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Disruptive passenger not entitled to airline’s privileged file

Published in the May 2010 issue of Transportation Notes - View Article

A flight attendant on an Air Canada flight observed a passenger drinking beer that had not been served to him.

The flight attendant informed the passenger, Mr. Juergen Dankwort, that this was in violation of the Canadian Aviation Regulations and the passenger surrendered his beer to the flight attendant.

However, the passenger accused the flight attendant of being very rude to him in the course of this interaction, while the flight attendant stated that it was the passenger who was behaving disruptively. The flight attendant notified the captain of the incident and the passenger was met by an Air Canada customer service representative and the RCMP when he arrived at his destination (no charges were laid against him).

The passenger wrote to Air Canada to complain about the way he was treated.

Air Canada investigated the matter and wrote back to the passenger, advising him that it had investigated his complaint and that, in its opinion, the flight attendant had acted appropriately. The passenger continued to correspond with Air Canada, finally demanding that Air Canada produce its file on him. Air Canada refused to do so, claiming privilege, and the passenger subsequently complained to the federal Privacy Commissioner.

The Privacy Commissioner asked that Air Canada make its file available to the passenger. Air Canada refused to do so on the basis of privilege, and provided the Privacy Commissioner with particulars of the documents and the privilege claimed.

The Privacy Commissioner then asked Air Canada to file an affidavit identifying the documents over which privilege was claimed and its basis for asserting the privilege. Air Canada refused to file the requested affidavit and the Privacy Commissioner brought a Notice of Application to the Federal Court for an order:

declaring that the Privacy Commissioner was entitled to require Air Canada to produce the affidavit requested; and
requiring Air Canada to produce its file to the passenger.

The Court held that the Privacy Commissioner did not have the right to demand that Air Canada justify its assertion of privilege by way of a detailed affidavit.

Given that the Personal Information Protection and Electronic Documents Act (“PIPEDA”) did not grant the Privacy Commissioner jurisdiction to rule on an assertion of privilege, the Court found that she was not entitled to inspect documents over which privilege was claimed and so could not stipulate the steps Air Canada had to take to satisfy her that the documents were truly privileged.

Of the five documents over which Air Canada asserted privilege, the Court found that only one was not privileged and should be produced. The documents included:

the flight attendant’s initial incident report;
his follow-up report;
the report of the customer service representative who met the passenger when the plane arrived;
a report from the captain of the aircraft; and
a witness statement from a passenger.

Only the customer service representative’s report was held not to be privileged, as it was created as a stand-alone document before the involvement of the legal department:

[the customer service representative’s report] was a routine end of shift synopsis prepared after both he and the RCMP officers had spoken to Mr. Dankwort. It was clear that no charges were going to be laid against Mr. Dankwort who exhibited no animosity towards [the customer service representative].

The Court held that, as the dominant purpose for which the report was created was not to obtain legal advice or because a lawsuit was contemplated, it could not be considered privileged.

The other documents were clearly created under the reasonable anticipation that a complaint or lawsuit would be filed against the flight attendant and Air Canada, and so were protected by litigation privilege and/or solicitor/client privileged.

The Court rejected the limitations the Privacy Commissioner attempted to place on Air Canada’s claim of privilege. The Privacy Commissioner argued that Air Canada could not claim privilege over its investigative reports as most of the work was conducted by a paralegal. The Court pointed out that the paralegal was supervised by legal counsel and dismissed this argument.

The Privacy Commissioner also argued that investigative reports could not be privileged, as they were by their nature preliminary to an assessment that a claim or complaint could not be resolved without litigation. The Court held that litigation need only be a “reasonable prospect” at the time a report was prepared, not that litigation needed to be a certainty.

The Privacy Commissioner also argued that Air Canada had waived privilege by mentioning the fact of its investigation to the passenger in its letter to him. The Court rejected this argument as well, as Air Canada had simply referred to its investigation, not the legal advice given within that investigation:

In this case, Air Canada made no mention whatsoever of its legal advice. It simply gave its understanding of facts which had been obtained as a result of an investigation, an investigation which was carried out in reasonable contemplation of litigation.

The Court also found that Air Canada would not be obliged to provide the passenger with facts from its investigation – the passenger would be entitled to this information only if he sued Air Canada, and even then he could only have made use of that information within the context of that lawsuit. Nothing in PIPEDA required Air Canada to disclose facts contained in a privileged document, other than in court proceedings.

The Privacy Commissioner had also requested that the Court award damages to the passenger in the range of $5,000 to $10,000.

Although the Court did order Air Canada to produce one document to the passenger, it held that Air Canada’s claim of privilege over this document had been made in good faith. It noted that Air Canada had placed the passenger’s account of what occurred in its file, the Privacy Commissioner’s usual recommendation when it has a complaint with dramatically opposed versions of an event. The Court also found that Air Canada had let the matter be, rather than pursuing the passenger for a possible breach of the Canadian Aviation Regulations:

Given Air Canada’s inaction, all we are left with is a disagreement as to what was said, by whom, to whom and in what tone of voice. I see no reason to award any damages.

The Court awarded Air Canada its costs of the application.

Privacy Commissioner of Canada v. Air Canada
(2010 FC 429)