Canada’s Federal Court has dismissed an application by flag carrier Air Canada and one of its subsidiaries to prevent the country’s transport authority from releasing surveillance reports on the airlines that showed them to have fallen short of regulatory requirements.

The order, issued by Judge Michael Phelan on 9 April and published this week, relates to reports produced by Transport Canada (TC) on Air Canada’s operations between September and October 2013 and those of its subsidiary Air Canada Rouge in June 2014. The first report identified 12 findings of “minor or moderate” non-compliance by the airline with regulatory requirements, while the second included 22 “minor, moderate, or major” findings.

In a letter to the airlines in February 2017, the authority said the Air Canada report would be released in full and the Air Canada Rouge report would be released in partially redacted form.

The airlines objected to the releases on the basis that some of the reports’ findings were exempt from disclosure under Canada’s Access to Information Act (ATIA), which blocks the release of information that could result in a material financial loss to a company.

The airlines argued first that the possibility for public misunderstanding and misinterpretation of the information could be harmful to them. In support of this, expert witness Michael Tretheway contributed the opinion that social media (or “the Twitterverse” as the judgment termed it) had the potential to “increase the likelihood for the misunderstanding and misuse of technical information regarding airlines by people who have minimal understanding of the real import of their comments.” 

Attorney General David Aaron, the respondent in the case, didn’t challenge Tretheway’s comments and accepted that some aspects of the report “could cause the public to be concerned about aviation safety and that there may be some impact on competition”. However, he said the potential for lack of understanding and misinterpretations were not sufficient to withhold disclosure.

Judge Phelan said some of the potential for misunderstanding could be ameliorated by the issuance of an explanatory note by the TC alongside the reports and invited the airlines to make submissions to the court if the regulator chose not to offer such clarification. Nevertheless, he said that the airlines hadn’t established that any prospective harm from the release and subsequent misinterpretation of the reports would be material.

“Airlines have had negative disclosures in the past,” the judge said, but added that “with all the sophistication of a modern international carrier, there was no evidence of the level of harm anticipated.” He noted that Tretheway had not provided even a “ballpark” quantification of the harm disclosure could do to the airlines, and pointed to the Federal Court’s earlier ruling in a case brought by pharmaceutical company AstraZeneca against the Canadian Ministry Of Health, where it held that the “inherently speculative” nature of proof of harm didn’t relieve applicants from putting forward concrete evidence.

He concluded that the airlines hadn’t established an exemption from disclosure under the ATIA, and dismissed the application with costs.

In the Federal Court of Canada

Air Canada v Canada

  • Judge Michael Phelan

Counsel to Air Canada and Air Canada Rouge

  • Conlin Bedard

Partner Benjamin Mills and associate Shannel Rajan in Ottawa

Attorney General of Canada

David Aaron in Ottawa