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Production of Cockpit Voice Recorder
Published in the December 2009 issue of Transportation Notes - View Article
On December 9th the Ontario Superior Court of Justice released a careful and important decision which reviews the circumstances in which a recording of conversations on the flight deck of a commercial airliner may be released to persons not involved in an official accident investigation. The decision in Société Air France v. Greater Toronto Airports Authority is one of very few Canadian cases which have allowed access to information protected by a qualified privilege under our accident investigation legislation.
The case arose out of the accident involving Air France flight 358 on August 2, 2005. The crew attempted landing in very threatening weather and were not able to bring the aircraft to a stop on the runway. The aircraft pitched into a ravine beyond the end of the runway and was consumed by fire. There were no fatalities but there were some serious injuries and, of course, substantial property damage. Actions have been commenced by and on behalf of passengers and there are also claims for damages by and against the Greater Toronto Airports Authority. Air France seeks contribution and indemnity from NAV Canada and Environment Canada relating to the provision of information to the flight crew.
The aircraft was equipped, as is mandatory, with an on-board recording device, the cockpit voice recorder or CVR. This was retrieved following the accident and it was possible to recover the data which had been recorded, thus allowing investigators to know what conversation passed between the pilots on the flight deck during the last two hours of flight. NAV Canada made an application for production of the CVR.
The use which can be made of a CVR is addressed in the Canadian Transportation Accident Investigation and Safety Board Act (the “TSB Act”). The investigative body created by the TSB Act is the Transportation Safety Board (the “TSB”). Section 28 of the Act provides that a CVR is privileged and shall not be released by the TSB unless a court first concludes that “the public interest in the proper administration of justice outweighs the importance of the privilege”. The TSB Act also creates a similarly qualified privilege in respect of statements given to TSB investigators.
The practice in Canada has favoured maintenance of the privilege and in this Canada is markedly different from the United States where the NTSB necessarily makes public those parts of a recording it finds relevant to the accident. The TSB is not obliged, and indeed not allowed, to make public any part of a CVR without court order.
When a party seeks production of a CVR, the recording must first be reviewed by a judge, in camera. The judge must allow the TSB to make submissions respecting the proper treatment of the recording and must determine whether the “public interest in the proper administration of justice” outweighs factors which count in favour of the privilege.
The debate concerning the extent of the privilege has been before Canadian courts on approximately a dozen occasions. The outline of the debate is clear, although the emphasis given to the conflicting principles differs somewhat from case to case. In favour of the privilege, it is said that strict enforcement is necessary to encourage openness in the investigation process. If, the argument goes, those with knowledge relevant to the reconstruction of the events leading to an accident fear that they may be penalized as a consequence of speaking frankly, they may “clam-up”. It is also argued that recording workplace conversations is a remarkable invasion of privacy and that pilots deserve a degree of protection from the consequences of this intrusive act. On the other hand, it is well recognized that the CVR is a very important tool which can assist in accident reconstruction. Failure to make it available to parties in litigation may lead to an unjust result.
Mr. Justice Strathy, in the Air France case, undertakes a careful review of some ten decisions of Canadian courts which have attempted to reconcile the differing policy objectives. In doing so, he has noted the factors considered and has arrived at a synthesis which he applies to the resolution of this particular case. The reasons for decision should be consulted by anyone interested in the past judicial treatment, in Canada, of this difficult question.
It is often argued that when the information on the CVR may be obtained from different sources, access to the CVR should be denied. Thus the TSB, which always vigorously supports privileged treatment, often points out that the information is already available in the official accident report. As Justice Strathy points out there are at least two problems with this proposal. In the first place, the TSB accident report cannot be introduced in evidence in civil proceedings. Furthermore, every report will involve selection of factual sources and interpretation. The truth as perceived by the TSB, and as embodied in its report, may not be beyond question. The same may be said of other sources of information. Reliability is always a potential issue and no litigant with an interest, lacking knowledge of what the CVR may contain, will be pleased if told he should rely on other evidence as the CVR must remain privileged.
“The utility of the TSB report lies primarily in its informational value. It is not admissible in evidence as proof of the pilots’ conversations or as proof of the content of the CVR. While one might say that it gives all parties knowledge of the facts of the accident, it is simply the TSB’s version of the facts, based on the investigation it carried out.”
The learned judge was sensitive to some basic requirements which should be taken into account when considering how to treat a production request. In the first place, any irrelevant personal communications should be excluded unless it might be said that the very fact of participating in such a conversation may be relevant to the happening of the accident or incident. Furthermore any information of a sensational or disturbing nature, such as exclamations at the moment disaster is imminent, should generally be excluded. Most fundamentally of all, the reviewing judge must satisfy himself that the content of the CVR is relevant to the resolution of issues in the law suit.
Once the court is satisfied that the information is relevant and reliable it must identify and assess the public interest. The relevant public interest, Justice Strathy found, is primarily “the public interest in the fairness of the trial process”. This is an interest which extends beyond the immediate interests of the parties and “includes an interest in the integrity of the judicial fact-finding process and the reliability of the evidence before the court”. He identifies as well one additional aspect of the public interest—behaviour modification which is an “important goal of class actions”. There is a public interest in ensuring that a court has the best possible evidentiary record to identify the cause of mass wrongs and force those responsible to correct their errors.
Turning to the facts of the case, Justice Strathy confirmed that the CVR is “highly relevant, probative and reliable”. It is important to the numerous litigants, the amounts at stake are significant, and, while there is a large volume of additional evidence, in some cases reliability is in question. The recording contains no personal communications or communications of a “sensational or disturbing nature”, there are no pending disciplinary or criminal proceedings and any concerns respecting privacy can be addressed. Turning to the resolution of the important competing principles, he concluded that the public interest in the administration of justice favours access. Without access the court might be deprived of the best and most reliable evidence bearing on the central issues in the case. While recognizing the importance of the privilege, Justice Strathy found that he could not conclude that release would interfere with accident investigation in general or with aviation safety.
Having come to these conclusions, the learned judge ordered the TSB to produce a copy of the CVR and transcript to NAV Canada. Disclosure is limited to the parties and their professional advisors. He concluded by noting that “the provisions of s. 28(7) of the TSB Act will, of course, apply”. This sub-section provides that the CVR may not be “used against” the pilots in other legal proceedings. It is interesting to note that a judge of the British Columbia Supreme Court cited s. 28(7) as one of the reasons for refusing production of a privileged statement in the case of Webber v. Canadian Aviation Insurance Managers. There would be no purpose in ordering production “as they could not be used in this trial in any event”.
The Webber case arose out of a mid-air collision. The plaintiff commenced action against his insurers to recover under an insurance policy. The identity of the pilot at the time of the crash was in question. If the plaintiff was the pilot flying he was entitled to coverage, otherwise not. The insurer wanted the privileged statement, which had been given by the plaintiff, to determine what light it might shed on this issue. Thus, it was very clear that the statement might, if produced, be directly contrary to the interests of the plaintiff. It appears that the only likely use insurers could make of the statement would be to support, at trial, a denial of coverage position. This would be using the statement against the maker and such use would be prohibited by s. 28(7).
Justice Strathy offers no comment on the observation that production, in such circumstances, might serve no purpose. The facts in the Air France case are certainly more complex. The purposes for which the CVR might conceivably be used might not be limited to use against the pilots. The information on the recording might exonerate one party, for example, or cast light on operational procedures without directly focusing blame on the pilots. However, it would appear likely that some rather delicate issues respecting the exact use which may be made of the CVR will arise as the case progresses.
Société Air France v. Greater Toronto Airports Authority,
[2009] O.J. No. 5337