On November 25, 2022, the Supreme Court of Canada released its decision in the appeal brought by the Transportation Safety Board (the “TSB”) concerning disclosure to the civil litigants in a passenger class action of the relevant portions of a recording from a cockpit voice recorder (the “CVR”, part of what is colloquially known as an airplane’s “black box”).[1] In a 7:2 decision, the Supreme Court of Canada upheld the decision of the Nova Scotia courts below to order disclosure under so-called “stringent conditions” limiting the disclosure to the litigants and their experts, consultants, insurers and lawyers.
The class action for damages arose from an aviation accident when a flight landed 740 feet short of the runway at Halifax Stanfield International Airport (the “Accident”). The lawsuit alleged that negligence on the part of the airline, its pilots, the aircraft manufacturer, the airport and others had caused the Accident.
The aircraft manufacturer brought a motion after examinations for discovery for production by the TSB of the CVR. The TSB had taken possession of the CVR in the course of its investigation, and in accordance with its statutory right to do so under s. 28(3) of the Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3 (the “Act”). The TSB was granted intervener status on the motion and opposed production based on statutory privilege. The airline and its pilots, and the pilots’ association (another intervener) also opposed disclosure.
Two matters were contentious before the motion judge at first instance and reached the Supreme Court of Canada for final disposition:
(1) Whether the TSB was entitled to make its submissions to the judge in the absence of the public and other parties to the litigation; and
(2) Whether the CVR should be disclosed, and the applicable test to determine disclosure.
The statutory privilege
As an “on-board recording”[2] the CVR is subject to a prima facie statutory privilege set out at section 28(2) of the Act, which states that:
28 (2) Every on-board recording is privileged and, except as provided by this section, no person, including any person to whom access is provided under this section, shall
(a) knowingly communicate an on-board recording or permit it to be communicated to any person; or
(b) be required to produce an on-board recording or give evidence relating to it in any legal, disciplinary or other proceedings
The limits of the statutory privilege are set out at section 28(6) of the Act, which provides that:
(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
(a) cause notice of the request to be given to the Board, if the Board is not a party to the proceedings;
(b) in camera, examine the on-board recording and give the Board a reasonable opportunity to make representations with respect thereto; and
(c) 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.
Supreme Court of Canada decision
The Supreme Court of Canada was divided on both issues, with Kasirer J. delivering the reasons of the seven majority judges, and Côté J. delivering the dissenting reasons of two judges.
Issue 1: TSB submissions in camera
The crux of the issue as to whether the court was required to extend to the TSB the opportunity it requested to make submissions regarding the CVR in the absence of the public and other parties, boiled down to the purpose, if any, of the comma following in camera at the outset of s. 28(6)(b) in the English version.
While preferring to find that the comma in the English text may be misplaced and did not give rise to an ambiguity, the majority ultimately held that, in any event, if the English text is ambiguous and the French text is unequivocal, then the French text must be preferred as it represents the shared meaning that accords with other indicia of legislative intention.
The majority was clear that it was within the discretion of the motion judge to choose to hear from the TSB in the absence of the public and the other parties, should it consider that necessary, but that this privacy is not a right conferred upon the TSB by the Act. As stated by Kasirer J.:
Section 28(6)(b) is silent on the specifics of the manner and form by which the [TSB] should make its submissions. Here, s. 28(6)(b) neither grants the [TSB] the right to make submissions in the absence of the public or the other parties nor does it preclude the court or coroner from asking for them should they be necessary to decide the issue.
In addition, Kasirer J. resolved the debate as to whether in camera/à huis clos (per the French text) means in the absence of the public only, or in absence of the public and parties. The majority reasons conclude that this refers to the exclusion of the public from a proceeding, not the exclusion of parties, which would have been expressed by the Latin term ex parte in English rather than in camera. A proceeding in which an adverse party is made aware of the hearing, but is prevented from making submissions is not an in camera proceeding.
Issue 2: Production of the CVR
On the substantive issue of statutory privilege, Kasirer J. noted that s.28(6)(c) of the Act puts the burden on a moving party to establish cause to rebut the presumption that the CVR is privileged. The test for disclosure, as articulated in the Act, is whether the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording. Kaiser J. elaborated on the discretionary test as follows:
In this balancing exercise, the decision‑maker must place two competing public interests on the scales: on one side, the relevance, probative value and necessity of the on-board recording to the fair resolution of the dispute and, on the other, the effects of disclosure on pilot privacy and aviation safety.
The Supreme Court of Canada endorsed a two-phase inquiry for resolving a CVR production motion, the first stage considering the factors to measure public interest in the administration of justice, consisting of:
(i) Relevance;
(ii) Probative value; and
(iii) Necessity.
The second stage of the inquiry consists of an analysis of the interests served by the privilege, consisting of:
(i) Pilot privacy; and
(ii) Interests of transportation safety as fostered by free communications in the cockpit.
Kasirer J. stressed that the concerns in the second stage of the inquiry may be addressed by crafting the scope and terms of the production order to mitigate the implications of release if disclosure is indicated in the interests of the administration of justice.
Ultimately, the majority held that the motion judge did not err in ordering disclosure. His decision, which was correctly premised in the evidence before him, was entitled to deference as he had not committed any error of law, or a palpable and overriding error of fact, or abuse of discretion.
Contrary to the argument of the TSB, the majority held that the motion judge had not ordered production of the CVR in the interests of a “complete understanding” of the role of the pilots in the accident. Notwithstanding the motion judge’s use of this phrase, he found disclosure of the recording was necessary to fill the gaps in the pilots’ evidence that were central to determining causation and thus liability for the accident, given that they could not remember crucial details of the descent when questioned on discovery. If the motion judge had used “complete understanding” as a low threshold underlying his decision, then he would not have needed to go on to conduct his inquiry into the necessity of the evidence.
Both the majority and the minority disagreed with the motion judge’s assertion that the class nature of the proceeding is a factor favouring disclosure. The Supreme Court of Canada was unanimous that the public interest in a fair outcome of a trial is not diminished by reason of a claim being prosecuted individually. The majority found this factor was not decisive in the motion judge’s decision to order production, which was premised on the necessity of the evidence contained in the CVR, whereas the minority found that this improper statement of the law amounted to a reviewable error and the mischaracterization of the legal test tainted the motion judge’s overall balancing exercise.
The majority held that the motion judge properly addressed the interests of concern in the second stage of the inquiry by placing what he described as “stringent conditions” on the disclosure of the CVR (ordering disclosure of only the relevant portions, and limiting the disclosure to the parties and their experts, consultants, insurers and lawyers, to assure a measure of confidentiality) so as to mitigate any detrimental effects of the disclosure upon pilot privacy or aviation safety. Notably, these are the same restrictions that would be applicable to all documentary discovery evidence under the implied and/or deemed undertaking rule that applies to civil litigation in most Canadian jurisdictions.
Takeaways:
- The CVR will not be routinely ordered to be disclosed merely on the basis that it is relevant and trustworthy. Necessity is an essential component of the analysis. However, if there is no alternative source of evidence that would be very material or crucial to the fact-finding on a core issue, there is a high likelihood that disclosure will be ordered. Where evidence is crucial to a central issue in the case, its exclusion on any basis may threaten trial fairness. The more central the evidence, the higher the risk of distorting fact‑finding to the point of civil justice being improperly thwarted.
- Privilege over the contents of the CVR serves two purposes: to protect pilot privacy and to promote aviation safety by encouraging free communications in the cockpit. Both of these purposes can be adequately maintained by crafting terms assuring a measure of confidentiality, such as restricting production to the relevant portions of the CVR communications, limiting disclosure to the litigation parties and their experts, consultants, insurers and lawyers, requiring undertakings from those with access, and requiring destruction once the legal proceedings have ended.
- Whether or not the civil litigation is a class action has no bearing on the balancing test for disclosure of the CVR, as individual proceedings have equal claim to the fair administration of justice and a fair trial.
- In camera does not encompass the exclusion of parties, but only the public. Therefore legislation that entitles a party to make submissions “in camera” or “in a hearing closed to the public” does not entitle the submitting party to proceed in the absence of other litigation parties unless the court has and exercises discretion to allow that, or if the legislation also provides that the submissions may be made ex parte. Here, the Act neither grants the TSB the right to make submissions in the absence of the public or the other parties, nor does it preclude the court or coroner from asking for TSB submissions in that manner if necessary to decide the motion.
- When a statute is ambiguous in one language and unambiguous in the other, the shared meaning that should be preferred is, a priori, the meaning of the version that is free from ambiguity, especially if it has a narrower meaning that accords with other indicia of legislative intention.
For more information, please reach out to the authors Barbara L Grossman, Amer Pasalic and Mark Glynn.
[1] The marine equivalent is a Voyage Data Recorder (VDR), regulated by the Navigation Safety Regulations SOR/2020-216 of the Canada Shipping Act.
For rail, this would be a Locomotive Voice and Video Recorder (LVVR), regulated by the Locomotive Voice and Video Recorder Regulations SOR/2020-178 of the Railway Safety Act.
[2] Defined in s.28(1) of the Act.
