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Claim for Privilege Over Contents of Cockpit Voice Recorder Denied

View PDF: 2017-02 (Mar 17-17)

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

The aircraft was equipped with a cockpit voice recorder (CVR). 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 CVR 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.”

In Canada, the TSB has the exclusive jurisdiction to investigate transportation occurrences and to make findings as to the underlying and contributing factors to those incidents. 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, S.C. 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.

  1. 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.
  2. An opinion of a member or an investigator is not admissible in evidence in any legal, disciplinary or other proceedings.

As relates to the present case, the legislation provides that “on-board recordings” (i.e. the CVR recordings) are privileged. In the course of its investigation of the crash, the TSB seized the CVR from Northern Thunderbird’s aircraft. It was examined by the TSB’s engineering branch in Ottawa — which was able to extract and analyze 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.

In deciding whether to order production of the CVR data and transcript, Chief Justice Hinkson considered prior decisions from Canadian courts.

The first was from the Federal Court in Wappen-Reederei GmbH & Co. KG v. M.V. Hyde Park, 2006 FC 150 where the Court was faced with a situation where one of the litigants sought production of the original VHF 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 that case, Justice Gauthier noted that since the privilege attaching to these recordings was not absolute, the Court was required to embark on a balancing exercise in order to determine whether the privilege will be upheld. In order to carryout the balancing exercise, the Court considered:

(i) the nature and subject-matter of the litigation;

(ii) the nature and probative value of the evidence in the particular case and how necessary this evidence is for the proper determination of a core issue before the Court;

(iii) whether there are other ways of getting this information before the Court; [and]

(iv) the possibility of a miscarriage of justice.

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

In the matter at hand, Chief Justice Hinkson also considered Société Air France et al. v. Greater Toronto Airports Authority, 2009 OJ No. 5337 where Air France 358 crashed into a creek at the end of the runway at Toronto in 2005. In that case Justice Strathy was faced with the same balancing exercise and ordered production of the CVR because:

  1. The CVR contains highly relevant, probative and reliable evidence that is central to the issues in the litigation.
  2. The circumstances of the case include:

(a) it is important and substantial litigation involving a class of some 300 people and damages in the hundreds of millions of dollars;

(b) there is a large volume of evidence from other sources, including FDR data, air traffic control data and evidence from the pilots;

(c) there is some concern about the reliability of the pilots’ evidence;

(d) the CVR has already been used to refresh the pilots’ recollections;

(e) one of the pilots consents to the release of the CVR; the other, and Air France, take no position;

(f) the CVR contains no personal communications or communications of a sensational or disturbing nature;

(g) there are no pending disciplinary or criminal proceedings against the pilots;

(h) concerns as to privacy can be addressed pursuant to the existing confidentiality order and the limited scope of disclosure of the CVR.

  1. The public interest in the administration of justice: without the CVR evidence in this case, there is a real risk that the parties, and the trier of fact, will not have the best and most reliable evidence concerning the central issue in these cases.
  2. The importance of the privilege attaching to the CVR: there is no basis on which one could conclude that the release of the CVR in this case, under appropriate restrictions of confidentiality, would interfere with aviation safety, would damage relations between pilots and their employers, or would impede investigation of aviation accidents.

Taking his lead from the M.V. Hyde Park and Société Air France  cases, Chief Justice Hinkson listened to the CVR 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, Chief Justice Hinkson recognized that the disclosure of the CVR 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, Chief Justice Hinkson was of the view that they could be addressed through a confidentiality order, as they were in the Société Air France  case.

Finally, the Court considered the evidence of an expert witness for the plaintiffs on the possible cause(s) 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 CVR is not released to counsel for the plaintiffs”.

After the balancing exercise was complete, the Court ordered disclosure of the CVR data, but not the transcript, with the following restrictions:

(a) the CVR data would only be disclosed to the parties and their experts, consultants, insurers and lawyers;

(b) the CVR data is to remain confidential and shall only be used for the purposes of the lawsuit; and

(c) the CVR data could not be filed in Court in any form in the litigation or any other action.

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