Passengers get some legal muscle in battle with airlines

Gabor Lukacs is seen at home in Halifax on Thursday, Jan. 23, 2014. THE CANADIAN PRESS/Andrew Vaughan

Have you ever been bumped from an important flight without any explanation from the airline?

You’re lucky if you get a somewhat disingenuous apology and some measure of compensation.

The only recourse for put-out passengers is to file a complaint with the Canadian Transportation Agency, which then decides if the matter is important enough to go before a tribunal. But this seldom results in any satisfactory verdict for the consumer.

“The agency has shifted over the past two years in the direction that you as the passenger are assumed to be guilty until proven to the contrary,” says passenger-rights advocate Gabor Lukacs, a mathematician by trade, who has become a crusader after personally enduring missed flights due to the “negligence and stupidity of airline employees.”

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A couple years ago Lukacs, who lives in Halifax, became interested in a seemingly innocuous case where a couple, travelling to Cancun from Vancouver, were bumped from their flight when the plane stopped to refuel in Toronto. They filed a complaint with the CTA, which issued a 150-page ruling — dubbed the “Cancun Matter” — that ultimately supported the carrier.

When Lukacs requested the document, he was sent a copy that was so heavily redacted it revealed little. When he requested an unedited version, Lukacs was told that was impossible due to privacy concerns.

So he filed a motion with the Federal Court of Appeal that the CTA had violated the “open court principle” enshrined in the Charter of Rights and Freedoms. That principal stipulates that all judicial bodies are supposed to make their decisions publicly available, unless there is a confidentiality order or other good reason to protect the information, such as involving a minor, or concealing the name of a sexual-assault victim.

Last month Lukacs won his appeal, prompting the CTA to issue a begrudging statement on the new policy going forward of releasing unredacted tribunal decisions.

“The Agency has always carefully balanced its responsibility with regards to privacy rights and the open court principle. As a government body, the Agency is legally obligated under the Privacy Act to protect the personal information of Canadians,” said the statement. “However, in its role as a quasi-judicial tribunal, the Agency operates like a court when adjudicating disputes and is therefore bound by the open court principle. This means that the Agency's adjudication proceedings must be open and accessible to all Canadians.”

Lukacs, who has filed more than 20 CTA cases, says the decision doesn’t necessarily sway the balance of power back into the hands of the consumer, but the CTA — and the airlines it protects — are now going to have to be more accountable for their actions.

So the next time someone gets bumped or removed from a flight, as recently happened to an Ontario woman travelling with her two-year-old son, the airline will likely be made to defend their actions and policies more fully than in the past, knowing the full court transcripts will be under public scrutiny.

“When you deal with the tribunals a lot, you learn that there is some level of administrative arrogance,” Lukacs says. “That’s why I began to challenge airlines; that attitude that the law doesn’t apply to us.”

Despite operating like a court, Lukacs says CTA tribunals generally avoid any oral testimony from airline workers, denying the passenger, or their lawyer, the ability to cross examine them. He refers to this as a “systemic bias” that is tilted toward protecting the airline industry.

“I am hoping now with this ruling in hand to gain access to further documents and regularly report and blog on how the agency is handling its cases.”
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