Judge calls out WestJet's attempt to muzzle passenger in dispute negotiations

Andrew Douglas says helium was conscionable warring for compensation erstwhile helium took WestJet to tiny claims tribunal — instead, the quality has resulted successful what's believed to beryllium a landmark determination that tin present beryllium pointed to by each aerial question passengers battling it retired with the airlines. 

"Beware of seniors, they person a batch of clip connected their hands," the 72-year-old Ottawa antheral told Go Public, referring to the information that his quality with WestJet began much than 3 years ago. 

In her determination connected costs earlier this month, the justice condemned WestJet's insistence that Douglas motion a non-disclosure statement (NDA) successful bid to get compensation the hose owed him aft helium was incorrectly not allowed to committee a flight to Cuba.

Nobody successful Canada tracks however often NDAs are used, but experts successful the hose manufacture accidental imposing confidentiality clauses successful colony offers is an progressively communal tactic, which is wherefore this caller determination is truthful important. 

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An advocator for aerial passengers says the determination sends an important directive to the hose industry.

"Finally, a justice calls retired an hose for trying to gag passengers," said Gábor Lukács, laminitis and president of the Air Passenger Rights group. 

"That is simply a stern informing … they cannot get distant with it."

How it began

Douglas's communicative began connected Jan. 31, 2022, astatine the Ottawa airport. 

He was headed to Cuba — a state helium travels to regularly, visiting friends and bringing supplies to radical successful need, similar the medicine helium brought with him on a travel successful January.

"I brought a batch of acetaminophen and ibuprofen due to the fact that that's hard to find," helium said.

WATCH | Judge criticizes WestJet for insisting lawsuit motion non-disclosure agreement:

But a WestJet cause told him — incorrectly — that helium wasn't allowed to cheque in, due to the fact that helium couldn't supply impervious of a caller antagonistic Covid test. 

Douglas knew the regulations had precocious changed, truthful he'd brought with him a printed leafage from the website of the Cuba Tourist Board of Canada, intelligibly stating that nary Covid trial was required for Canadians going to Cuba. 

But neither the WestJet cause nor a supervisor who was called successful would perceive when Douglas pleaded his case, or cheque the website themselves. 

The existent burn, said Douglas, was that WestJet refused to refund his $410 summons — offering alternatively to refund his baggage fees and give him a recognition to instrumentality a aboriginal travel with the airline.

"I don't privation flyer points," said Douglas. "I americium not flying WestJet again."

Turned distant astatine the airport, helium returned location and sent the hose a petition for a refund via a registered request missive — a formal, written request, asking the institution to fulfil a ineligible work earlier helium perchance took ineligible action. 

WestJet did not reply, truthful Douglas felt helium had nary enactment but to record successful tiny claims court. 

"Who was ever going to judge that an hose would simply crook a rider distant for nary bully reason?" helium said.

Because helium had nary ineligible background, Douglas headed to the Ottawa nationalist room and recovered a publication written by a erstwhile tiny claims tribunal judge, explaining however a subordinate of the nationalist tin instrumentality a lawsuit to court.

He besides relied connected accusation provided to him by Lukács, of Air Passenger Rights. 

He filed his lawsuit successful March 2022.

WestJet asks for gag order

Five months later, Douglas received an email from WestJet, offering to wage $790 successful compensation for his airfare and different formation helium missed due to the fact that helium couldn't instrumentality the trip. But the connection came with a hitch — the request that helium motion an NDA — truthful Douglas declined the offer. 

Before a tiny claims lawsuit goes to court, there's a colony league — wherever some sides effort to travel to an statement earlier a judge, perchance avoiding a trial. 

At that hearing, WestJet again offered Douglas a refund of $790 and again required helium motion an NDA — truthful erstwhile again, helium turned down the offer.

WestJet made 2 much offers, somewhat expanding the magnitude of the refund each time, but inactive requiring that Douglas support silent. So helium turned those down, too.

One week earlier the proceedings was acceptable to begin, WestJet upped its connection again — to $1,298 — inactive requiring a gag bid and informing Douglas that determination would apt beryllium consequences if helium mislaid successful court. 

"Should you take not to judge this connection and proceed unnecessarily to trial, we expect to person instructions from our lawsuit to question penalties and costs against you," wrote Anika Garlick, the lawyer for WestJet.

Still, Douglas refused to settle.

"It's not astir the money. It's the constituent of the argument," helium said. "This buying soundlessness has to stop."

Air rider advocator Lukács says helium sees thing incorrect with radical settling without going to court, arsenic agelong arsenic the connection is tenable and, importantly, that passengers are astatine liberty to talk astir what happened.

"Because we are talking astir wealth that is owed to them nether law," said Lukács. "It is not a goodwill gesture. It's not a handout … It is simply what is owed the rider — and determination should beryllium nary confidentiality whatsoever there."

Judge condemns WestJet

In her ruling, the justice ordered WestJet to refund Douglas for his airfare and costs helium incurred travelling to and from the airdrome and filing his lawsuit. 

She besides condemned WestJet for trying to enforce a confidentiality clause, saying it was "problematic," a "serious defect" and that determination should not beryllium "strings attached" to person a "long-overdue refund."

She wrote that WestJet would not beryllium asking for an NDA unless determination was a fiscal vantage to it, and that the vantage was seemingly "worth the occupation and disbursal of a proceedings to the suspect not to connection colony without it."

"This determination sends a wide connection to the airlines that if an magnitude is undisputed, the hose should wage it," said Lukács.

A lawyer who has studied the usage of confidentiality clauses wrong Canada's aerial question manufacture calls the determination "well-reasoned" and a triumph for aerial question passengers.

"This determination could so alteration the mode airlines litigate — and for the better," said Paul Daly, Research Chair successful Administrative Law and Governance astatine the University of Ottawa. "It would mean much accusation successful the nationalist domain."

Douglas, who waited astir 3 years for his time successful court, said helium was pleased with the judge's harsh disapproval of WestJet's usage of an NDA.

"It's beauteous beardown language," helium said. "But I consciousness it's justified the mode I was mistreated."

The justice besides slapped the hose with an further $410 punishment for withholding wealth it owed the 72-year-old plaintiff for truthful agelong — a hold she recovered "particularly vexing."

"A punishment successful a lesser magnitude would beryllium insufficient to deter the suspect from repeating this behaviour successful different cases," she wrote, chastising WestJet for not paying up for much than 2 years and 7 months aft the commencement of litigation.

"Courts cannot condone hardball tactics," wrote the judge. "Especially successful circumstances wherever determination is simply a powerfulness imbalance betwixt a firm litigant (here the 2nd largest hose successful Canada) and an individual."

All told, the justice ordered WestJet to wage Douglas $2,118 — plus involvement from time 1 of the dispute.

WestJet declined an interrogation petition from Go Public. 

In a statement, an hose spokesperson wrote that confidentiality clauses are "fundamental to ensuring that some parties tin transparently research some the unsocial circumstances and the unsocial solution which whitethorn beryllium disposable and pb to communal ground."

Douglas wants 'denied boarding' explanation changed

Meanwhile, Douglas hopes to assistance fortify different protections for aerial travellers.

He's made a submission to the Canadian Transportation Agency (CTA) regarding the explanation of "denied boarding" successful projected changes to the Air Passenger Protection Regulations. As it stands, travellers tin lone record for "denied boarding" if they tin beryllium a level is overbooked (a signifier besides known arsenic "bumping").

That's wherefore Douglas couldn't record a ailment astir his WestJet quality with the CTA and had to spell to tribunal — his concern wasn't covered nether the existent regulations. 

He wants Canada to align with the European Union's explanation of "denial of boarding" that would bounds a carrier's quality to contradict compensation to passengers with a confirmed preservation lone if they amusement up precocious for check-in, don't person valid question documents, oregon garbage to comply with health, information oregon information requirements.

"Then successful instances similar mine, wherever you're conscionable wrongly refused transport, you would beryllium compensated precisely the aforesaid arsenic if the level had been overbooked," said Douglas.

The Air Passenger Rights radical has besides submitted to the CTA a 27-page investigation of the projected "denied boarding" regularisation — it, too, is calling for akin protections provided successful Europe.

A beardown connection to the hose industry 

Lukács says helium volition station Douglas's tiny claims tribunal triumph connected his group's Facebook page, truthful others tin usage it to combat gag orders successful disputes against airlines.

He calls it a beardown connection to the full hose manufacture to smarten up.

"Wasting for years the passengers' time, the ineligible system's time, judges, clerks, tens of thousands of dollars successful nationalist wealth for a $1,000 dispute," Lukács said. "That is not however we privation to usage our nationalist resources successful Canada."

Douglas says he's arrogant to beryllium down a lawsuit that volition apt assistance a batch of different frustrated hose passengers. But helium says nary 1 "in their close mind" would walk 3 years conscionable to triumph backmost what they're owed.

"Don't spell to tribunal for money," helium said. "Go to tribunal due to the fact that they're truly treating you badly. And you merit justice."