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According to a consumer protection group, the Canadian Transportation Agency is putting pressure on passengers to keep quiet about airlines’ decisions. According to the Canadian Aviation Authority, this measure is fully in line with its legal mandate.

According to a consumer protection group, the Canadian Transportation Agency is putting pressure on passengers to keep quiet about airlines’ decisions. According to the Canadian Aviation Authority, this measure is fully in line with its legal mandate.

The agency asked at least one complainant who posted a decision on Air Passenger Rights’ Facebook page to delete his post, said Gabor Lukacs, chairman of the advocacy group.

“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,” said an email from an agency director to Lukacs that was published online.

In the message, Lukacs asks his group to “cooperate in preventing future public disclosure of confidential information.”

Lukacs called the move “unconstitutional” and said it restricted freedom of expression.

“You can’t imagine a small claims court making a confidential decision,” he said. “Read what you want.”

Passengers should be able to know the outcomes of cases heard by the regulator’s complaints bodies, Lukacs argued, adding that the decisions could benefit other travellers seeking compensation or refunds from an airline – including customers who booked the same flight – and other complaints.

Otherwise, the decision-making process will become a kind of black hole that shields decision-makers from control and responsibility, he said.

“Once mediation becomes a binding decision-making process, it can no longer be treated confidentially unless it concerns very, very important issues such as the protection of victims in cases of sexual assault.”

But federal legislation says otherwise. Recent changes to Canada’s Transportation Act state that, at the request of the complainant or the airline, the regulator “may decide to keep any part of an order confidential” – except for some key parts of the decision, such as the flight number, date and whether a delay was within the airline’s control.

In an email, Transport Authority spokesman Jadrino Huot referred to the legislation and stressed that decisions made by complaints officers “may not be published” unless all parties agree.

The question largely hinges on the constitutionality of the changes themselves. Paul Daly, chair of administrative law and governance at the University of Ottawa, argues that the routine non-publication of decisions of quasi-judicial bodies violates the principles of public jurisdiction enshrined in the Charter of Rights and Freedoms.

“These provisions would create mechanisms for binding mediation and adjudication that would operate largely in secret,” he said in a blog post in May 2023, shortly before the changes came into force.

“Decision-making would be done in secret, based on previous decisions and policies that have come to light only to the extent the agency wishes. Public trials should be the basic principle, but it has little weight (in this bill).”

Lukacs also claims that the Transportation Authority’s mandate does not extend to enforcing laws against individuals, unlike airlines.

The regulator’s action comes as the backlog of complaints reaches a record high of over 72,000, and is expected to rise further in the short term after more than 100,000 WestJet customers had their flights cancelled due to a mechanics strike over the Canada Day long weekend.

This report by The Canadian Press was first published July 10, 2024.

Christopher Reynolds, The Canadian Press