The Ontario Superior Court of Justice has ordered the Canadian Transportation Agency to make public its complete decisions on passenger complaints against airlines, ruling that keeping them secret violates the Canadian Charter of Rights and Freedoms.
Background of the Case
The Air Passenger Rights Association, led by president Gabor Lukacs, filed the application a year ago challenging the withholding of full tribunal decisions. The challenge arose after the federal government amended the law in 2023 to allow either party to keep a tribunal decision confidential.
Lukacs stated, "It was so obvious to anybody looking at the proposed law that it was unconstitutional." The case was heard in Ontario but will affect air passengers across Canada, including British Columbia.
Arguments for Secrecy
The attorney-general of Canada argued that the confidentiality provision aimed to streamline the complaints process and clear a backlog of cases. The government noted that case summaries are released, including flight numbers, departure dates, reasons for delays or cancellations, whether compensation was ordered, and sometimes the full order.
The attorney-general also contended that the tribunal is not an adjudicator like courts, and its hearings are more simplified.
Charter Violation
Lukacs' group argued that withholding complete decisions violated Section 2 of the Charter, which guarantees fundamental freedoms such as freedom of expression and of the press. The principle of open courts was undermined, Lukacs said.
Justice Charles Hackland agreed, ruling in a decision released this week that the privacy provision was unconstitutional. He wrote, "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 added, "There was no evidence provided to this court that the efficiency goal is being achieved."
Impact on Passengers
Lukacs emphasized that keeping decisions secret prevented passengers from educating themselves about their rights and pursuing compensation under the federal Air Passenger Protection Regulations. The Canadian Broadcasting Corporation, an intervenor, argued the 2023 amendments promoted secrecy, leaving the media unable to inform the public about how air passenger rights are applied.
