The Current - Air passengers told not to post complaints online

Episode Date: November 29, 2024

Tim Rodger fought hard for compensation when his luggage was damaged on a WestJet flight. But when he won and posted about it online, he was told to take the post down. Some experts say there’s a worrying trend where passengers are being silenced by airlines, their lawyers and even the Canadian Transportation Agency.

In 2017, it felt like drugs were everywhere in the news, so I started a podcast called On Drugs. We covered a lot of ground over two seasons, but there are still so many more stories to tell. I'm Jeff Turner, and I'm back with Season 3 of On Drugs. And this time, it's going to get personal. I don't know who Sober Jeff is. I don't even know if I like that guy.

On Drugs is available now wherever you get your podcasts. This is a CBC Podcast. Hello, I'm Matt Galloway and this is The Current Podcast. Tis the season for, among other things, flying, and inevitably delays, cancellations, lost luggage, and other frustrating travel mishaps. The holidays are a busy time for air travel and travel complaints, but whether or not those complaints will be addressed or even fully visible is another story. Passengers say some airlines and the Canadian Transportation Agency are silencing them. One couple from Victoria fought for compensation after their WestJet flight was cancelled. Anna Gurney and her husband told their story on Facebook,

but said a WestJet lawyer asked them to take down the post. In the end, they had to sign a non-disclosure agreement in order to get their money. But before that, they talked to CBC's GoPublic. What is relevant now is to stop the airlines from doing what they're doing through their legal counsel and shutting people up and stopping them from moving forward. That's what this is about. Tim Rogers, another WestJet customer who

was asked to take down a post with details about his complaint. He's in Port Dover, Ontario. Tim, good morning. Good morning, Matt. Go back to December. You were on a trip back from Belize. What happened? I was at Belize airport. I checked in with WestJet. They weighed my bag. The porter behind the counter pulled the handle out on it, wheeled it into the back. When it came off the carousel in Toronto, the handle was still pulled out and it was mangled. And so I went to the West, immediately to the WestJet desk and complained. And they gave me a piece of paper and said, you can file a complaint through this, which I did. It was a smart bag that I purchased. It has fingerprint ID and charging stations and things on it. And I bought it as part

of an introductory special from a luggage manufacturer. It was regularly a $650 bag, but because it was an introductory sale, I only paid $500 for it just a couple of years ago. And when I went through the West jet compensation portion online uh it amongst things it asked me for a copy of the original receipt now i i which i had i had contacted the manufacturer about getting the bag fixed they said it can't be fixed i said i'll buy another one and it was 650 because it's not on sale anymore yeah so so i also provided west jet with a copy of the of the receipt for the replacement the identical bag same, same color, exact same bag, $650, along with the original receipt that they'd asked for. And WestJet came back to me and said, well, we're happy to pay you the $500 that you paid for the bag as compensation.

And I said, well, that doesn't work. The legislation says that you need to replace the bag, and I can't replace it for $500 at $650. So you went to, you went to the CTA, the Canadian Transportation Agency. No, I ultimately did, but this was, this was just with, with, with WestJet. Right. Okay. And I went through all the channels with them multiple times. So I, I argued with the agents at WestJet and I said, like, I can't replace this. They said that WestJet determines replacement value on what you paid for the bag. So I asked them, I said,

where in your tariff does it say this? And the lady on the phone said, oh, the tariff's just this long, boring legal document. I said, I know, I've read it. It doesn't say in there that that's how you calculate replacement value. And I tried to use some analogies. I said, if I worked for Samsonite for 40 years, a luggage manufacturer, and retired, and they gave me a $1,000 bag for free, and you guys wrecked it, you're going to give me zero because I don't have a receipt for it because I paid zero for it? And I said, well, if your dad had a $25,000 car, and because he's your dad, he sold it to you for $5,000. And that afternoon, it got wrecked. Would you want the insurance company to pay you $5,000 because that's what you paid for it? No, you want $25,000 because that's the replacement value for that car. And they kept saying, no, we're going to give you the $500. I ended up finding an executive online

and guessed at his email address and got through to an executive's office and his assistant. After going back and forth with arguments, i provided case law and some other things and said like the legislation says replacement value and they said it's 500 not 650 that's how we figured out if you don't like it right go to cta here's the link so i filed a complaint with cta provided the same arguments with them and uh they took a couple months but they ultimately agreed with me and said yes that is that is the legislation. You're supposed to replace it and replacement value. And they ordered WestJet to pay me the $650,000. And so you posted that decision up on this Air Passenger Rights Facebook group. This is the

same group that Anna Gurney posted in. What happened then? I simply put up the wording and said, hey, I won with WestJet. Here's the short version of it. And the people on the moderators of the page said, could you post the decision itself, which I did. Scanned it, posted it. And a couple weeks later, I got a phone call from Danny at the CTA. He was very polite. And he said, you posted this online. I said, yeah, I did.

He said, you're not supposed to do that. It's confidential. I said, it is? Yeah, it says right on the document. I said, it is? He said, yeah. It says right on the document. I said, I apologize. I didn't realize that. And I took it down.

And when I got home, I pulled it up. And it says, yeah, it does say at the top under the date and my name and things. It says confidential. Dear Tim and carries on. So just one word on there says confidential. I didn't even see that. The CTA, I mean, used to post these decisions in full online. Now only some information is posted up and Transport Canada told GoPublic that the CTA's new complaints

resolution process will, in its words, resolve disputes in a fast and fair way while protecting the privacy of Canadians. What do you make of that? Well, they can protect privacy and still post the full decisions. It's called redacting. They could take my name out. Do you think you're being silenced when they say take the post down? Absolutely. And what I wasn't smart enough to ask when CTA called me was, why is mine confidential? All it's doing is confirming what the legislation says and how to calculate replacement and what damages would be caused by me posting this what do you think this is about just finally it just sounds suspicious that uh that a government agency

is it feels like they're in bed with the airline to you that's what's going on here that's what it feels like why why else would they would they not want me to share this if i shared it if i had it shared publicly and you had the same problem that wouldn, wouldn't it be easy just to say to the airline, here's confirmation of the legislation. It saves going through the CTA and taking up everybody's time and taking months of time. It costs money to do it. Every time somebody has to go through this and then those results aren't published either. Tim, good to talk to you about this. Thank you very much. Thanks, Matt. Tim Roger filed a complaint, as you heard, against WestJet with the Canadian Transportation Agency. And one, he is in Port Dover, Ontario.

Gabor Lukacs is the founder of that Facebook group, Air Passenger Rights, the same group that Anna Gurney and Tim Roger posted in. Gabor, good morning to you. Good morning, Matt. these tactics from the Canadian Transportation Agency and from WestJet, telling people who have filed a complaint and been successful and then posted online about it that they need to take those posts down. I'm concerned about passengers' freedom of expression and about the right of passengers to share information with each other to ensure that they get ultimately the rights that the law provides for them. You've said that you worry that this is unconstitutional for them to do that. That's right. When it comes to the Canadian Transportation Agency,

this is a violation of Section 2B of the Charter, which guarantees freedom of expression. The government cannot come and tell without authority to citizens what they can or cannot talk about publicly. In a statement, WestJet told us confidentiality of outcomes is fundamental to ensuring that both parties can transparently explore both the unique circumstances and the unique solutions which might be available and lead to common ground. What do you make of that? In the case of the Gurneys, they had absolutely no obligation to sign an NDA, a non-disclosure agreement. What Wedget is saying holds no water. You may or may not want to agree to engage in confidential discussions with an

opposing party in a dispute. However, you don't have to, and there's no way they can compel you to confidentiality. A person cannot unilaterally impose on you confidentiality just by putting confidential on the letter they sent to you. So just because it said confidential on the letter to Tim Rogers and then he posts it up online, to your point, you don't believe that that binds that individual to keep quiet? In the case of Tim, it's different. He went to the Canadian Transportation Agency, which was a mistake. Under the so-called new procedure, there is a provision in the law itself that some information received in the adjudication process is supposed

to be kept confidential. However, we believe that that is unconstitutional, and sooner or later, of course, we'll strike it down as unconstitutional. In the case of Welch Tower and the Gurneys, there's no law whatsoever that requires them to keep those things, those discussions they had with the airline confidential. The only thing that you need to remember is that when you engage in settlement discussions, you cannot use that as evidence in court. So if Wedgett offers you $1,000 in compensation as a settlement offer, they cannot tell the judge, hey, look, I was offered this $1,000, and therefore I must be owing that amount. That is called settlement privilege. But you can tell it to your friends, you can put it on Facebook, wherever you want, just not to the judge.

What do you make of the fact that this government agency is monitoring your Facebook page? That is absolutely scary. It reminds me of the darkest dictatorships. It's methods that you would expect to be used in different regimes by the KGB, by the Stasi, not in a fear-democratic country. That seems to suggest that it's the KGB and the Stasi, East German police, that would be doing this. The CTA official told GoPublic,

this is just something we do as part of our regular business to ensure the integrity of our process and respect for the law. I am not buying it. There are important things where you do have to monitor social media. If you're looking for terrorists, you're looking for crime. These are peaceful Canadians who are exercising their freedom of expression and are trying to suppress expression. It should not be taken lightly at all. Back in 2015, the Federal Court of Appeal confirmed that the Canadian Transportation Agency's decision at that time had to be public, had to be, even exhibits had to be

shared with me, which at that time, this is not a new fight. The airlines have been trying, and the Canadian Transportation Agency on behalf of airlines have been trying to withhold documents, withhold information about complaints against airlines for a very long time. In 2015, they lost in federal court of appeal. And so this new legislation, this new process is an attempt to revive and redo what they already lost then. If you take one of these airlines to the complaints process and you win, why does it matter that you can't post a discussion about what happened to you on

social media? Why does it matter that they're asking you to be quiet if you've won in the first place? One reason is that other passengers should know how you won. They should know what the law is. Case law has very significant importance in our legal system, because if a case was decided in a particular way in one case, the law should be consistent, and on the same facts, you should have the same outcome. Also, you have to bear in mind that we are talking about a few large airlines that handle many thousands of complaints every

year, if not tens of thousands. So on the one hand, the airlines have all the information about how complaints are being handled, and they can do statistical analysis on it. They can adjust their strategy in subsequent cases based on how cases turned out. Passengers should have the same access to the same information, the same tools to succeed with their complaints. These decisions used to be made public. When did that change, and why did that change, do you think? That change happened in 2023 in the Budget Implementation Act. We warned the government and we warned lawmakers that this would raise freedom of expression issues, it would be unconstitutional, and they just overlooked it,

even though we have been very, very vocal about it, and we're not the only ones being vocal. So this is just part of the Canadian Transportation Agency's new and very troubling dispute resolution process. It doesn't add anything to efficiency. It merely helps airlines, as Tim said, to cover up their own shabby corporate conduct. There is this, informally it's called a passenger bill of rights that exists right now in this country.

And a CTA spokesperson told us that it has a backlog of nearly 80,500 unresolved complaints, but thanks to a new complaints resolution process, it has doubled the number of complaints resolved this year compared to last year. If you go onto that site though, I mean, for people who might have complaints, in some cases, you can't even figure out where you are in the queue because there are so many complaints perhaps in front of you. What do make of of how that dispute resolution process broadly is working that dispute resolution process is a failure because the problem was not with the process but with enforcement and the clarity of the laws yeah according to our

calculation even if they kept the current rate, what they call effective, just to clear that 80,000 backlog, it will take them five years to do so. Typically, many complaints are not being looked for 18 to 24 months from the time you file it. So the root of the problem is twofold. First, the rules are not what they should be. Canada should follow the European Union's gold standard, which have very simple and straightforward rules. Even in the United States now, there's this kind of no-hassle refunds process in the US, right? That's a different issue.

It doesn't provide for lump sum compensation, which is the main conflict. And the main thing is that in the European Union, it takes only five minutes to determine whether you're owed compensation because you need to look only at public information. Was there volcanic eruption? Anything else which is truly extraordinary,

if no money has to be paid. While in Canada, decision-making process requires looking at information which is in the airline's exclusive control and requires voluminous hundreds, if not thousands of pages of documents to review just for a couple hundred dollars' sake, which makes no sense.

That's problem number one. Problem number two is that the federal government is sabotaging the will of parliament when it comes to enforcing the APPR. Recently, just last year, parliament increased the amount of maximum fines that airlines can be fined to $250,000 per passenger per incident. But the government, the Canadian Transportation Agency, has not implemented those fines into regulations for more than a year, and they have not also revised their passenger protection regulations, which is what Parliament has been urging. They had a consultation last August, but that's it.

They are still not providing a timeline for when that will happen. So we have rules that are built in a way that are very difficult to enforce to begin with, and the federal government is not using the powers Parliament gave them to enforce the law. So of course airlines find it more profitable to not pay and stonewall passengers. That's what needs to change, and then we will see complaint numbers go down. Gabor, thank you very much. Thank you very much for having me. Gabor Lukacs is the president and founder of the non-profit advocacy organization Air Passenger

Rights. We did request an interview with the Minister of Transport, Anita Anand. She was not available to speak with us this morning. In 2017, it felt like drugs were everywhere in the news. So I started a podcast called On Drugs. We covered a lot of ground over two seasons, but there are still so many more stories to tell. I'm Jeff Turner, and I'm back with season three of On Drugs. And this time, it's going to get personal. I don't know who Sober Jeff is. I don't even

know if I like that guy. On Drugs is available now wherever you get your podcasts. Paul Daly is a research chair in the Administrative Law and Governance Program at the University of Ottawa. Paul, good morning to you. Good morning, Matt. You have said that this is inherently unfair when it comes to confidentiality. You talked about that before those rules from the Canadian Transportation Agency even took effect. Why do you think that this is inherently unfair? Well, I think your first guest, Tim, who would make a very good lawyer, by the way, if you ask me,

gave a very good lawyer, by the way, if you ask me, gave a very good example. I mean, he was talking about the issue about replacement value of luggage. And he was saying, well, if this is public, then other passengers would be able to rely on my case to make their case if their luggage got damaged. And he's right. And the fact that these decisions are kept confidential means that the airlines have access to dozens, if not hundreds of decisions, and they can rely on these before the transportation agency. Whereas your average passenger just simply doesn't have the same access, which means that the playing field is tilted in favor of the airlines in the adjudication process. Is that why this matters? Why, again, in your words, that open justice should be kind of the default principle here? Well, I think there are two things. I mean, Dr. Lukacs mentioned the Section 2B of the Charter and freedom of expression. And that's another important

principle here. The open court principle means that any Canadian can walk into any courthouse anywhere in Canada any day of the week and attend a trial or go to the registry and seek court documents. It's all open. And one of the reasons it's open is to promote our freedom of expression, so that we can talk about and debate at the water cooler, at the kitchen table, in Parliament and elsewhere. We can debate and discuss what's going on, what the meaning of replacement value is for luggage, things like that. And being able to talk about these things is the lifeblood of our democracy, and the open justice principle, things like that. Being able to talk about these things is the lifeblood of our democracy, and the open justice principle underpins that. People often talk about

these things on social media. Are you surprised that the Canadian Transportation Agency would be trolling through social media posts, contacting people about removing them if they talked about the settlement that they got? Well, I suppose that the Transportation Agency finds itself in a slightly tough spot. I think the legislation says that they may keep these decisions confidential. They seem to have a policy of really a blanket policy of making sure that these decisions are confidential, which I think is problematic. to that sort of policy, well, then it does kind of follow that you would be trawling through social media and making sure that decisions aren't leaking out, even though I don't think it's a good look for the agency or for Canada that government regulators are telling people what

they can and can't say on social media. The CTA told us that it publishes all the information about decisions that is legally allowed on its website. Is your sense that that's accurate? legally allowed on its website. Is your sense that that's accurate? The legislation says that you have to publish basic information, the plane number, passenger, that the fact that there was a claim, things like that. Very basic information has to be published, but not the details of the claim and not the details of the legal analysis that the agency might undertake to say, well, yes, this person is entitled to compensation, but this other person is not entitled to compensation. Now, after that, the legislation says the agency may, if a passenger or an airline asks,

keep a decision confidential. I don't think the passengers are asking for these to be confidential. It doesn't sound like Tim, your first guest, was asking for his decision to be kept confidential. So presumably it's the airlines, and it seems to be that the CTA is exercising what looks like a discretion. It looks like it has a choice, but it seems to be exercising

it systematically in favor of confidentiality and non-publication. Just a few seconds left. This is, as I said at the beginning of our conversation, the beginning of the busy travel season. What recourse does the public have? Well, I think there are good websites out there run by Dr. Lukacs in particular, which give people good information about what their rights and obligations are and about the remedies they can have before the agency or before a small claims court, which in many instances might be, ironically, a more efficient way. We usually set up administrative agencies to be quicker and more efficient than the courts. But in this instance, it may be that justice is served more quickly in the small claims court. But really, people should

get as much information as they can before making decisions about what remedies to seek. And, you know, cross their fingers that the flights arrive on time and their luggage comes with them all in one piece. Yeah, best of luck with that. Paul, good to talk to you. Thank you very much. Thanks a lot, Matt. Paul Daly, Research Chair and Administrative Law and Governance

at the University of Ottawa. Your thoughts on this and perhaps your stories of how difficult it's been to get compensation if things have gone sideways in your travels. Email us, thecurrentatcbc.ca. For more CBC Podcasts, go to cbc.ca slash podcasts.