Anna and Russell Gurney knew something was wrong when their phones pinged in the middle of the night with a message from WestJet, hours before the Victoria couple was supposed to begin a trip to San Diego to catch a cruise.
The airline’s message told them that due to a crew shortage, their December 2022 flight had been cancelled and they’d been rebooked on a new flight 48 hours later. Unwilling to miss their cruise, they had no choice but to accept a refund from WestJet and book last-minute tickets on another carrier — for $1,500 more.
When they tried to get reimbursed, WestJet refused.
The couple decided to go to small claims court and sought advice from the Air Passenger Rights Facebook group. But WestJet’s lawyers discovered their post there and told them that because they’d shared “privileged and confidential” correspondence, the airline would no longer be negotiating with them.
Anna Gurney told Go Public the experience left her feeling bullied. “It’s definitely threatening.”
Efforts to silence travellers from publicly talking about their conflicts with airlines represents a worrying trend, says Gábor Lukács, founder of the Facebook group where Anna Gurney posted some of the specifics of their dispute.
“When I see educated people — lawyers — trying to do this to a member of the public, it raises significant ethical concerns,” he said.
The insistence by airlines to keep dispute details confidential — coupled with new rules surrounding complaints filed with the Canadian Transportation Agency (CTA) — have created a veil of secrecy around disagreements with passengers, said Lukács. He calls the current climate an uneven playing field between airlines and travellers that exists because “no one is cracking down.”
WATCH | Victoria couple speaks out after WestJet flight cancellation ordeal:
WestJet asked woman to remove post
When the Gurneys decided to take WestJet to small claims court, Anna turned to the Air Passenger Rights Facebook group seeking advice about a compensation rule regarding delayed flights.
Below her question, she shared a blurry photo of an excerpt from a settlement letter from WestJet’s counsel — which she had not agreed to keep confidential.
Anna and Russell Gurney review a photobook of the Disney cruise they almost missed after WestJet cancelled their flight. (Mike McArthur/CBC )
A week later, she got a sternly worded email from WestJet lawyer Anika Garlick.
“It has come to our attention that you have posted our privileged and confidential settlement negotiation correspondence,” wrote Garlick in the letter, which also said WestJet was withdrawing its latest offer and wouldn’t continue with negotiations ahead of a settlement hearing.
The letter also asked Gurney to remove her Facebook post, which she said was frightening.
“This is a prestigious law firm, representing a huge airline.”
But after thinking it over, Gurney decided to post the letter from WestJet’s lawyer in full on the Facebook page. She now says that winning the case is no longer relevant.
“What is relevant now is to stop the airlines from doing what they’re doing through their legal counsel — shutting people up and stopping them from moving forward.”
After a WestJet lawyer told Anna Gurney she’d posted confidential settlement information on a Facebook page and requested that she take it down, Gurney refused and instead posted the lawyer’s letter on Facebook. (Air Passenger Rights/Facebook)
‘Legal voodo’
Lukács says WestJet’s move was “a form of legal voodoo.”
“They try to make you feel as if you had some kind of legal obligation to keep the offer confidential, which you don’t,” said Lukács. “Passengers should not agree to be muzzled.”
He says that ultimately, the federal government is responsible for what happens to people like the Gurneys, because airlines don’t face financial consequences when they “bluff and intimidate” to get out of paying passengers what they’re legally owed.
WestJet declined an interview request. In a statement to Go Public, a spokesperson claimed the airline’s actions were all “in compliance with the applicable requirements” of the Airline Passenger Rights Regulations.
The WestJet spokesperson did not address how it became aware of Gurney’s Facebook post or why the airline asked her to remove it from the public forum.
WATCH | Advocate offers advice for passengers seeking compensation:
Transportation regulator monitors social media
Tim Rodger also knows what it feels like to have his social media monitored after the Canadian Transportation Authority (CTA) took exception to a post he made on that same Air Passenger Rights Facebook page.
After a trip to Belize last December, Rodger’s bag came off an Ottawa luggage carousel badly damaged. When WestJet wouldn’t pay full replacement costs, he filed a complaint with the CTA and won.
He posted the regulator’s decision to the Facebook group, and got a phone call from the CTA shortly after, telling him the decision was confidential. Rodger took the post down, but says he doesn’t think the confidentiality makes sense.
If previous decisions had been made public, he says, “I maybe could have resolved this sooner if I’d found case law showing the exact same thing.”
Full decisions issued by the CTA used to be posted online, but due to legislative changes last year, are now confidential — aside from some basic information. That means most details in a case, such as the reasons behind a ruling, can only be made public when both airline and passenger agree it can be posted.
Not a single case has been made fully public since the changes were implemented. So while the airlines are accumulating decisions — and the strategic advantage of having access to previous rulings — passengers are fighting each claim without access to case law to back them up.
“The public has a right to know all of the details of the decisions being made by the agency,” said Paul Daly, research chair in administrative law and governance at the University of Ottawa.
He says the decision not to make these rulings public is “probably unconstitutional.”
Paul Daly says the federal government should amend legislation to once again make the Canadian Transportation Agency’s full decisions accessible to the public. (Marc Robichaud/CBC)
Daly also has concerns about the CTA calling Rodger about his social media post.
“I don’t think anyone likes the idea of government agencies monitoring Facebook groups and telling people what they should and shouldn’t publish,” he said.
A spokesperson for the CTA told Go Public the regulator often checks social media for mentions.
“That’s just something we do as part of our regular business … to ensure the integrity of our process and respect for the law,” said Tom Oommen, the CTA’s director general of analysis and outreach.
Go Public asked for an interview with Transport Canada to discuss the concerns of air passengers and advocates regarding confidentiality rules around CTA decisions, but the request was declined.
In a statement, a ministry spokesperson said the new complaints resolution process “will resolve disputes in a fast and fair way” and claimed that publishing details such as flight numbers and whether compensation was awarded makes the system “more efficient.”
Couple signed NDA
In the end, the Gurney’s case never went to trial.
The couple reached a settlement with WestJet last month, and were required to sign a non-disclosure agreement to get their money.
Anna Gurney hopes that the way she spoke out before she had to sign the NDA will encourage other passengers to push back if an airline refuses to pay proper compensation.
She hopes, too, that airlines trying to silence passengers will change their ways.
“Please look at what you’re doing,” she said. “And do better.”
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