Sunwing launches court battle to overturn order to compensate couple $800 for flight delay

Last year, the Canadian Transportation Agency (CTA) ordered Sunwing Airlines to pay Mick Anslow and his wife $800 for a flight delay from Cancun, Mexico, to Regina in 2020.

The victory was short-lived. In May, the Federal Court of Appeal ruled that Sunwing can take the couple to court to challenge the CTA’s decision.

The Anslows learned of the legal action when they were served with court papers at their home in Regina.

“We were just kind of flabbergasted,” Mick Anslow said. “It’s just unbelievable that they would go this far over such a pittance…. They’re trying to make a point, I guess.”

Sunwing, which will be taken over by WestJet in 2025, declined to comment.

The case centres on the contentious debate over when airlines can deny passengers compensation if flights are disrupted for safety reasons. In 2022, WestJet launched a legal challenge over the same issue. That case is also ongoing.

In the Sunwing case, court documents show that the airline and the CTA agree that Sunwing caused the mechanical problem that led to the Anslows’ flight delay.

“They screwed up,” Anslow said.

Even so, Sunwing argues that the flight was delayed for safety reasons, so it’s not obligated to pay compensation.

Safety issues ‘a big grey area’

According to Canada’s Air Passenger Protection Regulations, airlines must pay up to $1,000 for a flight disruption if it was caused by the airline. However, if the delay was “required for safety,” the airline pays zilch.

Some consumer advocates have long argued that the “required for safety” category is one of the regulations’ loopholes that airlines can use to avoid paying compensation.

“This is a big grey area,” said Ian Jack, vide-president of public affairs with the non-profit Canadian Automobile Association, which runs a travel agency.

“We felt since the start that the carriers have been taking advantage of that — to label things safety problems that may or may not be.”

More than a year ago, the federal government proposed new rules to clarify when airlines can deny compensation. Among the changes, the “required for safety” category would be axed.

In the meantime, Sunwing is proceeding with its case, and WestJet customers whose weekend travel plans were disrupted due to the airline’s labour dispute are still trying to understand their rights. Amid that chaos, Ottawa has yet to implement its clearer compensation rules or offer a timeline.

“We were told these [rules] would be coming in the winter, then we were told they’d be coming in the spring,” Jack said. “We’re getting concerned.”

Frozen bathroom pipes caused delay

The CTA serves as Canada’s transport regulator and settles disputes between airlines and customers.

The agency initially concluded in February 2023 that Sunwing must pay the Anslows a total of $800 for their 6.5-hour flight delay — a lower-than-usual amount due to special rules during the COVID-19 pandemic.

According to the CTA, pipes on the originally scheduled plane’s rear bathroom froze and burst, so the pilot changed planes, which delayed the flight.

The agency had determined that Sunwing must compensate the Anslows — plus any other passengers on the flight who filed claims — because the airline could have prevented the delay by turning on a pipe heater.

“It was a ground crew member that turned the heater off, and that’s why these pipes froze,” Anslow said.

But in court documents, Sunwing argues that the pilot changed planes for safety reasons — to ensure there were enough working bathrooms onboard, “perhaps especially in the context of the [pandemic].” As a result, the CTA “had no authority to order the payment of compensation,” the airlines claims.

CTA’s big backlog

The Anslows’ initial Sunwing complaint is one of the tens of thousands of passenger-airline compensation disputes the CTA has had to tackle since Ottawa introduced its air passenger regulations in late 2019. The agency currently has a backlog of more than 72,000 grievances, the majority of which involve flight disruptions.

The CTA recently streamlined the complaints process to resolve disputes more quickly. The rule changes Ottawa proposed last year are designed to help further reduce the backlog by requiring airlines to compensate passengers for all flight disruptions — unless they fall under a designated list of exceptions.

Proposed exceptions include weather, terrorism and labour disputes. At this point, safety issues as a broad category is not on the list.

“I am confident that the new regulations will bring more simplicity, will bring more clarity,” said Tom Oommen, director general of regulatory affairs. “I think that this clarity will reduce the need for complaints to be brought to the agency for resolution.”

Oommen couldn’t provide a timeline for when the regulations will be implemented. He said the CTA is currently deliberating over the long list of comments it has received from interested parties about the pending rules.

“We are now taking the time necessary,” he said. “We are looking at how to include — how to factor in the airline input as well as the consumer advocacy input.”

The safety debate

Airlines and other industry players have argued that eliminating the “required for safety” category when denying compensation is unreasonable.

“The CTA’s proposed list [of exceptions] completely ignores safety-related circumstances,” Jeff Morrison, president and CEO of the National Airlines Council of Canada, said in an email.

“Punishing airlines for following safety regulations and protocols lacks fairness.”

But consumer advocate Ian Jack said the European Union’s air passenger regulations, which include rules similar to those proposed by Ottawa, appear to work well.

“The carriers manage to get on with their business, to continue to be profitable, to not put planes in the sky that are unsafe,” he said.

One thing the coming regulations won’t do is prevent airlines from taking customers to court to try to overturn CTA decisions.

In fact, recent changes to the CTA complaints process make it easier for airlines to launch legal challenges. The Sunwing case was launched before those changes took effect.

Mick Anslow said he hasn’t hired legal representation, and he hopes the CTA will defend him in court. The agency isn’t currently named in the case, but it can participate. The CTA told CBC News that as an independent body, it can’t represent Sunwing or the Anslows.

Anslow is now waiting for a court date. He said he believes the government’s proposed changes will help simplify the compensation process — for other passengers.

“It would probably make it easier, just based on what we’ve gone through,” he said. “Everybody’s trying to point the finger at everybody else.”