Introduction

Dr Gabor Lukács, a mathematician of some renown, is well known to airlines in Canada and even better known to the Canadian Transportation Agency (CTA) for reasons unrelated to his mathematical prowess. As an air passenger rights advocate, he has brought more than two dozen complaints to CTA and caused several airlines to change their policies and tariffs. Always self-represented, Lukács has had frequent success at hearings before the CTA.

Earlier this year, he took on the CTA itself by bringing an application for judicial review to the Federal Court of Appeal. The application concerned the CTA's refusal to provide unredacted documents to Lukács (Lukács v Canadian Transportation Agency, 2015 FCA 140). In making its decision, the Federal Court of Appeal had to consider the "duality of the Agency's functions" and the application of and relationship between the open court principle and the Privacy Act. The privacy commissioner was granted leave to intervene in Lukács' application.

Facts

On February 14 2014 the CTA made a decision in a complaint brought by a family against Air Canada after their flight from Vancouver to Cancun was delayed. The same day that the Cancun decision was released, Lukács requested copies of materials filed on the CTA's public record in the matter from the secretary of the CTA.

About a month later, a staff member of the CTA provided all materials filed in the Cancun matter, but portions of the documents provided had been redacted.

A few days after receiving these documents, Lukács wrote again to the secretary of the CTA requesting "unredacted copies of all documents … with respect to which no confidentiality order was made by a member of the Agency."

This second request elicited a response from Geoffrey Hare, the chair and CEO of the CTA. In refusing Lukács' request, Hare cited the Privacy Act, which applies to all federal government institutions, including the CTA. In part, Hare wrote:

"The purpose of the Act is to protect the privacy of individuals with respect to personal information about themselves held by a government institution. Section 8 of the Act is clear that, except for specific exceptions found in that section, personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution."

In his letter, Hare recognised that CTA case files are available to the public for consultation but, obviously, the CTA had decided that personal information concerning individuals - such as home addresses, personal phone numbers, dates of birth and driver's licence numbers - had been properly redacted, pursuant to the CTA's obligations under the Privacy Act.

CTA and its rules

The court recognised that the CTA performs two key functions in fulfilling its broad mandate in transportation matters. First, it is a quasi-judicial tribunal tasked with resolving commercial and consumer disputes relating to transportation. Second, it is an economic regulator which issues authorities, licences and permits to carriers, subject to the federal Parliament's authority. The relevant function here is its quasi-judicial role.

In this role, the CTA and parties to complaints are subject to rules designed by the CTA. Under those rules, any document filed in a dispute resolution proceeding must be placed on the public record, though a party may request that the CTA issue a confidentiality order to keep particular documents out of the public record. This distinction - between the public record and the confidential record - is made especially clear in the CTA's annotated version of its new rules, which is quoted at some length in the court's decision, even though the rules came into effect after Lukács commenced his application and did not apply.

Open court principle

Under the open court principle, court proceedings - including the evidence and documents filed as exhibits in those proceedings - are open to the public. The reason for this openness is to ensure that the public can inspect the evidence on which judicial decisions are based and thus to ensure that courts are accountable to the public. This principle is well recognised in Canada's courts.

Lukács, the CTA and the privacy commissioner all agreed that the principle applies to the CTA when it is undertaking its dispute resolution function.

The question therefore centred on what the Privacy Act allows or requires the CTA to do.

Privacy Act

The Privacy Act restricts the collection and use of personal information about individuals by Canadian government departments, offices and agencies. 'Personal information' is a defined term under the legislation, but it refers to any information about an identifiable individual that is recorded in any form.

A government institution such as the CTA may not collect any personal information unless it relates directly to its official programmes or activities. Further, pursuant to Section 7, any information collected may be used only for the official purpose for which it was obtained.

As noted in Hare's letter to Lukács, Section 8 of the act is the main provision on which the CTA relied in deciding to redact information from the documents provided to Lukács. Section 8(1) prohibits disclosure of personal information without the consent of the person to whom it relates, although there are several exceptions to this prohibition in Section 8(2).

In addition, Section 69(2) sets out a general exemption from the prohibitions in Sections 7 and 8: "Sections 7 and 8 do not apply to personal information that is publicly available."

Decision

It was undisputed that no confidentiality order was made by the CTA; all of the documents considered by the CTA in making its decision in the Cancun matter were put on its public record.

For Lukács, a former maths prodigy who acquired his PhD in mathematics at the age of 20, the argument was a simple matter of deductive reasoning. The documents he requested were on the CTA's public record and any personal information in them was therefore publicly available. The logical consequence was that the prohibition on disclosure under Section 8 did not apply, pursuant to the broad exemption in Section 69(2).

The CTA and the privacy commissioner disputed this logic, arguing that a confidentiality order should not be necessary to protect personal information and that to be truly publicly available, personal information should be obtainable from a source in the public domain other than the CTA. Both disputed the idea that the open court principle renders personal information in the hands of the CTA publicly available.

The court analysed the meanings of 'publicly available' and the 'public record', and agreed with Lukács. In its quasi-judicial role, unless the CTA makes a specific ruling to render evidence tendered to it confidential, all of its record should be open and accessible.

The court decided that placing documents on the CTA's public record is an act of disclosure that renders personal information contained in them publicly available and exempt from Section 8.

Clearly, the same result would flow with respect to any information or documents filed with the CTA by an air carrier when responding to a consumer complaint - failing a confidentiality order to the contrary.

For further information on this topic please contact Carlos P Martins or Andrew W Macdonald at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800) or email (cmartins@lexcanada.com or amacdonald@lexcanada.com). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.

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