Letter Decision No. LET-A-93-2018
Sunwing Airlines Inc. (Sunwing) – Tarmac delays; flight delays; flight cancellations; and lost, damaged and delayed baggage.
On April 25, 2018, in Decision No. LET-A-30-2018, the Canadian Transportation Agency (Agency) initiated an inquiry in respect of numerous flight disruptions experienced by passengers of Sunwing at the Toronto Pearson International Airport between April 14 and 18, 2018. On May 2, 2018, in Decision No. LET-A-31-2018, the Agency expanded the inquiry to include flight disruptions experienced by passengers of Sunwing at the Montreal-Pierre Elliot Trudeau International Airport on the same dates.
On October 15, 2018, the Agency advised Sunwing that it would need to make a claim for confidentiality if it wanted the information to be treated as confidential, following a process that is similar to that provided for in the Dispute Adjudication Rules.
Also on October 15, 2018, in Decision No. LET-A-68-2018, the Agency sought information from Sunwing, through written questions, in order to complete the evidentiary record. After requesting and being granted an extension of time to respond, Sunwing provided its response on November 2, 2018. Sunwing provided corrected responses to two of the written questions on November 6, 2018.
Also on November 2, 2018, Sunwing submitted a request that certain information that it had provided during the inquiry - an annex to its corporate statement and various costs incurred by it in response to the events subject to the inquiry - be treated as confidential.
Sunwing provided the Agency with corrections to two of its interrogatory responses. Given that Sunwing quickly identified the error and provided notice to the Agency, the Agency will place the corrected interrogatory responses on the record.
SUNWING’S REQUEST FOR CONFIDENTIALITY
In its November 2, 2018 submission, Sunwing argues that the annex to its corporate statement and various costs incurred by it in response to the events subject to the inquiry contains “sensitive financial and commercial information” and that its public release would cause harm to its commercial interests. Sunwing also raises a number of procedural arguments, disputing the applicability of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules), to this proceeding.
ANALYSIS AND FINDINGS
Pursuant to section 25 of the Canada Transportation Act, S.C. 1996, c. 10, as amended, the Agency has broad powers, including the authority to make orders regarding the confidentiality of documents. This authority exists in respect of all Agency proceedings, including dispute adjudications and regulatory determinations, and is exercised in a manner consistent with the test developed by the Supreme Court in Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835, which was later adapted in the R. v. Mentuck,  3 S.C.R. 442 (referred to as the Dagenais/Mentuck test), and the Agency’s commitment to transparency, whether or not the Dispute Adjudication Rules or the open court principle apply to the proceeding. Thus, when the Agency exercises this authority, it can be expected to place information on the public record if that information is relevant to the proceeding, and either (a) no specific direct harm to the party is likely to result from the public disclosure or (b) the public interest in releasing the information outweighs any harm.
The Agency has considered Sunwing’s request and finds that the information is relevant to the issues before the Agency in this inquiry; specifically, as to whether Sunwing properly applied its tariff provisions in areas such as the issuance of meal vouchers or compensation for expenses.
The Agency further finds that release of the financial data at issue would cause specific direct harm to Sunwing. Under the circumstances of the inquiry, where a significant amount of information will be made public in relation to the carrier’s handling of the events at issue, the Agency is of the view that the public interest in the release of this specific financial data does not outweigh the harm expected from release.
As a result, the Agency finds that the specified information should be treated as confidential.
The information identified by Sunwing as commercially sensitive will be placed on the confidential, and not the public, record. Sunwing is directed to provide the Agency with a public version of its response to thewritten questions, excluding this information, which will be placed on the public record.