On March 20, 2018, Prof. Marina Pavlović, member of the Centre for Law, Technology and Society, appeared before the Senate of Canada's Committee on Transport and Communications.
The Committee is currently evaluating Bill C-49, An Act to amend the Canada Transportation Act and other Acts respecting transportation and to make related and consequential amendments to other Acts.
Prof. Marina Pavlović is a Member of the Centre, and Assistant Professor at the Common Law Section, Faculty of Law of the University of Ottawa.
- See below for Prof. Pavlović’s speaking notes.
- The webcast is available here.
Good morning, Honourable Chair and Honourable Senators
I would like to acknowledge and recognize that we are on unceded Algonquin territory. Thank you for the opportunity to present and bring a research perspective to the discussion of the Air Passenger Bill of Rights in Bill C-49.
I am an Assistant Professor at the Common Law Section, Faculty of Law of the University of Ottawa. My area of expertise is consumer rights in the cross-border digital economy. My work covers subjects such as consumer protection, consumer redress, complaint handling, and access to justice. I am an independent director, appointed by Canadian Consumer groups, on the Board of the Commission for Complaints for Telecom-Television Services (CCTS), Canada's communication industry ombudsman. However, I appear in my personal capacity representing my own views. It is my expertise in the broad area of consumer rights, and especially related to the Wireless Code and consumer redress, that I am bringing to the table. While telecommunications and air travel industries are different, there are significant parallels when it comes to consumer rights and redress.
My remarks focus on the following three issues: (1) the need for an Air Passenger Bill of Rights; (2) the form of the Air Passenger Bill of rights, and (3) redress mechanisms.
1. THE NEED FOR THE AIR PASSENGER BILL OF RIGHTS
The current regime of complicated tariffs and related individual carrier’s contracts is overly complex and ineffective. Consumer rights regarding air travel are varied and fragmented. They depend on a number of factors and it is difficult, if not impossible, for consumers to decipher what rights they have and what are the appropriate redress mechanisms.
The market forces alone cannot resolve this issue. Canadians need an industry-wide mandatory Air Passenger Bill of Rights that will provide uniform minimum rights for consumers, or conversely, a set of uniform minimum obligations for carriers. The Bill of rights benefits both individual consumers and the industry. For consumers, it provides a clear set of rights that are found in a single place. A clear set of rights builds and enhances consumers’ trust in the industry. It also promotes competition in the marketplace. It offers the carriers an opportunity to distinguish themselves from the competition by setting higher levels of customer service. The bill of rights is the floor, not the ceiling.
2. THE FORM OF THE AIR PASSENGER BILL OF RIGHTS
Bill C-49 does not establish the Air Passenger Bill of Rights. Section 86.11(1) is the foundational step for the Bill of Rights. It sets a broad list of issues that the future Bill of Rights, in the form of regulations, must cover. You may have heard concerns about the form and process by which the Bill of Rights will come into existence. I do believe that the CTA, as the industry regulator, is best placed to lead this. Similar process before the CRTC has worked very well for the Wireless Code.
3. CONSUMER REDRESS UNDER THE NEW REGIME
A Bill of Rights and an effective redress mechanism are essential components of a robust consumer rights regime. A set of rights without a strong redress mechanism will be ineffective. And a redress mechanism without a clear set of guiding principles (in a bill of rights) leads to different outcomes and creates different rights.
There is a significant body of empirical research demonstrating that it is consumers themselves who pursue their claims, primarily because the value of the complaint does not justify the transaction costs. However, there is also significant research in consumer literature which highlights the importance of allowing other parties, such as public interest organizations, to have standing to file complaints, as a mechanism to challenge systemic and industry-wide problems. As drafted, section 67.3 is limiting and may lead to compartmentalizing systemic issues into individual complaints. Therefore, it should be amended to allow third parties to be able to file claims.
This Bill is a unique opportunity to improve rights of Canadian consumers. There is rarely political will to proactively regulate in consumer interest and this opportunity shouldn’t be missed.
Thank you. I will be happy to answer any questions that you may have.