TLA Feature Articles and Case Notes

submissions on the motion in the absence of other parties and the public. Second, whether the chambers judge committed a reviewable error when he ordered the disclosure of the CVR.

In a 7-2 decision the majority held that Section 28(6)(b) of the Act does not provide the TSB with a general entitlement to make submissions to the Court regarding disclosure of the CVR in the absence of the public and the other parties. The general rule is that the TSB makes submissions in open Court and in the presence of other parties. However, the Court does have discretion to permit or ask the TSB to make further submissions in the absence of the public, the absence of other parties, or both. Here, the chambers judge decided that it was not appropriate or necessary to receive such submissions. The Supreme Court held that the chambers judge made no reviewable error and his discretionary decision was entitled to deference.

Under Section 28(6)(c) of the Act, a CVR must only be disclosed for production and discovery if the court is satisfied that the “public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording.”

The Supreme Court emphasized that courts should avoid routinely ordering the disclosure of on-board recordings.11 The decision whether to order disclosure is highly fact-driven and discretionary.12

In determining the potential impacts on the administration of justice, the Supreme Court held that a decision-maker should consider whether evidence on the CVR is:

• relevant;

• probative – in particular, if the “evidence is crucial to a central issue in the case, its exclusion on any basis

Endnotes

may threaten trial fairness;”13 and

• necessary – whether the evidence is necessary to resolve the civil litigation, including whether the evidence can be obtained from other, non-privileged sources.14

A court must balance these factors with considerations of the importance of the statutory privilege, including:

• pilots’ privacy – which can be addressed, in part, by nondisclosure of non-operational communications;15 and

• safety – although it should not be overemphasized, there will be a chilling effect on pilot potential prejudice to aviation communications if the disclosure of CVR data becomes routine.16

A court should also consider whether conditions on the disclosure can ameliorate any impacts on pilots’ privacy and safety. For example, irrelevant information can be redacted, the distribution of the CVR can be limited, and the CVR can be destroyed after the proceedings have ended.17 In this case, the appeal was dismissed. The majority held that the chambers judge weighed the most important factors and that his decision was entitled to deference.

Two dissenting justices agreed that the test for production under Section 28(6)(c) involves an assessment and weighing of the public interest in the proper administration of justice and the importance of the statutory privilege attached to the CVR. They held that the chambers judge placed the wrong weights on both sides of the scale, applying a test which effectively reduces the test for production of the CVR to the consideration of relevance and reliability. In their view, in order for the public interest to outweigh the privilege, much more is required than mere relevance and reliability. The Court should focus on the nature and probative value of the evidence in the particular case and how necessary this evidence is for the proper determination of the core issue for the Court. The Court should also give appropriate weight to the privilege, including both the privacy and the safety considerations that animate the privilege. The chambers judge considered irrelevant factors and applied the wrong test, erring in law. They would have allowed the appeal and remitted the matter for redetermination by a different judge. They noted that the Supreme Court, itself, did not listen to the CVR and that the chambers judge’s decision was too vague to be upheld.

1 Canadian Transportation Accident Investigation and Safety Board Act, SC 1989, c 3 (“TSB Act”), subs 7(1).

2 TSB Act, subs 7(2).

3 TSB Act, subs 7(3).

4 TSB Act, subs 7(4).

5 TSB Act, s 33.

6 TSB Act, s 31 renders voluntary reports to the TSB inadmissible in some circumstances .

7 TSB Act, subpara 19(9)(a)(i) and subs 28(3).

8 TSB Act, subss 28(6) and 30(5).

Implications

Based on the Supreme Court’s decision, disclosure of on-board recordings in civil litigation will continue to occur in Canada. However, the obligation is on the moving party to provide sufficient evidence in support of its motion. The presumptive statutory privilege will only be set aside when an applicant can establish that the CVR may contain relevant, probative, and necessary evidence that is not obtainable elsewhere, and that its exclusion would undermine a party’s right to a fair trial.

While this decision may lead to more challenges of the presumptive statutory privilege attaching to on-board recordings in civil litigation, the Supreme Court has clarified the test for disclosure. Although considerations of privacy and safety will continue to be very important principles, we anticipate that most cases will turn on whether the evidence in the on-board recording is central to the determination of the case and whether that evidence is available from non-privileged sources.