Canadian Underwriter

Supreme Court to consider disclosure of cockpit voice recordings in aviation accident lawsuits

October 15, 2021   by Greg Meckbach

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The Supreme Court of Canada will hear arguments, from federal aviation accident investigators, that cockpit voice recordings should not be made available to personal injury plaintiffs who are trying to sue an airline over an accident in Halifax.

On March 29, 2015, an Air Canada Airbus A320 that originated from Toronto struck the ground short of a runway at Halifax Stanfield International Airport during a snowstorm. The passengers – of whom 25 were taken to hospital – had to evacuate by emergency slides.

Property damage to the plane and to ground installations at the airport was significant, Justice Patrick Duncan wrote in Carroll-Byrne v. Air Canada, released in 2019 by the Nova Scotia Supreme Court.

Allegations of negligence against defendants have not been proven in court.

That 2019 ruling was not on the merits of the class-action lawsuit, which still need to be determined at trial. What Justice Duncan did rule was that the cockpit voice recordings should be made available to plaintiffs and some of Air Canada’s co-defendants.

As intervenors, the Transportation Safety Board and Air Canada Pilots Association opposed the production order – for the cockpit voice recordings – requested by the plaintiffs and by several defendants, including Airbus SAS and Halifax International Airport. Air Canada also opposed the production order.

In Transportation Safety Board v. Carroll-Byrne, released April 16, 2021, the Nova Scotia Court of Appeal upheld Justice Duncan’s 2019 finding that the recordings should be produced. Those recordings are currently held by TSB.

TSB applied May 19, 2021 for leave to appeal to the Supreme Court of Canada, which announced Oct 14 it will hear an expedited appeal.

“The communications between the Captain and the First Officer, particularly just before and during their descent, is central to liability,” Justice Duncan wrote in 2019.

Among other things, TSB argued that Justice Duncan erred in his finding that the public’s interest, in the proper administration of justice, outweighed the importance of the “statutory privilege” associated with the cockpit voice recorder.

The Canadian Transportation Accident Investigation and Safety Board Act stipulates that on-board recordings are “privileged.” This means that those who hold the recordings may not  communicate those recordings to any person, nor may TSB be compelled to produce an on-board recording or give evidence relating to it in any legal, disciplinary or other proceedings.

But that “privileged” status has some exceptions as stipulated by the Canadian Transportation Accident Investigation and Safety Board Act.

A court or coroner who is asked to order production of a recording must first examine that recording in camera and give TSB “a reasonable opportunity to make representations” with respect to those recordings.

A coroner or court has the power to order the production of recordings if the coroner or judge concludes “that the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording.” This, the statute says, is “subject to such restrictions or conditions as the court or coroner deems appropriate.”

The Air Canada Pilots’ Association argues that disclosing cockpit voice recordings compromise pilot privacy interests and public safety by discouraging candour in flight officer communications.

In a 2017 report, TSB said that when landing, the Airbus A320 severed power lines and then struck the snow-covered ground about 740 feet short of the runway threshold.

“The aircraft continued airborne through the localizer antenna, and struck the ground twice more before sliding along the runway and coming to rest about 1900 feet beyond the runway threshold. The aircraft was evacuated using the inflatable slides. Twenty-five people sustained injuries and were taken to hospital. The aircraft was destroyed,” TSB said in a 2017 press release.

With regard to the class-action lawsuit, the TSB argued it should be allowed to make arguments in court, in opposing a production order for voice recordings, ex parte, meaning it excludes other adverse parties.

But the “plain language” of the act does not authorize the TSB to make ex parte submissions to the judge hearing the pre-trial motions in the class action, Justice Peter Bryson wrote for the Nova Scotia Court of Appeal in early 2021.

“There is a clear distinction between ‘in camera’ and ‘ex parte’ which appears throughout legislation. The first, from the Latin literally means ‘within the room,’ excluding those who don’t belong there. In legal parlance, that generally means the public. Ex parte in a legal context means to do something without notice to, and thus in the absence of other adverse parties. It is not synonymous with “in camera, ’” Justice Bryson wrote.

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