Letter Decision No. LET-C-A-71-2020

November 5, 2020

Requests by Swoop, Inc. (Swoop) and WestJet pursuant to section 31 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Rules).

Case number: 
20-01590

BACKGROUND

On February 13, 2020, the Canadian Transportation Agency (Agency) joined 11 applications alleging that Air Canada and WestJet had not communicated the reasons for flight disruptions in a way consistent with the requirements of the Air Passenger Protection Regulations, SOR/2019-150. The Agency also appointed the Agency’s Chief Compliance Officer as Inquiry Officer pursuant to subsection 38(1) of the Canada Transportation Act, SC 1996, c 10. The Inquiry Officer’s mandate was to obtain any documents, records and information relevant to the inquiry; conduct interviews and take written statements from individuals and organizations directly involved in the complaints; and submit a summary report to the Agency.

On February 24, 2020, the Agency issued Decision No. LET-C-A-12-2020, in which it joined additional applications to Case No. 20-01590, which added four respondents, namely Air Transat A.T. Inc., United Airlines, Inc., Sunwing Airlines Inc. and Swoop.

Swoop and WestJet, on July 17, 2020, and August 6, 2020, respectively, provided event summaries on various flights (documents) to the Inquiry Officer.

On October 5, 2020, Swoop and WestJet filed confidentiality requests with the Agency pursuant to section 31 of the Rules with respect to the documents. Specifically, Swoop and WestJet submit that 14 passenger names, 6 passenger e-mail addresses, 7 employee names and 6 employee identification numbers should be treated as confidential, based on privacy considerations.

Swoop and WestJet also state that the entirety of the documents ought to be treated as confidential, arguing that this proceeding is “an inquiry and not an investigation.”

PRELIMINARY MATTER

The Agency notes that Swoop and WestJet did not identify, in the confidential version of the documents, the information that was redacted from the public version, in contravention of paragraph 31(1)(b) of the Rules. Furthermore, Swoop and WestJet did not serve on the other parties a copy of their requests for confidentiality. However, pursuant to subsection 5(2) and section 6 of the Rules, the Agency finds that it is just and reasonable to dispense with compliance with these requirements.

ANALYSIS

The open court principle applies to the Agency when it undertakes dispute adjudication proceedings in its capacity as a quasi-judicial tribunal (Lukács v. Canada [Transport, Infrastructure and Communities], 2015 FCA 140). This principle requires that, with limited exceptions, proceedings and their associated records be made public.

While it is not entirely clear what distinction Swoop and WestJet sought to draw when stating that the current proceeding is an inquiry rather than an investigation, the bottom line is that the present proceeding is adjudicative in nature and therefore, covered by the open court principle and the Rules.

As stated in Decision No. LET-C-A-12-2020, the Rules set out the process to be followed during adjudication. The Agency is required to make any submissions or documents filed during adjudication available on the public record, unless a request for confidentiality has been made to and accepted by the Agency pursuant to section 31 of the Rules.

Pursuant to subsection 31(5) of the Rules, the first step in determining whether a request for confidentiality should be granted is assessing whether the information is relevant to the dispute proceeding. If the Agency determines that the information is relevant, the second step is determining whether specific direct harm would likely result from the disclosure of the information claimed as confidential. The third step is determining whether the public interest in having the information disclosed outweighs the specific direct harm demonstrated.

On the issue of relevancy, the Supreme Court of Canada indicated that “the relevance of evidence is tested by reference to what is in issue.” (Lax Kw’alaams Indian Band v Canada [AG of Canada] [2011], 3 SCR 535, at para 41). The Agency finds that the following information that the carriers seek to protect is not relevant to the proceeding as it is not material to the resolution of this dispute: the names of 11 individuals who are not applicants and their e-mail addresses, and the 6 employee identification numbers. Accordingly, pursuant to paragraph 31(5)(a) of the Rules, the Agency will not place this information on the record of this proceeding.

With respect to the names of 2 applicants and their e-mail addresses, and the name of another individual named in the application of one of those applicants, the Agency notes that this information was filed by the applicants with their applications and already forms part of the public record of this proceeding. Furthermore, the Agency finds that the carriers have not demonstrated that specific direct harm would result from the disclosure of these names. The Agency therefore denies the carriers’ requests for confidentiality with respect to this information.

Regarding the names of 7 employees, the Agency finds that this information is relevant because it identifies the employees who reported or resolved aircraft maintenance issues that are related to the facts of this case. The Agency also finds that Swoop and WestJet have not demonstrated that specific direct harm would result from the disclosure of these names. The Agency therefore denies the carriers’ requests for confidentiality with respect to this information.

CONCLUSION

The Agency denies the carriers’ requests for confidentiality. The names of 11 individuals who are not applicants and their e-mail addresses and 6 employee identification numbers are not relevant to the proceeding and will not be placed on the Agency’s record. The names of 2 applicants and their e-mail addresses, the name of 1 individual named in the application of 1 of those applicants, and 7 employee names are relevant to the proceeding and their disclosure would not result in specific direct harm; therefore, they will be placed on the Agency’s public record.

Member(s)

Scott Streiner
Elizabeth C. Barker
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