Ruling says open court principle covers complaint resolution officer’s orders, adjudicative records
In proceedings assailing a confidentiality provision, the Ontario Superior Court ruled that the complaint resolution process introduced by the 2023 amendments to the Canada Transportation Act, 1996 (CTA), should abide by the requirements of the open court principle.
The case was Air Passenger Rights v. The Attorney General of Canada, 2026 ONSC 3983. In 2023, Parliament legislated new CTA provisions that established a process featuring complaint resolution officers (CROs), appointed among the Canadian Transportation Agency’s staff.
The amendments diverted most air passenger compensation claims, specifically claims that airlines breached tariff conditions or failed to pay the required compensation under the Air Passenger Protection Regulations, away from the existing agency-administered process.
A blanket confidentiality requirement in s. 85.09 of the CTA covered all matters relating to the process of resolving a complaint and information that a complainant or an air carrier submitted to the CRO, unless the parties agreed otherwise.
Under s. 52(1) of the Constitution Act, 1982, the applicant Air Passenger Rights sought a declaration that s. 85.09(1) of the CTA infringed the right to free expression in s. 2(b) of the Canadian Charter of Rights and Freedoms and lacked reasonable justification under s. 1 of the Charter.
The applicant alleged that s. 85.09(1) created a “closed court” adjudicative process, which contravened the open court principle and freedom of expression. The intervenor, the Canadian Broadcasting Corporation, supported the applicant’s position.
Interpretation of s. 85.09(1)
As requested by the applicant, the Ontario Superior Court of Justice issued an order interpreting s. 85.09(1) of the CTA, such that its confidentiality requirements covered only records provided during the optional mediation steps, not adjudicative records, including CROs’ decisions and orders.
The court stayed its order for 90 days to enable the respondent federal attorney general to make any necessary administrative arrangements to implement the order.
The court awarded the applicant the application costs.
Open court principle
On the balance of probabilities, the Ontario Superior Court determined that the CRO complaint process should abide by the requirements of the open court principle and s. 2(b) of the Charter.
The court acknowledged that the CTA’s 2023 amendments established a process that was less adversarial and more oriented toward settlement or mediation for the adjudication of air traveller complaints.
However, the court decided that the open court principle continued to cover the CRO complaint resolution process. Despite some mediated outcomes, the court said the process substantially remained adversarial, aimed at adjudicating disputes between air passengers and airlines under a government-created scheme.
Assuming the open court principle’s applicability, the court held that the agency infringed the open court principle, the parties’ expressive rights, and s. 2(b) of the Charter through enforcing s. 85.09(1) of the CTA and refusing to release CROs’ decisions, orders, and other documents to the applicant or to the media upon request.
No reasonable limit
The Ontario Superior Court did not deem s. 85.09(1) of the CTA a reasonable limit on s. 2(b) of the Charter or on the open court principle, pursuant to s. 1 of the Charter.
Based on the evidence, the court did not consider the broad confidentiality requirement in s. 85.09(1) necessary to ensure an efficient process or to prevent the release of confidential information. The court questioned the provision’s utility in terms of efficiency.
The court found no clear or persuasive justification for s. 85.09’s overbreadth and its mandatory and nondiscretionary application.
Adjudication vs. mediation
The Ontario Superior Court determined that the steps of the CRO complaint resolution process involved adjudication by default, not mediation. According to the court, most outcomes of the CRO process appeared to be adjudications.
The court did not consider the CRO process primarily mediation-based. The court pointed out that complainants and carriers could refuse to mediate.
In the present application, the court noted that the media wanted to openly access information on, or report on, adjudicated complaints rather than complaints with mediated resolutions.
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