Spring Break Edition: Fighting the Good Flight.

In April 2017, the online world watched in horror as a 69-year-old passenger, Dr. David Dao, was forcibly removed from a United Airlines flight to make room for airline staff. Dao was removed after United unsuccessfully tried to entice passengers to give up their seats in return for an $800 payout.

Dao, a medical doctor, tried to explain that he couldn’t miss the flight; he had a full roster of patients to attend to the next day. When Dao refused to deplane, airport security seized and dragged him from the aircraft, bloodied from the encounter. It was a grisly image.

Even three years after the fact, the Dao story has had remarkable staying power. It prompted extensive media uproar that has yet to fade from our collective consciousness. In a world seemingly devoid of legal remedies for airline abuses that occur in the normal course, social media and popular opinion often seem to be the only forums in which victims can seek justice.

In Dao’s case, the abuse resulted in demonstrable physical and psychological harm (including a concussion, a broken nose and suicidal thoughts). The airline eventually settled with Dao. It also revised its internal policies.

But what about those day-to-day airline frustrations that don’t get traction on social media? The feeling of helplessness experienced by an airline passenger can be amplified in the cases of small injustices that have become so usual as to no longer provoke a public response. Nonetheless, these incidents often result in significant frustration and inconvenience for the individual traveller.

As it turns out, the airline passenger redemption stories we need to hear the most might also be the ones that tend to fly under our collective radar.

It turns out that Quebec courts are uniquely situated to deal with such small injustices. This is because the Province recognizes an expansive duty of good faith compared to other jurisdictions.

In a victory that will surely resonate with the public, a Quebec court last month awarded a passenger damages against Air Transat. The airline refused to allow a passenger to board the plane after its personnel had technically closed the gate, even though the passenger could see that the plane remained stationed at the gate and the door to the aircraft had not yet been closed.

The defendant essentially argued that rules are rules. The plaintiff pointed out that airline personnel had enough time to remove the passenger’s bags from the plane after denying her entry, but apparently not enough time to allow her to board.

The passenger was late to the gate after she had been unable to complete her check-in at a malfunctioning check-in machine. She finally succeeded in checking in at the check-in counter with less than an hour to spare until her flight. Air Transat staff at the check-in counter issued her a boarding pass and told her she would be okay to make the flight. The passenger then got held up at customs.

The Court held that Air Transat breached its duty of cooperation towards its passenger. Once the passenger had checked in, Air Transat knew she was on her way through security and, given that her tardiness was in part due to the malfunctioning of its own check-in system, should have applied its boarding policy more flexibly and reasonably.

The passenger was only partially responsible for arriving one and a half hours before her international flight, instead of the mandated three.

In 2011, the Court similarly held Air Transat liable for breaching its duty of good faith when it denied a boarding pass to passengers who presented at the check-in counter fifty-eight minutes before their flight, when the check-in limit was one hour. Invoking a delay of two minutes was held to be an excessive and unreasonable exercise of Air Transat’s contractual rights.

In both cases, the Court sent personnel a message about the duty of good faith: rules are necessary, but it’s impermissible to apply them in oppressive ways.

After the Dao incident in 2017, Forbes published an article citing United’s culture of “operational excellence” as the source of the problem. Operational excellence causes employees to prioritize the efficiency of business operations above all else, with the goal of keeping costs down and passing those cost reductions on to the customer. This often comes at the expense of other metrics of customer satisfaction, besides ticket price.

What is undeniably needed among certain airlines, then, is a culture shift – luckily, in Quebec, flyers can turn to the duty of good faith to help bring one about.