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

Andrew Douglas says he was just fighting for compensation when he took WestJet to small claims court — instead, the dispute has resulted in what's believed to be a landmark decision that can now be pointed to by all air travel passengers battling it out with the airlines. 

"Beware of seniors, they have a lot of time on their hands," the 72-year-old Ottawa man told Go Public, referring to the fact that his dispute with WestJet began more than three years ago. 

In her decision on costs earlier this month, the judge condemned WestJet's insistence that Douglas sign a non-disclosure agreement (NDA) in order to get compensation the airline owed him after he was incorrectly not allowed to board a flight to Cuba.

Nobody in Canada tracks how often NDAs are used, but experts in the airline industry say imposing confidentiality clauses in settlement offers is an increasingly common tactic, which is why this recent decision is so important. 

An advocate for air passengers says the decision sends an important directive to the airline industry.

"Finally, a judge calls out an airline for trying to gag passengers," said Gábor Lukács, founder and president of the Air Passenger Rights group. 

"That is a stern warning … they cannot get away with it."

Douglas's tale began on Jan. 31, 2022, at the Ottawa airport. 

He was headed to Cuba — a country he travels to regularly, visiting friends and bringing supplies to people in need, like the medicine he brought with him on a trip in January.

"I brought a lot of acetaminophen and ibuprofen because that's hard to find," he said.

But a WestJet agent told him — incorrectly — that he wasn't allowed to check in, because he couldn't provide proof of a recent negative Covid test. 

Douglas knew the regulations had recently changed, so he'd brought with him a printed page from the website of the Cuba Tourist Board of Canada, clearly stating that no Covid test was required for Canadians going to Cuba. 

But neither the WestJet agent nor a supervisor who was called in would listen when Douglas pleaded his case, or check the website themselves. 

The real burn, said Douglas, was that WestJet refused to refund his $410 ticket — offering instead to refund his baggage fees and give him a credit to take a later trip with the airline.