A Comox Valley family has been awarded $3,000 under the new federal air passenger protection rules on a flight they took from Comox to Fort Lauderdale on Air Canada. THE CANADIAN PRESS/Nathan Denette

A Comox Valley family has been awarded $3,000 under the new federal air passenger protection rules on a flight they took from Comox to Fort Lauderdale on Air Canada. THE CANADIAN PRESS/Nathan Denette

Island family wins landmark tribunal case against Air Canada

“I feel a little bit like it was David versus Goliath.”

A Comox Valley family has been awarded $3,000 under the new federal air passenger protection rules for a pre-pandemic trip from Comox to Fort Lauderdale on Air Canada.

In a Jan. 28 decision in the province’s Civil Resolution Tribunal (an administrative tribunal that has jurisdiction over small claims under $5,000, strata property disputes, motor vehicle accident injury claims and others) ordered the airline to pay Robert McNabb, Adrianne McNabb and their son Jonathan McNabb $3,000 in damages, and $159 in interest and fees.

The Air Passenger Protection Regulations (APPR) came into effect Dec. 15, 2019, and since the family travelled after the federal law came into effect, the APPR could apply, noted tribunal member Rama Sood in her decision.

In July 2019, the McNabbs booked roundtrip flights with Air Canada from Comox to Fort Lauderdale, Fla., which left on Dec. 31, 2019 and was set to return to the Valley Jan. 13, 2020. Their itinerary called for connecting flights in Vancouver and Montreal during both the flight out and return flight.

Upon their return to Canada, the McNabb’s flight from Montreal to Vancouver was delayed, which caused them to miss their connecting flight into Comox – the last flight of the day. They stayed overnight in Vancouver and flew out the following day; Air Canada did not pay for their accommodation, meals or transportation.

RELATED: Airlines failed to prepare adequately for new passenger rights charter: report

In the decision, Sood noted the McNabbs say the flight delay was within Air Canada’s control since it was due to staffing issues. Air Canada denied the delay was due to staffing issues and noted the one hour and 13-minute delay (the flight was delayed twice) was due to situations outside of its control.

The airline added it was only obligated to rebook the McNabbs’ flight to Comox, which it did. They also offered the McNabbs a 15 per cent promotional code as a goodwill gesture, which they declined.

While she agreed with some of the reasons for the initial delay, Sood said Air Canada’s reasons for the second delay were vague.

“On Jan. 13, it stated the delay was ‘due to additional preparation time,’ and then on Jan. 20 it stated the delay was ‘due to scheduling issues.’ It now says the delay was due to the crew’s flight to Montreal arriving late due to mechanical failure. Air Canada did not explain what the mechanical failure was and so I find it has not proved the delay was beyond its control, or within its control but due to safety purposes … I find the second delay within Air Canada’s control,” she wrote.

According to a rule within the APPR for provisions for delays, Sood noted the McNabbs are entitled to receive compensation of $1,000 each.

“I feel a little bit like it was David versus Goliath,” said Robert from his Royston home. “My hope was (going into this) was win or lose, we could come out of this with a way to tighten up air passenger regulations.”

He originally went through a complaint process directly with Air Canada upon their return to the Comox Valley, and “the results came back less than satisfactory – it was quite maddening.”

He and his family then decided to file the formal complaint to the Civil Resolution Tribunal in late summer 2020.

While he is delighted by the result, Robert admitted he fully expects Air Canada will object to the decision and will take the case to provincial court. Unlike in court, decisions made in the tribunal are not relied upon as ‘case law.’

If the case does go to court, Robert said he will consult with advocate Gábor Lukács who runs the Air Passenger Rights website and has filed more than two dozen successful complaints with the Canadian Transportation Agency.

To see the full decision, visit the CRT website: https://bit.ly/2Ldn1Bb



photos@comoxvalleyrecord.com

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