Air passenger rights group files court challenge to ‘unconstitutional’ rules it says muzzle travellers

Jill Rorabeck says she wishes she’d never turned to Canada’s airline regulator to settle her dispute with Swoop Airlines. 

Not only did the Canadian Transportation Agency (CTA) side with the airline, Rorabeck can’t even share the details of her dispute.

The Toronto woman submitted a complaint almost three years ago with the CTA, which acts as an adjudicator between airlines and passengers in air travel complaints. She learned in January that she lost her case, but due to legislation passed in 2023 that prevents passengers from sharing full details of CTA decisions, she’s not allowed to reveal key information about what happened. 

“No one can warn others about their experiences,” said Rorabeck. “There is zero accountability on the part of the airlines or the CTA.” 

The Air Passenger Rights organization — a Halifax-based nonprofit — has now filed a constitutional challenge in Ontario’s Superior Court of Justice, arguing Canadians should have access to the decisions made by the CTA’s quasi-judicial tribunal.  

“We believe that the way the complaint process has been set up at the Canadian Transportation Agency violates fundamental rights,” said Air Passenger Rights founder Gábor Lukács.

At issue is section 85.09(1) of the Canadian Transportation Act, which says once the CTA issues a decision, neither the airline nor the passenger involved is allowed to openly share the details — unless both parties agree. 

Since that rule was implemented, not a single case has been made fully public, which Lukács says gives airlines the strategic advantage of having access to previous rulings while passengers remain unaware of how complaints are being decided. 

“The only entities that benefit from this are the airlines,” said Lukács. “Individual passengers don’t have the experience or don’t have the knowledge of what arguments work and don’t work while the airlines compile these huge databases of their own cases.”

Prior to the 2023 changes, full decisions issued by the CTA were posted online, but now only basic information is available. So key details, such as the reasons behind a ruling, remain confidential. The regulator says the new system is faster, fair and more efficient.

The lawsuit argues that the CTA has a quasi-judicial role, so rules that muzzle passengers violate the open court principle in law, which says court proceedings should be open to the public.

It’s a fundamental aspect of a democratic justice system, ensuring transparency and public confidence in the legal process, says Paul Daly, a constitutional lawyer and research chair in the Administrative Law and Governance program at the University of Ottawa.

“The fact that decisions are not published and proceedings are kept confidential, it tilts the playing field in favour of the airlines,” said Daly. “I, you or anyone else should be able to walk into any courthouse in the country any day of the week and attend a hearing or access documents … that are in the registry.” 

As part of its legal argument, Air Passenger Rights asked for the decisions, reasons and all documents for five air passenger complaint files last July in an effort to demonstrate that the CTA systematically denies all such requests.

The secretariat of the agency denied the request a month later, citing section 85.09(1) of the Canadian Transport Act as the basis for its refusal.

“They are trying to use this provision as a way of refusing to disclose information that should be disclosed,” Lukács said. 

The lawsuit argues that the current rules prevent Air Passenger Rights from doing its job, because it needs to know how complaints are being decided in order to provide information and resources to passengers and push for improvements.

It also argues that the secrecy around decisions prevents media and other organizations from “effectively communicating information about air passenger complaint proceedings.”

The lawsuit calls for a hearing to be held by video conference. No date for the hearing has been set.