On August 2, 2005 Air France flight AFR 358 overshot the runway while attempting to land at Pearson International Airport during a severe thunderstorm.  At a speed of about 80 knots, the Airbus A340 crashed in a ravine and burst into flames.  Fortunately, none of the nearly 300 passengers and 12 crew members was killed, but a number of people suffered serious injuries.  The aircraft itself was a total loss.

A class action was launched in behalf of the passengers, and Air France and its insurers brought a multimillion dollar lawsuit against the Greater Toronto Airports Authority, NAV Canada (the entity responsible for air traffic control), and the Attorney General of Canada (representing the Ministry of Transportation).

Although it was not a party to any of the litigation pertaining to the crash, the Transportation Safety Board of Canada (the “Board”) took possession of the aircraft’s Cockpit Voice Recorder (the “CVR”) during the course of its investigation into the incident.  The CVR contains a complete recording of the conversations between the pilots, as well as their communications with air traffic control, in the hours leading up to the crash.  Investigators with the Board interviewed the two pilots at length, and made use of the contents of the CVR to help the pilots refresh their memories and reconstruct the last two hours of the flight.

The Board investigators obtained the CVR under section 28 of the Canadian Transportation Accident Investigation and Safety Board Act, R.S.C. 1989, c. 3 (the “Act”), which provides that any onboard recording that relates to a transportation occurrence under investigation by the Board is to be released to a Board investigator who requests it.  Under section 28(2), however, an onboard recording is privileged.  No person, including an investigator who obtains access to the recording under section 28, can communicate a recording or permit the contents of it be communicated to anyone else.

Section 28(6) provides an exception to the privilege.  The CVR may be produced in court proceedings where the court concludes that in the circumstances of the case the public interest in the proper administration of justice outweighs the importance of the privilege.  NAV Canada moved under section 28(6) for production of the CVR.  The motion was opposed by the Board and the pilots’ unions, who took the position that the contents of the CVR should be suppressed in the interests of aviation safety and the personal privacy of the pilots concerned.

The judge who heard the motion concluded that in the circumstances of the case the interests of justice outweighed the importance of the privilege, and ordered the disclosure of the CVR to the parties in the litigation.  This order was upheld in a recent decision of the Ontario Court of Appeal.

The Board had published a detailed report of its investigation.  While the Act does not permit the Board to assign fault or determine liability, the report did suggest that certain acts and omissions of the pilots during the last two hours of the flight, and in particular during the last 30 minutes, may have contributed to the crash.  The report did not quote the pilots’ conversations, but it did summarize the substance of the conversations.

The motions judge listened to the recording and read the transcript in camera. As a result, he concluded that there was “no doubt whatsoever that the contents of the CVR are highly relevant, probative and reliable and that they are of incalculable value in the investigation of this accident.”  The Board and the pilots’ unions argued that disclosure of the CVR would diminish the trust pilots have in the confidentiality of the investigation process, thereby producing a “chilling effect” and limiting the information that pilots would provide in future investigations.

In delivering the unanimous opinion of the Court of Appeal, Mr. Justice Goudge noted that in balancing the importance of the CVR to the administration of justice against the importance of the statutory privilege, the motions judge exercised the type of discretion that should attract deference on appellate review.  The Court of Appeal rejected the appellants’ assertion that the motions judge applied the wrong legal test.  It was not necessary for the moving party to establish extraordinary circumstances in order to justify production: “What the court must find is that in the particular case, the public interest in the administration of justice outweighs the importance attached to the statutory privilege.

These are some of the factors that the court cited as weighing in favour of disclosure in the interests of justice:

(1)    This was important and substantial litigation with a class of some 300 individuals and damages claimed in the hundreds of millions of dollars;

(2)    There was concern over the reliability of the pilots’ evidence;

(3)    The pilots had already used the CVR to refresh their memories;

(4)    Absent the CVR evidence, there was a real risk that the parties and the trier of fact would not have access to the best and most reliable evidence concerning the central issues in the case.

On the other hand, the CVR did not contain personal communications or communications “of a sensational or disturbing nature”, and there were no disciplinary proceedings pending against the pilots.

Disclosure served the public interest in the administration of justice because the contents of the CVR were relevant, probative, and reliable, and therefore of great value in the investigation of the particular accident that was before the court.  Since the Board and the unions had failed to provide any evidentiary basis for the alleged chilling effect (such as evidence that previous orders for disclosure had caused pilots to be less cooperative in subsequent investigations), this allegation was no more than speculation.

The court also rejected the appellants’ argument that the moving party has to show that a miscarriage of justice would occur unless the contents of the CVR were produced in the action.  In the circumstances, the public interest in the administration justice outweighed the importance of the privilege, and the recording should be produced.

Link: Societe Air France v. NAV Canada, CanLII – 2010 ONCA 598 (CanLII)

Richard Hayles, B.A., J.D.

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