An Ontario Superior Court judge has invalidated a regulation that prohibits travelers from divulging the outcomes of complaints filed with the Canadian transport regulator. The ruling, issued on Wednesday, determined that the regulations preventing individuals from disclosing complaint resolutions related to issues such as accessible travel and flight compensation violate Canadians’ freedom of expression guaranteed by the Charter.
The Canadian Transportation Agency had enforced a process since 2023 that restricted consumers and airlines from publicly sharing complaint outcomes unless both parties consented to waive confidentiality. Major Canadian airlines, including Air Canada, WestJet, Air Transat, Jazz Aviation, and their representative industry group, opposed the legal challenge.
In a January motion to intervene, the airlines contended that complaint cases involve sensitive information that could harm carriers’ commercial interests and jeopardize the privacy of passengers and employees. They also raised concerns about potential safety risks if employees refrained from reporting issues that could lead to increased payouts to passengers. However, a judge denied 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. He highlighted that their involvement could have provided a more comprehensive evidentiary record for the court’s consideration.
In his written judgment, Justice Charles Hackland emphasized that there was no evidence supporting the necessity of the confidentiality requirement to ensure efficiency in the adjudication process or prevent the disclosure of confidential information, contradicting the government’s stance. Hackland also criticized the regulator for violating Canada’s open court principle by withholding complaint-related documents, decisions, and orders from the public and media upon request.
The government had argued that the restrictions on discussing complaints constituted a reasonable limitation on freedom of expression. Air Passenger Rights, an advocacy group, initiated the constitutional challenge over a year ago, advocating for Canadians’ access to the tribunal’s rulings.
Gabor Lukacs, the group’s president, characterized the confidentiality rules as a “gag order” that impeded freedom of expression, alleging that airlines sought to conceal unfavorable information. Lukacs welcomed the court’s decision, noting that it empowers customers to openly discuss the complaints process without fear.
He likened the complaints process to a “black box,” with numerous cases shrouded in secrecy, as only airlines had access to ruling databases. Lukacs anticipated a more equitable environment where passengers and advocacy groups could better understand how complaints are handled.
The CBC also participated in the legal proceedings, highlighting how media reporting on passenger complaints was hindered by restricted access to information. The transparency issue surrounding complaint rulings has become more pressing as the backlog of complaints before the agency has nearly reached 100,000, according to statements from federal cabinet members.
Transport Minister Steven MacKinnon declared the backlog unacceptable in May and outlined plans to address it by introducing a new process involving a third-party dispute resolution organization to expedite complaint resolutions. MacKinnon emphasized the government’s commitment to enhancing accountability and efficiency in handling air passenger complaints.
To bolster transparency and enforcement, the government pledged to increase fines for systemic violations of the Air Passenger Protection Regulations, allowing fines of up to $1 million. Ottawa also promised to relieve passengers of the burden of maintaining confidentiality during the complaints process to enhance transparency.