In 2023, Parliament introduced a streamlined, informal and confidential process for resolving most air passenger flight disruption complaints. In a recent decision (Air Passenger Rights v. The Attorney General of Canada, 2026 ONSC 3983), the Ontario Superior Court of Justice considered whether the blanket confidentiality imposed on adjudicative records violated the “open court principle” and section 2(b) of the Canadian Charter of Rights and Freedoms. The Court held that it did.
The Court held that the complaint process remains adjudicative despite its informal and mediation-oriented design. It therefore ruled (by “reading down”) subsection 85.09(1) of the Canada Transportation Act (the “Act”) preserves confidentiality for records provided during mediation, but not for adjudicative records (including decisions and orders issued by Complaint Resolution Officers (“CROs”)), which were previously confidential. The order has been stayed (suspended) for 90 days from the release of the reasons (July 8, 2026) to allow time for implementation.
Background: the CRO complaint process
Parliament introduced the CRO process in 2023 to address most passenger complaints seeking compensation or a refund based on an airline’s alleged failure to comply with its tariff or its obligations under the Air Passenger Protection Regulations. The process allows for a mediation step, if both the airline and the passenger agree. If mediation is declined or does not resolve the dispute, the CRO issues a binding decision based on the written record.
Subsection 85.09(1) of the Act requires all matters related to the complaint process to be kept confidential unless both the passenger and the carrier agree otherwise:
85.09(1) All matters related to the process of dealing with a complaint shall be kept confidential, unless the complainant and the carrier otherwise agree, and information provided by the complainant or the carrier to the complaint resolution officer for the purpose of the complaint resolution officer dealing with the complaint shall not be used for any other purpose without the consent of the one who provided it.
Although Canadian Transportation Agency (the “Agency”) is required to publish limited summaries of CRO orders, the adjudicative record and the full orders remain confidential.
Air Passenger Rights challenged the provision under section 2(b) of the Charter, which protects freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. It argued that the confidentiality requirement prevented passengers, the media, and the public from accessing and discussing decisions made through a public adjudicative process. The Canadian Broadcasting Corporation intervened in support of the challenge.
The CRO process is adjudicative
The Attorney General argued that the open court principle did not apply because the CRO process was intended to be informal, non-adversarial, and focused on resolution rather than conventional adjudication.
The Court found that the CRO process performs several distinctly adjudicative functions. CROs interpret legislation, make findings of fact, decide jurisdictional and procedural issues, determine whether an airline has complied with its tariff and regulatory obligations, and decide whether a passenger is entitled to compensation or another remedy. Their written decisions are binding, and their orders may ultimately be enforced through the Federal Court or a provincial superior court.
The Court held that the absence of an oral hearing, formal rules of evidence, or broad remedial discretion did not alter the adjudicative nature of the process. The Court also emphasized that mediation is optional. If either party declines to mediate, adjudication follows on the written record. The Court therefore concluded that, except where a complaint is resolved through mediation, the CRO process remains an adversarial process for determining the rights and obligations of passengers and airlines under a statutory scheme.
The confidentiality provision was not justified
Having found that the open court principle applied, the Court held that the blanket confidentiality requirement infringed freedom of expression under section 2(b) of the Charter. It then considered whether the restriction could be justified under section 1 of the Charter, which permits reasonable limits on Charter rights. Under the Oakes test, the government must establish that the legislation pursues a pressing and substantial objective and that the means chosen to attain the objective are reasonable and demonstrably justifiable in a free and democratic society.
The Attorney General relied on the objectives of encouraging frank settlement discussions, protecting sensitive information, and creating an efficient process for resolving a high volume of relatively low-value claims. The Court accepted that the efficient adjudication of passenger claims was a pressing and substantial objective. It also recognized the established policy reasons for protecting confidential mediation communications.
However, the Court was not persuaded that these objectives required the entire complaint process to remain confidential. Section 85.09(1) drew no distinction between optional mediation, where confidentiality serves an established purpose, and the adjudication that followed if mediation was declined or unsuccessful. Instead, confidentiality applied automatically at every stage, even though most complaints appeared to be resolved through adjudication. Further, the Court held that there was no persuasive evidence that confidentiality promoted efficiency.
The Court concluded that subsection 85.09(1) imposed an overly broad and non-discretionary confidentiality regime that unduly restricted the open court principle.
Practical implications
Greater access to CRO decisions may allow passengers, carriers, counsel, the media, and the public to identify patterns in how the statutory scheme is interpreted and applied. It may also promote consistency by making the reasoning in comparable cases more readily available. At the same time, increased openness may raise practical questions about passenger privacy, confidential business information, and the treatment of records filed in the adjudicative process.
Because the process uses information submitted at the outset for both mediation and adjudication, the decision raises practical questions about how mediation records will be separated from the public adjudicative record. Airlines and passengers should monitor the Agency’s implementation measures, including any procedures governing publication, redaction, privacy and commercially sensitive information.
Looking ahead
This decision draws a clear line between resolution through mediation and binding administrative adjudication. It confirms that a simplified adjudicative process may remain subject to the open court principle where a public decision-maker determines legal rights and issues enforceable orders.
The full practical effect of the ruling will depend on how the Agency implements public access following the 90-day stay. For the airline industry and the travelling public, the decision marks an important development in the balance among transparency, privacy, and efficiency in Canada’s air passenger complaint system.
For more information, please contact Jeremy Korb or a member of our Aviation Practice Group.
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