Airlines have profit motive to avoid obligations to flyers: lawsuit

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OTTAWA — One of the thousands of Canadians whose flights have been canceled over the holiday is skipping Canada’s lagging grievance system and taking matters into his own hands by suing WestJet.

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Aaron Trager, the Toronto attorney who filed the lawsuit in federal court, says the airline failed in its legal obligation to get him another flight. WestJet now refuses to compensate Trager for the alternative flight he booked himself – a situation he attributes to a broken system that gives airlines a profit motive for such behavior.

“I should be able to file this with the Canada Transportation Agency. You should look at this in two seconds” and ask WestJet to pay back the cost, Trager said.

Instead, passengers with complaints will have to wait 18 months before the travel chaos began, which saw thousands of flights canceled in December due to bad weather.

Trager said the government needs to strengthen regulations to protect air passengers, including by introducing significant fines as a deterrent and requiring airlines to inform passengers of their rights.

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Instead of sending an email to passengers offering them a refund, airlines should be required to inform customers that they also have the option, under the law, to opt for an airline rebooking. “Then the airlines will start behaving,” he said.

Trager had booked flights for his family from Toronto to Calgary and then from Calgary to Hawaii on Dec. 22, both of which were canceled, court filings say. After WestJet failed to get in touch to rebook the family on another flight and Trager was unable to reach customer service — the company offered a call back in six days — he rebooked the flights himself.

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WestJet is now refusing to compensate him for those rebooked flights, which together with the associated costs totaled over $8,200. “Plaintiff’s trip was time-sensitive and he had pre-paid, non-refundable hotel accommodations. Waiting six days to schedule a phone call to discuss options was not a reasonable option,” the lawsuit says.

Trager is also seeking $40,000 in punitive damages.

The filing argues that under the Transportation Act, WestJet must rebook a customer within 48 hours on one of its own flights or on an airline with which it has a commercial agreement. If this is not possible, major airlines must give customers the choice between a refund or a free rebooking with another airline.

“Because WestJet was not available to book alternative flights, the plaintiff rebooked a flight on WestJet’s behalf. This was the only reasonable option under the circumstances. In fact, by rebooking its own flight, the plaintiff enabled WestJet to meet its own obligations under the Transportation Act and the Terms of Service,” the filing argues.

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The lawsuit states that Trager received a letter from WestJet on Jan. 25 offering a refund but refusing to compensate him.

The filing argues that WestJet has a “clear profit motive” to get customers to accept refunds.

“Airline tickets increase in price as the departure date approaches, and last-minute tickets cost the most. Meanwhile, many tickets are bought by passengers well in advance of the departure date to take advantage of lower ticket prices.

“By offering to refund tickets customers purchased at a lower price from WestJet, rather than purchasing higher-priced tickets at a higher price from competing airlines – which is required under the Conditions of Use and Transport Act – WestJet saves on the Enormous sums of money multiplying the large number of passengers it serves each year.”

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Trager said in an interview that most people are unaware of their rights and will only accept the refund. Those who don’t will have to wait more than a year and a half given the backlog to potentially get their money back.

“This affects every single passenger whose flight is cancelled,” he said.

Critics have previously accused the Liberal government of failing to enforce the rules. Air passengers’ advocate Gábor Lukács told the National Post earlier this month that the government’s lack of enforcement is “the reason passengers have been treated so incredibly miserably”. He also argued, “It’s actually more profitable for the airline to break the law and, occasionally, if they get caught, pay a small fine.”

Transport Minister Omar Alghabra has promised changes to regulations to protect air passengers following the chaotic holiday travel season.

The Alghabra office declined to comment on a legal matter, as did a WestJet spokesman. “During the holiday, multiple severe weather systems across Canada impacted our operations as well as the infrastructure of several of our domestic airports, resulting in significant delays and cancellations across our network,” the WestJet spokesman said, adding an apology “to guests who were during.” affected at this time.”