October 21st, 2020

Email raises questions about potential bias at transport regulator


By Christopher Reynolds, The Canadian Press on October 7, 2020.

An Air Canada flight from Mexico City arrives at Vancouver International Airport, in Richmond, B.C., on Friday, March 20, 2020. THE CANADIAN PRESS/Darryl Dyck

Questions about potential bias at the Canadian Transportation Agency came to the fore this week after a government official acknowledged that CTA board members greenlit the regulator’s stance in favour of travel vouchers over refunds.

Transport Canada policy adviser Blake Oliver said in an Oct. 5 email to Liberal MP Nathaniel Erskine-Smith that the agency’s members, vice-chair and chair would have approved its statement on vouchers, which has been cited by airlines and financial institutions to refuse reimbursements and chargebacks.

The March 25 statement said vouchers or flight credits – as opposed to refunds – for travellers generally amount to an appropriate response by airlines following flight cancellations prompted by the COVID-19 pandemic.

Since then, the CTA has received more than 8,000 complaints, some of which are likely to come before board members for adjudications on refund claims.

The agency’s code of conduct says board members should not express an opinion about potential cases in order to avoid creating “a reasonable apprehension of bias.”

The agency has said the statement on vouchers is not legally binding, and was posted in light of the risk that some passengers would receive nothing at all following a cancelled flight and amid the “severe liquidity crisis” facing airlines.

Erskine-Smith agreed to share the email, which he sent at the request of the Air Passenger Rights advocacy group.

CTA members who endorsed a statement that comes down on one side of a dispute now arising in thousands of complaints could be seen as biased when overseeing the adjudications that those complaints would result in, said Air Passenger Rights founder Gabor Lukacs.

“A judge cannot comment on a case that is before them or likely to come before them. If they do, it is likely to create a reasonable apprehension of bias,” Lukacs said, drawing a comparison with the CTA board.

“They have pronounced their views without hearing evidence, without hearing both sides,” he said. “Effectively they are already discouraging people from pursuing their rights.”

The CTA disagrees with that view.

“As indicated on our website and as we have said publicly on multiple occasions, if passengers think they’re entitled to a refund and the airline refuses to provide one or offers a voucher with conditions passengers don’t want to accept, they can file a complaint with the CTA, which will determine if the airline complied with the terms of its tariff. Each case is decided on its merits. The voucher statement did not affect anyone’s right,” the CTA said in an email in August.

The agency acknowledged Wednesday that “the statement represents the position of the CTA.”

Last week, a Federal Court of Appeal judge dismissed an attempt by the regulator to prevent a hearing on its voucher statement after Air Passenger Rights asked the court in April to order its removal from the website.

The appeal court said in an earlier ruling that “the statements on the CTA website…do not determine the right of airline passengers to refunds where their flights have been cancelled by airlines for pandemic-related reasons…It thus remains open to affected passengers to file complaints with the CTA.”

This report by The Canadian Press was first published Oct. 7, 2020.

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