Andrew Douglas says he was simply combating for compensation when he took WestJet to small claims court docket — as a substitute, the dispute has resulted in what’s believed to be a landmark choice that may now be pointed to by all air journey passengers battling it out with the airways.
“Watch out for seniors, they’ve plenty of time on their fingers,” the 72-year-old Ottawa man informed Go Public, referring to the truth that his dispute with WestJet started greater than three years in the past.
In her choice on prices earlier this month, the decide condemned WestJet’s insistence that Douglas signal a non-disclosure settlement (NDA) to be able to get compensation the airline owed him after he was incorrectly not allowed to board a flight to Cuba.
No person in Canada tracks how typically NDAs are used, however consultants within the airline business say imposing confidentiality clauses in settlement provides is an more and more widespread tactic, which is why this recent decision is so vital.
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An advocate for air passengers says the choice sends an vital directive to the airline business.
“Lastly, a decide calls out an airline for attempting to gag passengers,” stated Gábor Lukács, founder and president of the Air Passenger Rights group.
“That could be a stern warning … they can not get away with it.”
The way it started
Douglas’s story started on Jan. 31, 2022, on the Ottawa airport.
He was headed to Cuba — a rustic he travels to recurrently, visiting associates and bringing provides to individuals in want, like the medication he introduced with him on a visit in January.
“I introduced plenty of acetaminophen and ibuprofen as a result of that is laborious to search out,” he stated.
In a ruling that air passenger advocates say may change how airways settle disputes, a decide criticized WestJet for insisting a buyer signal a non-disclosure settlement to be able to obtain a refund.
However a WestJet agent informed him — incorrectly — that he wasn’t allowed to examine in, as a result of he could not present proof of a latest unfavorable Covid take a look at.
Douglas knew the rules had lately modified, so he’d introduced with him a printed web page from the web site of the Cuba Vacationer Board of Canada, clearly stating that no Covid take a look at was required for Canadians going to Cuba.
However neither the WestJet agent nor a supervisor who was referred to as in would hear when Douglas pleaded his case, or examine the web site themselves.
The actual burn, stated Douglas, was that WestJet refused to refund his $410 ticket — providing as a substitute to refund his baggage charges and give him a credit score to take a later journey with the airline.
“I do not need flyer factors,” stated Douglas. “I’m not flying WestJet once more.”
Turned away on the airport, he returned residence and despatched the airline a request for a refund through a registered demand letter — a proper, written request, asking the corporate to fulfil a authorized obligation earlier than he doubtlessly took authorized motion.
WestJet didn’t reply, so Douglas felt he had no choice however to file in small claims court docket.
“Who was ever going to consider that an airline would merely flip a passenger away for no good cause?” he stated.
As a result of he had no authorized background, Douglas headed to the Ottawa public library and located a e-book written by a former small claims court docket decide, explaining how a member of the general public can take a case to court docket.
He additionally relied on data offered to him by Lukács, of Air Passenger Rights.
He filed his case in March 2022.
WestJet asks for gag order
5 months later, Douglas obtained an e-mail from WestJet, providing to pay $790 in compensation for his airfare and one other flight he missed as a result of he could not take the journey. However the provide got here with a hitch — the requirement that he signal an NDA — so Douglas declined the provide.
Earlier than a small claims case goes to court docket, there is a settlement convention — the place either side attempt to come to an settlement earlier than a decide, doubtlessly avoiding a trial.
At that listening to, WestJet once more provided Douglas a refund of $790 and once more required he signal an NDA — so as soon as once more, he turned down the provide.
WestJet made two extra provides, barely growing the quantity of the refund every time, however nonetheless requiring that Douglas maintain silent. So he turned these down, too.
One week earlier than the trial was set to start, WestJet upped its provide once more — to $1,298 — nonetheless requiring a gag order and warning Douglas that there would seemingly be penalties if he misplaced in court docket.
“Do you have to select to not settle for this provide and proceed unnecessarily to trial, we count on to obtain directions from our shopper to hunt penalties and prices towards you,” wrote Anika Garlick, the lawyer for WestJet.
Nonetheless, Douglas refused to settle.
“It isn’t in regards to the cash. It is the purpose of the argument,” he stated. “This shopping for silence has to cease.”
Air passenger advocate Lukács says he sees nothing flawed with individuals settling with out going to court docket, so long as the provide is affordable and, importantly, that passengers are at liberty to discuss what occurred.
“As a result of we’re speaking about cash that’s owed to them underneath regulation,” stated Lukács. “It’s not a goodwill gesture. It isn’t a handout … It’s merely what’s owed the passenger — and there ought to be no confidentiality in any respect there.”
Choose condemns WestJet
In her ruling, the decide ordered WestJet to refund Douglas for his airfare and prices he incurred travelling to and from the airport and submitting his lawsuit.
She additionally condemned WestJet for attempting to impose a confidentiality clause, saying it was “problematic,” a “critical defect” and that there shouldn’t be “strings connected” to obtain a “long-overdue refund.”
She wrote that WestJet wouldn’t be asking for an NDA until there was a monetary benefit to it, and that the benefit was apparently “definitely worth the bother and expense of a trial to the defendant to not provide settlement with out it.”
“This choice sends a transparent message to the airways that if an quantity is undisputed, the airline ought to pay it,” stated Lukács.
A lawyer who has studied using confidentiality clauses inside Canada’s air journey business calls the choice “well-reasoned” and a win for air journey passengers.
“This choice may certainly change the best way airways litigate — and for the higher,” stated Paul Daly, Analysis Chair in Administrative Legislation and Governance on the College of Ottawa. “It could imply extra data within the public area.”
Douglas, who waited virtually three years for his day in court docket, stated he was happy with the decide’s harsh criticism of WestJet’s use of an NDA.
“It is fairly robust language,” he stated. “However I really feel it is justified the best way I used to be mistreated.”
The decide additionally slapped the airline with an extra $410 penalty for withholding cash it owed the 72-year-old plaintiff for therefore lengthy — a delay she discovered “notably vexing.”
“A penalty in a lesser quantity could be inadequate to discourage the defendant from repeating this conduct in different instances,” she wrote, chastising WestJet for not paying up for greater than two years and 7 months after the beginning of litigation.
“Courts can’t condone hardball techniques,” wrote the decide. “Particularly in circumstances the place there’s a energy imbalance between a company litigant (right here the second largest airline in Canada) and a person.”
All informed, the decide ordered WestJet to pay Douglas $2,118 — plus curiosity from day one of many dispute.
WestJet declined an interview request from Go Public.
In a statement, an airline spokesperson wrote that confidentiality clauses are “basic to making sure that each events can transparently discover each the distinctive circumstances and the distinctive resolution which can be accessible and result in widespread floor.”
Douglas desires ‘denied boarding’ definition modified
In the meantime, Douglas hopes to assist strengthen different protections for air travellers.
He is made a submission to the Canadian Transportation Company (CTA) relating to the definition of “denied boarding” in proposed changes to the Air Passenger Safety Laws. Because it stands, travellers can solely file for “denied boarding” if they’ll show a aircraft is overbooked (a follow also called “bumping”).
That is why Douglas could not file a grievance about his WestJet dispute with the CTA and needed to go to court docket — his scenario wasn’t coated underneath the present rules.
He desires Canada to align with the European Union’s definition of “denial of boarding” that might restrict a service’s skill to disclaim compensation to passengers with a confirmed reservation provided that they present up late for check-in, haven’t got legitimate journey paperwork, or refuse to adjust to well being, security or safety necessities.
“Then in situations like mine, the place you are simply wrongly refused transport, you’ll be compensated precisely the identical as if the aircraft had been overbooked,” stated Douglas.
The Air Passenger Rights group has additionally submitted to the CTA a 27-page analysis of the proposed “denied boarding” regulation — it, too, is looking for comparable protections offered in Europe.
A powerful message to the airline business
Lukács says he’ll put up Douglas’s small claims court docket victory on his group’s Facebook page, so others can use it to battle gag orders in disputes towards airways.
He calls it a powerful message to all the airline business to smarten up.
“Losing for years the passengers’ time, the authorized system’s time, judges, clerks, tens of 1000’s of {dollars} in public cash for a $1,000 dispute,” Lukács stated. “That’s not how we wish to use our public sources in Canada.”
Douglas says he is proud to be behind a case that can seemingly assist plenty of different annoyed airline passengers. However he says nobody “of their proper thoughts” would spend three years simply to win again what they’re owed.
“Do not go to court docket for cash,” he stated. “Go to court docket as a result of they’re actually treating you badly. And also you deserve justice.”
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