Executive Summary: Key Legal and Evidentiary Issues

• Scope of the open court principle and public access to Complaint Resolution Officers’ decisions under s. 85.09(1) of the Canada Transportation Act (CTA) in light of s. 2(b) of the Charter
• Constitutional challenge to a statutory confidentiality clause alleged to infringe freedom of expression and not justified under s. 1 of the Charter
• Proper threshold and criteria for granting leave to intervene as a friend of the court under Rule 13.02 in a constitutional and public-interest proceeding
• Assessment of whether Charter Advocates Canada offers a distinct, useful perspective, special expertise, or identifiable membership base sufficient to justify intervention
• Risk of duplicative submissions versus genuinely “unique and useful” contributions when another public-interest intervenor (the CBC) has already been granted status
• Costs treatment for an unsuccessful, good-faith public-interest intervenor and the court’s refusal to award the Attorney General’s requested $2,000 in costs

Background and facts of the case

Air Passenger Rights is a not-for-profit corporation that advocates for the rights of Canadian air passengers and provides information and resources to the public on air passenger rights issues, rules and processes. It operates as a public-interest body concerned with transparency and accountability in the federal air passenger protection regime. In 2024, Air Passenger Rights was denied access to decisions and reasons issued by Complaint Resolution Officers (CROs) in five complaint cases, along with the documents relied on by those CROs. The refusals were based on the confidentiality clause in s. 85.09(1) of the Canada Transportation Act (CTA), SC 1996, c. 10, which restricts disclosure of information in the complaints process. In May 2025, Air Passenger Rights commenced an application in the Ontario Superior Court of Justice against the Attorney General of Canada. The applicant seeks a declaration effectively reading down the confidentiality clause in s. 85.09(1) of the CTA. It argues that, under the open courts principle, it should have access to the CRO decisions and underlying documents and that the confidentiality provision violates the freedom of expression guarantee in s. 2(b) of the Canadian Charter of Rights and Freedoms and cannot be saved by s. 1. The Attorney General responded to the application and filed affidavit evidence, including an affidavit from the Director of National Air Services Policy at Transport Canada, who has worked on the Air Passenger Protection Regulations (APPR) file since March 2018. This evidence is intended to provide a policy and operational context for the confidentiality provision and the complaints regime.

The parties and existing intervenor

The main parties to the application are Air Passenger Rights as the applicant and the Attorney General of Canada as the respondent. Both sides have filed affidavit material and legal submissions addressing the constitutionality of s. 85.09(1) in relation to the open court principle and s. 2(b) of the Charter. The parties consented to the Canadian Broadcasting Corporation (CBC) being added as an intervenor. As a national public broadcaster, CBC’s mandate is to inform Canadians on matters of public interest, including the proper functioning of the APPR complaints process. Justice Doyle accepted that CBC brings a distinct and useful perspective because its participation will address how the confidentiality clause in s. 85.09(1) affects the broadcaster’s ability to gather, report and disseminate information necessary to fulfill its mandate. The Court granted CBC intervenor status and allowed it to file written argument limited to 10 pages and oral argument limited to 10 minutes.

Statutory and constitutional issues engaged

The central statutory provision discussed in the decision is s. 85.09(1) of the Canada Transportation Act, which contains a confidentiality clause governing the use and disclosure of information in the APPR complaints process. Air Passenger Rights challenges this clause, asserting that it improperly shields CRO decisions and supporting materials from public scrutiny and undermines the open courts principle. Constitutionally, the application raises alleged violations of s. 2(b) of the Charter—the freedoms of thought, belief, opinion and expression, including the right to receive and disseminate information about government decision-making. The applicant contends that the confidentiality constraint cannot be justified under s. 1 of the Charter using the Oakes proportionality framework. While the merits of the constitutional challenge are not decided in this motion, the intervenor applications are assessed against the backdrop of these issues, which include the proper balance between confidentiality in administrative processes and transparency and accountability in a free and democratic society.

Legal framework on intervention

Justice Doyle applies Rule 13.02 of the Ontario Rules of Civil Procedure, which permits the court to grant leave to intervene. The court must consider the nature of the case, the issues raised, and whether the proposed intervenor is likely to make a useful contribution to the resolution of the case without causing injustice to the parties. Appellate and Superior Court authorities such as Foster v. West, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., Reference re Greenhouse Gas Pollution Pricing Act, and Caruso v. Law Society of Ontario are cited to outline these requirements. The court recognises that the test for granting leave to intervene is more relaxed in constitutional cases. In such matters, the litigation may have broad impact beyond the immediate parties, and interventions can help ensure that affected groups and perspectives are heard, including historical and sociological context on the rights at issue. In constitutional cases, a proposed intervenor must establish at least one of the following: a real, substantial and identifiable interest in the subject matter of the proceedings; an important perspective distinct from the immediate parties; or status as a well-recognised group with special expertise and a broadly identifiable membership base. The overarching consideration is whether the proposed intervenor can assist the court by bringing a different perspective not already covered by the parties’ submissions. Leave may be refused where the proposed submissions would simply duplicate those of existing parties or intervenors.

Charter Advocates Canada’s proposed intervention

Charter Advocates Canada (CAC) brought the motion at issue in this decision, seeking leave to intervene as a friend of the court under Rule 13.02. CAC is a not-for-profit legal organisation that provides pro bono legal services in constitutional and Charter cases. According to the record, its eight or nine lawyers and staff focus on defending Charter rights, including freedom of belief and expression under s. 2(b), and have acted for intervenors in other litigation. In this matter, CAC argued that its intervention would not be duplicative and that its focus differs from that of Air Passenger Rights. The applicant, according to CAC, concentrates on the specific conflict resolution procedure before the CTA’s Complaint Resolution Officers, whereas CAC intends to address the broader impact of the confidentiality provision on the Canadian public as a whole. CAC relied chiefly on the criterion that it could offer a unique and useful perspective. In its draft factum, CAC proposed to make two main sets of submissions. First, it would examine the impact of s. 85.09(1) on the freedoms of thought, belief, opinion and expression of Canadians who wish to obtain CRO decisions to disseminate, discuss and criticise them as a means of holding government decision makers accountable. Second, CAC would address the effect of the confidentiality clause on transparency and accountability as part of the proportionality analysis under s. 1 of the Charter. It intended to argue that limits undermining government transparency and accountability run contrary to the values of a free and democratic government and should be weighed accordingly at the final stage of the Oakes test. CAC also emphasised that the case is one of public importance rather than a purely private dispute, pointing to authorities that suggest the intervention standard is not applied as stringently in such public-interest contexts, particularly where constitutional interpretation and justification of legislation are at stake.

Reasons for denying CAC intervenor status

Despite CAC’s experience in Charter litigation and its pro bono public-interest mandate, Justice Doyle concluded that it did not meet the criteria for intervention in this case. The Court found that CAC had not demonstrated a “real, substantial and identifiable interest” in the subject matter of the proceedings beyond a general desire to shape Charter jurisprudence on s. 2(b) and s. 1. A general aspiration to influence the development of constitutional law was held to be insufficient to ground leave to intervene. The Court also determined that CAC had not identified a truly distinct perspective from that of the immediate parties, or one that would add historical or sociological context not already before the Court. The supporting affidavit did not describe a defined membership base or particular constituency that would be concretely affected by the outcome of the challenge to s. 85.09(1). Justice Doyle noted that, although CAC’s objectives are laudable and its lawyers possess Charter experience, its proposed submissions focused on government transparency, accountability and public criticism of government institutions—issues already integral to the applicant’s challenge and to the CBC’s participation as a media intervenor. In the Court’s view, CAC’s involvement in constitutional litigation did not, on its own, translate into a unique or necessary perspective on how the impugned confidentiality clause affects Canadians. The Court accordingly found that CAC’s proposed role and submissions did not satisfy the requirements articulated in Reference re Greenhouse Gas Pollution Pricing Act and related cases, and that they did not promise a non-duplicative, distinct contribution that would materially assist the court.

Costs and overall outcome

On the issue of costs, the Attorney General of Canada requested an award of $2,000 against CAC in connection with the unsuccessful motion. Justice Doyle declined to make such an order. The Court emphasised that CAC is a non-profit entity acting in the public interest, that the case engages important Charter questions about transparency and government accountability, and that CAC’s motion was driven by a desire to assist the court and shape Charter law rather than by self-interest. Taking those factors into account, the Court decided that it would not be appropriate to burden CAC with a costs award, and specified that the motion would be dismissed without costs. Overall, in this decision the Court grants intervenor status to the CBC with defined limits on written and oral submissions, but dismisses Charter Advocates Canada’s motion for leave to intervene. In the context of this motion, the Attorney General of Canada is the successful party (opposing CAC’s intervention), while CBC also succeeds in obtaining intervenor status. No damages, costs, or other monetary relief are awarded to any party, and the total monetary amount ordered in favour of the successful party is therefore nil, as the motion is dismissed without costs.