Ontario judge condemns WestJet’s attempt to include gag order in settlement offer

Andrew Douglas said when he brought Westjet to the small claims court, he struggled just for compensation—instead, the dispute led to what people thought was a landmark decision that all air travelers can now point out, fighting the airline.

The 72-year-old Ottawa man told the public, “Beware of the elderly, they have a lot of time.” He refers to his dispute with Westergit began three years ago.

In a decision on fees earlier this month, the judge condemned West Jets for insisting that Douglas signed a non-public agreement (NDA) in order to get compensation because he did not allow him to owe him the airline he owed after boarding a flight to Cuba.

No one in Canada tracks how often NDA is used, but experts in the airline industry say it is an increasingly common strategy to impose confidentiality clauses in settlement offers, which is why This latest decision It’s so important.

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Air passenger advocates say the decision sent important instructions to the airline industry.

“Finally, the judge called on airlines that attempted to block passengers,” said Gábor Lukács, founder and president of the Airline Passenger Rights Group.

“That’s a harsh warning…they can’t get rid of it.”

How it started

Douglas’s story begins on January 31, 2022 at Ottawa Airport.

He is heading to Cuba – he travels regularly, visits friends and brings supplies to those in need, such as the medicines he brings on his January trip.

“I brought a lot of acetaminophen and ibuprofen because it’s hard to find,” he said.

Watch | Judge criticizes WestJet for insisting on customer signature non-disclosure agreement:

Judge Calls WestJet Trying to Mock Clients | Public

In a ruling, air passenger advocates say it can change the way airlines resolve disputes, and the judge criticized West Jets for insisting customers sign undisclosed agreements to receive a refund.

But agent Westjet told him – wrongly told him that he would not allow occupancy because he could not provide evidence of the recent negative test.

Douglas knew that these regulations had changed recently, so he brought a printed page on the website of the Cuba Tourism Agency in Canada, apparently noting that Canadians do not need to take exams when they go to Cuba.

But neither the Westjet agent nor the summoned supervisor would listen when Douglas begs for his case or checking the website himself.

The real burn was that the West Jets refused to refund his $410 ticket, but rather was willing to refund his baggage fee and give him a honor to travel with the airline later on.

“I don’t want flyers,” Douglas said. “I don’t fly West Jets anymore.”

He transferred at the airport, and he returned to his hometown and sent the airline a request for a refund via a registration request letter (a formal written request) requiring the company to fulfill its legal obligations before possible legal action.

West Jets didn’t answer, so Douglas thought he had no choice but to file it in the small claims court.

“Who would believe that airlines won’t shut passengers out for no good reason?” he said.

Because he had no legal background, Douglas headed to the Ottawa Public Library to find a book written by a former small claims court judge and explained how the public brought the case to the court.

He also relies on information provided to him by Lukács’s air passenger rights.

He filed a lawsuit in March 2022.

Westjet asks to call the doctor

Five months later, Douglas received an email from Westjet willing to pay $790 for his ticket, and he missed another flight because he was unable to take the trip. But the proposal comes with a hurdle – a request to sign the NDA – Douglas rejected the offer.

Before a small claim case goes to court, there is a settlement meeting – both parties attempt to reach an agreement before the judge and potentially avoid a trial.

At that hearing, West Jets once again offered Douglas a $790 refund and again asked him to sign the NDA – so he once again rejected the offer.

Westjet proposed two more offers, slightly increasing the amount of refunds each time, but still asked Douglas to remain silent. So he refused.

A week before the trial, West Jets raised its offer again (to $1,298) and still needed to jerk the order and warn Douglas that there could be consequences if he lost in court.

“If you choose not to accept this offer to conduct an unnecessarily trial, we expect our client’s instructions to seek you fines and fees,” wrote WestJet’s attorney Anika Garlick.

Despite this, Douglas refused to settle.

“It has nothing to do with money. It’s the point of the debate,” he said. “This buying silence must stop.”

Air passenger advocate Lukács said that as long as the proposal is reasonable and importantly, passengers are free to talk about what happened, he believes that there is nothing wrong with those who are not present in court.

“Because we’re talking about owing them money under the law,” Lucas said. “It’s not a gesture of kindness. It’s not a handout…it’s just a debt owed to passengers – there shouldn’t be any confidentiality there.”

Judge condemns Westjet

In her ruling, the judge ordered the West Jets to refund Douglas’ tickets and costs arising from traveling to and from the airport and filing a lawsuit.

She also condemned Westjet’s attempt to impose confidentiality clauses, saying it was “problematic”, “serious flaws” and that there should be no “string” to get a “long-term refund.”

She wrote that unless there is a financial advantage, WestJet won’t ask for the NDA, and it’s clear that it’s worth the hassle and expense of trialing the defendant without it.”

“This decision sends a clear message to the airline that if an undisputed amount is paid, the airline should pay it,” Lucas said.

A lawyer studied the use of confidential terms in the Canadian air travel industry, calling the decision “good” and won the air travel passengers’ victory.

“This decision can really change the way airline litigation is litigated and get better,” said Paul Daly, president of Administrative Law and Governance Studies at the University of Ottawa. “It means more information in the public sphere.”

Douglas, who had been waiting in court for nearly three years, said he was happy with the judge’s harsh criticism of Westjet’s use of the NDA.

“It’s a very powerful language,” he said. “But I think this is the way I’m abused.”

The judge also fined $410 for withholding funds from the 72-year-old plaintiff, a delay she found that she “especially annoying.”

“A smaller amount of fine would not be enough to prevent the defendant from repeating the behavior in other cases,” she wrote. She criticized Westjet for not paying for more than two years and seven months after the lawsuit began.

“The court cannot tolerate the hard ball strategy,” the judge wrote. “Especially there is a power imbalance between corporate litigants (which is Canada’s second largest airline) and individuals.”

All in all, the judge ordered the West Jets to pay Douglas $2,118 – plus interest on the first day of the dispute.

Westjet rejected Go’s public interview request.

exist A statementA spokesperson for the airline wrote that the confidentiality clause “is the basis for ensuring both parties can transparently explore unique solutions that may be available and bring common ground.”

Douglas wants to “reject boarding” to change its definition

Meanwhile, Douglas hopes to help strengthen other protections for air travelers.

He has submitted a definition of “refused to board” to the Transport Agency of Canada (CTA) Proposed changes Protection regulations for air passengers. For now, if a traveler can prove that the plane is overbooked, he can only apply for “refusing to board” (this practice is also called “bumping”).

That’s why Douglas was unable to file a complaint against his WestJet dispute with CTA and had to go to court – his situation is not covered by the current regulations.

He hopes Canada will be consistent with the EU’s definition of “refusing to board” which will limit the carrier’s ability to refuse passengers’ compensation, only if they are late to check in, have no valid travel documents, or refuse to comply with health, safety or safety requirements.

“Then, in my case, you just mistakenly rejected the transport and your compensation is exactly the same as the plane was overbooked,” Douglas said.

The Air Passenger Rights Group also submitted a 27-page analysis of the proposed “refusal to board” regulations to the CTA – which also called for similar protections in Europe.

Strong message to the airline industry

Lucas says he will win in Douglas’s small claims court Facebook pageso others can use it to fight disputes against airlines.

He said it was a strong message to the entire airline industry.

“The time of passengers, legal system, time, judges, clerks, tens of thousands of dollars in public funds, to a $1,000 dispute over the years,” Lucas said. “This is not the way we want to use public resources in Canada.”

Douglas said he was honored to be a case that could help many other frustrated airline passengers. But he said no one would spend three years “in their minds” just to win their owed money.

“Don’t go to court to make money,” he said. “Go to court because they really don’t treat you well. You deserve justice.”