SCC hears case about production of on-board cockpit voice recorder (CVR) following TSB investigation

In Canada (Transportation Safety Board) vs. Carroll Byrne2021 NSCA, the Nova Scotia Court of Appeal unanimously upheld a lower court’s decision to allow the release and use of the cockpit voice recorder (CVR) in a class action lawsuit. the Supreme Court of Canada heard the call March 17, 2022 and reserved judgment.

On March 29, 2015an Airbus A320, operating as Air Canada Flight 624, landed short of the runway at Halifax Stanfield International Airport amid winter snowstorm conditions. The aircraft’s landing gear was damaged and the aircraft skidded along the runway before coming to rest. At the time, there were 133 passengers and 5 flight crew on board the aircraft.

A class action lawsuit has been filed on behalf of the passengers against Air CanadaAirbus SAS, NAV Canada, Halifax International Airport Authoritythe attorney general of Canadathe pilot and the co-pilot. The Transportation Safety Board (TSB) of Canada conducted an investigation into the accident. As part of its investigation, the TSB took possession of the CVR and examined its contents. At the end of its investigation, the TSB released its final report in May 2017. Although the TSB report is made public, its conclusions are not binding and the opinions of a TSB investigator are not admissible in legal proceedings, pursuant to sections 7(4) and 33 of the Canadian Transportation Accident Investigation and Safety Board Act (the act”).

The law also provides that “on-board recording”, such as the recording of voice communications in the cockpit via a CVR, is preferred. Although the CVR must be given to a TSB investigator who requests it as part of an investigation, this recording must not be shared with anyone else. Subsection 28(6) of the Act provides the following exception to this statutory claim of privilege:

28(6) Notwithstanding anything in this section, where in a proceeding before a court or a coroner an application is made for the production and discovery of an on-board recording, the court or the coroner shall

1. cause notice of the application to be given to the Board, if the Board is not a party to the proceeding;
2. in camera, review the on-board recording and give the Commission a reasonable opportunity to comment thereon; and
3. if the court or the coroner finds, in the circumstances of the case, that the public interest in the proper administration of justice outweighs the privilege attaching to the on-board recording under this section, order the production and discovery of the on-board recording the recording, subject to such restrictions or conditions as the court or coroner deems appropriate, and may require any person to give evidence in connection with the on-board recording.

Relying on art. 28(6) of the Act, Airbus, the Halifax Airport Authority and NAV Canada sought 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 Canadaopposes the request.

The original motion was heard by Justice Duncan, which authorized the broadcast of the content of the CVR under certain conditions. This decision was appealed and the Nova Scotia Court of Appeal upheld the motion judge’s decision.

On appeal, the TSB asserted that the motion judge erred:

ACPA supported the appeal, arguing that CVR disclosure would compromise pilot privacy and public safety by discouraging candor in flight officer communications.

What are in camera representations?

The TSB argued that the inclusion of the words “in camera” in Article 28(6)(b) authorized him to do ex parte representations in court prior to any decision to disclose the contents of the CVR. Indeed, the TSB argued that the motion judge should have allowed it to make submissions not only in the absence of the public (in camera) but also in the absence of any other party involved in the legal proceedings (ex parte).

In interpreting the meaning of the Act, the Court of Appeal applied the rule established by the Supreme Court of Canada that the words of a law “must be read in their full context and in their grammatical and ordinary meaning in harmony with the scheme of the law, the object of the law and the intention of Parliament“. The Court of Appeal noted that there is a clear distinction between “in camera” and “ex partewhich appears in various federal statutes. The Court of Appeal also noted that Parliament could have incorporated”ex parte28(6)(b), but did not. The Court of Appeal held that:

“Clearly, subsection 28(6) authorizes the Court – and not the parties – to listen to the cockpit recorder in camera. The Board – which is not a party in the ordinary sense of the term – then has the opportunity to make representations regarding the registration – which non-parties normally cannot.”

The Court of Appeal did not clearly decide this issue, but held that even if the motions judge erred in denying the TSB ex parte submissions, the TSB still had to establish that the error was material in the sense that it could affect the outcome of the application. The Court of Appeal concluded that the TSB had failed to do so. This decision appears to support an interpretation of paragraph 28(6)(b) that the words “in camera“apply only to the court’s review of the CVR and not to any observations the TSB may be permitted to make thereon.

Did the judge err in determining that the public interest favored CVR’s parole?

The TSB argued that the motion judge erred in fact in his analysis of the evidence and erred in law in applying the wrong legal test to weigh the relevant interests. The motion judge followed and applied the legal test as set out by Justice Strathy in Air France company c. Greater Toronto Airports Authority (2009 CanLII 69321). The Court of Appeal held that the motion judge did not err in relying on the test set out in Air Francewhich rejected the inclusion of a “possibility of miscarriage of justice” threshold for admitting the contents of the CVR.

The motions judge concluded that:

The Court of Appeal found no error in the trial judge’s analysis of the facts, which deserved deference. They noted that he weighed the public interest in the administration of justice against privacy/security concerns and legal privilege and ordered the restricted broadcast and use of the CVR on certain conditions. The Court of Appeal dismissed the appeal.

It should be noted that this decision was appealed to the Supreme Court of Canada and the appeal was heard early last month. Stay tuned for our update when our highest court issues its decision and provides important guidance on the future treatment of CVRs in claims arising from aviation accidents.

Transportation Safety Board of Canada v. Kathleen Carroll Byrneet al., 2021 NSCA 34, leave to appeal to SCC granted, 39661 (October 14, 2021). SCC hearing held on March 17, 2022; judgment reserved.