A consumer rights organization says the Canadian Transportation Agency (CTA) is pressuring passengers to remain silent about its decisions regarding their complaints.
According to the OTC, this is fully within its mandate under the law.
The agency has asked at least one complainant who posted a decision on the Travelers’ Rights group’s Facebook page to remove his post, said Gábor Lukács, the advocacy group’s president.
“The decision was posted in the group by one of the passengers involved in the decision, who has since deleted the post at our request,” reads an email from an agency manager to Mr Lukács, who posted it online.
The message asks Mr Lukács for “his group’s cooperation to prevent the future public sharing of confidential information”.
Mr Lukács called the decision “unconstitutional”, saying it limits freedom of expression.
“You can’t imagine a small claims court making a confidential decision,” he said.
Passengers should be allowed to share the results of cases brought before the regulator, Lukács argued. The decisions could inform other travellers seeking compensation or refunds from an airline – including customers who were on the same flight – among other complaints.
Otherwise, the arbitration process “becomes a kind of black hole” that removes decision-makers from any control and accountability, he said.
“Once mediation turns into binding decision-making, it cannot remain confidential unless there are very, very important issues like victim protection in sexual assault cases.”
Legislation
However, federal law says the opposite. Recent amendments to the Transportation Act in Canada stipulate that the regulator may “decide to keep confidential any part of a decision” – except for several key elements, such as the flight number, date and whether a delay was within the control of the carrier – at the request of the complainant or the airline.
In an email, transit agency spokesman Jadrino Huot pointed to the legislation and said decisions on complaints “should not be published” unless all parties agree.
Much of the question hinges on the constitutionality of the amendments themselves. Paul Daly, research chair in administrative law and governance at the University of Ottawa, argued that the systematic failure to publish decisions by quasi-judicial bodies violates the principles of open justice enshrined in the Charter of Rights and Freedoms.
“These provisions would create binding mediation and arbitration mechanisms that would operate largely in secret,” he wrote in a blog post in May 2023, shortly before the amendments came into force.
In an interview Wednesday, he said the confidentiality clause “tips the scales” in favor of airlines over passengers.
“If the agency’s decisions remain confidential, it’s much harder to make a case. They have no precedent to rely on. But airlines, which are regular players, will have large databases of decisions about them that they can rely on to defend themselves against complaints,” Daly said.
“For me, it’s fundamentally unfair.”
The regulator’s actions come as the number of complaints is at a record high, topping 72,000. That number is likely to rise soon after more than 100,000 WestJet customers had their flights cancelled due to a mechanics’ strike over the Canada Day long weekend.
Not everyone agrees that orders or settlements made through arbitration at the Canadian Transportation Agency should be open to the public.
“It’s like arbitration or when there is mediation: it is not uncommon for agreements or any decisions rendered in these formats to be confidential,” said Sylvie De Bellefeuille, a Quebec lawyer with the advocacy group Option consommateurs.
“A person has to respect the way it’s done, which normally means if it’s confidential, you can’t put it online.”
Mme De Bellefeuille added that even small claims courts can offer mediation, which sometimes results in a settlement subject to nondisclosure agreements.
“Because it is something that is negotiated – it is not a decision made by a judge – it would be an agreement reached between [les parties] ” she explained.
Mr Daly countered that he had no problem with settlements reached through mediation, but stressed that decisions made by officers of a quasi-judicial body must be made public and visible to all.