The Criteria to Disclose an On-Board Recording in Litigation No Longer in a Black Box

Ian Breneman (spr.) and Darryl Pankratz*

deem those mandatory reports privileged or inadmissible in court.6

The Transportation Safety Board’s Mandate and Privilege in On-Board Recordings

In Canada, the Transportation Safety Board (the “TSB” or “Board” ) has a statutory mandate to investigate selected accidents and incidents involving aircraft, ships, pipelines, and rolling stock. The TSB Act tasks the TSB with making findings regarding causes and contributing factors of transportation occurrences, identifying any safety deficiencies, making recommendations to prevent those safety deficiencies, and making public reports on its investigations.1

The TSB’s stated and overarching objective is to advance transportation safety. By contrast, “it is not the function of the Board to assign fault or determine civil or criminal liability”2 and no finding of the TSB “shall be construed as assigning fault or determining civil or criminal liability.”3 The TSB’s findings are not binding in court proceedings 4 and the TSB investigator’s opinion is not admissible in court.5

In some circumstances, however, the evidence the TSB gathers during an investigation may be admissible in a court proceeding. For example, carriers are required to report transportation occurrences to the TSB. The TSB Act does not

The TSB Act gives the TSB power to compel individuals with relevant information to give a statement under oath and to compel carriers to produce on-board recording.7 Those statements and on-board recordings are privileged. The main purpose of that privilege is the same as the TSB’s overarching objective: to ensure transportation safety. Pilots, seafarers, and rail operators should be able to communicate and give evidence to the TSB candidly without fear of liability.

However, the privilege attaching to statements and on-board recordings is not absolute. A court may order the production of a statement or on-board recording in a civil proceeding if the court “concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the privilege attached.”8

In a recent decision, the Supreme Court of Canada provided important and helpful guidance regarding when a court should order the production of an on-board recording in civil litigation.9

Facts and Background

Shortly after midnight on March 29, 2015, an Air Canada flight descended to Halifax International Airport in a snowstorm. The aircraft landed short of the runway, causing the aircraft to slide along the runway and damage to its landing gear. Several passengers were also injured.

The passengers commenced a class action in the Nova Scotia Supreme Court10 against Air Canada, Airbus S.A.S., NAV CANADA, Halifax International Airport Authority, the Government of Canada, and the pilot and first officer. The class action was certified in December 2016.

Meanwhile, the TSB investigated the incident and eventually published a report. That report referred to the contents of the cockpit voice recording (“CVR”), but the CVR was not produced to the parties in the litigation. The TSB retained the only copy of the CVR.

Airbus S.A.S. brought a motion for the disclosure of the CVR. The TSB and the Air Canada Pilots’ Association intervened in that motion and opposed it. Air Canada and the flight officers also opposed the motion.

The chambers judge listened to the CVR in camera and decided that the importance of the evidence to the administration of justice outweighed the importance of the statutory privilege in that case. Therefore, the TSB was ordered to produce the CVR on certain conditions, including that the CVR not be used in certain other proceedings. The Nova Scotia Court of Appeal dismissed the TSB’s appeal. The TSB then appealed further to the Supreme Court of Canada.

The Supreme Court of Canada’s Decision

There were two issues on appeal. First, whether the TSB was entitled to make