The airline suggested rescheduling them on a flight more than 10 days later, she said — well after the end of their planned vacation to the
They never left
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
Only after she launched the legal action did a WestJet lawyer offer to pay them the full amount — if they signed a non-disclosure agreement barring them from discussing the matter.
“My 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,” 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 “not comment on NDAs publicly regardless of topic or circumstance.”
Dafoe said she agreed to settle because going to court seemed “kind of scary — we didn't know if we could navigate the system well enough against a full-time lawyer and not come out losers."
Her case fits into an apparent pattern where Canada’s two biggest airlines initially proffer vouchers — often worth between
The Canadian Press communicated with more than 20 passengers of Canadian airlines who faced scenarios comparable with Dafoe's. Some spurned the offers, while others agreed to settlements they said topped
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
The regime is overseen by the
“NDAs 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,” spokesman
“They are designed to protect the integrity of the negotiation process, notably because each case is different and settlements are not directly comparable.”
But
“They don't want to have a precedent. And especially now with social media, they might not want to have people saying, ‘I settled with
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: “While 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.”
An
The confidentiality clauses are important enough to airlines that in some cases they offer the amount requested in passenger lawsuits, and occasionally more — along with an NDA — following a drawn-out process that can involve haggling with corporate lawyers.
Guy sued in small claims court, and
“The only stipulation was to sign a gag order,” Guy said, calling the experience “frustrating” and a “ridiculous … rigmarole.”
“It just makes me angry," he said. "I’m stubborn, and nobody’s going to tell me what I can and can’t talk about.”
He rejected the airline's higher offer.
“The big thing for me is it is a life-long burden. You’re not even allowed to talk to your spouse about it,” she said of deals signed within the black box of an NDA.
“If they did nothing wrong, then why are they trying to hide it?”
Sometimes, the settlement offer is significantly lower than requested. Many customers wouldn’t know that they can simply reject a “lowball offer” in a bid to receive a higher one from airlines, said
“It's kind of a big power play from a much stronger party,” said Lawford, calling the practice “unconscionable, bad form, cheap ... These are very small amounts.”
“It's meant to muzzle dissent and to reduce criticism of the company,” he said. “You're binding somebody to silence about conditions that might show other problems with the airlines.”
From a business point of view, however, carriers are only doing what makes sense under the current system of rules and enforcement, said
“From an economic perspective, the airlines are doing the right thing,” he said, stressing that the “smoke screen” thrown up by confidentiality clauses prevents cases from proliferating.
“The airlines are not evil, they are not good or bad. They are simply playing what is cold and optimal strategy in a game where the cards are stacked against the passenger.”
To speed up complaint processing and coax customers back to the regulator rather than the courts, the
It is now hashing out regulations to cement sweeping reforms to the country’s 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 allows the regulator to ratchet up the maximum penalty for airline violations to
This report by The Canadian Press was first published
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