Canadian air travellers to get compensation for delays, cancellations

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OTTAWA—The federal government is rolling out new rules to ensure compensation for travellers bumped off flights, hit by delays and cancellations or suffer lost bags.

Transport Minister Marc Garneau was scheduled to announce the proposed rules Monday morning at a news conference at Ottawa International Airport.

  • Compensation of up to $2,400 if a passenger is denied boarding because an airline has over-booked the flight and is delayed reaching their destination.
  • A requirement that airlines enable parents to sit close to their children at no extra charge.

However, there’s a catch. Airlines won’t be required to pay compensation for delays or cancellations caused by “safety related” issues. That language does not exist in the European Union passenger protection legislation.

Scott Streiner, chair and CEO of the Canadian Transportation Agency, said the airline pressed the agency to ensure that the compensation levels were not “punitive.”

The legislation will also set out a requirement that airlines communicate in a “simple, clear” way with passengers the reasons for delays and cancellations and their rights.

“Passengers will have the right to regular updates,” Streiner told a briefing Monday.

The move comes after months of work by the Canadian Transportation Agency. It hopes to have the rules in force by the summer after a final round of consultations.

Read more:

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Air Transat ordered to pay expenses for passengers stuck on tarmac in Ottawa for hours

Work on passenger protection rights were spurred along by an incident in 2017 when two Air Transat flights diverted to Ottawa because of bad weather. The jets were stuck on the tarmac for hours and passengers were not allowed off the aircraft.

The new rules will require airlines to have policies to govern how passengers are treated during extended tarmac delays. That will include access to washrooms, food and drink and proper ventilation. If a tarmac delay stretches three hours or more, the aircraft would be required to return to the terminal to allow travellers to disembark.

Streiner said that the agency looked to other jurisdictions, notably the European Union when it crafted the regulations.

The EU rules apply to airlines based in the EU or those operating from EU countries, such as an Air Canada flight departing London’s Heathrow airport.

It requires airlines to compensate passengers for flight delays and cancellations, overbooking and lost bags. For example, if a flight is delayed by more than three hours, travellers are entitled to compensation, up to around $900 each on trips more than 3,500 kilometres.

It also sets that airlines should provide passengers with assistance during a delay that includes refreshments, accommodation and access to telephone calls and emails.

Under the EU model, airlines do not have to provide compensation if they can show the problem was due to “extraordinary” circumstances.

Bruce Campion-Smith is an Ottawa-based reporter covering national politics. Follow him on Twitter: @yowflier

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Ottawa could be facing human rights tribunal hearing to settle First Nations child welfare compensation

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The federal government could be headed back before the Canadian Human Rights Tribunal to settle an outstanding question on compensation for First Nations children who faced discrimination under the on-reserve child welfare system.

When the human rights tribunal first ruled in January 2016 that Ottawa discriminated against First Nations children by underfunding on-reserve services, it reserved its decision on the issue of compensation to allow the parties to come to a settlement.

Last Friday, hours after Indigenous Services Minister Jane Philpott announced upcoming legislation on Indigenous child welfare, Justice Canada lawyer Robert Frater wrote the tribunal to secure hearing dates for possible arguments on the compensation issue.

Frater said in the letter that officials on the file had still not received a mandate on how to proceed on compensation.

« We remain committed to discussing the compensation issue with the parties, and attempting to reach a resolution, » said Frater’s letter.

« But in view of the fact that we have not yet received final instructions, it is apparent that we will likely have to set the issue down for argument. »

Minister wants a negotiated settlement

The window is closing on settling the issue outside of another round of hearings before the tribunal. The tribunal is facing the end of its oversight powers on the issue next March.

The tribunal also ordered Canada to implement Jordan’s Principle, ensuring jurisdictional conflicts between Ottawa and the provinces don’t hinder delivery of services to First Nations children. Families affected by Ottawa’s failure to follow Jordan’s Principle before the ruling could also be eligible for compensation.

Indigenous Services Minister Jane Philpott faced questions from chiefs Wednesday about the issue following her speech to the Assembly of First Nations, which is holding its annual December meeting this week at the Westin Hotel in Ottawa.

Cindy Blackstock, who heads the First Nations Child and Family Caring Society, holds her Spirit Bear while speaking to reporters during the Assembly of First Nations meeting in Ottawa. (Jorge Barrera/CBC)

She told chiefs that she wants settle the issue through talks.

« I have been very clear that I want to resolve all issues related to the Canadian Human Rights Tribunal and I want to resolve those directly by working with the parties, » Philpott told reporters following her speech.

Philpott said she would rather deal with the compensation issue outside the tribunal process.

« As soon as the parties to the tribunal are happy to drop that legal mechanism and to work with us directly, we will be extremely happy to do so, » Philpott said.

Philpott said she did not see the letter before it was sent.

A spokesperson for Philpott’s office said the letter does not preclude « other mechanisms from moving forward » and there is still hope a resolution can be reached outside the tribunal process.

John Cutfeet, chair of the Sioux Lookout First Nation Health Authority, said there seems to be conflicting messages coming from the ministers and their officials.

« The minister is saying, ‘We don’t want to go there.’ She wants to work it out, » said Cutfeet. « But why hasn’t she provided direction to Justice Canada to say this is how we are going to do this? »

Compensation could be in the billions of dollars

Cindy Blackstock, who heads the First Nations Child and Family Caring Society and led the human rights complaint, said the compensation issue has been on the table for months.

Blackstock said her organization filed questions on the issue in the summer and that Ottawa filed the Nov. 30 letter at the deadline set for its response.

« Canada seems to have changed its position about litigating the compensation that is owed the children who were affected by the human rights tribunal, » said Blackstock.

Drummers at the Assembly of First Nations meeting in Ottawa this week take a break during proceedings. (Jorge Barrera/CBC)

Blackstock said if Canada wants to go back before the tribunal to argue the issue again, she is prepared for another round.

« If there is a rights breach, or if Canada is not prepared to fulfil its responsibility, then for us as the Caring Society, we are prepared to litigate. »

Blackstock said she wants affected children and families to get the maximum amount available under federal human rights legislation — $20,000 for discrimination, plus an additional $20,000 if the discrimination was done willfully or recklessly.

The overall compensation amount could hit at least an estimated $1.5 billion, said Blackstock.

There were, on average, between 8,500 and 10,000 on-reserve First Nations children in care between 2006 and 2018.

It remains unclear how many families and children were affected by the government’s failure to implement Jordan’s Principle before the ruling.

According to Indigenous Services figures, there were more than 165,000 requests for products, services and supports approved for First Nations children post-ruling between July 2016 and September 2018.

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Workers’ compensation board denies over 90 per cent of chronic mental stress claims, audit shows

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The provincial workers’ compensation board has denied 94 per cent of chronic mental stress cases since new legislation extended benefits coverage to employees experiencing long-term trauma or harassment on the job, according to an internal Workplace Safety and Insurance Board audit obtained by the Star.

Previously, workers could only seek compensation for mental health injuries caused by a traumatic incident, not those triggered by ongoing trauma in their workplace — which labour advocates and legal experts described in a 2016 ombudsman complaint as unconstitutional and discriminatory. Subsequent legal changes mean workers can now file claims for work-related chronic stress issues.

But between January and May, just 10 of the 159 claims for work-related chronic mental stress were approved, the audit conducted by the WSIB shows.

Maryth Yachnin, a lawyer with the Toronto-based legal clinic Industrial Accident Victims of Ontario, said advocates already had concerns about existing barriers to winning chronic mental stress claims — but said she was “stunned” by the denial rate.

“I cannot imagine a world where they should be denying upwards of 90 per cent of the cases,” she said.

In a statement to the Star, WSIB spokesperson Christine Arnott said the board wanted “anyone dealing with work-related chronic mental stress (CMS) to get the help and support they need.”

She said workers were entitled to compensation if they met the board’s criteria, which includes evidence of a “substantial work-related stressor” and abusive workplace behaviour that rises to the level of workplace harassment. (Workers are not entitled to chronic stress compensation for problems stemming from discipline, demotions, transfers or termination.)

“We will continue to monitor our new chronic mental stress program as we help support mentally healthy workplaces across Ontario,” Arnott said.

Yachnin said the board’s approach to chronic mental stress creates unique and unreasonable barriers for people with “harassment-type injuries.”

Workers filing for chronic mental stress, for example, must prove their workplace was the “predominant cause” of their illness — while workers with physical injuries must simply show their workplace was a significant contributing factor.

“That’s subject to a higher legal test than any other workers in Ontario,” Yachnin said, adding in court workers only have to prove employer negligence was one factor in a workplace injury.

Like all workers filing WSIB claims, those with chronic mental health injuries give up their right to sue their employer if they initiate a case at the compensation board.

“All workers with these chronic stressors have been stripped of their right to sue their employer. The replacement right has to mirror the right you took away,” Yachnin said.

The board’s current guidelines were formed after consultation with both employers and worker representatives. According to one submission from an employer association, “stress cases are not the same as ‘other’ kinds of workplace injuries,” and treating them as such is a “momentous miscalculation and policy design error.”

In the WSIB statement to the Star, Arnott said the nature of mental stress injuries are “complex and differ from physical injuries.”

“The use of the predominant cause test is consistent with other workplace compensation boards (Alberta, Quebec, Saskatchewan and British Columbia) across Canada that also compensate for CMS,” she said.

Last year, a coalition of 12 legal clinics and private practice lawyers decried the “predominant cause” test before it came into effect in a letter sent to former premier Kathleen Wynne.

“The Supreme Court of Canada and the Workplace Safety and Insurance Appeals Tribunal have rejected the wrong-headed notion that mental injuries are less real, more subjective and more suspect than physical ones,” the letter said.

According to the WSIB’s chronic mental stress policy, a work-related stressor is considered “substantial” if it is excessive compared to “the normal pressures and tensions experienced by workers in similar circumstances,” although the policy says workers can’t be denied compensation simply because they work in a routinely high-pressure environment.

“In some cases … consistent exposure to a high level of routine stress over time may qualify as a substantial work-related stressor,” the policy says.

Yachnin said logic runs contrary to how physical injuries are treated, where constant exposure to stress or risk would be seen as “positive evidence of causation.”

Board adjudicators must also “be able to identify the event(s) which are alleged to have caused the chronic mental stress,” through “information or knowledge” provided by co-workers or supervisors, according to board policy.

“When you think about harassment in a small workplace, the person harassing you is very likely your employer,” Yachnin said. “Who else in the workplace is going to provide confirmation?”

The low number of claims registered to date may reflect a lack of awareness about legislative changes, Yachnin said — but could also indicate workers see the barriers to winning compensation as insurmountable.

That prevents the employer-funded workers’ compensation system from functioning properly, she added: if employers’ insurance premiums go up because of high injury rates, there is a financial incentive to rectify the safety risks.

“(The costs) are properly borne by the employer community because they were generated by workplace risks,” Yachnin said.

“The system is designed to point out the canary in the coal mine and show where there are health and safety risks factors,” she added. “But you can’t do that if at the front door you’re basically auto-denying them. I don’t know what else to call this.”

Sara Mojtehedzadeh is a Toronto-based reporter covering labour issues. Follow her on Twitter: @saramojtehedz


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Prime Minister pledges compensation for dairy farmers hit by USMCA deal

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Prime Minister Justin Trudeau says dairy farmers will be compensated for their expected losses under the new United States-Mexico-Canada Agreement, making the pledge directly at a meeting with their representatives on Thursday.

Trudeau met privately with dairy representatives in downtown Montreal amid concerns in the industry that they’re bearing the brunt under the recently concluded free-trade pact.

Canadian dairy farmers stand to lose 3.59 per cent of their market to U.S. producers under the new trade deal, known as USMCA.

« That’s why we’re going to be working with them over the coming weeks and months to figure out exactly what is the compensation they need, » Trudeau said after touring the offices of Montreal company Seville Films.

« How we can ensure not just that they’re OK, but that they continue to have confidence in the future of the dairy sector in Canada. »

The USMCA is the third free-trade agreement in which Canada has agreed to open access to its supply-managed sectors, this time including increased access for eggs, chicken and turkey.

While touting USMCA as a good deal for Canadians by securing access to its largest trading partner and the largest market in the world, Trudeau acknowledged those sacrifices.

« They told me they were worried, » Trudeau said of his meeting with milk producers. « They told me they felt they have continued to give through a number of trade deals they’ve signed, and they’re right. »

For example, under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership — with 10 countries including Mexico, Japan and Australia — dairy farmers ceded 3.25 per cent of the market.

‘Producers are right to be dissatisfied’

Dairy Farmers of Canada president Pierre Lampron wasn’t satisfied with what he heard.

« We recognize the symbolism of the gesture of Prime Minister Trudeau in offering to meet with our industry to hear our concerns firsthand, » he said in a statement. « However, the absence of details on measures to mitigate the impact of the concessions made within the USMCA, as well as the absence of a vision for the future of our industry at this time, cannot appease the concerns of the dairy farmers. »

Raymond Bachand, Quebec’s chief free-trade negotiator during the recently concluded negotiations, said the number one objective for Quebec was to preserve access to the American market and that was done.

Watch Raymond Bachand, Quebec’s chief free-trade negotiator, weigh in on the USMCA

Sometimes people cheat, so you need arbitration,’ says Quebec’s chief NAFTA negotiator Raymond Bachand. 6:56

« However, Ottawa has sold a portion of the milk market and it is clear that it hurts when added to European (Comprehensive Economic and Trade Agreement) and the TPP deals, » Bachand said on the sidelines of a metallurgical conference.

« This is eight to 10 per cent of the market. Producers are right to be dissatisfied. But it’s not just compensation, but also strategic thinking to see how we make our businesses more competitive. »

Bachand said USMCA compensation would have to come quickly, noting compensation from the TPP deal took an extended period.

« If I tell you that you are going to lose some of your business, you do not want to wait five years to find out what you are going to have as compensation to be able to manage your finances and knowing where you are investing, » Bachand said.

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