Title: The Open Court Principle and the Use of NDAs in Air Passenger Complaints

Date: Thursday, November 13, 2025

Description: This talk examines efforts by airlines and the federal government to limit passengers and the media from discussing legally binding decisions in air passenger complaints, including the reasons and evidence behind them.

Openness in judicial and quasi-judicial proceedings is a right protected by the Charter. That right has come under pressure in recent years, not only through airlines’ use of non-disclosure agreements with passengers, but also through a 2023 amendment to the Canada Transportation Act. The amendment imposes confidentiality on evidence, reasons and decisions in air passenger complaints, preventing passengers from discussing how their cases were resolved. The provision is now the subject of a Charter challenge.

Speakers:

Podcast: 

Transcript:

00:00:00
Okay, thanks everyone for coming.
00:00:03
Welcome to today's webinar on the open court principles and the use of non-disclosure agreements or NDAs in air passenger complaints.
00:00:13
This webinar is part of the Consumer Protection Law course here at Queen's Law.
00:00:18
If you have any questions about the course, especially if you're a current Queen's student, please feel free to contact me after the webinar and you can find my contact information on the Queen's Law website.
00:00:30
For those of us joining from the Queen's campus, I acknowledge that Queen's is situated on traditional Anishinaabe and Haudenosaunee territory, and we are grateful to be able to live and learn on these lands.
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I'd now like to welcome our guest speaker for today, Dr.
00:00:47
Gábor Lukács, a leading expert on air passenger rights.
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Dr.
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Lukács received his PhD in mathematics from York University in 2003,
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He held post-doctoral fellowships at the University of Bremen and Dalhousie University, and assistant professorships at the University of Manitoba and Dalhousie.
00:01:07
Since 2008, Dr.
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Lukács has been advocating for air passenger rights.
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He has filed more than two dozen successful applications with the Canadian Transportation Agency, which resulted in orders directing air carriers to amend their conditions of carriage to the benefit of passengers.
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In 2013,
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The Consumers Association of Canada awarded Dr.
00:01:30
Lukács its Order of Merit for initiating legal action that resulted in changes to Air Canada's unfair practices regarding overbooking.
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In 2023, the Public Interest Advocacy Centre awarded Dr.
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Lukács the Harry Gao Award for Outstanding Advocacy in Transportation Competition and Essential Services.
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Dr.
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Lukács has appeared before courts across Canada as both a party and an intervener, including the Federal Court of Appeal and the Supreme Court of Canada.
00:02:07
In 2024, Dr.
00:02:08
Lukács intervened at the Supreme Court of Canada in the airline's challenge to the air passenger protection regulations, in which the court decisively sided with consumers.
00:02:19
Particularly relevant to today's talk,
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Particularly relevant to today's talk, he successfully challenged the CTA's lack of transparency and the reasonableness of the CTA's decisions at the federal court.
00:02:37
In 2025, Dr.
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Lukács was awarded the King Charles III Coronation Medal for his service to the community, to Nova Scotia, and to Canada.
00:02:48
In terms of the format for today's talk, we will have time for questions at the end.
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And you can, but I'll be monitoring that Q&A box that you see at the bottom of your screen as we go along.
00:03:01
So as questions come to you, feel free to type them in there in the moment.
00:03:06
And then I'll gather those questions and we'll have the Q&A at the end of the talk.
00:03:12
So welcome, Dr.
00:03:13
Lukács, to Queen's Law, and I'll hand things over to you.
00:03:17
Thank you very much, and thank you for this kind invitation to be at this seminar, this public talk, and I'm very grateful to Professor Henderson and Queen's University for this opportunity.
00:03:31
I just would like to start with a disclaimer, just because I know that some airlines and their lawyers are probably watching and looking for new ideas of how to be difficult with us.
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I just want to be clear that I'm not a lawyer.
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It is not legal advice.
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And this is just for academic purposes only.
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So don't try it at home.
00:03:55
I would like to start with just giving you a bit of background of how this issue of openness in
00:04:05
airline complaints and the open core principle and the non-disclosure agreements came to be and then go back through more systemic history of it.
00:04:16
So let me begin from a very recent event.
00:04:21
Let's just give you like in a Shakespearean play, who is who.
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We have the Canadian Transportation Agency, which is an economic regulator of the airline industry.
00:04:33
It adjudicates consumer disputes between passengers and airlines, and it is supposed to be an arm's length from Transport Canada, although some people will argue that it's a very stubby arm.
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Then we have Danny Ross, who at all time is material, an employee of this federal regulator.
00:04:50
He's acting director of the Dispute Resolutions Branch.
00:04:53
And then there is Tim Roger, a passenger who in 2024 won a complaint before the Canadian Transportation Agency at WestJet, and he to his bad luck, he actually dares to post
00:05:06
the ruling in his case, in his favor, in our Air Passenger Rides Canada group.
00:05:11
So this is where the story starts.
00:05:13
And here's now Tim's own account of what he recalls happening around July 4th.
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So he says, I was driving in downtown Chicago when it, the call came in.
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He, that was Danny Ross, the government agent,
00:05:29
was polite, introduced himself, and said that it had been brought to his attention that I had posted the decision online.
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I told him that I had posted it on a private group.
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He said it was confidential, and as such, I was not to be sharing it.
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And according to Tim, I was afraid that I might get in a load of trouble.
00:05:48
So eventually, he just agreed to remove a decision upholding his competing as widget from a Facebook group.
00:05:57
out of fear that he may get into trouble.
00:06:01
This was not the end of the story, though.
00:06:03
The same Danny Ross then, about 5 days later, sent me an e-mail asking me to cooperate with the Canadian Transportation Agency in suppressing passengers, posting about their own decisions, their own cases, the evidence that has been happening, the situation has been happening with them in our Facebook group.
00:06:27
So this is the text of his e-mail.
00:06:31
And he was thanking me for my collaboration in preventing future public sharing of confidential information.
00:06:38
And thank me for my collaboration.
00:06:42
Now, we are going to talk a bit more about why this was so troubling and it's more historic background.
00:06:52
But let's first acknowledge that
00:06:56
in a very technical sense, Danny was referring to an existing legislation that was passed by Parliament.
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And that's section 85.09, subsection 1 of the Canada Transportation Act, which has been enforced since September 2023, which
00:07:16
does actually make confidential all documents, all evidence, all information provided by a passenger and the airline to the complaint resolution officer dealing with a passenger's complaint against an airline, unless both parties agree to share it or make it public.
00:07:37
And of course, airlines are not going to rush to agree to share anything about their practices, anything that they always claim that everything, anything they do is top seek
00:07:47
and it's going to cause them a lot of harm if they share it.
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So essentially, this is a provision that does indeed render this type of information confidential.
00:07:56
So let me just acknowledge that Danny Ross was not bluffing.
00:08:03
There was indeed such a
00:08:07
provision.
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There is such a provision on a law box, and that's part of why we are deeply concerned with air passenger rights.
00:08:13
Because it didn't stop with that phone call in 2024, but in 2025, the Canadian Transportation Agency posted on its website a notice about an intention to amend its regulations
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The Canadian Transportation Agency's designated provision regulations sets out specific provisions of the act and other regulations that if a person or a corporation violates them, then they can be punished.
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by way of an administrative monetary penalty.
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It's essentially a fine.
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And it's like maybe a speeding ticket type of structure where they send you a notice, we believe you validated this.
00:08:54
And if you disagree, then you have to go to the Transportation Appeal Tribunal of Canada and have a full hearing there.
00:09:00
So that's the very same provision, just to be clear, this provision that we are talking about, which requires the confidentiality,
00:09:08
that is the provision that they are proposing or they were proposing to add to the list of provisions that are designated in a way that if you violate it, then you will be facing a fine.
00:09:23
Needless to say, we don't think it's right.
00:09:27
So in May, earlier this year,
00:09:31
we, that's air passenger rights, commenced an application in the Ontario Superior Court of Justice for a declaration, on the one hand, that is provision under which this entire phone call was happening, which
00:09:45
purports to make all the evidence, all the decisions, all the reasons confidential is unconstitutional and it violates Section 2B of the charter and cannot be saved by Section 1 and declaration that actually the failure to make the decisions and the orders and the reasons for them public is itself a violation of Section 2B of the charter that cannot be saved by Section 1.
00:10:10
And if you're interested, that hearing is going to happen in March 2020.
00:10:16
And stay tuned.
00:10:17
We will have more information on it in our social media channels.
00:10:20
So we are pursuing this very, very vigorously, this constitutional challenge.
00:10:27
But let's make a step back and discuss now why this is wrong.
00:10:32
And of course, if you just think as an average citizen without putting on your legal instinct or law student or lawyer hat, there's something fundamentally wrong with a government agency
00:10:44
telling any citizen, you should not talk about this or that thing that happened to you.
00:10:49
That should raise some alarms.
00:10:52
But there is a far deeper issue there, because theoretically you could say, well, yes, it may not be right, but parliament made a law, and if that law is passed by parliament, then you just have to follow it.
00:11:03
However, there is a charter issue, because the right to know what is happening in court in legal proceedings
00:11:12
and access to exhibits is not just a question of what feels right to you.
00:11:17
It's not just a question of your think or your opinion of what is right, but it's actually a well-established legal right in the Canadian and, in fact, a common law legal system.
00:11:28
And that is tying us to, bring us to the discussion on the open court principle.
00:11:33
So the open court principle substance is about information about court proceedings.
00:11:40
It entails
00:11:41
public's access to information.
00:11:44
So you as a member of the public have a right to know what is happening in the courts.
00:11:52
It entails the media's right to gather information and to publish and broadcast that information.
00:11:58
And it entails also listeners' and viewers' rights to receive that information from the media.
00:12:03
In reality, you are not going to sit in every courtroom across Canada and listen to all court hearings.
00:12:10
It is the media and reporters that do that service for the public, for us as citizens, and therefore the media's access to court hearings and including exhibits is vital.
00:12:23
In practice, I'm not sure if you've ever done it before.
00:12:25
I've done it a number of times.
00:12:27
There was an interesting federal court case I found, and I went down here in Halifax.
00:12:31
They have amazing court stuff here at the Halifax Registry, went down there and said, hi, I would like to have a look at file number T1234 of 2024.
00:12:41
And then they would order it for me, the full big box of documents from Ottawa, and I would actually be able to go through each and every document that was filed in the federal court in that particular file and make copies of it.
00:12:53
photos, take scans, do it as I please, because those documents are public, they're on a public record, and I have the right to think about them, to express opinions about them, to publish about them, to do with them as I please.
00:13:07
Those are all public information.
00:13:11
There are, of course, some exceptions to the open core principle, and that is well recognized.
00:13:16
The leading case currently in Canada is the Sherman Estate from Supreme Court of Canada.
00:13:21
But the overarching principle is that, for example, we want to protect the identity of young persons, even if they are young offenders under the various youth criminal legislation, and very importantly, victims.
00:13:36
If somebody, God forbid, is a victim of a sexual assault, we don't want that person to have to necessarily have their name out there.
00:13:46
In many cases, there are presumptions of publication bans to protect the innocent, to protect the victims.
00:13:52
There's also protection for accused rights to fair trial, sometimes in jury selection or in bail hearings or in some pre-trial procedures and criminal proceedings.
00:14:02
You do have information in the courtroom that could affect the accused's right to a fair trial.
00:14:08
Those things are covered typically by publication ban, automatic or not.
00:14:13
And then there's the last category of national security that comes to mind where you don't necessarily want on public record information about informants or how
00:14:25
Canada's security services collected information to thwart a terrorist attack.
00:14:30
There are also other categories which are recognized.
00:14:32
I'm just touching on it quickly, which things like nuclear secrets, it's more national security, I guess.
00:14:38
There can be some kind of commercial trade secrets where some part of the information must be made confidential in order to protect the
00:14:51
purpose of why they are confidential to begin with, but these are really exceptions.
00:14:56
The general rule is that court proceedings have to be public.
00:14:59
And this is not something just coming from a charter.
00:15:02
It's coming from much earlier times.
00:15:05
One of the cases that I've seen cited in Canadian Supreme Court decisions, and I myself have been referring to in a court challenge that I launched, which we're going to talk about in a moment,
00:15:15
And it's Scott versus Scott, that's from House of Lords.
00:15:18
And the issue there before the House of Lords was the validity of an order directing an embarrassing divorce case be heard in camera.
00:15:26
And just like in the Canadian Transportation Agency's case, whether parties were required to keep details of the hearing in secret after the trial.
00:15:35
This is exactly what happened to our hero, who, Tim,
00:15:42
who posted about the outcome of his case.
00:15:45
It was gloating, glowing that, yes, I won my case against WestJet.
00:15:49
Here's my decision and my favor, just like about 100 years ago happened in Scott versus Scott.
00:15:58
So different law lords weighed in on this issue.
00:16:03
These are just a few quotes or a few points that I'd like to highlight.
00:16:08
Vikund Heldane said, to justify an order for hearing in camera, it must be shown that the paramount object of security and justice is done would really be rendered doubtful of attainment if the order were not made.
00:16:19
So essentially, it has to be necessary for the functioning of the court for making justice to actually make the proceeding confidential.
00:16:27
Earl Lerburn actually went further.
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It said, Earl Lermer said that it is not that a court ought to refrain from exercising its power in such a way is that a court does not possess such a power.
00:16:37
So even it's not
00:16:38
clear to Earl Learnborn whether even the court can make an order to not talk about what happened at trial afterwards.
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And Lord Shaw of Dunfermline cited actually Jeremy Bentham with approval, which was very poetic.
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If you read those, the truth reasons, very poetic and very well written, very passionate reasons about the importance of ensuring that court proceedings remain public.
00:17:05
In the darkness of secrecy, sinister interest, and evil in every shape have full swing.
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Only in proportion, as publicity has placed, can any of the checks applicable to judicial injustice operate.
00:17:18
Where there is no publicity, there is no justice.
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and then going on, publicity is the very sole of justice.
00:17:24
It is the keenest spirit to exertion and the surest of all guards against improbity.
00:17:30
It keeps the judge himself while trying under trial.
00:17:35
And the security of security is publicity.
00:17:37
It really rhymes in some ways with Justice Brandy's, you know, sunlight is a bad disinfectant, different contexts, but it really shows how
00:17:46
More than 100 years from now, and before the charter, it was a strong sentiment, a strong consensus legally that court proceedings have to be public, and not only in the UK.
00:17:58
When we turn to Canada, this is a case before the charter, the Nova Scotia Attorney General versus McEntire case from 1982.
00:18:06
It's a pre-charter case where the Supreme Court of Canada very firmly and strongly rejected the idea that privacy of litigants
00:18:16
would in and of itself be sufficient to render, to outweigh the right to public hearing, the public's right to know what is happening in the legal system.
00:18:29
And the constrations being invited here are also very compelling.
00:18:33
One is about public confidence in the integrity of the legal system.
00:18:37
And it again comes back to the same notion, the same idea from
00:18:46
the Scott versus Scott, that the curtailment of public accessibility, access to judicial proceedings, is warranted only if there is a need to protect social values of support, subordinate importance, like protection of the innocent.
00:19:03
This is a very strong cautionary wording already from 140 years ago, that
00:19:15
The openness of the court proceedings is not to be taken lightly.
00:19:18
It is not just an afterthought.
00:19:21
It's not just a ceremonial purpose.
00:19:23
It has a very important function going to the integrity of the entire legal system.
00:19:31
Now, after charter came into place in CBC versus New Brunswick, the court actually held that the open court principle is inextricably tied to the right to guarantee bisection to be of the charter.
00:19:45
And the rationale is a very obvious one.
00:19:48
It allows public access to information about the courts.
00:19:52
It allows discussion, putting forward opinions, and criticizing.
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It is essential for freedom of expression, freedom of ideas, and
00:20:02
The right of members to obtain information about the courts is itself inherently tied to the freedom of expression, freedom of speech, which is protected by Section 2B of the Charter.
00:20:16
Moving on to the next milestone is already a 2004 decision from the Vancouver Sun, which again reminds
00:20:28
Courts reminds decision makers that openness is necessary to maintain independence and impartiality of the courts.
00:20:35
It's integral to public confidence in the judicial system and the public's understanding of the administration of justice.
00:20:42
There's also an aspect that more and more coming into those authorities raising the point that the more the public understands how justice is being made, the more the public is likely and willing to comply with judicial decisions.
00:20:57
The upshot of all this is that the open core principle, to put it mildly, is not to be lightly interfered with.
00:21:03
Yet another very stern warning from our top court.
00:21:09
This is not to say that the open core principle is absolute.
00:21:13
As we know under section one of the charter, legislation can sometimes limit freedoms,
00:21:20
subject to the Oaks test.
00:21:21
The Oaks test is the legal test, the framework to decide whether a government action or legislation infringes the charter right in a manner which is justified under Section 1 of the charter.
00:21:32
And courts have developed a number of tests, the de Gannet, the men took the test earlier than the Sierra Club test and the Sherman test to balance freedom of expression and other important rights and interests.
00:21:44
Which essentially what those tests do in the way I've been described by the courts is that they incorporate the Oak's test.
00:21:53
They are the adaptation of the Oak's test in a way to the specific question of freedom of expression, open core principle versus other important societal interest.
00:22:06
So it is not to say that the Oak's test is
00:22:13
different or that these are superseding.
00:22:15
It's just that in a specific context of open core principle, one has to adopt and those tests have been adopted for reduced and more easy to apply framework.
00:22:26
And looking at the current state of the law, the Sherman test, that it's about, Sherman is about discretionary exercise of confidentiality.
00:22:36
So say,
00:22:37
You are arguing an intellectual property case before the federal court, maybe a patent case, and you must ensure that some trade secrets are not put on the public record.
00:22:49
And you make a motion under Rule 151, 152, a federal court's rules, seeking confidentiality order.
00:22:55
And then a court would be looking at these factors
00:22:59
to whether or not to exercise a discretion in a minute that limits open court presumption.
00:23:04
And the three factors are whether there is a serious risk to important public interest, whether it's necessary to prevent serious risk because there is no reasonable minimal other alternative measures that goes well with the minimal impairment aspect of the Oaks test, and whether as a matter of proportionality, the benefits of the order outweigh its negative effects.
00:23:28
So that's about the judicial exercise of this question.
00:23:35
And then we come back to Canadian Transportation Agency.
00:23:39
If we have all this law, all this constitutional rights to open core principle, how does it jive with what the CTA was doing?
00:23:47
Now, one thing that opponents of our position is going to say, yes, but that's our core.
00:23:52
It's about Canadian Transportation Agency is that administrative tribunal.
00:23:56
And
00:23:57
Let's just pause for a moment and ask ourselves, in Canada, when it is raining, what happens?
00:24:03
There are mushrooms and new administrative tribunals coming up.
00:24:08
One of the changes over the past few decades, if you even think of a more classic book like Unjust by Design, probably, I think it's 20 or more year old,
00:24:19
about how we have shifted in Canada from just purely judicial exercise of authority to a lot of administrative decisions.
00:24:28
We do have lots of administrative decisions happening, but not every administrative decision is of the same nature.
00:24:35
So it's important to distinguish that many decisions are made in a quasi-judicial capacity or proceedings.
00:24:44
And already going back to a 1979 decision from the Supreme Court of Canada, this is an important delineation.
00:24:51
What is quasi-judicial and what isn't?
00:24:54
So the factors, the considerations that have been articulated by the Supreme Court of Canada and adopted by lower courts are the following four factors.
00:25:05
Whether there is something that contemplates some form of hearing before a decision maker, and a hearing can also be a paper hearing in writing.
00:25:14
It doesn't have to be in a room or be over Zoom.
00:25:17
It can be just something in writing.
00:25:19
Whether a decision or order directly or indirectly affects the rights and obligations of persons.
00:25:24
That's a very, very important consideration if there is an adversarial process and if there is an obligation to apply substantive rules to many individual cases rather than an obligation to essentially make policy.
00:25:36
The more something feels like a policy, the less it's quasi-judicial.
00:25:40
the more it is about weighing concrete facts, weighing, looking at how the law applies to those facts, maybe weighing the law, that would be quasi-judicial.
00:25:50
So what happens with open court principle in the quasi-judicial context?
00:25:54
The first answer is coming from federal court from 1987, actually, from Southam versus Canada.
00:26:00
The issue there was whether immigration detention or some form of immigration proceedings should be open for the public.
00:26:09
And the federal court says, absolutely yes.
00:26:12
The court applied there the same test from the Supreme Court of Canada for determining what is a quasi-judicial capacity and said that those type of decisions that were being made were of a quasi-judicial nature and it is not unreasonable to extend to such proceedings the open core principle.
00:26:33
The rationale here was that
00:26:36
When something walks like a duck, quacks like a duck, it's a duck.
00:26:40
So this kind of tribunals are doing essentially what courts would do.
00:26:45
They're exercising the same type of function.
00:26:47
They are part of the administration of justice.
00:26:50
They need to have legitimacy to have confidence in their integrity.
00:26:55
The public needs to understand how they work, why they work in that given way.
00:27:00
So the same principles that justify and tie freedom of expression and charter rights to the openness of courts also apply with the same force to quasi-judicial tribunals.
00:27:16
Now, jumping ahead a couple of decades,
00:27:19
In Saskatchewan Court of Queen's Bench, in Germain versus Saskatchewan, the same issue came up.
00:27:25
At that point, it was a clash between open core principle and privacy rights.
00:27:33
In this case, the applicant was complaining that the decision relating to her would be posted on the website or some form of publicly made public of a quasi-judicial body.
00:27:47
And the Saskatchewan Court of Queens Bench went back again to McIntyre decision and said, these dicta are still the law in Canada, in my view, applied to adjudicative tribunals, which although not courts, have a quasi-judicial function.
00:28:03
Again, the same logic as from the federal court before.
00:28:07
If it functions in the same way, the same
00:28:11
type of function in terms of society as court and in particular the adversarial process and determination of rights and obligations, then the same principles must apply to it.
00:28:24
So these privacy arguments that have been advanced, they should not be given any effect.
00:28:34
Now let's look back again at our Canadian Transportation Agency.
00:28:37
The Canadian Transportation Agency is established by the Canada Transportation Act, and it consists, and I'm talking about before 2023, staff members who are necessary for the proper conduct of business and conduct facilitation and mediation of complaints, and members
00:28:55
who are like judges who make orders, decisions, rules, regulations, they exercise the quasi-judicial powers of the Canadian Transportation Agency.
00:29:04
They can make binding decisions.
00:29:07
And in a 2014 decision, the Federal Court of Appeal very eloquently succinctly summarized the Canadian Transportation Agency's 2 key functions.
00:29:16
One of them was
00:29:18
In its role as a quasi-judicial tribunal, it resolves commercial and consumer transportation-related disputes.
00:29:26
So there can be no genuine dispute that, at least in those times, and of course we say that even later, the Canadian Transportation Agency has been acting in a quasi-judicial role with respect to passenger complaints.
00:29:40
When we look at the Canadian Transportation Agency's own rules of procedure, it seems that they have taken to heart the open core principle.
00:29:48
And they had an older set of rules, which required every document to be placed on public record unless there was a claim of confidentiality made in accordance with the rules.
00:29:58
And the new rules say essentially the same.
00:30:02
All documents go on public record unless the person makes a confidentiality claim is granted in accordance with the agency's rules.
00:30:12
So in its face, it looks like the agency knows what it's supposed to do or knew what it was supposed to do again before September 2023.
00:30:23
Everything was good, because right in their rules that they have to follow the open core principle.
00:30:27
So thumbs up, right?
00:30:29
Oh, well.
00:30:30
As it so often happens in our country, just because you have rules written down doesn't mean that bureaucrats are going to follow them or not try to interpret them in a way that they find it favorable to whatever agenda they have.
00:30:43
So when yours truly, in March 2024, February, wrote to the Canadian Transportation Agency that I wanted to have
00:30:54
to view, I don't have access to a file that was decided by the members, and I told them I'm seeing access under Section 2B of the Charter.
00:31:04
What I got back was heavily reducted documents.
00:31:08
They essentially treated it as if I had made a request for access under the Access to Information Act, which I could have done it possibly, but I have chose absolutely not to, because as a member of the public,
00:31:22
I have Section 2B rights under the charter to access those adjudicative records of a Canadian Federal Tribunal.
00:31:30
I don't need to go through the access to information.
00:31:32
I don't want to go through it.
00:31:34
would be actually to my disadvantage with all these exemptions so that they could then apply discretionary, God knows what.
00:31:41
We don't need to go there.
00:31:43
Just the same way that I can walk down to the courthouse here in Halifax and look at any file which is not confidential, have the same right
00:31:49
with the Canadian Transportation Agency, which they say here black and white that it is on public record.
00:31:55
So you really wonder what kind of public record it is, which is not really public, which you get things reducted from it.
00:32:02
And as it turns out, what they were reducting was the name and e-mail address of council acting for Canada in the proceedings, names of their Canada employees involved, and substantial portion of submissions and evidence.
00:32:16
So we're not just talking about date of birth, credit card, which by the way, they cannot redact under the open court principle, but it would at least morally would not be so affront to common decency.
00:32:28
What those being reducted is quite substantial information about how the adjudication process was happening, who were the witnesses, and so on.
00:32:37
I made a final demand for unredacted documents, and I got back a full page of a longer letter in which the, I believe, was the chairperson of the Canadian Transportation Agency at the time, who was going on and on about how Section 8 of the Privacy Act prevents the Canadian Transportation Agency from giving to me information which was, by the agency's own rules, supposed to be on public record.
00:33:04
And I really love this paragraph about, although agency case files are available to the public for consultation according to the open core principle, personal information containing such files, such individual's home address, personal e-mail address, personal phone number, date of birth, blah, blah, blah, is not available for consultation.
00:33:26
So
00:33:27
It's a public, it almost sounds like a socialist joke, maybe a Soviet Union joke, that it is public record unless you ask for it by which one it becomes non-public.
00:33:37
Or they used to say that there's a freedom of speech, freedom of expression in the Soviet Union, but just there's no freedom after expression.
00:33:49
Of course, I would not take this
00:33:54
And I will not take no for an answer here because it is after a constitutional right.
00:33:59
So I filed an application for judicial review in the Federal Court of Appeal.
00:34:03
And I'm just mentioning it went right to the Federal Court of Appeal because of specific provision in the Federal Courts Act.
00:34:11
And instead of just coming to argue the case, the Canadian Transportation Agency then
00:34:16
tried to throw a curveball at me, arguing that, trying to quash the application on the basis that the requirements of the access to information were not met.
00:34:26
So they were yet again trying to force me to go through the Access to Information Act, even though I clearly made statements that I'm not asset under that act.
00:34:38
I don't want to go through that act.
00:34:40
I'm asserting just my constitutional rights as a citizen.
00:34:44
just the same way we go down to the Halifax Courthouse to access documents.
00:34:49
Fortunately, a couple months later, Justice Webb from Federal Court of Appeal dismissed the agency's motion to question.
00:34:56
This is an important decision, which unfortunately is not published, so this is why I'm emphasizing it perhaps.
00:35:01
The agency did not refer to any provision of the Access to Information Act that provided the only right to obtain information from that agency is by submitting a request under that act.
00:35:12
Indeed, the access to information is actually to augment, to enhance access to information in Canada.
00:35:18
It is not to...
00:35:20
to somehow restrain or restrict that order, the right of public to access information or charter rights.
00:35:27
So that was done upon the procedural part and trying to just sidetry the whole process.
00:35:34
And eventually, next year, the Federal Court of Appeal also held that what the Clean Transportation Agency was trying to do was impermissible.
00:35:43
If it isn't public record, it isn't public record.
00:35:48
They cannot just claim that something isn't a public record, but you cannot access it at all.
00:35:55
And that typical privacy argument was thrown out, and I finally got access to the documents.
00:36:07
And from that point on, the
00:36:11
The Canadian Transportation Agency was more responsive to request if I wanted to have access to documents.
00:36:18
It was also warning people that if you put information there, it will be put on public records.
00:36:22
So if you don't want your credit card number there, don't include it there, which is the correct approach.
00:36:27
That's what happens in courts.
00:36:28
Nothing special, nothing surprising about it.
00:36:35
One more aftermath, which is beyond the Canadian Transportation Agency, is a challenge by the Toronto Star to Ontario's Freedom of Information and Protection of Privacy Act.
00:36:48
Because what that act was used or purported to do is to prevent Ontario adjudicative tribunals from disclosing personal information in adjudicative records of Ontario tribunals.
00:37:03
And the upshot of the decision was that those provisions of the Ontario privacy legislation were deemed to be of no force and effect because they were violating Section 2B of the Charter and not justified under Section 1.
00:37:18
And in its aftermath, Ontario also passed the Tribunal Adjudicative Records Act in 2019, which actually positively requires and creates some kind of scaffolding for the public to obtain access to such records.
00:37:32
And you know you don't have to
00:37:33
to go to the Freedom of Information and Protection of Privacy Act.
00:37:37
There's no such requirements in Ontario either.
00:37:39
It's a charter right.
00:37:40
And obviously, if a tribunal is acting in a quasi-judicial capacity, you do have a right to access the decision documents that they are basing their decision on.
00:37:56
So now let's digress a little bit and ask ourselves,
00:38:01
Where is all this secrecy confidentiality is coming from?
00:38:06
And this is where the non-disclosure agreements come into play.
00:38:11
So non-disclosure agreement or a confidentiality clause is essentially an agreement or a clause in agreement requiring the parties to keep certain information confidential.
00:38:21
It can be, in many cases, very legitimate, like intellectual property.
00:38:27
If you have a discussion, if you're an inventor, you have a discussion with investors or valuators, certainly you don't want them to be at liberty to share with whoever they want, your design, your concepts, your algorithm, your unpatented manufacturing process, which you're hoping to patent.
00:38:41
So all this makes perfect sense in mergers, acquisitions, joint ventures.
00:38:47
It's quite common for companies to share high-centive financial information with each other.
00:38:52
And of course, you need to be able to do it
00:38:54
in a way that you can be sure that the information is not going to go to anybody.
00:39:02
Employment contracts too.
00:39:04
You may be working for a company which has its own trade secrets.
00:39:08
They know how to make especially that particular type of beer or a thing of Canada or some financial data or customer list.
00:39:18
And maybe you are an insurance sales agent for an insurance company.
00:39:22
You can have your own notebook for your own customer.
00:39:24
customers, that if you leave that company, you cannot just take all the customers with you.
00:39:28
That would be a bit of a problem.
00:39:29
So there are, of course, legitimate uses of NDA, and that's where it's coming from.
00:39:34
It's necessary for normal business.
00:39:36
However, there's also been an abuse of it, which was called out by the Canadian Bar Association in 2023, where it was being used to cover up shabby corporate conduct, workplace harassment, abuse in schools, youth clubs, religious institutions,
00:39:54
you name it, this have been used also to essentially give use compensation legitimately owed to victims as hush money.
00:40:03
Here's your money and keep your mouth shut about it and never, ever talk about it.
00:40:07
And let's make no mistake, if you do sign an NDA, it is a lifelong commitment.
00:40:14
Even if you were 20 when you signed it and you talked about it and you're 70, you could still be sued.
00:40:18
And if you got some money when you were 20, they can demand back that money from you when you're 70, unless there is some waiver or some law which says that those are not enforceable.
00:40:28
Certainly when it comes to this type of abuses,
00:40:31
it would be very welcome to outlaw them.
00:40:33
I know there are a number of people advocating for outlawing NDA in a variety of areas.
00:40:38
Construction law would be another area where, in Ontario, I know there are lots of problems with construction law where these are also an issue.
00:40:50
Okay, but how does it come to passenger rights?
00:40:53
Well, airline, just like any other large corporation, love to use various myths
00:40:59
to tell customers, yeah, we're going to settle with you, we're going to pay your compensation, but please sign this NDA here, sign this confidentiality clause.
00:41:06
So what are the three main myths that we have seen here?
00:41:11
One is that it is part of a standard form of full and final release.
00:41:18
You agree to sign a release, so you agree to NDA as well.
00:41:22
You have to sign an NDA as part of the settlement.
00:41:25
The second part, the second type of myth is that the law requires you to keep terms of settlement confidential.
00:41:31
And we have, there was an article, so in the CBC's Go Public last year about it, if I recall it correctly, where even a lawyer for an airline was claiming that settlement privilege somehow required the passenger to agree to more than what actually required by law.
00:41:46
They will even tell you that it is unreasonable to reject an offer to settle because they want to include NDA and it is reasonable to insist on NDA as a condition for settlement.
00:41:55
So let's just have those myths in our mind and let's go through them one by one and let's see what actually the law is.
00:42:02
So the first one that is part of a standard form of final settlement, actually the law is the opposite.
00:42:13
A confidentiality clause is a significant burden on a party.
00:42:16
It represents a restriction of his or her freedom of speech.
00:42:21
A party may agree to such a clause, but he or she must be asked for it.
00:42:26
So an airline or a corporation cannot argue that when you agree to settle and you agree to sign the release, you implicitly agree to an NDA.
00:42:35
That is busted.
00:42:39
The next myth
00:42:41
is about the settlement privilege.
00:42:43
It can be very intimidating as a passenger when you receive this kind of blurb from a lawyer, oh, they must know what they're saying, that by settlement privilege, you have to read to confidentiality.
00:42:53
And the answer is no.
00:42:55
Settlement privilege is not an NDA.
00:42:58
It is an evidentiary rule.
00:43:00
What settlement privilege stands for is that if you have settlement discussions, you cannot use them as evidence in court normally.
00:43:09
There are some exceptions when there is a question of what actually has been agreed upon.
00:43:14
But just because the airline said, well, I think our case is really weak.
00:43:18
We should probably pay you.
00:43:20
cannot show it to the judge and say, well, your honor, they admitted their case is weak.
00:43:25
Now, please reveal my favorite.
00:43:26
That's not possible.
00:43:27
That's what settlement privilege is about.
00:43:29
If maybe you exchange documents as part of settlement negotiations,
00:43:34
there may be a settlement provision attached to whether they can or cannot use that.
00:43:37
But Supreme Court of Canada again reminds us that when is the rule of evidence that there is a binding agreement.
00:43:43
Rules of evidence, you cannot kind of contract out.
00:43:47
But whether you do or do not agree to an NDA, it's up to you.
00:43:50
And if you get an e-mail from an airline telling you,
00:43:54
We want to have settlement negotiations with you, but we want you to commit that you won't disclose that we talk to you about it.
00:44:00
You can just say, sorry, if you have an offer, give it to me, but I cannot and will not commit to any kind of confidentiality.
00:44:06
If you don't like it, tough.
00:44:08
The airline either will then give you an offer to settle or will not give you an offer to settle, but they have no way, no right to impose confidentiality unilaterally on you, and they love to mislead passengers about it.
00:44:20
And the third issue is about how reasonable or unreasonable it is to try to impose an NDA or try to reject an NDA because reject an offer to sell because there is an NDA.
00:44:31
So first of all, it is not unreasonable to reject an offer that requires you to sign an NDA.
00:44:37
There is a recent case from British Columbia Supreme Court
00:44:40
It was usually this type of offer to settle issues come up in the context of cost awards.
00:44:45
And the airline may argue, well, we should get a bigger cost award because we had this great offer for the passenger, but they turned it down or to plaintiff in this case, but not an airline case.
00:44:59
But actually, you are perfectly within your right to turn down an offer to settle, which includes an NDA,
00:45:05
I would, however, personally suggest that you made it clear that you're turning it down because of the NDA and not for other reasons that can help you if it comes to issue of cost.
00:45:17
Now, it is actually unreasonable to insist on NDA as a condition for settlement, at least in the context of airlines.
00:45:24
This is a case when WestJet was trying to do it to a passenger and the judge, the small claims court judge from Ontario, did not mean
00:45:34
his or her words in criticizing the airline.
00:45:38
The inclusion of a term in the defendant's offer that is, that this court cannot order, i.e.
00:45:43
confidentiality clause, is problematic.
00:45:46
This relief was not claimed in the defense filed.
00:45:48
Further, this court's jurisdiction is statutory.
00:45:52
It could not order a non-disclosure agreement.
00:45:54
And it goes on.
00:45:56
Courts cannot condone hardball tactics between litigants, especially in circumstances where there is a power imbalance within a corporate litigant, here the second largest airline in Canada, and an individual.
00:46:11
While I do know the defendant made an offer to sell the week before trial, that offer had a serious defect.
00:46:18
It did not allow for Mr.
00:46:20
Douglas to receive his long overdue refund without other strings attached.
00:46:25
So actually, the ND was a serious defect.
00:46:28
And the court goes on, I find the defendant's withholding of monies that admitted it owed,
00:46:34
in a 72-year-old painted for more than two years and seven months after the commencement of litigation to be an unreasonable action within the, I think it should be meaning, I'm not sure which is remaining, but I think it should read meaning, the meaning of Rule 1906.
00:46:49
Now, Rule 1906 is about special cost awards against unreasonable party, and that's what happens.
00:46:56
I find the circumstances that is reasonable to impose a cost penalty under Rule 1906,
00:47:02
And in assessing a fair and reasonable penalty, I take judicial notice of the headlines of a record number of complaints over the past two years by Canadians or Canadian Transportation Agency and a current backlog of roughly 71,000 cases.
00:47:17
This was in 2025 in March.
00:47:21
By now, it's 86,000 complaints, by the way.
00:47:24
So this decision, if you are arguing on the airline side at some point,
00:47:30
Be careful not to make this type of behavior because this case is a stern warning that the airline should not try to impose NDA on the passengers.
00:47:41
If you're a passenger, of course, you should always be reasonable.
00:47:44
If they give you a good offer, which gives you what you want, I would accept it.
00:47:49
But if they try to attach an NDA to it, write it back and create a paper trail, I'm rejecting this offer because
00:47:57
You are trying to constrain, restrict my freedom of expression, trying to attach an NDA to it, and that's not acceptable to me.
00:48:09
So now let's go back to after this to, again, what happened since September 2023 and this whole complaint resolution CRO process was created.
00:48:20
So this was created in the Budget Implementation Act of 2023, omnibus bill.
00:48:26
Now, airlines complaints would be handled by complaint resolution officers who are CTA staff, not necessarily members.
00:48:34
The CRO do mediation adjudication.
00:48:37
And the fact that they do some mediation is the excuse, I think, the government is trying to advance partly as to why they are trying to impose this type of blanket confidentiality.
00:48:49
And to avoid the existing case law and rules on openness and public access obligations, they put in there that proceedings before a complaint resolution officer are not proceeding before the agency.
00:49:00
This provision itself is causing lots of other problems.
00:49:03
Judicial reviews now going to federal court.
00:49:07
Judicial review can be instituted in any question, not just in question of law or jurisdiction, no leave requirements.
00:49:12
So of course, we warned lawmakers that this would be a problem, but
00:49:18
government was not listening as usual.
00:49:21
If you go to our website, we do have a detailed brief which sets out all the problems about this new regime that they were introducing.
00:49:29
So where are we right now?
00:49:32
Decisions, reasons, and evidence are no longer accessible to the public, to the media, to passengers, but only to a handful of airlines and their lawyers who are the frequent respondents to complaints.
00:49:43
Think of Air Canada.
00:49:44
They're handling thousands or 10s of thousands of cases
00:49:48
before the CRO.
00:49:49
They can compile big books of cases, big statistics, they can run AI, you name it, to draw advantage from the information they gain from all these interactions.
00:50:01
But passengers, for them, it's a one-off case.
00:50:03
There's one case they take you to the CRO.
00:50:05
They don't know how these cases are being handled normally.
00:50:07
Airlines have also been trying to use this type of decisions in other cases or in small claims courts, even though it's supposed to be confidential.
00:50:15
What actually does get published under Section 85.14 is just skeletal information of no use, like flight number and maybe some one-line outcome.
00:50:25
No reasons, no evidence, no logic, nothing.
00:50:29
But it's even a bigger problem.
00:50:31
Passengers, reporters, NGOs like us, members of the public, who discuss decisions, reasons, evidence about airline complaints, could be facing reprisal.
00:50:43
Let's remember, the Canadian Transportation Agency was proposing to impose fines for those who violate Section 85.09, subsection 1.
00:50:52
That's why we are going to be in court next March to ask the court to read down Section
00:50:59
85.09 and declared it's unconstitutional.
00:51:03
That's a provision that would prevent public discussion.
00:51:06
And I would like to just leave you with one question with respect to all this.
00:51:11
Cui Bono, who benefits from all these rules?
00:51:15
Thank you.