Content of cockpit voice recorder released in class action lawsuit
In Canada (Transportation Safety Board) v Carroll-Byrne (2021 NSCA 34), Nova Scotia Court of Appeal upheld lower court leave for conditional disclosure of cockpit voice recorder (CVR) content to class action parties . The Court of Appeal unanimously upheld the decision of the Motions Judge that the public interest in the proper administration of justice outweighed the statutory privilege attached to the CVR.
During its final approach to Halifax International Airport just after midnight on March 29, 2015, Air Canada flight 624 cut power lines and struck snow-covered ground just before the runway. It struck an array of locator antennas – causing the Airbus A320’s landing gear to separate – bounced twice more and skidded on its stomach before coming to a stop. About 24 of the 133 passengers, along with the pilots and a flight attendant, were taken to hospital with non-life threatening injuries.
A class action lawsuit has been brought on behalf of the passengers against:
- Air Canada;
- the pilot and first officer of flight 624;
- the airport;
- NAV Canada, which operates Canada’s civil air navigation system; and
- the Canadian government.
The class action was certified on consent in December 2016.
In the meantime, the Transportation Safety Board (TSB) of Canada has investigated the accident. The TSB investigation report was released in May 2017. Among its findings, Air Canada’s standard operating procedures (SOPs) and applicable practices were not in accordance with its crew operations manuals. driving or Airbus. As a result, the flight crew of flight 624 did not monitor the aircraft’s altitude or distance from the runway after selecting the angle of the flight path and, therefore, did not not noticed that the aircraft had descended below the minimum descent altitude too early on its final approach.
Air Canada changed its SOPs following the accident. He also sued Airbus.
The TSB report is publicly available, but its findings are not binding and the opinions of TSB investigators are not admissible in other legal proceedings under Sections 7 (4) and 33 of the Office Act. ‘Transportation and Safety Accident Investigation (the “Law”). .
As part of its investigation, the TSB took possession and examined the contents of the CVR. Section 28 (2) of the Act prohibits the disclosure of the CVR or its content, except in accordance with it.
Section 28 (6) of the Act allows a court to order the “production and discovery” of the CVR if the public interest in the proper administration of justice outweighs the importance of the statutory privilege attached to the CVR. CVR. This provision also refers to certain procedural considerations which arose in Carroll Byrne – it reads as follows:
Power of court or coroner
(6) Notwithstanding anything in this section, where, in a proceeding before a court or a coroner, an application for the production and discovery of an on-board recording is made, the court or the coroner shall,
(a) cause notice of the application to be given to the Board, if the Board is not a party to the proceeding;
(b) in camera, review the on-board recording and give the Commission a reasonable opportunity to comment thereon; and
(c) if the court or the coroner concludes 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 check-in, subject to such restrictions or conditions as the court or coroner deems appropriate, and may require any person to provide evidence relating to the on-board check-in.
Airbus, along with the plaintiffs, Halifax Airport and NAV Canada, requested the production and discovery of the CVR in the class action lawsuit. The TSB and the Air Canada Pilots Association were granted intervenor status and opposed the requested disclosure order, as did Air Canada.
The Motions Judge ordered the parole of the CVR to the parties to the class action. The TSB appealed, supported by the Air Canada Pilots Association and Air Canada. On appeal, the main arguments of the BST were that the tribunal had erred in:
- do not give him the opportunity to do in camera representations concerning the CVR; and
- determine that the public interest in the proper administration of justice outweighed the importance of the privilege in the CVR.
The Air Canada Pilots Association argued that disclosure of the CVR would compromise pilots’ privacy rights and public safety by discouraging openness in flight attendant communications.
‘In camera‘ against ‘ex part‘
The TSB argued that paragraph 28 (6) (b) of the Act, in its inclusion of the words “in camera“, gave him the right to do ex part representations to the judge before any decision to disclose the content of the CVR. In other words, the TSB argued that the Motions Judge should have allowed it to make representations not only in the absence of the public (in camera), but also in the absence of any other opposing party (ex part).
In detailed reasons, the Court of Appeal concluded that the TSB’s interpretation was incorrect. In particular, the court ruled that the fact that section 28 (6) (b) of the law uses the words “in camera” and not “ex part“presented a considerable challenge to the TSB’s argument. As the tribunal noted, there is a clear distinction between in camera and ex part and it can be assumed that Parliament will use ex part when that is what it means – as is the case in subsection 19 (3) of the act and various other federal statutes.
In addition, the court ruled that on reading article 28 (6) of the law, it:
allows the Court – not the parties – to listen to the cockpit recorder behind closed doors. The Commission – which is not a party in the ordinary sense of the term – then has the opportunity to comment on the registration – which non-parties normally cannot do.
Although the court did not come to a clear conclusion on this issue, there are good reasons to interpret the words “in camera“in section 28 (6) (b) of the Act as applying only to the tribunal’s review of the CVR and not to observations that the TSB is authorized to make in this regard. Like Airbus the argued, to the extent that there is any ambiguity in the English version of the provision, the French version appears to support this conclusion by providing that a court to which a request for production of a CVR is addressed must “”examine it in camera and give the Régie the opportunity to present observations on the matter“. This formulation indicates more clearly that only the examination of the CVR is to be done. in camera (‘in camera‘).
Public interest favored CVR’s parole
The TSB criticized the motions judge for following and applying the analysis of a 2009 Ontario decision rendered by Justice Strathy in Société Air France v Greater Toronto Airport Authority (2009 CanLII 69321), who considered many of the arguments raised in Carroll Byrne in some detail.
The Nova Scotia Court of Appeal concluded that the motions judge did not err in relying on the Air France the applicable test articulation, which rejected the inclusion of a “possibility of miscarriage of justice” threshold as unwarranted and unsupported by the wording of subsection 28 (6) of the statute. This decision was upheld unanimously on appeal (and Strathy was subsequently elevated to the Ontario Court of Appeal and appointed Chief Justice of Ontario).
The court of appeal also found no error in the appraisal judge’s assessment of the facts submitted to him, which were entitled to deference. In particular, the motions judge found that:
- the CVR was both reliable and important to a central element of the claim (i.e. the perceptions, observations, considerations and decision making of flight attendants in the final approach to flight 624) ;
- the flight crew’s discovery evidence revealed deficiencies in their ability to provide facts about their conduct at important points in flight, which could be addressed by the production of the CVR;
- disclosure of the CVR under the stringent conditions proposed would not unduly compromise the privacy of flight attendants, especially since the most important part of the recording occurred when the aircraft was within 10,000 feet when “sterile cockpit rules are in effect”, which means that only are to be discussed; and
- CVR disclosure would not unduly compromise safety by having a “chilling effect” on pilot communication or witness cooperation with investigators, after weighing the competing evidence from the TSB and the experience of the States’ National Transportation Safety Board -Unis, where no such effect had been observed.
The law grants privileges to cockpit voice recorders and their content to promote the safety and protect the privacy of flight crews. However, CVRs contain data that is generally of critical importance to understanding the causes of an aircraft accident. Like the TSB, the function of a tribunal is to uncover the truth and, in recognition of this fact, the law permits the production of CVRs as part of the civil litigation discovery process in appropriate circumstances.