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18 March 2015
In November 2007 a Bombardier Global 5000 aircraft owned by Jetport Inc crash-landed at Fox Harbour, Nova Scotia, resulting in its total loss. The aircraft was insured for C$40 million by a pool of aviation insurers, of which Global Aerospace Underwriting Managers (Canada) Ltd is the manager. Global denied coverage and Jetport sued it and the insurers in the consortium. In addition, there are related actions involving Jetport's insurance broker.
"Litigation privilege denied in aviation insurance case" reported on a decision of Justice Goldstein upholding the case management master's order directing that certain documents which Jetport claimed were subject to litigation privilege should be disclosed to Global.
On November 26 2014 Graham issued his reasons for decision on a motion by the defendants under Rule 30.10 of the Ontario Rules of Civil Procedure and Sections 28(6) and 30(5) of the Canadian Transportation Accident Investigation and Safety Board Act, SC 1989, c 3 (Jetport Inc v Global Aerospace Underwriting Managers, 2014 ONSC 6860). Rule 30.10 allows parties to litigation to seek production of documents from a non-party. To succeed, the party seeking production must convince the court that:
The defendants sought production of several documents, as well as the audio data from the aircraft's cockpit voice recorder (CVR) and the data from the flight data recorder (FDR), from the Transportation Safety Board (TSB). The TSB had conducted an investigation into the crash-landing of the aircraft and issued its report to the public in September 2009. The documents sought were those in the possession of the TSB as a result of its investigation. Graham grouped the documents requested into four categories:
Before ruling on specific documents within each category, Graham reviewed the applicable law. Citing Ontario (Attorney General) v Stavro, a 1995 decision of the Ontario Court of Appeal, he set out the following factors to be considered on a motion under Rule 30.10:
Next, Graham set out the several provisions of the act that make certain kinds of communications, statements and recordings privileged in some circumstances. Specifically, Sections 24, 28 and 30 were relevant to the motion, given the types of document being sought.
Section 24 relates to the TSB' obligation to prepare a public report on completion of an investigation. However, it also addresses the circulation of a confidential draft report to anyone having a direct interest in the findings of the board and the privileged nature of representations made by such interested persons with respect to the draft report. Specifically, Section 24(4.1) provides that a representation made to the TSB with respect to the draft report is privileged, "except for one made by a minister responsible for a department having a direct interest in the findings of the Board". Section 24(4.4) provides that, except for use by a coroner for the purpose of an investigation, "no person shall use representations in any legal, disciplinary or other proceedings".
Section 28 provides that 'on-board recordings' are privileged and that, in particular, no person shall "be required to produce an on-board recording or give evidence relating to it in any legal, disciplinary or other proceedings". However, Section 28(6) allows for production in a court proceeding if the court, having examined the on-board recording and heard from the TSB on the request for production, concludes that the public interest in the proper administration of justice outweighs in importance the privilege attached to the recording.
Section 30 governs 'statements', which include any oral, written or recorded statement relating to an incident under investigation by the TSB, so long as it is given to the TSB or an investigator or anyone working on its behalf. Any such statement is privileged, but the TSB can make such use of it as it considers necessary. In addition, as under Section 28, a court may determine that a statement can be disclosed if the public interest in the proper administration of justice outweighs in importance the privileged and order it produced pursuant to Section 30(5).
Preliminarily, Graham referenced the decision of Justice Greer of the Ontario Superior Court of Justice in another appeal brought from an earlier production order of the master. The defendants argued that Greer's decision upholding Graham's order had already determined any question of whether statutory privilege attached to the documents being sought under Sections 24, 28 and 30. That decision related to certain refusals on an examination for discovery, including those relating to the TSB's draft report. Graham rejected this argument, holding that Greer's decision related only to the issue of the production of the TSB draft report itself; questions related to that report, which had been provided to Jetport, had to be answered. This decision did not decide the questions of privilege relating to the various documents sought from the TSB on the current motion.
Graham then turned to the task of ruling on each document sought from the TSB. With respect to the first category - the CVR recording and transcript, to which Section 28 applied - Graham weighed several factors before ordering that the recording and transcript be produced, subject to a confidentiality order. In part, Graham noted that the recording for the 30 minutes prior to the accident was clearly relevant to the issue of how the accident occurred, especially given that memories would have faded in the more than seven years between the accident and the trial, which is scheduled to proceed in May 2015.
Having reviewed the recording, Graham took the view that it contained no embarrassing banter between the pilots. While accepting that the act seeks to protect those participating in a TSB investigation from any fear that their communications might be used against them in related litigation, Graham accepted the comments of Justice Strathy (since appointed the chief justice of Ontario) in Société Air France v Greater Toronto Airports Authority, 2009 CanLII 69321, to the effect that he could not imagine that "highly trained, responsible and professional pilots" might curtail their "critical communications, endangering their own safety and the safety of their passengers, simply because those communications might be disclosed in some future legal proceedings in the event of an accident".
Graham moved on to the consideration of statements made to the TSB in its investigation of the accident, noting that the test under Section 30 is very similar to that under Section 28: does the public interest in the proper administration of justice outweigh the privilege attached to the statements? The TSB provided packages of documents containing information obtained from the pilot and first officer of the aircraft, some of the passengers, the president of Jetport (who had also been a passenger), Jetport's director of maintenance and Jetport's former operations manager.
The case management master assessed each document and determined that some were simply not relevant to the litigation and should therefore not be produced. For others, it was determined that they were relevant to material issues in the action and that their release would not compromise aviation safety; these were ordered produced to the defendants. However, in the case of several statements, Graham took view that the privilege should be upheld. A distinction was drawn between certain statements given to the TSB and the communications recorded in the cockpit of the aircraft. For example, commenting on the statement given to the TSB by the pilot, Roger Adair, the master stated:
"There is a significant difference between the CVR…and Mr. Adair's statement. Mr. Adair's communications recorded on the CVR arose during the course of his duties as a pilot and the CVR is essentially in the nature of a business record. …When giving a statement to a TSB investigator, the pilot has had an opportunity to reflect on his or her actions and, with a view to the ultimate goal of safer aviation, should be able to provide the statement without fear of collateral repercussions. If the court were to override the privilege attached to Mr. Adair's statement, the privilege would be meaningless and aviation safety would be compromised."
Interestingly, Graham decided that in the case of statements given by Jetport's former operations manager, because he was no longer employed by Jetport, "[t]here is no concern that but for the privilege, he would have been less forthcoming in providing information owing to a fear that full disclosure might adversely affect his employer" and ordered disclosure.
Graham also inspected several documents that had inadvertently been provided to counsel to the defendants by the TSB, which subsequently claimed were subject to the privilege over "representations" made on a draft report under Section 24. The master provided an analysis of that section, determining that - unlike Sections 28 and 30 - it does not include a provision allowing for the court "to nullify the privilege" in specified circumstances: a 'representation' in relation to a TSB draft report by anyone other than a minister can be used only by the TSB for the purpose of transportation safety or by a coroner.
That said, on review of the documents, Graham found that most were not actually 'representations' governed by Section 24. Some were 'statement'" and Graham employed the Section 30 analysis to those; some were ordered produced, while others were determined to be privileged or not relevant.
Finally, Graham held that there is nothing in the act that privileges the FDR (the data it contains do not fall within the definition of an 'on-board recording') and ordered it produced.
For further information on this topic please contact Carlos P Martins or Andrew W Macdonald at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (email@example.com or firstname.lastname@example.org). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.
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