Confidentiality of air passenger complaint proceedings ruled unconstitutional

Case Summary

Air Passenger Rights v. Attorney General of Canada, 2026 ONSC 3983

On July 9, 2026, the Ontario Superior Court of Justice ruled that a provision of the Canada Transportation Act (CTA) that imposes blanket confidentiality over virtually all documents and communications relating to air passenger compensation claims (including all adjudicative records and decisions) unconstitutionally limits the right to freedom of expression.

In Air Passenger Rights v. Attorney General of Canada, Hackland J found that subsection 85.09(1) of the CTA violated the open court principle. The open court principle is inextricably tied to the constitutional guarantee of freedom of expression protected by section 2(b) of the Charter. His Honour found that the offending subsection infringed section 2(b) and could not be saved by section 1 of the Charter, which permits infringements "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

Hackland J's order read down subsection 85.09(1) of the CTA such that it only applies to the (optional) mediation stage of the air passenger complaint proceedings and not to the (default) adjudicative stage of the process. "Reading down" is a constitutional remedy by which a court narrows the application of legislation so that it operates only within constitutional limits. His Honour has stayed his order for 90 days in order for the government to make such administrative changes as may be required to implement the court's order and provide open access to adjudicative records in air passenger complaint proceedings.

Background to the Application

The applicant, Air Passenger Rights, is a federal not-for-profit corporation that provides information and resources to members of the public relating to air passenger rights, issues, rules and legal processes. It advocates on behalf of the general public to improve air passenger rights and conditions for air travelers in Canada.

In 2023, Parliament enacted new sections of the CTA that diverted most air passenger claims for compensation away from an existing procedure administered by the Canadian Transportation Agency (Agency) to a new framework set out in section 85.04 to 85.12 of the CTA. Under this new framework, recourse is available to passengers where an airline has not fulfilled its obligations under its tariff (the contract of carriage between a passenger and an air carrier) or the Air Passenger Protection Regulations (APPR) (which prescribes mandatory obligations that are incorporated into the airline's tariff).

Under these new sections of the CTA, air passenger disputes are determined by complaint resolution officers (CROs). The CTA specifies that (i) CRO decisions are not decisions of the Agency, (ii) CROs have the powers, duties, and functions of a CRO, and not of the Agency, and (iii) proceedings before a CRO are not proceedings of the Agency.

The CTA requires that when an air passenger complaint is filed, the CRO must first attempt to mediate the complaint. Mediation is only available where the parties agree to it. If mediation is not agreed to - or fails - then the CRO adjudicates the complaint. The CRO can make orders for compensation to be paid to an air passenger or for compliance with a term or condition of the airline's tariff. Orders made by a CRO are enforceable as orders of the Agency, and orders of the Agency can be taken out and enforced as orders of the Federal Court or of a provincial superior court.

Subsection 85.09(1) of the CTA governs the confidentiality of the CRO process. It states that "[a]ll matters related to the process of dealing with a complaint shall be kept confidential, unless the complainant and the carrier otherwise agree, and information provided by the complainant or the carrier to the complaint resolution officer for the purpose of the complaint resolution officer dealing with the complaint shall not be used for any other purpose without the consent of the one who provided it."

The Agency actively enforces this section. The evidence filed by Air Passenger Rights confirmed that the Agency refuses to release decisions and orders of CROs to members of the public (including the applicant), that it repeatedly cautions complainants against sharing information about their proceeding or its outcome with others, and that it polices social media for published decisions or information it feels violates this confidentiality provision. Although not directly at issue in the application, recently the government proposed to introduce administrative monetary penalties (fines) for violations of subsection 85.09(1).

Notably, the evidence of the respondent's witness was that four major airlines account for the vast majority of all passenger claims. This means that while the confidentiality rules impair the expressive activity of passengers and members of the public seeking information about CRO decisions, airlines have had the opportunity to develop significant databases of resources relating to these proceedings.

The Infringement of Freedom of Expression

The applicant argued that subsection 85.09(1) violated the freedom of expression guaranteed by section 2(b) of the Charter and that the violation could not be saved by section 1. Section 2(b) states that everyone has the "fundamental freedom" of "expression, including freedom of the press and other media of communication."

Section 2(b) has been found to be "inextricably tied" to the open court principle. The open court principle protects the openness and public access of proceedings before courts and tribunals, including access to adjudicative documents and adjudicative decisions. Hackland J acknowledged that the open court principle enjoys the constitutional protection of section 2(b) of the Charter. He observed that "[t]he law is well settled in Canada that members of the public have a right to information pertaining to public institutions." He also emphasized that freedom to disseminate information necessarily includes "the right to gather news and other information without undue governmental interference."

In contrast, His Honour found that subsection 85.09(1) "establishes a blanket confidentiality requirement covering 'all matters' related to the process of dealing with a complaint and respecting information provided by either the complainant or the carrier to the CRO", including the CRO's decision on the complaint.

While the Attorney General submitted that the 2023 amendments to the CTA created a "mediation-style" or "informal, resolution-based" process and not an adjudicative framework, the court did not agree. His Honour found that the adjudicative stage of the CRO process met the characteristics of an "adversarial proceeding" to which the open court principle applied. Referencing a recent Federal Court of Appeal decision, the court stated that the key determinant was whether the CRO "decide[d] questions of rights and duties as between citizens and the state." His Honour concluded that the CRO is, in fact, engaged in a number of activities that are clearly adjudicative, including statutory interpretation, making findings of fact, determining jurisdiction, rendering written decisions, fixing compensation, and making orders that can be enforced as court orders.

As a consequence of this finding, His Honour readily concluded that subsection 85.09(1) violated the Charter because once it was determined to be an adjudicative process, the open court principle and section 2(b) were engaged. His Honour went further and observed, presumably in reference to the evidence of the Agency's enforcement of subsection 85.09(1), that "when it refuses to release decisions, orders and other CRO documents to the Applicant or to the media upon request, [the Agency] infringes the expressive rights of these parties and is thereby in contravention of the open court principle and sec[tion] 2(b) of the Charter."

The Provision is Not Justifiable Under Section 1

Legislative enactments that automatically limit court openness require justification under section 1 of the Charter. To determine whether the infringement of section 2(b) of the Charter was a reasonable limit, the court applied the framework from R. v. Oakes. The "Oakes test" requires the court to consider (i) that the legislative provision relates to a "pressing and substantial objective" and (ii) that the means deployed to achieve this objective are reasonable and demonstrably justifiable in a free and democratic society. To be justifiable, the limitation on the Charter right must be rationally connected to the aim of the legislation, must minimally impair the Charter right, and there "must be proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right."

The Attorney General submitted that the purpose of the 2023 amendments and the CRO process was to achieve efficiency and improve the processing of these high-volume, low-value complaints by moving them away from the quasi-judicial tribunal setting of the Agency towards a more "informal, collaborative resolution dispute model". The court accepted that "[t]he purpose of the legislative scheme is to facilitate the efficient adjudication of the rights of the air travelling public in relation to the airline tariffs and the airlines’ APPR obligations."

However, the court observed that there was no evidence that the CRO process is primarily mediation based, and in fact, it appeared that most outcomes of the CRO process were adjudications. Mediation itself, as the court noted, was not mandatory, with adjudication being the default route for all proceedings. Regardless, Hackland J recognized that Air Passenger Rights was not seeking access to mediation records or outcomes, but rather adjudicative records and decisions.

The court concluded that there was no persuasive evidence that this broad, confidentiality requirement is necessary or required to achieve efficiency in the adjudication process or to prevent the release of "confidential" information. Hackland J stated that "so far as evidence before this court is concerned there is a real question as to the utility of the provision in connection with efficiency. Further there is no clear or persuasive justification for the breadth and mandatory (as opposed to discretionary) application of the provision."

His Honour concluded that the Attorney General was unable to justify subsection 85.09(1) of the CTA under section 1, and that, in particular, the confidentiality requirement in the subsection was "overly broad and non-discretionary and unduly restricts the open court principle". His Honour read down the subsection in the manner recommended by the applicant, such that confidentiality would only apply to the mediation stage of the CRO process. The court's order was stayed for 90 days to permit the government to make the necessary administrative arrangements to implement the court's order.

Air Passenger Rights was awarded the costs of its application.

Takeaways and What Comes Next

This decision stands as the latest in a series of cases confirming that the open court principle is not only Charter-protected, but that it applies to the adjudicative records of administrative tribunals. In this respect, Toronto Star v. AG Ontario and Canadian Broadcasting Corporation v. Canada (Parole Board) are noteworthy for articulating the criteria for determining the application of the open court principle to a tribunal.

This line of cases is factually distinct from Ontario (Public Safety and Security) v. Criminal Lawyers' Association, which examines the application of section 2(b) to governmental records that are not adjudicative in nature. While discretionary restrictions of expression set out in legislation are constitutional because the Dagenais/Mentuck test incorporates balancing considerations, mandatory restrictions on expression that automatically limit openness require justification under section 1 of the Charter (see, for instance, Toronto Star Newspapers Ltd. v. Canada, at paras. 18-19).

One particularly significant aspect of Hackland J's decision is the court's rejection of the Attorney General's characterization of the CRO process as primarily mediation-based. The court accepted that confidentiality is an important feature of mediation but found that adjudication (not mediation) is the default route for proceedings under the statutory scheme. Since Air Passenger Rights sought access only to adjudicative records, not mediation materials, the Attorney General's justification for blanket confidentiality largely collapsed.

The court also did not strike down subsection 85.09(1). Instead, it granted the narrower remedy sought by the applicant by reading the provision down so that confidentiality continues to protect mediation while restoring openness to adjudication. The decision therefore preserves Parliament's objective of encouraging settlement while removing the constitutional defect identified by the court. Consistent with appellate guidance, this limits the court's intervention to the extent of the provision's constitutional infirmity.

Interestingly, His Honour took notice of public statements by cabinet ministers relating to the current backlog of air passenger complaints under the 2023 CRO process. This is likely in reference to recent news reports that the federal government is looking to again reform the process governing air passenger complaints by outsourcing the process to third party independent adjudicators. The details of this new process remain unknown and it is unclear if it will continue to be an adjudicative one to which the open court principle and the Charter apply.

Presumably, the court's decision in this application nixes (or complicates) the government's bid to levy fines for alleged violations of subsection 85.09(1) of the CTA.

Air Passenger Rights was represented by Douglas W. Judson of Judson Howie LLP. The CBC, which intervened in the proceeding, was represented by Sean Moreman.

For more information, please contact:

Douglas W. Judson (he/him)

Judson Howie LLP

Email: doug@judsonhowie.ca

Further reading:

• Decision

• Applicant's factum

• Respondent's factum

• Applicant's reply factum

• Summary of the prior decision on the airlines' unsuccessful motion for leave to intervene in this proceeding