COVID cancelled flights: Court of Appeal authorizes class action against Air Canada, Air Transat, WestJet and Sunwing

During the pandemic, thousands of travellers saw their flights cancelled — and were offered a travel credit instead of a refund. The Court of Appeal of Quebec authorizes a class action against the major airlines, reversing a refusal by the Superior Court.

In Lachaine v. Air Transat AT inc., 2024 QCCA 726, the Court of Appeal of Quebec authorizes a class action against Air Canada, Air Transat, WestJet and Sunwing (and their related travel companies), on behalf of travellers whose flights or packages were cancelled at the start of the COVID-19 pandemic and who were not refunded, or were refunded late. In doing so, the Court reverses two Superior Court judgments that had refused authorization.

One essential clarification: authorizing a class action is not deciding the case. The Court is not saying the airlines were in the wrong; it is only saying the claim is arguable enough to be heard on the merits. The allegations have not been proven.

I — The context

Cancelled flights, credits instead of refunds

In early 2020, the closing of the borders led to the mass cancellation of flights. Rather than refunding tickets and packages, the airlines offered travel credits, usable under certain conditions. In March 2020, two travellers filed an application for a class action seeking a full refund, plus a sum for trouble and inconvenience.

Over the following months, the companies set up voluntary refund programs one by one — WestJet as early as October 2020, then Air Canada and Air Transat in the spring of 2021 (after loan agreements with the federal government), and Sunwing in June 2021. It is on this basis that the debate would crystallize.

II — The refusal at trial

« No more cause of action », the Superior Court had held

In 2021, the Superior Court refused to authorize the class action. According to the judge, two of the four criteria of article 575 of the Code of Civil Procedure were not met: the wide disparity of contracts, fares and conditions would prevent identifying a common question and, above all, the announcement of the voluntary refund programs had extinguished the travellers’ cause of action. In short, the case would lead nowhere.

III — What the Court of Appeal corrects

A low threshold, a mere filtering role

The Court of Appeal recalls that at the authorization stage, the court is not holding a trial: it only screens out untenable claims. The threshold is low.

First error corrected: by focusing on what distinguishes the members from one another, the judge lost sight of the fact that a single important common question is enough to advance the case — for example: can an airline unilaterally refuse to refund a flight cancelled through no fault of the customer? The variety of possible answers does not defeat authorization.

Second error: concluding that the voluntary refund programs had « extinguished » the cause of action, when no written details of those programs had been entered into evidence. The Court distinguishes cases where the courts had been able to confirm that all customers had in fact been compensated. Above all, even if refunding the ticket extinguished the main claim, it did not eliminate the right to interest for the delay (an independent head of claim, art. 1617 C.C.Q.) or to damages.

The Court adds that proportionality — the idea that the amounts at stake would be too small — is not a fifth criterion allowing authorization to be refused. Class actions are meant, precisely, to serve small claims and to deter breaches. The ruling gives a telling example: for a $383 flight, a traveller might be entitled to only about $19 in interest — a trivial sum on its own, but significant across an entire group.

IV — Narrowed scope and representatives

A group limited to Quebec, one representative removed

The Court does not accept everything, however. Having failed to establish the applicable law elsewhere (the appellants merely made vague references to « the common law » and « various consumer-protection statutes »), the national and international scope of the action is set aside: the group is limited to Quebec.

As for the representatives, one of the two travellers had been fully refunded by his credit-card issuer: no longer having a personal cause of action, he can no longer represent the group. The second still has his claim for interest and damages, and remains an adequate representative.

Conclusion

The case will move forward

The Court of Appeal therefore authorizes the class action, with a group refocused on Quebec, and refers certain questions to the judge managing the proceeding. Leave to appeal to the Supreme Court of Canada was refused, and notices to members are being published: the case will now move toward a possible trial on the merits.

For Quebec travellers affected by the pandemic cancellations, the ruling is a reminder of a simple point: a refund program announced late, without details, is not enough to wipe out consumers’ rights with a stroke of the pen — starting with the right to interest for the time their money stayed in the airline’s hands.