Colleen Dafoe was at the Halifax airport last December with her husband and daughter when WestJet told her their trip was cancelled.
The airline suggested rescheduling them on a flight more than 10 days later, she said 害羞草研究所� well after the end of their planned vacation to the Dominican Republic to celebrate Dafoe害羞草研究所檚 50th birthday with extended family.
They never left Nova Scotia.
Dafoe said she asked for a refund from WestJet, which refused and instead offered a vacation voucher valid for one year. Eventually, she turned to small claims court for the $1,200 in compensation she believed her family was owed under Canada害羞草研究所檚 passenger rights charter.
Only after she launched the legal action did a WestJet lawyer offer to pay them the full amount 害羞草研究所� if they signed a non-disclosure agreement barring them from discussing the matter.
害羞草研究所淢y husband and I hemmed and hawed about this. Part of us wanted to stand our ground and not accept the confidentiality clause, because airlines should not silence people when they have not followed regulations,害羞草研究所� Dafoe said.
In the end, Dafoe agree to a settlement that included a confidentiality clause, which bars her from disclosing the amount.
WestJet says it does 害羞草研究所渘ot comment on NDAs publicly regardless of topic or circumstance.害羞草研究所�
Dafoe said she agreed to settle because going to court seemed 害羞草研究所渒ind of scary 害羞草研究所� we didn害羞草研究所檛 know if we could navigate the system well enough against a full-time lawyer and not come out losers.害羞草研究所�
Her case fits into an apparent pattern where Canada害羞草研究所檚 two biggest airlines initially proffer vouchers 害羞草研究所� often worth between $150 and $300 害羞草研究所� if a passenger complains. Then, should the customer decline and proceed to file a court claim, Air Canada and WestJet eventually offer up to as much as the original request, or sometimes more, after a protracted back-and-forth 害羞草研究所� so long as an NDA is inked.
The Canadian Press communicated with more than 20 passengers of Canadian airlines who faced scenarios comparable with Dafoe害羞草研究所檚. Some spurned the offers, while others agreed to settlements they said topped $1,000.
Consumer rights advocates warn that confidentiality agreements between big companies and individual customers are far from routine in most sectors, and that the policy amounts to a power play by airlines to avoid setting legal precedents or letting word of payouts spread.
Under Canada害羞草研究所檚 Air Passenger Protection Regulations, airlines must compensate travellers for breaches that range from cancelled flights to failure to rebook customers promptly.
The regime is overseen by the Canadian Transportation Agency, which faced a record backlog of 61,000 complaints against carriers as of Dec. 5. Many travellers said they opted to skip the regulator害羞草研究所檚 process 害羞草研究所� which begins only after an initial complaint directly to the airline is rejected 害羞草研究所� because of its nearly two-year wait time in some cases.
Air Canada said in a statement that non-disclosure agreements are nothing out of the ordinary, and that it pays compensation when owed.
害羞草研究所淣DAs are very common in the context of a litigated dispute resolution, and an agreement to them is often part of any settlement agreement entered into prior to a court hearing,害羞草研究所� spokesman Peter Fitzpatrick wrote in an email.
害羞草研究所淭hey are designed to protect the integrity of the negotiation process, notably because each case is different and settlements are not directly comparable.害羞草研究所�
But Sylvie De Bellefeuille, a Quebec-based lawyer with advocacy group Option consommateurs, said the main goal is to suppress backlash 害羞草研究所� online and in the courts.
害羞草研究所淭hey don害羞草研究所檛 want to have a precedent. And especially now with social media, they might not want to have people saying, 害羞草研究所業 settled with Air Canada for 500 bucks,害羞草研究所櫤π卟菅芯克鶟 she said.
That concern over word-of-mouth aligns with a justification of NDAs put forward by a WestJet lawyer in an email to one customer last October: 害羞草研究所淲hile a passenger may share their experience (online), it often leads to an expectation that all passengers may be compensated in the same or similar manner, despite having very different travel circumstances.害羞草研究所�
An Air Canada paralegal offered a comparable explanation on a phone call recorded and shared with The Canadian Press by Elizabeth Patrick, who is seeking $400 in compensation plus expenses after her January flight was delayed more than five hours due in part to a defective airplane door. 害羞草研究所淵ou believe that you害羞草研究所檙e entitled to the $400, and we say you害羞草研究所檙e not entitled to it. So that害羞草研究所檚 why it害羞草研究所檚 important for us for you to sign a confidentiality agreement,害羞草研究所� the paralegal said on the call.
The confidentiality clauses are important enough to airlines that in some cases they offer the amount requested in passenger lawsuits, and occasionally more 害羞草研究所� along with an NDA 害羞草研究所� following a drawn-out process that can involve haggling with corporate lawyers.
Darren Guy said Air Canada initially gave him a $20 food voucher and no hotel accommodations after his evening flight to Vancouver from Montreal was cancelled in May, due in part to crew constraints. So he filed a claim for accommodation costs and $1,000 in compensation.
Air Canada paid him back for the $758 hotel price but denied the compensation, which regulations state range up to $1,000 in the event of a flight disruption of more than nine hours that was within the carrier害羞草研究所檚 control.
Guy sued in small claims court, and Air Canada responded with an offer of 害羞草研究所渧ouchers and some cash.害羞草研究所� He rejected it. The offer went up to a $1,000 voucher plus $800 in cash 害羞草研究所� more than the $1,000 he was asking for.
害羞草研究所淭he only stipulation was to sign a gag order,害羞草研究所� Guy said, calling the experience 害羞草研究所渇rustrating害羞草研究所� and a 害羞草研究所渞idiculous 害羞草研究所� rigmarole.害羞草研究所�
害羞草研究所淚t just makes me angry,害羞草研究所� he said. 害羞草研究所淚害羞草研究所檓 stubborn, and nobody害羞草研究所檚 going to tell me what I can and can害羞草研究所檛 talk about.害羞草研究所�
He rejected the airline害羞草研究所檚 higher offer.
Kelly Geraghty of Maple Ridge, B.C., who has filed an $11,000 claim that includes moral damages against WestJet following flight disruptions last year, said confidentiality clauses impose a cone of silence that can be suffocating.
害羞草研究所淭he big thing for me is it is a life-long burden. You害羞草研究所檙e not even allowed to talk to your spouse about it,害羞草研究所� she said of deals signed within the black box of an NDA.
害羞草研究所淚f they did nothing wrong, then why are they trying to hide it?害羞草研究所�
Sometimes, the settlement offer is significantly lower than requested. Many customers wouldn害羞草研究所檛 know that they can simply reject a 害羞草研究所渓owball offer害羞草研究所� in a bid to receive a higher one from airlines, said John Lawford, executive director of the Public Interest Advocacy Centre.
害羞草研究所淚t害羞草研究所檚 kind of a big power play from a much stronger party,害羞草研究所� said Lawford, calling the practice 害羞草研究所渦nconscionable, bad form, cheap 害羞草研究所� These are very small amounts.害羞草研究所�
害羞草研究所淚t害羞草研究所檚 meant to muzzle dissent and to reduce criticism of the company,害羞草研究所� he said. 害羞草研究所淵ou害羞草研究所檙e binding somebody to silence about conditions that might show other problems with the airlines.害羞草研究所�
From a business point of view, however, carriers are only doing what makes sense under the current system of rules and enforcement, said air passenger advocate Gabor Lukacs.
害羞草研究所淔rom an economic perspective, the airlines are doing the right thing,害羞草研究所� he said, stressing that the 害羞草研究所渟moke screen害羞草研究所� thrown up by confidentiality clauses prevents cases from proliferating.
害羞草研究所淭he airlines are not evil, they are not good or bad. They are simply playing what is close and optimal strategy in a game where the cards are stacked against the passenger.害羞草研究所�
To speed up complaint processing and coax customers back to the regulator rather than the courts, the Canadian Transportation Agency created the role of 害羞草研究所渃omplaint resolution officers.害羞草研究所� Training began in mid-August, with 50 now hired and another 50 set to join next year, the agency said.
It is now hashing out regulations to cement sweeping reforms to the country害羞草研究所檚 passenger rights charter. Announced in April and set to take effect in the first half of 2024, the changes to the Air Passenger Protection Regulations appear to scrap a loophole through which airlines have denied customers compensation for flight delays or cancellations when they were required for safety purposes.
First rolled out in 2019, the new regime also ratchets up the maximum penalty for airline violations to $250,000 害羞草研究所� a tenfold increase 害羞草研究所� and puts the regulatory cost of complaints on carriers.
Christopher Reynolds, The Canadian Press
