Passenger disputes with Canadian airlines can't be kept secret: Court ruling

Airline passenger rights advocate Gabor Lukacs. Photo by TIM_KROCHAK /PST

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An Ontario court has ordered a federal government tribunal to make public its decisions about passengers’ complaints against Canadian airlines, after the judge agreed that keeping them secret was unconstitutional.

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A group that advocates for air passenger rights filed the application a year ago with the court, challenging the withholding of the complete decisions.

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The filing was in response to the federal government in 2023 rewriting a law allowing either party to keep a tribunal’s decision on passenger complaints confidential.

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“It was so obvious to anybody looking at (the proposed law) that it was unconstitutional,” said Gabor Lukacs, president of the Air Passengers Rights Association.

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The challenge was heard by a judge in the Ontario Superior Court of Justice, but it will affect the rights of air passengers in other provinces, including B.C.

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Lukacs said keeping the decisions by the Canadian Transportation Agency tribunal secret did not give passengers the opportunity to educate themselves so they could pursue compensation for denied rights under the federal Air Passenger Protection Regulations.

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But the attorney-general of Canada argued that one of the reasons for the privacy provision was to streamline the complaints process and make it more efficient to clear up a backlog of cases.

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The attorney-general’s office said it does release case summaries, including flight number, departure date, the reason for delay or cancellation, whether compensation was ordered, and in some cases the entire order itself.

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It also argued the tribunal wasn’t an adjudicator, as judges and others are in courts or other hearings, and the tribunal hearings were more simplified.

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But Lukacs’ group argued that withholding each of the tribunal’s complete decisions violated Sec. 2 of the Canadian Charter of Rights of Freedom, which guarantees fundamental rights, such as freedom of expression and of the press.

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The law violated the principle that courts should be open to the public, Lukacs said.

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Justice Charles Hackland of the Ontario Superior Court of Justice agreed in a decision released this week that the privacy provision of the law violated the Charter.

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He also ruled the government did not provide a good reason for the courts to override that section.

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“In particular, the confidentiality requirement in the subsection is overly broad and non-discretionary and unduly restricts the open court principle, in an apparent effort to promote the goal of efficiency,” he wrote.

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“There was no evidence provided to this court that the efficiency goal is being achieved.”

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The CBC, an intervenor in the case, argued the 2023 amendments promoted secrecy as there was “no information made available to the media” and no way for the media to inform the public to help them assess whether air passenger rights were applied correctly or consistently.