Executive Summary: Key Legal and Evidentiary Issues

• Air Passenger Rights challenged the constitutionality of subsection 85.09(1) of the Canada Transportation Act (CTA), arguing it violates the open court principle and section 2(b) of the Charter.
   
• Justice Hackland granted the Applicant public interest standing given the issue's significance to the flying public.
   
• The court had to determine whether the Complaint Resolution Officer (CRO) process qualifies as an adjudicative tribunal to which the open court principle applies.
   
• Applying the Federal Court of Appeal's test from Canadian Broadcasting Corporation v. Canada (Parole Board), the court found the CRO process remains substantially adversarial and adjudicative.
   
• Under the Oakes test, the Respondent failed to justify the blanket confidentiality requirement as a reasonable limit under section 1 of the Charter.
   
• Subsection 85.09(1) was ultimately read down, limiting confidentiality to mediation records while leaving CRO decisions and orders subject to public access.
   

Facts of the case

Air Passenger Rights, a federal not-for-profit corporation that advocates for air passenger rights, brought an application seeking a declaration under section 52(1) of the Constitution Act, 1982 that subsection 85.09(1) of the CTA is unconstitutional. In 2023, Parliament enacted amendments diverting most air passenger compensation complaints away from the Canadian Transportation Agency's (the "Agency") prior process to a new "CRO process," under which Complaint Resolution Officers (CROs), who are Agency staff rather than Governor-in-Council appointees, mediate and, where mediation fails or is declined, adjudicate complaints. Subsection 85.09(1) imposes a blanket confidentiality requirement over all matters related to a complaint, unless the complainant and carrier agree otherwise. Air Passenger Rights argued this confidentiality requirement violates the open court principle and the freedom of expression guarantee in section 2(b) of the Charter, and sought either a reading down of the provision to exclude adjudicative records or, alternatively, a declaration that it is of no force and effect. The Attorney General of Canada opposed the application, and the Canadian Broadcasting Corporation (CBC) intervened in support of Air Passenger Rights.

Policy and legislative provisions at issue

The central provision was subsection 85.09(1) of the CTA, which requires that "all matters related to the process of dealing with a complaint shall be kept confidential," subject to agreement between the complainant and carrier, and restricts the use of information provided to a CRO. This was considered alongside sections 85.04 to 85.12 of the CTA, which establish the CRO complaint process, including eligibility screening, an optional mediation stage, and final adjudication where mediation does not occur or fails. Paragraph 85.14(1)(a) of the CTA was also relevant, as it requires the Agency to publish summaries of CRO orders containing limited details such as flight number, date of departure, and whether compensation was ordered. The Applicant relied on section 2(b) of the Charter (freedom of expression, encompassing the open court principle) and section 52(1) of the Constitution Act, 1982, while the Respondent relied on section 1 of the Charter to argue any infringement was a reasonable and justified limit.

Reasoning and analysis

The court first granted Air Passenger Rights public interest standing, noting the issue's importance to the airline industry and travelling public and the Applicant's experience in passenger advocacy. Turning to the merits, the court identified the threshold question as whether the CRO process is properly characterized as an "adjudicative tribunal" to which the open court principle applies, adopting the functional test set out by the Federal Court of Appeal in Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166. Although the 2023 amendments introduced a more informal, mediation-oriented model with fewer procedural formalities, the court found the CRO process continues to involve clearly adjudicative functions, including statutory interpretation, fact-finding, jurisdictional determinations, and binding written decisions enforceable as orders of the Federal Court or a superior court. Since mediation is optional and adjudication is the default outcome for most complaints, the court concluded the process remains substantially adversarial and subject to the open court principle. Moving to section 1 of the Charter, the court applied the Oakes test and accepted that facilitating efficient adjudication of passenger rights complaints was a pressing and substantial objective. However, it found no persuasive evidence that the blanket, non-discretionary confidentiality requirement was necessary to achieve that efficiency, particularly given the absence of evidence that the CRO process functions primarily as mediation, and given the sizable backlog of unresolved complaints. As a result, the court held the Respondent had not discharged its burden of justifying the provision as a reasonable limit on the open court principle and section 2(b) of the Charter.

Ruling and overall outcome

The application succeeded. The court ordered that subsection 85.09(1) of the CTA be read down so that its confidentiality requirements apply only to records generated during the optional mediation stage, and not to adjudicative records, including CRO decisions and orders. This order was stayed for 90 days to allow the Respondent, the Attorney General of Canada, time to make any necessary administrative arrangements. Air Passenger Rights, as the successful party, was awarded its costs of the application; the amount was not specified in the decision, and the parties were directed to attempt to resolve costs themselves or provide written submissions to the court within 30 days.