Federal Court of Appeal gives sword of transparency to air passenger rights advocate

Dr. Gabor Lukacs pix on twitter in Fed Court of Appeal

Dr. Gabor Lukacs pix on twitter in Fed Court of Appeal

Canadian Transportation Agency (CTA) took the position that its own “Public Record” is NOT “Publicly Available”. Dr. Gabor Lukacs, a Halifax-based Canadian air passenger rights advocate, disagrees and took the matter all the way to a judicial review and won the argument for all Canadians today.

A panel of three Federal Court of Appeal judges has unanimously agreed with Lukacs and concluded that the redactions of its Public Record (in this case, a dispute resolution proceeding between Air Canada and a family whose flight from Vancouver to Cancun was delayed) were “impermissible.” The panel held that since the documents sought by Lukacs were already on the CTA’s Public Record, they were Publicly Available, and thus the Privacy Act does not restrict their disclosure.

David vs Four Goliaths

The path to official recognition as a Canadian air passenger rights advocate by the court and the unanimous judgement did not come easy. Lukacs has spent over a thousand dollars of his own money, hundreds of hours of his spare time in research, documents filing, preparations, and moot courting with friends (one of the friends is a lawyer). All the hard work and money culminating in a March 17th, 2015 formal self-represented court room appearance (above picture) by Lukacs, a Mathematician, against four experienced lawyers representing the CTA, the Privacy Commissioner of Canada, and the Attorney General of Canada in front of the panel of three Federal Court of Appeal judges.

The judgment vindicates Lukacs, who wanted to view the complete file of the complaint to decide if the CTA’s decision was based on grounded reasoning or biased to benefit Air Canada. Common sense would lure people to believe CTA would not be so blatant in its bias to help Air Canada in a dispute resolution by redacting details such as the names of Air Canada’s lawyers. Yes, the names of the lawyers. Are those Air Canada lawyers 12 years old minors needing Of course, common sense is not common. And names of Air Canada’s lawyers were redacted under the pretext of compliance with privacy legislation.

Lukacs saw through the guise of “privacy” protection and challenged the redactions based on the fact that none of the documents were subject to a confidentiality order, and the open court principle, which requires adjudicative proceedings to be open and available for public scrutiny. “This principle has been hailed by the Supreme Court of Canada as one of the hallmarks of a democratic society, held to be tied to the freedom of expression and press guaranteed by the Charter, and is frequently invoked by the media to gain access to court documents.” states Lukacs.

Airlines’ dirty laundry, Cans of worms

Lukacs explains, “The CTA is a federal tribunal that adjudicates transportation-related disputes, such as passengers’ complaints against airlines. The CTA operates like a court, and its adjudicative members function like judges. According to the CTA’s own rules, all documents filed by parties must be placed on “public record,” unless a confidentiality order is granted.”

This landmark decision is like giving the advocate (and all Canadians) a can opener which may be used to open many cans of worms in CTA. Lukacs replied, “Certainly, I intend to open more cans of worms.” And tellingly, the official Air Passenger Rights tweeted, “CTA can no longer keep the airlines’ dirty laundry in secret.” Dirty laundry indeed should be aired once in a while in the sunlight. “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” said US Supreme Court justice Louis D. Brandeis.

Landmark decision, Sword of Transparency

This is a landmark decision, bringing greater transparency and accountability to all federal tribunals, not only the CTA. It is a victory both for air passengers, and Canadian democracy,” says Dr. Lukacs, who has won two dozen complaints about airlines’ policies before the CTA.

It may be fair to conclude, Canadians collectively own a debt to the hard work and dedication of the likes of Lukacs in shining light in places our government (the Harper government) doesn’t want Canadians to see or know. This landmark judgement, a brand new Sword of Transparency against CTA and all federal tribunals, is a tool to help Canadians hold our federal tribunals and federal government accountable and make sure our government/tribunals act according to written rules and laws. Ensuring these quasi-judicial tribunals cannot make biased decisions against Canadians’ interests behind our back in secrecy.

$750 for hundreds of hours of dedicated work

In view of the complexities of the issues that were raised and the considerable time spent by Lukacs, the court has set another precedence in ordering the Canadian Transportation Agency to pay Lukacs $750 plus reasonable disbursements. Although the $750 is in no way sufficient to compensate Lukacs for the hundreds of hours he spent in preparing for this case, the idea of compensating self-represented litigants has followed other jurisdictions like Ontario.

When asked how the $750 will be spent, Lukas was cautious and realizes CTA will unlikely be quick in paying such money. If and when he receives the money, he said he plans to spend it with friends that have helped him to prepare for the case.

Note: This reporter has conducted an extensive video interview with Dr. Gabor Lukacs and will be posting that video in due course.

Postscript: Dr. Gabor Lukacs has coauthored a five-step “How to complain to airlines” guide posted on the great consumer watchdog show CBC MarketPlace‘s blog. Worth a read if you want to make a well presented complaint to an airline.

Note: This article is cross posted to examiner by this author.

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