Disclaimer

Airlines have several obligations to comply with in connection with flight disruptions.

However, certain situations may result in the airline being exonerated from its responsibility to compensate the passenger or to provide a service. These exemptions vary depending on whether the Canadian or European regulations apply to your flight.

Canadian Regulations

Situation beyond the control of the carrier

the The Air Passenger Protection Regulations specifically provide for a list of situations beyond the carrier’s control in section 10(1):

• War or political instability
• Illegal act or sabotage
• Weather conditions or natural disasters that make it impossible to operate the aircraft safely
• Air Traffic Control Instructions
• NOTAM*
• Security threat
• Problems related to the operation of the airport
• Medical emergency
• Collision with wildlife
• Strikes by the carrier or a service provider
• Manufacturing defect in the aircraft that reduces passenger safety, discovered by the manufacturer or by a competent authority
• Instruction or order from any state or law enforcement official or airport security official

* “Notice to Air Missions” is a notification issued by an aviation authority to inform pilots, air traffic controllers and other relevant parties of essential information regarding flight safety. This may include information about temporary runway closures, military exercise areas, maintenance work, changes in navigational aids, or unusual weather conditions.

These situations then allow the airline to exonerate itself from its liability and, by the same token, from its correlative obligations.

Situation necessary for safety reasons

The regulations provide that, in addition to the situations mentioned above, a situation that is attributable to the carrier may allow it to be exempted if it was necessary for safety reasons.

“Necessary for safety reasons”

The regulations define this term as follows:

Means any legal requirement that must be met in order to reduce risks to the safety of passengers, including safety decisions that are the responsibility of the pilot of the aircraft or that are made in accordance with the safety management system as defined in subsection 101.01(1) of the Canadian Aviation Regulations, other than planned maintenance performed in accordance with legal requirements. (required for safety purposes).

Considering this definition, any disturbance caused by a safety concern, such as a mechanical problem or apparent physical damage to the aircraft, may exonerate the carrier from liability, even if it is caused by an element that is under the carrier’s control.

For example, a vehicle that collides with the aircraft before take-off and causes a delay in its departure for repair will be considered a necessary situation for safety reasons.

However, the carrier will not be exonerated if the repair or mechanical problem is not considered to be a “mechanical failure”:

A mechanical problem that reduces passenger safety, excluding the problem discovered during planned maintenance* carried out in accordance with legal requirements. (mechanical malfunction).

*The Canadian Transportation Agency has stated that planned maintenance does not include pre- and post-flight checks. Indeed, the aircraft is not taken out of service during these last-minute checks, which are intended in particular to correct unforeseen events that have not been prevented by planned maintenance.

For example, an unforeseen mechanical problem discovered during the pre-flight inspection requiring repair may justify the delay or cancellation. The Agency notes that flight disruptions due to a problem discovered during the pre-flight check are generally considered to be within the carrier’s control but necessary for safety reasons, preventing the safe operation of the aircraft.

However, if the problem is due to negligence on the part of the carrier during regular maintenance and this problem should have been reported beforehand, the transport cannot be justified by safety concerns.

The onus is on the carrier to substantiate its assertion by presenting evidence to substantiate how it categorizes the disruption, since the relevant information is in its possession. Failure to provide them will make it more difficult for the Agency to believe in the carrier’s defence.

To date, few NEB decisions address the application and limitation of the scope of what can be justified on the basis of safety concerns. The assessment must be done on a case-by-case basis and each situation is subject to a different interpretation. Indeed, the analysis by a lawyer can then be very useful in order to make your claim justified and thus obtain compensation commensurate with the damages you have suffered.

Delay of the previous flight

The regulations also state that a flight delay that is directly attributable to a previous delay within the carrier’s control, but necessary for safety reasons, is also considered to be within the carrier’s control but necessary for safety reasons.

The carrier must prove that it has taken all reasonable measures to prevent or reduce the domino effect. The Office will take into account, in particular:

• The duration of the domino effect;
• The remoteness of the location and whether the disruption occurred in a foreign country;
• The availability of another aircraft or crew;
• The consequences of the cause of the flight cancellation or delay on the carrier’s operations.

Situations that can aggravate the disruption

In addition, as mentioned in a few vignettes, the airline may be exempted from certain obligations if they cause greater disruption.

For example, if providing food and beverages to passengers results in a longer delay, the airline may refuse to apply these standards and may be relieved of liability for this obligation.

European Regulation

Regulation 261/2004 provides that the airline can be exonerated from liability if it proves that the disruption is due to extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken.

These extraordinary circumstances include:

• Political instability
• Weather conditions incompatible with the conduct of the flight concerned
• Security Risks
• Unplanned failure that may affect flight safety
• Air Traffic Management

In addition, the Court of Justice of the European Union has issued several decisions to better frame the notion of “extraordinary circumstances”*:

• Service provider strikes only (strikes by carrier personnel, legal or illegal, are not exempt)
• Terrorist act, sabotage
• Medical emergency
• Collision with a bird
• An event that is not inherent to the carrier’s normal business AND is beyond its control despite having taken all necessary measures to remedy the problem that caused the flight disruption.

*You can consult the page on the application of the European regulation for more details on the scope of the “extraordinary circumstance”.

If you think your flight has been unjustifiably delayed or cancelled and the airline refuses to compensate you, it’s crucial to act quickly. Document your situation, submit a claim and, if necessary, seek the help of the relevant authorities or an air passenger rights lawyer.

Contact us today for an evaluation of your case and find out how to get the compensation you deserve.