Facts

On October 27 2011 a Beechcraft King Air turboprop aircraft operated by Northern Thunderbird Air Inc crashed and burst into flames after attempting an emergency landing near Vancouver Airport. Both pilots were killed. Each of the seven passengers was seriously injured, six of whom commenced a legal proceeding against Northern Thunderbird.(1)

The aircraft was equipped with a cockpit voice recorder. In a motion brought before the British Columbia Supreme Court, the passenger plaintiffs sought an order granting them access to the audio data from the cockpit voice recorder, as well as a partial transcript of that data. The Transportation Safety Board (TSB) did not oppose the request for access, but appeared before the court to "explain the enabling legislation and the policy reasons for the statutory privilege that pertains to such recordings".

Privilege

In Canada, the TSB has the exclusive jurisdiction to investigate transportation occurrences and make findings as to the underlying and contributing factors to those incidents. This notwithstanding, the TSB is not mandated to find fault or determine civil or criminal liability. In fact, its empowering legislation specifically provides that its findings may not be interpreted in that way. The relevant statutory provisions are set out in the Canadian Transportation Accident Investigation and Safety Board Act (SC 1989) as follows:

"28(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...

32. Except for proceedings before and investigations by a coroner, an investigator is not competent or compellable to appear as a witness in any proceedings unless the court or other person or body before whom the proceedings are conducted so orders for special cause.

33. An opinion of a member or an investigator is not admissible in evidence in any legal, disciplinary or other proceedings."

Regarding the present case, the legislation provides that 'on-board recordings' (ie, cockpit voice recordings) are privileged. In the course of its investigation of the crash, the TSB seised the cockpit voice recorder from Northern Thunderbird's aircraft. It was examined by the board's engineering branch in Ottawa, which extracted and analysed four audio recordings from it. The TSB also prepared an incomplete transcript of the cockpit communications and noise from the aircraft. This was the subject matter of the request before the court.

Decision

In deciding whether to order the production of the cockpit voice recorder data and transcript, Chief Justice Hinton considered prior decisions of Canadian courts.

The first was from the Federal Court in Wappen-Reederei GmbH & Co KG v MV Hyde Park (2006 FC 150), where one of the litigants sought production of the original very high frequency bridge recordings from the collision of two ships. The request for production in that case was made before the TSB had completed its investigation.

In MV Hyde Park, Justice Gauthier noted that, since the privilege attached to these recordings was not absolute, the court was required to carry out a balancing exercise in order to determine whether the privilege will be upheld. To do this, the court considered:

  • the nature and subject matter of the litigation;
  • the nature and probative value of the evidence in the case and how necessary this evidence was for the proper determination of a core issue before the court;
  • whether other ways of getting this information before the court existed; and
  • the possibility of a miscarriage of justice.

After listening to the recordings, Gauthier refused to order their production because the recordings were of poor quality and offered "little evidentiary value".

In the matter at hand, Hinton also considered Société Air France v Greater Toronto Airports Authority (2009 OJ 5337), relating to the crash of Air France 358 into a creek at the end of the Toronto Airport runway in 2005. In Société Air France, Justice Strathy was faced with the same balancing exercise and ordered the production of the cockpit voice recorder on the following grounds:

  • The cockpit voice recorder contained highly relevant, probative and reliable evidence that was central to the issues in the litigation.
  • The circumstances of the case justified the production of the cockpit voice recorder:
    • It was important and substantial litigation involving a class of some 300 people and damages in the hundreds of millions of dollars.
    • There was a large volume of evidence from other sources, including flight data recorder information, air traffic control data and evidence from the pilots.
    • There was some concern about the reliability of the pilots' evidence.
    • The cockpit voice recorder had already been used to refresh the pilots' recollections.
    • One of the pilots consented to the release of the cockpit voice recorder, while the other, and Air France, took no position.
    • The cockpit voice recorder contained no personal communications or communications of a sensational or disturbing nature.
    • There were no pending disciplinary or criminal proceedings against the pilots.
    • Privacy concerns could be addressed pursuant to the existing confidentiality order and the limited scope of disclosure of the cockpit voice recorder.
  • Without the cockpit voice recorder evidence in this case, there was a real risk of the parties and the trier of fact not having the best and most reliable evidence concerning the central issue in these cases.
  • There was no basis on which to conclude that the release of the cockpit voice recorder in this case, under appropriate restrictions of confidentiality, would interfere with aviation safety, damage the relationship between pilots and their employers or impede the investigation of aviation accidents.

Taking his lead from MV Hyde Park and Société Air France, Hinton listened to the cockpit voice recording from the Northern Thunderbird aircraft in order to:

"determine whether, in the circumstances of the case, the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording by virtue of s. 28 of the TSB Act".

In making this determination, Hinton recognised that the disclosure of the cockpit voice recorder in this case was not just in the interest of the litigants, but also to the public interest in the administration of justice.

More specifically he found that even though there was "a large volume of evidence from other sources, the death of the two pilots makes their evidence unavailable and obviates any suggestion of reliability pertaining to their evidence".

The court also noted that the idle conversation between the pilots contained no personal communications; nor was it of a sensational or disturbing nature. Moreover, there were no disciplinary or criminal proceedings against the pilots. To the extent that there were any privacy issues, Hinton was of the view that they could be addressed through a confidentiality order, as they were in Société Air France.

Finally, the court considered the evidence of an expert witness for the plaintiffs on the possible causes of the crash, which led the motions judge to conclude that he was:

"satisfied that there is a real risk that the parties and the [trial judge] will not have the best and most reliable evidence concerning the central issues in [the] case if the [cockpit voice recorder] is not released to counsel for the plaintiffs."

After the balancing exercise was complete, the court ordered the disclosure of the cockpit voice recorder data, but not the transcript, with the following restrictions:

  • The cockpit voice recorder data must be disclosed only to the parties and their experts, consultants, insurers and lawyers.
  • The cockpit voice recorder data must remain confidential and be used only for the purposes of the lawsuit.
  • The cockpit voice recorder data must not be filed in court in any form in the litigation or any other action.

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) or email (cmartins@lexcanada.com or amacdonald@lexcanada.com). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.

Endnotes

(1) Cohen et al v Northern Thunderbird Air Inc, 2017 BCSC 315.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.