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Transportation - Canadian Transportation Accident Investigation and Safety Board Act (CTAISBA). Canada (Transportation Safety Board) v. Carroll‑Byrne
In Canada (Transportation Safety Board) v. Carroll‑Byrne (SCC, 2022) the Supreme Court of Canada considered the disclosure of a cockpit voice recorder (CVR) in the course of civil class litigation regarding an airplane crash. The disclosure of the CVR - as an "on‑board recording" - was governed by the Canadian Transportation Accident Investigation and Safety Board Act (CTAISBA). The case thus involves a balancing between the presumed evidentiary search for the truth on the one hand, and the specific statutory (and discretionary) privilege of the CTAISBA.
Here the court conducts the discretionary balancing exercise between the statutory privilege and the public interest in evidence-gathering [paras 86-123].
. Canada (Transportation Safety Board) v. Carroll‑Byrne
In Canada (Transportation Safety Board) v. Carroll‑Byrne (SCC, 2022) the Supreme Court of Canada considered the disclosure of a cockpit voice recorder (CVR) in the course of civil class litigation regarding an airplane crash. The disclosure of the CVR - as an "on‑board recording" - was governed by the Canadian Transportation Accident Investigation and Safety Board Act (CTAISBA). The case thus involves a balancing between the presumed evidentiary search for the truth on the one hand, and the specific statutory (and discretionary) privilege of the CTAISBA.
Here the court considers the nature (including whether it should be in camera) of the Board's participation in the decision whether to disclose the CVR, ie. whether it be only to assist the review of the CVR or to make submissions on the larger issue of disclosure [paras 56-85].
. Canada (Transportation Safety Board) v. Carroll‑Byrne
In Canada (Transportation Safety Board) v. Carroll‑Byrne (SCC, 2022) the Supreme Court of Canada considered the disclosure of a cockpit voice recorder (CVR) in the course of civil class litigation regarding an airplane crash. The disclosure of the CVR - as an "on‑board recording" - was governed by the Canadian Transportation Accident Investigation and Safety Board Act (CTAISBA). The case thus involves a balancing between the presumed evidentiary search for the truth on the one hand, and the specific statutory (and discretionary) privilege of the CTAISBA.
In these quotes the court reviews much of the CTAISBA regime:A. The Statutory Scheme
[43] Section 28 of the Act is the provision most directly engaged by this appeal. Section 28(2) sets out the statutory privilege, s. 28(6)(b) speaks to the Board’s entitlement to make submissions to the chambers judge and s. 28(6)(c) provides for the discretionary authority to order disclosure of the CVR. Under the heading “Privilege”, s. 28 provides:Definition of on‑board recording
28 (1) In this section, on-board recording means the whole or any part of
(a) a recording of voice communications originating from, or received on or in,
(i) the flight deck of an aircraft,
(ii) the bridge or a control room of a ship,
(iii) the cab of a locomotive, or
(iv) the control room or pumping station of a pipeline, or
(b) a video recording of the activities of the operating personnel of an aircraft, ship, locomotive or pipeline
that is made, using recording equipment that is intended to not be controlled by the operating personnel, on the flight deck of the aircraft, on the bridge or in a control room of the ship, in the cab of the locomotive or in a place where pipeline operations are carried out, as the case may be, and includes a transcript or substantial summary of such a recording.
Privilege for on-board recordings
(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.
Access by Board
(3) Any on-board recording that relates to a transportation occurrence being investigated under this Act shall be released to an investigator who requests it for the purposes of the investigation.
Use by Board
(4) The Board may make such use of any on-board recording obtained under this Act as it considers necessary in the interests of transportation safety, but, subject to subsection (5), shall not knowingly communicate or permit to be communicated to anyone any portion thereof that is unrelated to the causes or contributing factors of the transportation occurrence under investigation or to the identification of safety deficiencies.
Access by peace officers, coroners and other investigators
(5) The Board shall make available any on-board recording obtained under this Act to
(a) [Repealed, 1998, c. 20, s. 17]
(b) a coroner who requests access thereto for the purpose of an investigation that the coroner is conducting; or
(c) any person carrying out a coordinated investigation under section 18.
Power of court or coroner
(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.
Use prohibited
(7) An on-board recording may not be used against any of the following persons in disciplinary proceedings, proceedings relating to the capacity or competence of an officer or employee to perform the officer’s or employee’s functions, or in legal or other proceedings, namely, air or rail traffic controllers, marine traffic regulators, aircraft, train or ship crew members (including, in the case of ships, masters, officers, pilots and ice advisers), airport vehicle operators, flight service station specialists, persons who relay messages respecting air or rail traffic control, marine traffic regulation or related matters and persons who are directly or indirectly involved in the operation of a pipeline.
Definition of court
(8) For the purposes of subsection (6), court includes a person or persons appointed or designated to conduct a public inquiry into a transportation occurrence pursuant to this Act or the Inquiries Act. [44] Under the Act, the Board’s object is to advance transportation safety by several designated means. Section 7 sets forth the Board’s mission in service of that object, which includes “conducting independent investigations . . . into selected transportation occurrences in order to make findings as to their causes and contributing factors” and to report publicly on its findings (s. 7(1)(a) and (d)). The Board is also charged with identifying “safety deficiencies” that come to light following accidents and making recommendations designed to eliminate or reduce those deficiencies (s. 7(1)(b) and (c)).
[45] In conducting investigations, the Board does not assign fault or determine civil or criminal liability (s. 7(2) to (4)). The purpose of the Board is not to “arrive conclusively at a cause” but instead to “make recommendations with respect to aviation safety” (Canadian Transportation Accident Investigation and Safety Board Act Review Commission, Advancing Safety (1994), at p. 145, quoting Estey report respecting the Arrow Air accident at Gander, Newfoundland, Dec. 12, 1985 (July 21, 1989), at p. 28).
[46] Although the Board’s findings cannot be used to establish liability, blame “might be inferred by others from the Board’s findings” (Advancing Safety, at p. 143). The Board need not “concern itself with what outsiders may speculate about who was at fault” when publishing its report as to the causes of an accident (Advancing Safety, at p. 144). Yet Parliament contemplates that the Board’s investigators, its reports, and the evidence it gathers may have information relevant to legal proceedings. Importantly, s. 7(2) explicitly recognizes the possibility of an overlap between the Board’s findings on investigation of an occurrence and matters relating to fault or liability where it states that “the Board shall not refrain from fully reporting on the causes and contributing factors merely because fault or liability might be inferred from the Board’s findings”.
[47] The Act puts many of the sources of the Board’s findings on the causes of accidents beyond the reach of litigants, criminal prosecutors and employers. Investigators are not competent or compellable in legal proceedings, except in special circumstances, nor are their opinions admissible in evidence (ss. 32 and 33). Similarly, some of the Board’s investigative sources, notably the CVR and witness statements, are presumptively privileged and can only be disclosed in limited circumstances (ss. 28 and 30). Air traffic control records, while not privileged, cannot be used in designated legal proceedings (s. 29).
[48] The rules bearing on aircraft accident investigations were significantly reviewed in the 1980s, following the publication of the Report of the Commission of Inquiry on Aviation Safety in 1981 (“Dubin Report”). After public criticism of an investigation into an aircraft accident in British Columbia, Justice Charles L. Dubin was appointed to chair an inquiry relating to the management of air transportation and to recommend changes to the legislative scheme to improve air safety (Dubin Report, at pp. 1-10).
[49] The Dubin Report recommended that on‑board recordings be protected by a new statutory privilege (p. 258). It did so for two reasons. First, CVRs presented the risk of a “unique invasion of [pilot] privacy” (p. 235). The Dubin Report noted that pilots complained “that no other employees are subjected to electronic eavesdropping in their work place” (p. 225). It recognized that pilots have a right to be protected against invasions of privacy except when safety or the administration of justice require otherwise (pp. 235‑36). Second, the Dubin Report documented a widely held conviction amongst accident investigators that “confidentiality is essential to the effectiveness of their work” (p. 147). The Dubin Report recorded concerns that information obtained could be used in litigation to the benefit of the Crown, which might result in investigators being viewed as “partisan” and cause their information sources to dry up (p. 147).
[50] While the Dubin Report recognized the important interests supporting some form of confidentiality over such recordings, it also acknowledged that the information contained in these recordings could be relevant for other legal proceedings, including civil actions (see pp. 234‑37). The Dubin Report recommended against granting an absolute privilege over on‑board voice recordings such as CVRs, as that would effectively prevent their use in other proceedings and would “decide, once and for all, against the public interest in the administration of justice” (p. 234). This might deprive an injured person of the only evidence that could establish the cause of, or liability resulting from, an accident (p. 234). As a result, the Dubin Report proposed a middle ground between an absolute statutory privilege and the unlimited accessibility of CVRs under the ordinarily applicable rules for the production of evidence. Recordings should be presumptively privileged and only available for use by the Board in investigations. However, a discretionary power should be established for setting the privilege aside in civil proceedings where the public interest in the administration of justice outweighs the importance of the reasons for the privilege (pp. 236‑37).
[51] Soon after the publication of the first volume of the Dubin Report, Parliament enacted the precursor to the present Act, the Canadian Aviation Safety Board Act, S.C. 1980-81-82-83, c. 165 (“CASB Act”), to implement the recommendations. On second reading of the bill, the federal Minister of Transport noted that many of the recommendations in the Dubin Report were adopted and that Parliament had never “gone against what Dubin had recommended” (House of Commons Debates, vol. XXIII, 1st Sess., 32nd Parl., June 28, 1983, at p. 26842). The CASB Act established an independent aviation safety board to investigate aviation accidents (see House of Commons Debates, at p. 26841). In setting down the procedure for investigations, Parliament accepted the Dubin Report’s recommendation to provide a statutory privilege for evidence obtained by Board investigators, including a privilege over CVRs (see Dubin Report, at pp. 258‑61; CASB Act, ss. 26 to 28).
[52] Transportation safety was again significantly reformed in 1989 with the introduction of the Canadian Transportation Accident Investigation and Safety Board Act. The Act established a multimodal scheme for oversight of aviation, marine, railway and pipeline occurrences (s. 3). The Act did not significantly change the mechanics of the statutory privilege attached to CVRs and witness statements, although more modes of transportation are now covered by the legislative scheme.
[53] The privilege in the Act still largely accords with what was recommended by the Dubin Report. An on‑board recording is privileged and may only be disclosed for use in litigation if, on request, a court or coroner concludes that the public interest favours disclosing the recording. If disclosure and production are ordered, appropriate restrictive conditions may be put in place (s. 28(6)(c)). Significantly, the use of the on‑board recording is prohibited in certain legal settings, for example in proceedings against air traffic controllers (s. 28(7)).
[54] The use of evidence gathered by accident investigators has also been the subject of attention by international bodies charged with aviation safety. The international sources, while not decisive for the interpretation of s. 28(6), generally align with the recommendations in the Dubin Report. Section 16 of the Act requires the Board to “take all reasonable measures” to ensure that its investigation practices are consistent with international agreements and conventions to which Canada is a party. This underscores Parliament’s intention that the Act conform to Canada’s international obligations. Annex 13 of the Convention on International Civil Aviation, Can. T.S. 1944 No. 36 (“Chicago Convention”), ratified by Canada, provides that certain accident investigation records (including CVRs) should not be made available for purposes other than investigation unless, following an exercise of balancing interests, “their disclosure or use outweighs the likely adverse domestic and international impact such action may have on that or any future investigations” (International Civil Aviation Organization, Annex 13 to the Convention on International Civil Aviation: Aircraft Accident and Incident Investigation (12th ed. 2020), at p. 5-5, standard 5.12). Further, Appendix 2 of Annex 13 recognizes that disclosure of such records in proceedings or to the public “can have adverse consequences for persons or organizations involved in accidents and incidents, likely causing them or others to be reluctant to cooperate with accident investigation authorities in the future” (p. APP 2-1). Further, CVRs and other recordings “may be perceived as constituting an invasion of the privacy of operational personnel if disclosed or used for purposes other than those for which the recordings were made” (p. APP 2-2).
[55] These materials confirm the purposes of the statutory privilege. First, it protects pilot privacy by preventing access to the CVR except when requested by investigators. Second, it protects transportation safety by “encourag[ing] full, accurate, and objective communication between flight crew members” and by protecting potential witnesses who may otherwise decline to provide statements to the Board out of fear of repercussions (see Laporte Affidavit, A.R., at pp. 1871-72, paras. 83‑85). Importantly, the privilege is not absolute. Parliament contemplated that it may be set aside when warranted in the interests of justice on a discretionary basis and charged courts and coroners with making that decision. Even when on-board recordings are disclosed, they may be subject to restrictions as deemed appropriate by the court or coroner. And, as noted, their use is prohibited outright in some legal proceedings.
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