Andrew Douglas says he was only fighting compensation when he took Westjet to the court of small claims; On the other hand, the dispute has resulted in what is believed to be a historical decision that can now be indicated by all air travel passengers fighting with airlines.
“Be careful with the elderly, they have a lot of time in their hands,” said 72 -year -old Ottawa man to Go public, referring to the fact that his dispute with Westjet began more than three years ago.
In his decision on costs earlier this month, the judge condemned Westjet’s insistence that Douglas signed a non -discussor agreement (NDA) to obtain compensation that the airline owed him after incorrectly did not allow him to address a flight to Cuba.
No one in Canada tracks how often the NDAs are used, but experts in the airline industry say that imposing confidentiality clauses in settlement offers is an increasingly common tactic, that’s why that’s why This recent decision It is so important.
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An defender of aerial passengers says that the decision sends an important directive to the airline industry.
“Finally, a judge calls an airline for trying to gag the passengers,” said Gábal Lukács, founder and president of the Air Passenger Rights Group.
“That is a severe warning … they can’t get yours.”
As it started
The history of Douglas began on January 31, 2022 at Ottawa airport.
He headed to Cuba, a country that travels regularly, visiting friends and bringing supplies to needy people, such as the medicine he brought with him on a trip in January.
“I brought a lot of acetaminophen and ibuprofen because it is difficult to find,” he said.
In a ruling that the defenders of the aerial passengers say that they could change the way the airlines resolve the disputes, a judge criticized Westjet for insisting that a client firm a non -dissemination agreement to receive a reimbursement.
But a Westjet agent said, incorrectly, that he was not allowed to register, because he could not provide proof of a recent negative covid test.
Douglas knew that the regulations had recently changed, so he had brought with him a printed page of the website of the Cuba Tourism Board of Canada, clearly stating that no Covid evidence was required for Canadians who go to Cuba.
But neither the Westjet agent nor a supervisor who was called heard when Douglas declared his case or consult the website for himself.
The real burn, Douglas said, was that Westjet refused to reimburse his ticket of $ 410, offering instead reimburse his luggage rates and give him a loan to make a later trip with the airline.
“I don’t want steering wheel points,” Douglas said. “I’m not flying Westjet again.”
Turned at the airport, he returned home and sent to the airline a reimbursement request through a registered demand letter, a formal written request, asking the company to comply with a legal obligation before it potentially takes legal actions.
Westjet did not respond, so Douglas felt that he had no choice but to present in a small claims court.
“Who was going to believe that an airline would simply move away a passenger without any good reason?” said.
Because he had no legal record, Douglas went to the Ottawa Public Library and found a book written by a former judge of the court of small claims, explaining how a public member can take a case to the courts.
He also trusted the information provided by Lukács, of the rights of aerial passengers.
He presented his case in March 2022.
Westjet calls for a gag request
Five months later, Douglas received an email from Westjet, offering to pay $ 790 in compensation for his air ticket and another flight he lost because he could not make the trip. But the offer came with a hitch, the requirement to sign a NDA, so Douglas rejected the offer.
Before a case of small claims go to court, there is a conciliation conference, where both parties try to reach an agreement before a judge, avoiding a trial.
At that audience, Westjet again offered Douglas a reimbursement of $ 790 and again required that he signed a NDA, so once again, he rejected the offer.
Westjet made two more offers, slightly increasing the amount of refund every time, but still requires Douglas to remain silent. Then he rejected them too.
A week before the trial began, Westjet increased its offer again, to $ 1,298, it still required a gag order and warns Douglas that there would probably be consequences if it lost in court.
“If you choose not to accept this offer and proceed unnecessarily to the trial, we hope to receive instructions from our client to seek sanctions and costs against him,” wrote Anika Garlick, Westjet’s lawyer.
Even so, Douglas refused to settle.
“It’s not about money. It’s the point of discussion,” he said. “This purchase silence has to stop.”
The lawyer of the aerial passengers, Lukács, says that he sees nothing wrong with people to establish without going to court, provided that the offer is reasonable and, more importantly, that passengers are freedom to talk about what happened.
“Because we are talking about money that should be under the law,” Lukács said. “It is not a gesture of good will. It is not a brochure … it is simply what is due to the passenger, and there should be no confidentiality at all.”
Judge condemns Westjet
In his ruling, the judge ordered Westjet to reimburse Douglas for his aerial passage and the costs he incurred to travel to and from the airport and submit his demand.
He also condemned Westjet for trying to impose a confidentiality clause, saying that it was “problematic”, a “serious defect” and that there should be no “attached strings” to receive a “refund that has long been.”
She wrote that Westjet would not ask for a NDA unless there is a financial advantage, and that the advantage apparently “was worth it and the expense of a trial to the accused does not offer an agreement without him.”
“This decision sends a clear message to airlines that if an amount is indisputable, the airline should pay it,” Lukács said.
A lawyer who has studied the use of confidentiality clauses within the Canadian air travel industry calls the “well reasoned” decision and a victory for air travel passengers.
“This decision could change the way in which the airlines litigate, and for the better,” said Paul Daly, president of Administrative Law and Governance of the University of Ottawa. “It would mean more information in the public domain.”
Douglas, who waited almost three years for his day in the Court, said he was satisfied with the harsh criticism of the judge about the use of a NDA by Westjet.
“It’s a pretty strong language,” he said. “But I feel that the way I was mistreated is justified.”
The judge also slapped the airline with an additional fine of $ 410 for retaining money owed to the claimant of 72 years for so long, a delay that found “particularly irritating.”
“A fine in a lower amount would be insufficient to deter the accused of repeating this behavior in other cases,” he wrote, punishing Westjet for not paying for more than two years and seven months after the start of the litigation.
“The courts cannot tolerate hardball tactics,” the judge wrote. “Especially in circumstances in which there is an imbalance of power between a corporate litigator (here the second largest airline in Canada) and an individual.”
In total, the judge ordered Westjet to pay Douglas $ 2,118, plus interest from the first day of the dispute.
Westjet rejected an interview request from Go public.
In A statementA airline spokesman wrote that confidentiality clauses are “fundamental to ensure that both parties can transparently explore the unique circumstances and the unique solution that may be available and lead to common land.”
Douglas wants to change the definition of ‘Denegation of Boarding’
Meanwhile, Douglas hopes to strengthen other protections for air travelers.
He has made a submission to the Canadian transport agency (CTA) with respect to the definition of “denied shipment” in proposed changes to the regulations for the protection of aerial passengers. As it is, travelers can only request a “denied approach” if you can prove that a plane is too reserved (a practice also known as “mole”).
That is why Douglas could not file a complaint about his Westjet dispute before the CTA and had to go to court: his situation was not covered by current regulations.
He wants Canada to align with the definition of the European Union of “Deling denial” that would limit the ability of an operator to deny passenger compensation with a confirmed reserve only if they appear late for check-in, they do not have valid travel documents or refuses to meet the health, safety or safety requirements.
“Then, in cases like mine, where they simply rejected transportation, you would be compensated exactly the same as if the plane had been too reserved,” Douglas said.
The Air Passenger Rights Group has also presented to the CTA an analysis of 27 pages of the proposed regulation of “addressing” denied: it is also asking for similar protections provided in Europe.
A strong message for the airline industry
Lukács says that he will publish the victory of the Douglas Claims Court in his group Facebook pageSo others can use it to fight GAG orders in disputes against airlines.
He calls him a strong message for the entire airline industry for intelligent.
“Losing for years the time of the passengers, the time of the legal system, the judges, the employees, tens of thousands of dollars in public money for a dispute of $ 1,000,” Lukács said. “This is how we want to use our public resources in Canada.”
Douglas says he is proud to be behind a case that will probably help many other frustrated airline passengers. But he says that no one “in their right mind” would spend three years just to recover what is owed to them.
“Don’t go to court for money,” he said. “Go to court because they are really treating you badly. And you deserve justice.”
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