An Ontario Superior Court judge has invalidated a regulation that prohibits travelers from disclosing the outcomes of complaints filed with Canada’s transport regulator. The ruling on Wednesday determined that regulations preventing travelers from sharing complaint resolutions on issues ranging from accessible travel to flight compensation infringe on Canadians’ Charter right to freedom of expression.
The Canadian Transportation Agency’s complaint resolution process, established in 2023, had restricted consumers and airlines from publicly revealing such information unless both parties agreed to waive confidentiality. Canada’s major airlines, including Air Canada, WestJet, Air Transat, Jazz Aviation, and their industry representative group, opposed the legal challenge.
In a bid to intervene in the case in January, the airlines contended that complaint cases involve sensitive data that could harm carriers’ commercial interests and pose privacy risks to passengers and staff. They also raised concerns that safety could be compromised if employees hesitate to disclose issues that might lead to increased payouts to passengers. However, a judge rejected the 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, suggesting their involvement could have provided a more comprehensive evidentiary record for the court to consider.
Justice Charles Hackland, in his written ruling, stated that there was no evidence to support the necessity of the confidentiality requirement for efficiency in the adjudication process or to prevent the release of confidential information, contrary to the government’s stance. Hackland criticized the regulator for violating Canada’s open court principle by enforcing the confidentiality rule and withholding decisions, orders, or other complaint-related documents upon request, including from the media.
The government had argued that restricting discussions on complaints constituted a reasonable limitation on freedom of expression. The advocacy group Air Passenger Rights initiated the constitutional challenge over a year ago, advocating for Canadians to access rulings by the quasi-judicial tribunal.
Gabor Lukacs, the group’s president, criticized the confidentiality rules as a “gag order” that stifles freedom of expression, accusing airlines of hiding unfavorable information. Lukacs hailed the ruling as a victory for customers, enabling them to openly discuss the complaints process without fear. He likened the complaints process to a “black box,” with numerous cases shrouded in secrecy, accessible only to airlines.
The CBC, an intervenor in the legal proceedings, highlighted how media coverage on passenger complaints was limited due to restricted access to certain information. The issue of transparency in complaint rulings arises as the backlog of complaints before the agency nears 100,000, as per statements from federal cabinet members.
Transport Minister Steven MacKinnon, deeming the backlog “unacceptable,” unveiled a plan in May to eliminate it by introducing a new process involving a neutral, third-party dispute resolution organization to expedite complaint resolutions. MacKinnon emphasized the need to enhance accountability and improve complaint handling in the air travel sector. Ottawa also pledged to enhance the Canadian Transportation Agency’s enforcement powers, allowing fines of up to $1 million for systemic violations of the Air Passenger Protection Regulations.
