An Ontario Superior Court judge has invalidated a regulation that prohibits travelers from publicizing the outcomes of their complaints filed with Canada’s transportation regulator. The ruling, issued on Wednesday, determined that the restrictions preventing individuals from revealing the resolution of complaints related to issues such as accessible travel and flight compensation infringe on Canadians’ freedom of expression guaranteed by the Charter.
The Canadian Transportation Agency’s complaint resolution process, implemented in 2023, had imposed restrictions on the disclosure of complaint outcomes unless both the consumers and airlines involved consented to waive confidentiality. Major Canadian airlines, including Air Canada, WestJet, Air Transat, Jazz Aviation, and their representative industry organization, opposed the legal challenge.
In a motion submitted in January to intervene in the case, the airlines argued that complaint cases often contain sensitive information that could harm carriers’ commercial interests and pose privacy risks to passengers and employees. They also raised concerns that safety might be compromised if employees are reluctant to report issues that could lead to increased payouts to passengers. However, a judge rejected their intervention request 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, highlighting that their involvement could have provided a more comprehensive evidentiary basis for the court’s consideration.
Justice Charles Hackland, in his written decision, stated that there was no evidence supporting the necessity of the confidentiality requirement to enhance efficiency in the adjudication process or prevent the disclosure of confidential information, contrary to the federal government’s stance. Hackland pointed out that the regulator’s enforcement of the confidentiality rule by withholding decisions, orders, or other complaint-related documents upon request, including from the media, violated Canada’s open court principle.
Advocacy group Air Passenger Rights initiated the constitutional challenge over a year ago, contending that Canadians should have access to rulings issued by the quasi-judicial tribunal. Gabor Lukacs, the group’s president, likened the complaints process to a “black box,” with numerous cases shrouded in secrecy. The ruling was perceived as empowering customers to openly discuss the complaints process without fear.
The issue of transparency in complaint rulings has become increasingly significant as the backlog of complaints before the agency has approached nearly 100,000, as indicated by statements from federal cabinet members. Transport Minister Steven MacKinnon recognized the backlog as unacceptable and announced plans to address it by introducing a new process involving a neutral third-party dispute resolution organization to expedite the resolution of complaints.
MacKinnon also pledged to enhance the Canadian Transportation Agency’s enforcement capabilities by enabling fines of up to $1 million for systemic violations of the Air Passenger Protection Regulations. Ottawa has committed to eliminating the burden on passengers to maintain confidentiality during the complaints process to enhance transparency and accountability.
