A consumer rights organization says the Canadian Transportation Agency is pressuring passengers to stay silent about its rulings on their complaints — a move the country's airline regulator says falls squarely within its mandate under the law.
The agency has asked at least one complainant who posted a decision on the Air Passenger Rights’ Facebook page to delete their post, said Gabor Lukacs, president of the advocacy group.
“The decision was posted in the group by one of the passengers involved in the decision, who has since removed the post at our request,” reads an email from an agency director to Lukacs, who posted it online.
The message asks Lukacs for his group’s “collaboration in preventing future public sharing of confidential information.”
Lukacs called the move “unconstitutional," saying it limits free expression.
“You cannot imagine a small claims court making a decision confidential,” he said. “You go and read whatever you want.”
Passengers should be allowed to share the outcome of cases brought before complaint resolution officers at the regulator, Lukacs argued. The rulings could inform other travellers seeking to file for compensation or refunds from an airline — including customers who were on the same flight — among other complaints.
Otherwise, the adjudication process “becomes a kind of black hole” that insulates decision-makers from scrutiny and accountability, he said.
"Once mediation turns into binding decision-making, that cannot be kept confidential unless there are some very, very important issues like protecting victims in sexual assault cases."
However, federal legislation says otherwise. Recent amendments to the Canada Transportation Act state that the regulator can “decide to keep confidential any part of an order” — except for several key parts of the ruling, such as the flight number, date and whether a delay was within the carrier's control — at the request of the complainant or the airline.
In an email, transportation agency spokesman Jadrino Huot pointed to the legislation and emphasized that rulings by complaint resolution officers “must not be published” unless all parties agree to it.
The issue hinges largely on the constitutionality of the amendments themselves. Paul Daly, chair in administrative law and governance at the University of Ottawa, argued that routine non-publication of decisions by quasi-judicial bodies breaches principles of open justice enshrined in the Charter of Rights and Freedoms.
“These provisions would create mechanisms for binding mediation and adjudication that would operate largely in secret,” he said in a blog post in May 2023, shortly before the amendments took effect.
In an interview Wednesday, he said the confidentiality clause "tilts the playing field" in favour of airlines over passengers.
“If decisions by the agency are kept private, it is much harder to make their case. They don’t have any past precedents to rely on. However, the airlines, which are repeat players, will have large databases of decisions involving themselves that they can rely on in order to defend themselves against complaints," Daly said.
"That to me is inherently unfair."
Lukacs also claims that the transportation agency’s mandate does not extend to enforcement of the legislation against individuals, as opposed to airlines.
The regulator's actions come as its complaint backlog sits at record highs topping 72,000. It is likely to grow in the short term after more than 100,000 WestJet customers saw their flights cancelled due to a mechanics strike over the Canada Day long weekend.
Not all advocates agree that orders or settlements made by way of adjudication at the Canadian Transportation Agency should be open to the public.
"It's like arbitration or when there's mediation — it's not rare that the deals or whatever decision was rendered within those formats are confidential," said Sylvie De Bellefeuille, a Quebec-based lawyer with advocacy group Option consommateurs.
"A person must respect the way it's done, which normally means that if it's confidential, one cannot post it online."
De Bellefeuille added that even small claims courts can offer mediation, which sometimes produces a settlement subject to non-disclosure agreements.
"Because it's something that's negotiated — it's not a decision that is rendered by a judge — it would be a deal made between (the parties)," she said.
Daly countered that he has no issue with agreements hashed out via mediation, but stressed that decisions rendered by agents of a quasi-judicial body must be open for all to see — and post.
This report by The Canadian Press was first published July 10, 2024.
Christopher Reynolds, The Canadian Press
