Court denies airlines' intervention in air passenger rights case

Case Summary

Air Passenger Rights v. Attorney General of Canada, Court File No. CV-25-00100065-0000 (Ottawa)

The Ontario Superior Court of Justice has dismissed a motion by four of Canada's major airlines for leave to intervene in a Charter application commenced by Air Passenger Rights (APR). APR is small, volunteer-driven not-for-profit advocate for Canadian air travellers.

The motion, brought by Air Canada, WestJet, Jazz Aviation LP, Air Transat, and the National Airlines Council of Canada, sought leave to be added as parties to APR's proceeding, or in the alternative, to be granted leave to intervene as a friend of the court. The motion was brought in January 2026, after cross-examinations had been completed, prior intervention motions had already been disposed of, and facta were near complete among the main parties in advance of the March 17 hearing date.

APR's claim takes issue with subsection 85.09(1) of the Canada Transportation Act, which imposes a blanket confidentiality requirement over all decisions, orders, and adjudicative records in the air passenger complaint proceedings adjudicated by complaint resolution officers under the Act. Notably, while members of the public and air passenger complainants in these proceedings are prohibited from accessing or sharing any of these records, four airlines are the defendants to over 80% of the claims brought in this forum and have accrued a massive database of precedent materials and information about how the claims are decided. APR argues that these confidentiality rules under the Act violate the section 2(b) right to freedom of expression guaranteed by the Charter. Freedom of expression is closely related to the open court principle that applies to courts and tribunals.

APR opposed the airlines' participation in their Charter application. On hearing the airlines' motion, Williams J dismissed it in its entirety, agreeing with APR's submission that it was improper for the airlines to introduce new section 1 justification arguments to uphold the legislation that had not been put on the record by the Attorney General of Canada. Her Honour also agreed with APR that the balance of the submissions proposed by the airlines were duplicative of the Attorney General's position:

I am persuaded by the arguments set out in APR’s factum at paras. 66 to 72 to the effect that a proposed intervenor is not entitled to reframe the arguments of the parties to the application nor may a proposed intervenor attempt to defend legislation on a basis other than the basis relied upon by the government that enacted it. I consider the proposed submissions of the airlines to be duplicative of the position of the AG, in that both intend to argue that if s. 85.09(1) of the CTA violates the Charter, it should be saved under s. 1 of the Charter. More significantly, I agree with APR’s submission that, to the extent that the airlines’ proposed submissions are not duplicative, the airlines intend to base their s. 1 argument on a legislative objective other than the one advanced by the AG and one for which there is no foundation in the record. This is impermissible. Further, in my view, rather than assisting the court, the airlines’ proposed submissions would muddy the waters and detract from the arguments of the parties.

Her Honour's reasons can be read in full here. APR's factum on the motion to intervene can be viewed here. The CBC was previously granted leave to intervene as a friend of the court on the main application.

APR is represented by Douglas W. Judson of Judson Howie LLP.

For more information, please contact:

Douglas W. Judson (he/him)

Judson Howie LLP

Email: doug@judsonhowie.ca