Two travellers whose plans were disrupted by a strike-related WestJet flight cancellation are entitled to a reimbursement of their hotel and meal expenses, but no additional compensation, B.C.’s small claims tribunal has ruled.
Anne and Robert Boyd told the Civil Resolution Tribunal they planned a trip to Italy in spring 2023, flying from Kelowna on May 18 and arriving in Rome on May 19, but ended up reaching their destination more than 24 hours later than expected.
On the day of their departure, WestJet cancelled more than 100 flights in the midst of a labour standoff with unionized pilots – including the Boyds’ connecting flight out of Calgary.
“The parties dispute whether this cancellation was within WestJet’s control or not,” tribunal member Amanda Binner wrote in her July 5 decision.
The Boyds still flew from Kelowna to Calgary on May 18, but ended up having to stay there overnight before catching a rebooked connecting flight – and ultimately arrived in Italy on May 20.
The frustrated travellers argued they should receive $2,000 in compensation, plus $277 in reimbursement for a hotel stay and meal they paid for during the delay.
Strike averted, cancellations not
Days before the Boyds’ trip began, the Air Line Pilots Association issued a 72-hour strike notice, which would have authorized WestJet’s pilots to strike in the early morning hours of May 19.
The airline responded by issuing a lockout notice, effective at the same time as the strike.
The two sides ultimately came to a tentative agreement hours before the deadline, averting both the strike and lockout – something the Boyds argued made their flight cancellation “within the carrier’s control,” under Canada’s Air Passenger Protection Regulations.
The APPR sets out travellers’ rights and airlines’ liabilities for everything from delayed flights to lost baggage.
“If the cancellation was under WestJet’s control, the parties agree the Boyds would generally be entitled to compensation under section 19 of the (APPR),” Binner wrote.
“If the flight cancellation was not within WestJet’s control, section 10 of the APPR says the airline must rebook the Boyds within 48 hours, but no compensation is payable.”
What constitutes a ‘labour disruption’?
Under the APPR, cancellations due to a “labour disruption within the carrier” are not considered to be within an airline’s control – but the Boyds said that exception should not apply in their case because the strike never actually came to pass, and because WestJet had chosen to issue its own lockout notice.
WestJet argued that was too narrow an interpretation, however, and the tribunal agreed.
Binner cited a statement from the Canadian Transportation Agency – which created the APPR – that explained the purpose of the labour disruption exception was to avoid “influencing the collective bargaining process.”
“So, does a 72-hour strike notice qualify as a ‘labour disruption’? I find that it does. With or without the lockout notice, WestJet was not in control of the strike,” Binner wrote. “I also find the mention of ‘bargaining process’ in the CTA statement supports that ‘labour disruption’ includes the time after a strike notice was issued.”
Reimbursement approved
On the issue of whether WestJet should reimburse the Boyds’ hotel and meal costs, Binner found that WestJet’s liability hinged on whether the airline did everything in its power to avoid unnecessary delay.
Summarizing the Montreal Convention – an international treaty that also deals with airline liability – Binner wrote that carriers are not liable for delay-related damages if they can prove they and their agents “took all measures that could reasonably be required to avoid the damage or that it was impossible to take such measures.”
In this case, WestJet did not argue there were no earlier flights available that would have allowed the Boyds avoid a hotel stay – or dispute the Boyds’ claim for $277 in reimbursement at all.
Binner ordered the airline to pay the travellers a total of $355, which included $78 in tribunal fees and pre-judgment interest.