N.S. couple took Air Canada to court over flight delay — and won

A year and a half after Terry and Vicki Lynn Black's flight to New York City was cancelled by Air Canada, a small claims court adjudicator has ordered the airline to pay the Nova Scotia couple exactly what they wanted — plus interest and costs.

In a Jan.10 decision, the Blacks were awarded $1,583.70. Under federal Air Passenger Protection Regulations, airline travellers are entitled to $700 for a six- to nine-hour delay if it is not related to a safety issue, and within the airline's control.

"Honestly because it took so long, I wasn't really sure how it would turn out. And I'm really happy with the decision and also happy that we decided to pursue it," said Vicki Lynn Black.

The couple was scheduled to fly on Air Canada from Halifax to New York via Toronto on July 6, 2022. When they arrived at Toronto's Pearson International Airport, they learned their next flight had been cancelled due to "crew constraints".

Eventually the Blacks were booked on an American Airlines flight and landed at LaGuardia Airport in New York seven hours and 11 minutes later than originally planned.

Vicki Lynn and Terry Black, pictured in New York, were re-booked on an American Airlines flight and landed at LaGuardia airport in New York seven hours and 11 minutes later than originally planned. (Vicki Lynn Black)

"We had a short stay in New York City, so we had plans for just about every hour of daylight. So that just compressed the rest of our stay in New York," said Black.

Although they didn't pay out of pocket for the flight change, the Blacks said they were aware of their rights under Canada's Air Passenger Protection Regulations.

They contacted the airline for compensation. Air Canada denied the claim, saying in an email, "Based on the information we have collected, the root cause of your disruption was not within the control of the airline or is due to safety related reasons and therefore regulations do not call for compensation in this case."

Air Canada instead offered them an e-coupon for $300 each, which they declined.

"The Air Passenger Rights Regulations clearly state that we're entitled to cash, that we're entitled to $700 and that there's no expiration. The e-coupons had an expiration on them," said Black.

"All this spoke to us that they just weren't willing to comply with the regulations."

In November 2022, the couple took their case to small claims court.

'No evidence of any kind'

In his decision, Adjudicator J. Scott Barnett criticized Air Canada's claim the flight was cancelled because of  "crew constraints" due to the COVID-19 pandemic.

"The COVID-19 pandemic had not been newly declared in July 2022; it had been present for some time. One would expect air carriers to have been able to adapt and develop appropriate contingency responses to the impact of COVID-19 on their operations," Barnett wrote in his decision.

He said Air Canada provided "no evidence of any kind" at the hearing on Sept. 26, 2023.

Air Canada planes sit on the tarmac at Pearson International Airport during the COVID-19 pandemic in Toronto on Wednesday, April 28, 2021. (Nathan Denette/The Canadian Press)

Barnett also ruled against the airline for attempting to stay the proceeding while other similar court cases play out across the country, including an appeal by WestJet of a Canadian Transportation Agency ruling and two pending class action lawsuits in Quebec and B.C.

"I am satisfied that the claimants are entitled to a degree of autonomy in deciding what is in their own best interests as opposed to accepting, as Air Canada argues, that this court should conclude that claimants 'may even stand to benefit from the stay' contrary to what the claimants believe to be in their own best interests."

The Blacks said they appreciated the adjudicator's response, especially since they represented themselves against a major airline.

"You know there's a piece there that's really about, you know, being intimidated by a process where you're there and Air Canada has lawyers, and for us it sort of solidified our decision to go ahead," said Black.

"I just thought for those who are not thinking that they will even bother to go through it because it's intimidating — here's some information and here's what's probably precedent setting that might give them the confidence to go ahead."

In an email to CBC, Air Canada said it is reviewing the decision.

Settlement offer

The night before the final hearing, a lawyer for Air Canada offered to pay the Blacks the full amount they were entitled to under the regulations. However, it came with a condition to sign a confidentiality agreement  — something that is common practice, but they didn't believe was fair.

"I really truly admire the Blacks for refusing that offer," said Gabor Lukacs, president of Air Passenger Rights, an advocacy group.

"We always encourage passengers to not agree to any kind of non-disclosure agreement. This is money which is owed to the passenger under the law and the airline should not be allowed to cover up their wrongdoing with just paying off some victims."

Lukacs said while this latest decision took place in small claims court, he hopes the rest of the country takes notice.

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