Air Passenger Rights v. The Attorney General of Canada, 2026 ONSC 3983

Does this apply to you?

This case applies if you filed a complaint with the Canadian Transportation Agency and a Complaint Resolution Officer (CRO) decided it, or if you want to read past CRO decisions before you file. Until now the law treated a CRO complaint, including the decision, as confidential, unless the case went to a panel. The court read the confidentiality rule down so it covers only the records from the optional mediation step. The order takes effect 90 days after 8 July 2026.

What happened

In 2023, Parliament changed the Canada Transportation Act (CTA). Most passenger complaints about airline tariffs and the Air Passenger Protection Regulations (APPR) no longer go to Agency members. They go to CROs, who are Agency staff. A passenger must first write to the airline. If the complaint is not resolved within 30 days, the passenger can file with the Agency and a CRO takes it on if it meets certain criteria.

The CRO process runs entirely in writing. Each side gives its information once, at the start. The CRO first checks if the complaint is eligible. The CRO must then try to mediate, but mediation only happens if both sides agree. If there is no mediation, or it fails, the CRO makes a binding decision on the same documents. The CRO can order the airline to pay compensation or to follow its tariff. Once filed with the Agency, a CRO order can be enforced like an order of the Federal Court or a provincial superior court.

Subsection 85.09(1) of the CTA says "all matters related to the process of dealing with a complaint shall be kept confidential", unless the passenger and the airline agree otherwise. The Agency reads that to cover the CRO's decision. For most CRO orders the Agency publishes only a short summary: the flight number, the departure date, which category the disruption fell into, and whether compensation was ordered.

Air Passenger Rights is a federal not-for-profit that gives the public information about air passenger rights and advocates for travellers. It asked the Ontario Superior Court of Justice to declare that subsection 85.09(1) violates section 2(b) of the Canadian Charter of Rights and Freedoms, the guarantee of freedom of expression. The Canadian Broadcasting Corporation (CBC) intervened. The court heard the application on 24 April 2026.

What Air Passenger Rights argued

Air Passenger Rights said subsection 85.09(1) creates a "closed court". The open court principle is part of freedom of expression under section 2(b) of the Charter. A blanket rule that keeps every CRO decision secret restricts that right, and the government had shown no pressing and substantial reason for it. It asked the court to read the subsection down so that confidentiality covers only mediation records, not adjudicative records like CRO decisions and orders. In the alternative, it asked the court to strike the subsection.

It did not challenge confidentiality for mediated settlements. The CBC added that the 2023 changes left virtually "no information made available to the media", so the public has no way to tell whether the APPR is being applied correctly or consistently.

What the Attorney General argued

The Attorney General said the open court principle does not apply at all. It applies only to adjudicative tribunals, and the CRO process is a "mediation-style", non-adversarial process where the CRO simply applies the tariff. It relied on the Federal Court of Appeal's decision in Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166, which held that the Parole Board is not an adjudicative tribunal.

In the alternative, the Attorney General said the confidentiality rule is a reasonable limit under section 1 of the Charter. When the changes were introduced, about 32,700 complaints were waiting and resolution took an average of 373 days. Confidentiality encourages frank mediation and may encourage airlines to settle. Because both sides file their information once, the mediation stage and the decision stage cannot be separated. The Attorney General's factum also questioned whether Air Passenger Rights had standing, but it did not press the point at the hearing.

What the court decided

Air Passenger Rights had standing. Justice Hackland called this "a clear case of entitlement to public interest standing". The issue matters to the airline industry and to the flying public, and the applicant has long experience advocating for passengers.

The CRO process is an adjudicative tribunal. The court agreed with the Attorney General that the test looks at what a tribunal does, not what it is called. But it found the CRO does clearly adjudicative work: interpreting statutes, making findings of fact about whether an airline met its tariff and APPR obligations, deciding jurisdiction, writing decisions, deciding a passenger's entitlement to compensation, and making orders that can be enforced through the courts. Mediation happens only if both sides agree, so "the default step in the process is not mediation; it is adjudication by the CRO". The process "remains in substance an adversarial process (except for mediated outcomes)". The open court principle applies.

Refusing to release decisions breaches the Charter. When the Agency relies on subsection 85.09(1) to refuse to release CRO decisions, orders and other documents to Air Passenger Rights or the media, it infringes their expressive rights under section 2(b).

The limit is not justified under section 1. Under the Oakes test, the government must prove the limit is justified. The court accepted that efficient adjudication of passenger claims is a pressing and substantial purpose. But there was "no persuasive evidence" that a blanket confidentiality rule is needed for efficiency or to protect confidential information. There was no evidence the process is mainly mediation based, and no evidence the efficiency goal is being met. The rule is "overly broad and non-discretionary".

The remedy is a reading down. Subsection 85.09(1) now applies only to records provided in the optional mediation steps, not to adjudicative records, including the decisions and orders of the CRO. The order is stayed for 90 days from the release of the reasons so the government can put administrative arrangements in place. Air Passenger Rights was awarded its costs.

Why this matters

• Once the 90-day stay ends, the confidentiality rule covers only mediation records. CRO decisions and orders lose their blanket confidentiality, so the Agency no longer has that ground to refuse a request for them.
• Advocates and the media can study CRO decisions to check whether the APPR is being applied correctly and consistently across airlines.
• The court described the CRO process as an adjudication, not a mediation. The court said most complaints appear to be decided, not settled, and the CRO's orders can be enforced like court orders.
• Mediation records stay confidential. If you settle your complaint in mediation, the settlement is not made public.
• The court noted the complaint backlog has recently approached 100,000 and that the federal government was about to announce a new process. The rules may change again.

The details