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20 October 2010
In December 2009 the Ontario Superior Court ordered the production of the cockpit voice recorder (CVR) in the litigation arising from the crash of Air France 358. This decision was upheld by the Ontario Court of Appeal on September 27 2010.(1) The case arose from an incident in Toronto on August 2 2005 when Air France 358 approached Pearson International Airport during a severe thunderstorm, overshot the runway, pitched into a ravine and burst into flames. There were no fatalities, but many passengers were injured - some of them seriously.
Superior court decision
Two central pieces of litigation arose. The first was a class action by the passengers on the flight (which has been settled). The other was a multi-party suit commenced by Air France and its insurers against NAV Canada, which was responsible for air traffic control at Pearson International Airport.
As expected, the crash was investigated by the Transportation Safety Board of Canada, pursuant to the Canadian Transportation Accident and Safety Board Act (RSC 1989, c C-3).
In the course of its investigations, the board obtained the CVR from the aircraft, which contained a complete recording of the conversations between the flight crew, as well as their interactions with Toronto air traffic control. The recordings were used with great success in the interviews with the pilots as aides to assist them in reconstructing the final two hours of the flight. The original motions judge found that "there is some concern about [the pilots'] imperfect recollection without such assistance".
The board issued a detailed accident investigation report on the crash in October 2007 that did not quote from the conversations recorded on the CVR, but contained the substance of their discussions.
In normal practice the contents of a CVR are privileged; however, Section 28(6)(c) of the Transportation Accident and Safety Board Act allows a court to order production where:
"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 to the on-board recording... subject to such restrictions or conditions as the court... deems appropriate."
The original motions judge found that in this case production was warranted for the limited purpose of the Air France litigation. He held that "the use of the CVR was a very useful tool in interviewing the pilots and in reconstructing the final critical minutes of the flight".
In coming to this conclusion, he closely analysed the legislation quoted above, summarising his findings as follows:
In addition to ordering production of the contents of the CVR, the original motions judge ordered production of the animation of the cockpit activity that was prepared from the data gathered from its investigation - even though it was the board's work product.
Court of appeal decision
The board appealed the decision to the Ontario Court of Appeal on three grounds. None of the grounds related to the relative weight assigned to the factors listed above on which the original judge made his decision (an appeal of this would have been subject to a high degree of deference to the lower court ruling).
First, the board argued that the motions judge had applied a lower threshold for production of the CVR recording than is required by the Transportation Accident and Safety Board Act. The court disagreed, indicating that it was evident from the ruling that the proper analysis did in fact take place "exactly as prescribed by the Act". This process was described as follows:
"Having examined the CVR recording and found it highly relevant, probative and reliable on the issues central to the litigation, [the judge] went on to an examination of the circumstances of the particular case before him, and concluded that the public interest in the administration of justice served by production outweighs the importance attached to the statutory privilege served by non-production."
The court went on to clarify that a party seeking production of a CVR need not show that the circumstances of the case are "exceptional", "rare", "compelling" or "unusual". Rather, the focus should be on "the public interest in the administration of justice".
The board's second attack was that the motions judge had committed three errors of law. The court disagreed with these submissions.
The first legal 'error' was that the motions judge had equated the concept of 'public interest in the administration of justice' with the fact that the CVR contained the best and most reliable evidence of what had happened in the cockpit. The court was not persuaded and held that many other factors were considered (eg, see the bullet points in the summary of the original decision, quoted above).
The second legal 'error' argued by the board was that the motions judge had failed to require NAV Canada to establish that there would be a miscarriage of justice if the CVR were not produced. The court disagreed that the legislation requires a finding of this sort to order production. Instead, it held that the act requires the court to consider "all of the circumstances" of the case in assessing the balance between the benefits of the privilege and the public interest in the proper administration of justice.
The third purported legal 'error' was that the court had erred in law by failing to appreciate that disclosure of the contents of the CVR would remove or greatly diminish the trust that pilots have in the confidentiality of the board's investigation process, thus reducing the quality of information that they will provide in the future. The court found that this argument was made as a "bald assertion", which was "unsubstantiated in evidence" and therefore dismissed.
Finally, the board argued that the motions judge had erred in ordering production of the cockpit animation because counsel had agreed earlier that this would not form part of the relief requested on the motion. This assertion was not seriously contested and, as a result, the court overturned this part of the motions judge's production order.
The court ordered that since the board was unsuccessful for the most part on the appeal, it should pay NAV Canada C$17,500 in appeal costs.
Although there is still time to appeal this decision to the Supreme Court of Canada, a search of its website reveals that a leave to appeal application has not yet been filed.
For further information on this topic please contact Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (email@example.com).
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