3 days ago
This ‘hero' took an airline to small claims court over cancelled flights and won — a victory for all travellers
A recent small claims court decision in Nova Scotia has called out a troubling and growing business practice among Canadian airlines.
And consumers can thank Maritimer Jason Hennigar for this.
Three years ago, Hennigar bought round-trip tickets to Florida from Halifax through Sunwing. Not once, but twice, the airline cancelled his scheduled flight for 'unanticipated business or operational constraints.'
Baloney, a small claims adjudicator ruled in a decision issued in April.
Hennigar just wanted to go on holiday — a trip to Disney he'd been planning since September 2022.
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After Sunwing cancelled his first flight and offered to rebook him on another plane — for $500 more — Hennigar agreed.
When the airline cancelled the second flight and ignored his requests for the airline to get him on another plane, Hennigar felt he had no choice but to dig deeper into his pockets.
Sunwing did not respond to the Star's emailed request for comment.
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With his scheduled vacation just weeks away, he forked over $5,155.92 to Air Canada to get him to Florida — twice the amount he had already paid Sunwing.
Hennigar read Canada's Air Passenger Protection Regulations, and knew that when an airline cancels a flight for reasons within its control, as Sunwing did, the law says a carrier must provide customers an alternate flight at no additional charge.
But he also knew that time was running out and that he wasn't likely to convince a company that had stopped communicating with him that it was in the wrong.
So he took his vacation and filed a legal action against Sunwing in a small claims court in Nova Scotia when he returned home.
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The case, which Hennigar won, shines a light on a 'highly problematic and growing business practice by airlines,' says Gabor Lukacs, president of Air Passenger Rights, a Canadian advocacy group.
The group, Lukacs says, had no involvement in the case.
The Nova Scotia man compiled a 16-tabbed binder of evidence for his Zoom hearing and represented himself.
Lukacs, who has never met Hennigar, calls him a 'hero.'
At the hearing, Sunwing's claims director testified that the second plane the airline cancelled — a 737 — was scheduled to carry 189 passengers from Halifax to Orlando in February 2023.
In a public decision issued in April, small claims adjudicator August Richardson took Sunwing to task.
Evidence presented in court, he wrote, shows the airline's business model 'was premised on selling enough tickets for a particular flight or destination to fill a plane.'
If the airline failed to reach its target number of passengers by a specific date, it would cancel the flight.
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'The best that could be said was that the defendant thought it would be too expensive to fulfil its obligation to the claimant to find an alternate flight at no additional cost,' Richardson wrote. 'But the fact that a contract proves more expensive than a contracting party thought it would be does not excuse that party from performance. A bad deal is still a deal.'
Lukacs loves that last line and repeats it several times during our interview.
'It's the first time this practice has been called out,' he says. 'When an airline says your only option is to cancel or pay more, that's not acceptable. That's illegal.'
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Before taking his case to small claims court, Hennigar submitted a request for damages to Sunwing.
The airline, without discussion, eventually refunded $2,503 to his credit card.
In his small claims case, which he filed in September 2024, Hennigar asked the court to order Sunwing to pay him the remaining cost he incurred as a result of the cancellations, which totalled $2,652.76.
Sunwing argued that the federal air passenger regulations upon which Henningar's case relied pertained primarily to 'large carriers' and that it was not a large carrier.
Hennigar agreed. He turned to another piece of legislation, the 1999 Convention for the Unification of Certain Rules for International Carriage by Air — commonly referred to as the Montreal Convention.
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He successfully argued that the word 'delay' in Article 19 of the Montreal Convention included the cancellation of a flight — that a cancellation by definition amounts to a delay of the intended arrival date and time.
Richardson agreed.
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He ordered Sunwing to pay Hennigar for the extra cost of the substitute tickets he purchased himself from Air Canada and layover expenses for a total of $2,652.76 plus costs of $200.
There are a surprising number of people named Jason Hennigar in Nova Scotia. I left phone and Facebook messages with three of them but never connected with the right one.
If you're reading this Jason, I'd still love to talk with you.
