal which does not set binding precedent for other courts. This issue may well be decided differently by Albertan Courts. Although legislation affects all of Canada, different provincial jurisdictions may interpret legislation differently, and each particular set out circumstances may be unique, leading to different outcomes for passengers on different flights at different times.
Contact us
Your travel and vacation plans should not be negatively impacted by unfair actions of an airline, especially when Canadian airlines are obligated take active steps to get you to your destination. We can’t give you back the travel experience you deserved, but we can seek compensation for your loss. Contact Ryan Morstad at Rmorstad@gfslaw.ca to see what compensation you may be entitled to receive.
[1] Christopher Reynolds, “WestJet cancels 100-plus flights as pilot strike looms and customers scramble” (2023) CTV News, Online: <https://www.ctvnews.ca/business/westjet-cancels-100-plus-flights-as-pilot-strike-looms-and-customers-scramble-1.6403791>
[2] WestJet, “AMFA strike forces WestJet to cancel more than 150 flights beginning on Saturday” (2024)WestJet Newsroom Online: <https://www.westjet.com/en-ca/news/2024/the-westjet-group-begins-flight-cancellations-in-anticipation-of >
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