An Ontario Superior Court judge has invalidated a regulation that prohibits travelers from revealing the outcomes of passenger complaints filed with Canada’s transport regulator. The ruling, announced on Wednesday, determined that the restrictions on disclosing complaint resolutions, encompassing issues such as accessible travel and flight compensation, infringe upon Canadians’ Charter right to freedom of expression.
The Canadian Transportation Agency’s complaint resolution process, introduced in 2023, had previously restricted consumers and airlines from publicly sharing complaint outcomes unless both parties consented to lift confidentiality. Canada’s major airlines, including Air Canada, WestJet, Air Transat, Jazz Aviation, and their industry representative, opposed the legal challenge.
In a bid to intervene in the case in January, the airlines argued that complaint submissions involved confidential information that could jeopardize carriers’ commercial interests and pose privacy risks for passengers and employees. They also raised concerns about potential safety implications, suggesting that employees might refrain from disclosing issues that could lead to increased payouts to passengers. However, a judge dismissed their intervention request in March.
Jeff Morrison, CEO of the National Airlines Council of Canada, expressed disappointment at the airlines’ exclusion from the case, emphasizing that their involvement could have enriched the evidentiary record considered by the court.
Justice Charles Hackland, in his written judgment, highlighted the lack of evidence supporting the necessity of the confidentiality requirement to ensure efficiency in the adjudication process or prevent the disclosure of confidential information, contrary to the federal government’s stance. Hackland criticized the regulator for impeding Canada’s open court principle by enforcing the confidentiality rule and withholding complaint-related documents, including decisions and orders, upon request.
The government had contended that the restriction on discussing complaints represented a reasonable limitation on freedom of expression. Air Passenger Rights, an advocacy group, launched the constitutional challenge over a year ago, asserting that Canadians should have access to rulings issued by the quasi-judicial tribunal.
Gabor Lukacs, president of Air Passenger Rights, likened the complaints process to a “black box,” with numerous cases shrouded in secrecy. Lukacs welcomed the court’s decision as a victory for customer empowerment, enabling individuals to openly discuss the complaint resolution process without fear.
The issue of transparency in complaint outcomes has gained prominence amid a mounting backlog of complaints before the agency, with figures approaching 100,000 complaints, as per statements from federal cabinet members.
Transport Minister Steven MacKinnon, addressing the unacceptable backlog in May, unveiled a plan to address the issue by introducing a new process involving a neutral third-party dispute resolution entity to expedite complaint resolutions. MacKinnon emphasized the need to end the delays in addressing complaints and enhance accountability within the air travel industry.
The government also pledged to enhance the Canadian Transportation Agency’s enforcement capabilities by permitting fines of up to $1 million for systemic violations of the Air Passenger Protection Regulations, thereby signaling a commitment to improving transparency and accountability in resolving air travel complaints.