In Canada (Transportation Safety Board) v. Carroll-Byrne, 2021 NSCA, the Nova Scotia Court of Appeal unanimously affirmed a lower court’s decision to authorize the release and use of the cockpit voice recorder (CVR) in a class action. The Supreme Court of Canada heard the appeal on March 17, 2022 and reserved its judgment.
On March 29, 2015, an Airbus A320 aircraft, operated as Air Canada Flight 624, landed short of the runway at Halifax Stanfield International Airport in the midst of winter snowstorm conditions. The aircraft landing gear was damaged and the aircraft skidded along the runway before coming to a halt. At the time, there were 133 passengers and 5 flight crew members on board the aircraft.
A class action was commenced on behalf of the passengers against Air Canada, Airbus S.A.S., NAV Canada, Halifax International Airport Authority, the Attorney General of Canada, the pilot and first officer. The Transportation Safety Board (TSB) of Canada carried out an investigation into the accident. As part of its investigation, the TSB took possession of and reviewed the contents of the CVR. Upon the completion of its investigation, the TSB released its final report in May 2017. While the TSB report is publicly released, its findings are not binding and the opinions of a TSB investigator are not admissible in any legal proceeding, pursuant to sections 7(4) and 33 of the Canadian Transportation Accident Investigation and Safety Board Act (the “Act”).
The Act also provides that an “on-board recording”, such as the recording of voice communications on the flight deck via a CVR, is privileged. Although the CVR is to be released to a TSB investigator who requests it as part of an investigation, that recording is not to be communicated to anyone else. Section 28(6) of the Act provides the following exception to this statutory claim of privilege:
28(6) Notwithstanding anything in this section, where, in any proceedings before a court or coroner, a request for the production and discovery of an on-board recording is made, the court or coroner shall
- cause notice of the request to be given to the Board, if the Board is not a party to the proceedings;
- in camera, examine the on-board recording and give the Board a reasonable opportunity to make representations with respect thereto; and
- if the court or coroner concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording by virtue of this section, order the production and discovery of the on-board recording, subject to such restrictions or conditions as the court or coroner deems appropriate, and may require any person to give evidence that relates to the on-board recording.
Relying upon s. 28(6) of the Act, Airbus, the Halifax Airport Authority and NAV Canada applied for an order for the production and discovery of the CVR in the class action. The TSB and the Air Canada Pilots Association (ACPA) were granted intervenor status and, together with Air Canada, opposed the application.
The initial motion was heard by Justice Duncan, who authorized the release of the contents of the CVR on certain conditions. That decision was appealed and the Nova Scotia Court of Appeal affirmed the decision of the motion Judge.
On appeal, the TSB claimed that the motion Judge erred by:
- failing to give the Board an opportunity to make in camera representations with respect to the CVR;
- determining that the public interest in the proper administration of justice outweighed the importance of the statutory privilege associated with the CVR.
The ACPA supported the appeal arguing that disclosure of the CVR would compromise pilot privacy interests and public safety by discouraging candour in flight officer communications.
What are in camera representations?
The TSB argued that the inclusion of the words “in camera” in section 28(6)(b) entitled it to make ex parte representations to the court prior to any decision to release the contents of the CVR. In effect, the TSB claimed that the motion judge ought to have allowed it to it make submissions not only in the absence of the public (in camera) but also in the absence of any other parties involved in the legal proceedings (ex parte).
In interpreting the meaning of the Act, the Court of Appeal applied the rule set out by the Supreme Court of Canada that the words of a statute “are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”. The Court of Appeal noted that there is a clear distinction between “in camera” and “ex parte” which appears in various federal legislation. The Court of Appeal also noted that Parliament could have incorporated “ex parte” into section 28(6)(b) but did not. The Court of Appeal held that:
“Plainly read, s. 28(6) authorizes the Court – not the parties – to listen to the cockpit recorder in camera. The Board – which is not a party in the ordinary sense – is then given an opportunity to make representations with respect to the recording – something non-parties ordinarily cannot.”
The Court of Appeal did not clearly decide this issue but held that even if the motion Judge erred by denying the TSB ex parte submissions, the TSB still had to establish that the error was material in the sense of potentially affecting the outcome of the application. The Court of Appeal found that the TSB failed to do so. This decision appears to support an interpretation of section 28(6)(b) that the words “in camera” only apply to the court’s examination of the CVR and not to any submissions which the TSB may be allowed to make in that regard.
Did the Judge err in determining that public interest favoured the conditional release of the CVR?
The TSB argued that the motion Judge erred in fact in his analysis of the evidence and erred in law by applying the wrong legal test in balancing the relevant interests. The motion Judge followed and applied the legal test as set out by Justice Strathy in Société Air France v. Greater Toronto Airport Authority (2009 CanLII 69321). The Court of Appeal held that the motion Judge did not err in relying on the test as set out in Air France, which rejected the inclusion of a “possibility of a miscarriage of justice” threshold for admitting the contents of the CVR.
The motion Judge found that:
- the CVR was both reliable and relevant to the issues of causation of the accident and the claims of negligence with regard to the actions of the flight crew;
- not only was the evidence from the CVR relevant and material, it was also the only way to obtain certain evidence given evidentiary gaps in the memories of the flight crew;
- release of the CVR with restrictive conditions would not unduly compromise the privacy of the flight crew, given that the key portions of the recording occurred during a sterile cockpit environment, where communications should be restricted to operational issues;
- release of the CVR would not compromise safety; and
- release of the CVR would not have a “chilling effect” on pilot communications given the professionalism of pilots and practice of releasing the CVR in other jurisdictions.
The Court of Appeal found no error in the motion Judge’s analysis of the facts, which were entitled to judicial deference. They noted that he had weighed the public interest in the administration of justice against the privacy/safety concerns and statutory privilege and ordered the restricted release and use of the CVR on certain terms. The Court of Appeal dismissed the appeal.
Of note, this decision has been appealed to the Supreme Court of Canada and the appeal was heard earlier last month. Stay tuned for our update when our highest court renders its decision and provides important direction on the future handling of CVR in claims arising out of aviation accidents.
If you have any questions about this article, please contact a member of our Aviation Group.
Transportation Safety Board of Canada v. Kathleen Carroll-Byrne, et al., 2021 NSCA 34, leave to appeal to SCC granted, 39661 (14 October 2021). SCC hearing held on March 17, 2022; judgment reserved.
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