Ontario court ends confidentiality rule for air travel complaint decisions

An Ontario Superior Court judge has struck down a rule that prevented air travellers from publicly discussing the outcome of complaints filed with Canada's transport regulator, ruling that the restriction violates Canadians' constitutional right to freedom of expression.

In a decision released Wednesday (July 8), Justice Charles Hackland found that confidentiality rules governing the Canadian Transportation Agency's (CTA) passenger complaint process unjustifiably limit free expression under the Canadian Charter of Rights and Freedoms, CBC News reports.

Since 2023, the CTA's complaint resolution system has required both travellers and airlines to keep the outcome of complaints confidential unless both parties agreed to waive the restriction.

The rule applied to complaints involving issues such as accessible travel and compensation for delayed or cancelled flights.

The constitutional challenge was brought by advocacy group Air Passenger Rights, which argued that Canadians should have access to decisions issued by the quasi-judicial tribunal.

Canada's largest airlines — including Air Canada, WestJet, Air Transat and Jazz Aviation — along with the National Airlines Council of Canada (NACC), opposed the challenge.

In a January motion seeking to intervene in the case, the airlines argued that complaint proceedings often contain sensitive information that could affect their commercial interests or create privacy concerns for passengers and employees.

They also maintained that removing confidentiality could discourage employees from reporting safety issues if they feared the information could lead to increased compensation claims.

The court dismissed the intervention request in March.

In his ruling, Hackland said there was no evidence that the confidentiality requirement "is necessary or required to achieve efficiency in the adjudication process or to prevent the release of confidential information,” contrary to Ottawa’s position.

The judge also found the CTA's refusal to release complaint decisions, orders and related documents upon request — including requests from the media — runs contrary to Canada's open court principle.

The federal government had argued that restricting public discussion of complaints represented a reasonable limit on freedom of expression.

Air Passenger Rights launched the court challenge just over a year ago.

Its president, Gabor Lukacs, has argued the confidentiality rules amounted to a "gag order" that infringed on Canadians' freedom of expression and shielded airline complaint decisions from public scrutiny.

Speaking after the ruling, Lukacs said the decision gives passengers greater confidence to speak openly about their experiences with the complaints process, CBC reports.

He also described the CTA's complaint system as a "black box," saying tens of thousands of cases have remained hidden from public view.

"Now we can actually say, 'OK, was there any evidence to support what the airlines were saying?'" Lukacs was quoted as saying, adding that airlines had previously been the only parties with access to databases of complaint rulings.

"What this is also going to create is a more level playing field. It's not only airlines that have to know how those matters are being handled, but also passengers, and we who advocate for passengers."

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