The Canadian Transportation Agency is silent on whether it will appeal a court order that it stop concealing documents cited in regulatory decisions. The disclosure order followed a legal challenge by an airline passenger rights’ advocate who accuses the Agency of “collusion” with industry.
“This is a very important ruling that upholds the constitutional principal that judicial proceedings should be transparent,” said Dr. Gábor Lukács of Halifax; “These same documents are public at any federal court – affidavits, submissions, statements of claim – and they should be public at the Transportation Agency.”
The Agency declined comment on the case. Lukács sued after staff censored submissions it used in rejecting claims for compensation by a family bumped from an Air Canada flight from Toronto to Cancun, Mexico in 2012. Redactions in the file included the name of the airline’s attorney and statements from other passengers, Lukács said.
“They were stonewalling over something that was actually silly,” said Lukács. “We’re not talking about nuclear secrets. They were using the Privacy Act as a smokescreen.”
Other regulatory agencies like the Canadian Radio Television & Telecommunications Commission routinely publish all documents and industry submissions cited in regulatory decisions. In the Air Canada case, the Agency withheld information it considered confidential after publishing the Cancun decision on its website.
Court of Appeal Justice C. Michael Ryer, a former tax attorney, ruled the Agency breached the “open court principle which generally requires that such proceedings, the materials in the record before the court and the resulting decision must be open for public scrutiny.”
“The term ‘publicly available’ appears to me to be relatively precise and unequivocal,” Judge Ryer wrote; “I interpret these words as meaning available to or accessible by the citizenry at large.”
“These rights of access to court proceedings, documents and decisions are grounded in common law, as an element of the rule of law, and in the Constitution as an element of the protection accorded to free expression,” Judge Ryer added.
The Agency mediates disputes in air travel, marine and rail shipping. The disclosure order did not appear to be of any obvious benefit in commercial disagreements, said Robert Ballantyne, president of the Freight Management Association of Canada.
“It’s useful to see background information, but for instance in final offer arbitration over rail rates — that kind of information is commercially sensitive and would not be released,” said Ballantyne; “No member of ours has ever gone to the mat on this. Commercial disagreements are obviously different than when you’re dealing with airline passengers.”
Lukács said he sued for access to Agency records after concluding its handling of the Cancun passengers’ claim “sounded very fishy to me”; “My sense of the Agency is there’s systemic bias against passengers without evidence, without cross-examination, nothing. I saw a lack of due process,” he said.
“What is disturbing is the collusion between the Agency and industry,” Lukács said. “They have said documents are redacted in consultation with industry; there is no record of it; this is just an informal arrangement. To my mind that is collusion.”
Members of the Agency include Sam Barone, former chief lobbyist for the Canadian Business Aviation Association, appointed to the regulator by cabinet in 2013. “Just because a party asks for confidentiality doesn’t mean the agency has to grant it without a legal test on whether any potential damage from disclosure outweighs the public’s right to know,” Lukács said.
The court ordered regulators to release its uncensored files, and awarded Lukács $750 plus costs.
By Tom Korski 
