An Ontario Superior Court judge has invalidated a regulation that prevents travelers from sharing the outcomes of complaints filed with the Canadian transport regulator. The ruling, issued on Wednesday, declared that the restrictions on disclosing complaint results, which cover issues like accessible travel and flight compensation, infringe on Canadians’ Charter rights to freedom of expression.
The Canadian Transportation Agency’s complaint resolution process, implemented in 2023, had prohibited consumers and airlines from publicly revealing such information unless both parties agreed to waive confidentiality. Major Canadian airlines, including Air Canada, WestJet, Air Transat, Jazz Aviation, and their industry association, opposed the legal challenge.
During a January motion seeking to intervene in the case, the airlines argued that complaint cases involve sensitive information that could harm carriers’ commercial interests and pose privacy risks for passengers and employees. They also contended that safety might be compromised if employees were hesitant to report issues that could lead to increased payouts to passengers. However, a judge rejected their request to intervene in March.
Jeff Morrison, CEO of the National Airlines Council of Canada, expressed disappointment at the airlines not being allowed to participate in the case, stating that their involvement would have provided a more comprehensive evidentiary record for the court to consider.
In his written ruling, Justice Charles Hackland concluded that there was no proof that the confidentiality requirement was essential for efficiency in the adjudication process or for safeguarding confidential information, contrary to the federal government’s stance. Hackland criticized the regulator for breaching Canada’s open court principle by refusing to release decisions, orders, or other complaint-related documents upon request, including to the media.
The government had argued that the limitation on discussing complaints was a reasonable restriction on freedom of expression. Air Passenger Rights, an advocacy group, initiated the constitutional challenge over a year ago, contending that Canadians should have access to rulings by the quasi-judicial tribunal.
Gabor Lukacs, president of Air Passenger Rights, characterized the confidentiality rules as a “gag order” that violates freedom of expression, accusing airlines of concealing their misconduct. Following the ruling, Lukacs emphasized that customers should no longer fear discussing the complaints process publicly.
Lukacs likened the complaints process to a “black box,” with numerous cases shrouded in secrecy. He highlighted that only airlines had access to databases of rulings, but now, individuals advocating for passengers would also have access.
The CBC, as an intervenor in the court proceedings, argued that media coverage on passenger complaints was constrained due to limited access to information. The issue of transparency in complaint rulings has become more crucial as complaint numbers continue to rise.
Justice Hackland noted in his decision that the current backlog of complaints before the agency had nearly reached 100,000, based on public statements from federal cabinet members.
Transport Minister Steven MacKinnon labeled the backlog as “unacceptable” and unveiled a plan to eliminate it using a new process involving a neutral, third-party dispute resolution organization to settle complaints promptly. MacKinnon emphasized the necessity to end the delays and enhance accountability in addressing complaints.
Additionally, Ottawa pledged to remove the burden on passengers to maintain confidentiality during the complaints process to enhance transparency. The government also announced plans to empower the Canadian Transportation Agency with increased enforcement powers, allowing fines up to $1 million for systemic violations of the Air Passenger Protection Regulations.