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AIR TRANSPORTATION - Liability - Civil actions

Thursday, June 10, 2021 @ 5:47 AM  

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Appeal by the Transportation Safety Board of Canada from an interlocutory decision authorizing conditional release of an Air Canada cockpit voice recording. In 2015, an Air Canada flight attempted a landing at Halifax International Airport after midnight in difficult weather conditions. The aircraft hit the ground short of the runway, skidded along the tarmac and came to a stop. The incident led to a class action. A common issues trial was to be held as to whether Air Canada’s training, policies and procedures caused or contributed to the crash, whether Air Canada or its pilots breached the standard of care or acted recklessly with respect to the landing, and if so, whether any such breach caused or contributed to the crash. The Board investigated and prepared a report on its findings. The Board’s report included consideration of the contents of the flight’s cockpit voice recorder. The judge determined that the public interest in the proper administration of justice outweighed the importance of the statutory privilege attached to the cockpit voice recorder and ordered its disclosure with conditions. The Board appealed.

HELD: Appeal dismissed. The Board met the criteria for leave to appeal. The plain language of s. 28(6)(b) of the Canadian Transportation Accident Investigation and Safety Board Act did not entitle the Board to make ex parte submissions to the motion judge prior to the decision to release the contents of the cockpit voice recorder. Plainly read, s. 28(6) authorized the court, rather than the parties, to listen to the cockpit recorder in camera with the Board having an opportunity to make representations concerning the recording. Ex parte submissions would not have impacted the court’s analysis in understanding the contents of the recorder. The motion judge did not err in determining that the public interest in the administration of justice outweighed the importance of the statutory privilege. The judge adopted the correct balancing test from the jurisprudence. No error arose from concluding that the evidence was relevant to causation and the particulars of negligence leading to loss and damages pleaded by the plaintiffs. No misapprehension of evidence regarding pilot privacy and safety interests occurred in assessing the public interest and the importance of the privilege. The discretionary disclosure decision was entitled to deference.

Canada (Transportation Safety Board) v. Carroll-Byrne, [2021] N.S.J. No. 158, Nova Scotia Court of Appeal, P. Bryson, A.S. Derrick and C.A. Beaton JJ.A., April 16, 2021. Digest No. TLD-June72021011