Transportation Safety Board of Canada Appellant v. Kathleen Carroll-Byrne, Asher Hodara, Georges Liboy, Air Canada, Airbus S.A.S., NAV CANADA, Halifax International, 2022 SCC 48

SUPREME COURT OF CANADA Citation: Canada (Transportation Safety Board) v.

Carroll-Byrne, 2022 SCC 48 Appeal Heard: March 17, 2022 Judgment Rendered: November 25, 2022 Docket: 39661 Between: Transportation Safety Board of Canada Appellant and Kathleen Carroll-Byrne, Asher Hodara, Georges Liboy, Air Canada, Airbus S.A.S., NAV CANADA, Halifax International Airport Authority, Attorney General of Canada representing His Majesty The King in Right of Canada, John Doe #1, John Doe #2 and Air Canada Pilots’ Association Respondents Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment : (paras. 1 to 125) Kasirer J. (Wagner C.J. and Moldaver, Karakatsanis, Rowe, Martin and Jamal JJ. concurring) Dissenting Reasons : (paras. 126 to 186) Côté J. (Brown J. concurring) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . Transportation Safety Board of Canada Appellant

v. Kathleen Carroll-Byrne, Asher Hodara, Georges Liboy, Air Canada, Airbus S.A.S., NAV CANADA, Halifax International Airport Authority, Attorney General of Canada representing His Majesty The King in Right of Canada, John Doe #1, John Doe #2 and Air Canada Pilots’ Association Respondents Indexed as: Canada ( Transportation Safety Board) v. Carroll-Byrne 2022 SCC 48 File No.: 39661. 2022: March 17; 2022: November 25.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for nova scotia Transportation law ⸺ Statutory privilege for on-board recording ⸺ Power of court to order production and discovery of on-board recording ⸺ Aircraft striking ground when attempting to land in snowstorm ⸺ Passengers bringing class action for damages for negligence against airline, manufacturer and others ⸺ Manufacturer bringing motion for disclosure of audio and transcript of cockpit voice recorder held by federal agency who investigated crash ⸺ Agency opposing disclosure and requesting to make submissions to motion judge in absence of public and other parties ⸺ Motion judge refusing permission to make such submissions and ordering disclosure of cockpit voice recorder ⸺ Whether agency entitled to make submissions before motion judge in absence of public and other parties ⸺ Whether motion judge committed reviewable error in ordering disclosure of cockpit voice recorder based on weighing of public interest in proper administration of justice and importance of statutory privilege ⸺ Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3, s. 28(6) (b), (c).

An accident occurred when an Air Canada flight landed in wind and snow at Halifax Stanfield International Airport. A number of people were injured. Following the accident, a class action was commenced on behalf of certain passengers alleging that negligence on the part of the airline, its pilots, the aircraft manufacturer, the airport and others had caused them harm.

As part of its defence and cross-claim, the manufacturer filed an interlocutory motion pursuant to s. 28(6) of the Canadian Transportation Accident Investigation and Safety Board Act (“ Act ”) for disclosure of the audio and transcript of the cockpit voice recorder (“CVR”).

The CVR had been collected from the aircraft by the Transportation Safety Board of Canada (“Board”), an independent federal agency, which investigated the accident pursuant to its statutory mandate to advance transportation safety and released a report to the public indicating the causes or contributing factors of the accident and the safety measures to be taken by those concerned. As an “on-board recording”, the CVR is privileged under s. 28(2) of the Act ; no one can be required to produce it or give evidence relating to it in legal proceedings, except with the authorization of a court or coroner.

The Board, a stranger to the litigation, relied on the statutory privilege to oppose the motion for disclosure. In advance of the hearing on the motion, the Board sought to make representations to the chambers judge as to the admissibility of the CVR in the absence of the public and of all the other parties in order to protect privileged information. The chambers judge refused the Board’s request, as in his view further submissions from the Board were not necessary.

The chambers judge then granted the motion for production of the CVR, as he was satisfied that it had important evidentiary value and was necessary to resolve the litigation. The Court of Appeal dismissed the Board’s appeal. It found that the Board had not demonstrated that ex parte submissions would have had any impact on the chambers judge’s analysis, as the chambers judge had determined that he did not need any assistance in understanding the recording.

Further, it concluded that no legal error or clear and material error in the chambers judge’s consideration of the evidence had been identified and that he had thus not erred by ordering disclosure. Held (Côté and Brown JJ. dissenting) : The appeal should be dismissed. Per Wagner C.J. and Moldaver, Karakatsanis, Rowe, Martin, Kasirer and Jamal JJ.: Section 28(6) (

b) of the Act neither grants the Board the right to make submissions in the absence of the public or the other parties, nor does it preclude the court or coroner from asking for them should they be necessary to decide the issue. Accordingly, the chambers judge made no reviewable error in not allowing the Board to make submissions in the absence of the public and the parties. Furthermore, the chambers judge did not commit a reviewable error when he ordered the disclosure of the CVR pursuant to s. 28(6) (

c) of the Act . The chambers judge’s overall weighing of the relevant factors was fact-driven and discretionary. In the absence of an error of law, a palpable and overriding error of fact or proof

that discretion has been abused, his balancing should not be disturbed. Section 28(6) (

b) of the Act provides that when a request for production and discovery of an on-board recording is made, the court or coroner shall “ in camera , examine the on-board recording and give the Board a reasonable opportunity to make representations with respect thereto”. A request to make submissions in the absence of the public and other parties is in substance a request to make submissions both in camera and effectively ex parte , in the sense of “without a party”.

Although the term ex parte is often defined as a proceeding undertaken without notice to an adverse party, providing notice to adverse parties does not convert what would otherwise be a hearing held in the absence of the parties into one held in camera . Properly understood, “ in camera ” refers to the exclusion of the public, not the exclusion of parties. A proceeding in which an adverse party is aware of the hearing but is prevented from making submissions is not an in camera proceeding.

The words “ in camera ” in the English text of s. 28(6) of the Act , like the equivalent expression “ à huis clos ” in the French text, only refer to the judge’s examination of the recording and not to the Board’s ability to make submissions. The legislative history of s. 28(6) supports the view that when Parliament made largely formal changes to the structure of the provision, it did not seek to extend to the Board an opportunity to make submissions in the absence of the other parties. Further, there is no ambiguity in s. 28(6) (

b) arising from a discordance between the English and French texts. The presence of a comma following the term “ in camera ” in the English text, which is absent from the French, does not create a consequential discordance of meaning because both “ in camera ” and “ à huis clos ” refer to the same idea. The comma in the English text does not suggest that the English text, unlike the French, is reasonably capable of meaning something different, namely that the Board’s submissions are to be made in the absence of the other parties.

Even if the comma following “ in camera ” created a true disparity between the French and English texts, their shared meaning aligns with the unambiguous French text, which would be preferred on the basis of both its narrower meaning as well as other indicia of legislative intention. While s. 28(6)(

b) does not provide the Board with a general entitlement to make submissions in the absence of the public and the other parties, a decision-maker faced with a disclosure request nevertheless has the discretion to invite such submissions. The general rule is that the Board should make the submissions contemplated in s. 28(6)(

b) in open court and in the presence of other parties. Exceptionally, should the decision-maker determine that assistance from the Board is needed in order to decide on the motion for disclosure, the decision-maker may permit or ask the Board to make further submissions in the absence of the public, in the absence of other parties, or both, so that the recording can be properly reviewed without defeating the applicable statutory privilege. Such submissions should be done in a manner that would be fair to all parties, by providing them with notice.

In the instant case, the chambers judge decided that, having regard to the evidence and submissions already received, as well as the questions that had to be answered to determine the motion, it was not appropriate or necessary to receive such submissions. The Board was more than capable of arguing its case without disclosing the contents of the CVR or defeating the statutory privilege. Under s. 28(6)(

c) of the Act , an on-board recording must only be disclosed for production and discovery if, upon request, a court or coroner is satisfied that the “public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording by virtue of this section”. Notably, the public interest informs both sides of the balance: the public has an interest in the proper administration of justice as it does in ensuring transportation safety. The balancing model used by Parliament in s. 28(6)(

c) directs that non-disclosure applies by default; it falls to the party seeking production to explain why the privilege should not apply, as an exception to the default rule. The test under s. 28(6)(

c) invites the court or coroner to undertake a discretionary balancing of the interests at stake, in a manner similar to the test used for case-by-case privileges. What Parliament has designated as the public interest in the proper administration of justice concerns a party’s right to a fair trial and to present all relevant evidence that is necessary to resolve the dispute.

At its core, this relates to the question of whether withholding evidence will interfere with the fact-finding process to such an extent that it would undermine a party’s right to a fair trial and, consequently, public confidence in the administration of justice. The very existence of the privilege suggests that Parliament is prepared to subordinate the truth-finding function of a civil trial to what it sees as potentially higher values. The burden is on the moving party to establish that the CVR may contain relevant, probative but also necessary evidence, in that it is not obtainable elsewhere.

Properly understood, the test for production developed by the Federal Court in Wappen-Reederei GmbH & Co. KG v. Hyde Park (The) , 2006 FC 150 , [2006] 4 F.C.R. 272, does not stand in substantial opposition to the test applied by the Ontario Superior Court in Société Air France v. Greater Toronto Airports Authority (2009), 85 C.P.C. (6th) 334 , aff’d on this point 2010 ONCA 598 , 324 D.L.R. (4th) 567.

Air France neither imposes a simple relevance test to outweigh the privilege in the name of the public interest in the administration of justice nor reduces the interest in the administration of justice to a consideration of mere relevance. In practice, the factors and balancing articulated in the two decisions are not discordant. Disclosure should not be routinely authorized simply because audio recordings offer reliable or trustworthy evidence. Necessity is an essential component of the analysis. Where evidence is crucial to a central issue in the case, its exclusion on any basis may threaten trial fairness.

Class actions should not be isolated as having heightened significance in the weighing exercise. However, the chambers judge’s comments on class actions in this case were not shown to have had a material effect on his ultimate decision to order production and discovery of the CVR. The privilege attached to the on-board recording by virtue of s. 28 of the Act is animated by two purposes: first, protecting pilot privacy and second, promoting aviation safety.

The ultimate balancing requires the court or coroner to identify the relevant factors and decide whether, in light of all of the circumstances, the public interest in the administration of justice commands production and discovery of the CVR, notwithstanding the weight accorded to the privilege by Parliament. When measuring the public interest in the administration of justice, the decision-maker should consider the recording’s relevance, probative value and necessity to resolving the issues in dispute as factors that point to the importance of the recording to a fair trial.

On the privilege side of the scale, the decision-maker should consider the effect of release on pilot privacy and on aviation safety, as fostered by free communications in the cockpit. Air France and Hyde Park correctly identified most of these factors as relevant to the balancing exercise. The test for production is not a simple relevance test. A court must consider not only the existence or number of gaps in the evidence but also the significance of the gaps in relation to the facts and legal issues in dispute.

Other ways of filling gaps, including by refreshing pilots’ memory using the Board’s report or through witness statements, should also be considered. As the decision to order or refuse production is a discretionary one, a judge’s conclusion is entitled to deference, insofar as the proper test and the relevant factors to be weighed were identified and applied in an appropriate manner.

In the instant case, when the chambers judge’s reasons are read as a whole, it is evident that he applied the correct test under s. 28(6)(c). He properly identified the two competing interests — the public interest in the proper administration of justice and the public interests underlying the privilege — and how they are relevant on the facts of this case, and he weighed these competing interests against each other. Importantly, the chambers judge considered all of the evidence supporting the statutory privilege.

Further, he did not order the production of the CVR to achieve a complete understanding of the pilots’ role in the accident. Rather, he found that the disclosure of the CVR was necessary in order to fill the gaps in the pilots’ evidence that were central to determining causation and thus liability for the accident. This conclusion was plainly open to him. Per Côté and Brown JJ. (dissenting): The appeal should be allowed. The chambers judge erred by refusing to permit the Board to make submissions in camera .

Furthermore, although there is agreement with much of what the majority says about the test for production under s. 28(6) (

c) of the Act , there is disagreement on the application of the standard of review. The chambers judge’s reasons disclose numerous errors of law. As a result, his discretionary decision to order production of the CVR is fundamentally tainted and is owed no deference. Given that no member of the Court has heard the CVR or read the transcript of its contents, it is simply not in a position to reweigh the evidence and conduct the discretionary balancing required under s. 28(6) (

c) of the Act . T he matter should therefore be remitted to be heard by a different chambers judge. In Ruby v. Canada (Solicitor General) , 2002 SCC 75 , [2002] 4 S.C.R. 3, the Court explained that ex parte , in a legal sense, means a proceeding, or a procedural step, that is taken or granted at the instance of and for the benefit of one party only, without notice to or argument by any adverse party. Ex parte proceedings are therefore distinct from in camera proceedings. Given that the Board agreed to provide notice to the other parties as well as to provide them with a non-privileged

summary of its submissions, its request to make its submissions in the absence of the public and the other parties cannot be characterized as a request to make ex parte submissions; rather, it is more properly characterized as a request to make in camera submissions. A textual and purposive

interpretation of s. 28(6) (

b) of the Act leads to the conclusion that the Board is entitled to make its submissions in camera — that is, in the absence of the public and the other parties. The expression “ in camera ”, at the beginning of the provision, followed by a comma, means that “ in camera ” qualifies all of the words that follow. Accordingly, both the examination of the CVR by the court as well as the Board’s “reasonable opportunity” to make representations concerning the CVR are to be in camera. The structural difference between the former s. 34(1) of the Canadian Aviation Safety Board Act and s. 28(6) (

b) of the Act is also relevant in discerning legislative intent. Any ambiguity under the former provision has now been resolved by collapsing former paragraphs (

b) and (

c) and by removing the comma after “recording”, thus bringing the phrase “opportunity to make representations” within the scope of the “ in camera ” qualifier. Accordingly, the only plausible

interpretation is that “ in camera ” was intended to apply to both the examination of the recording and to the opportunity to make representations. As to the French version of the provision, it has a fundamentally different structure than the English version. The text of the English version indicates that submissions are to be made in camera , whereas the text of the French version is silent on the nature of the Board’s submissions. The discordance between the two versions justifies having recourse to the purposive approach rather than looking for a shared meaning that is simply absent, and only the English version is consistent with a purposive

interpretation of the provision. The Board’s right to make reasonable representations must be interpreted in light of the Board’s statutory object as well as Parliament’s decision to create a statutory privilege. To the extent that it is necessary to protect the privilege, the Board has a right to make submissions in camera . Such an

interpretation furthers the object of the Act and helps to protect the privilege, ensuring that it yields only when it is truly in the public interest to do so. The test for production of the CVR under s. 28(6) (

c) requires the court to assess whether “the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording by virtue of this section”. There are two sides of the scale that must be assessed and weighed: (

i) the public interest in the proper administration of justice; and (ii) the importance of the statutory privilege attached to the CVR. This weighing, and the corresponding decision about whether to order production of the CVR, is discretionary. The test as articulated in Air France , and as adopted by the chambers judge in the instant case, places the wrong weights on both sides of the scale.

On the side relating to the public interest in the administration of justice, Air France overemphasizes irrelevant factors, such as the existence of a class action, thereby inappropriately inflating the need to ensure that the evidence before the court is as complete and reliable as possible. On the other side of the scale, regarding the importance of the privilege, Air France diminishes the privacy and safety goals that animate the privilege conferred by Parliament, thereby eviscerating the privilege.

As a result, Air France effectively reduces the test for production of the CVR to a consideration of relevance and reliability. Requiring only that relevance and reliability be established — without otherwise requiring proof that production of the CVR is necessary to the resolution of a core issue in the litigation — would be fundamentally inconsistent with the creation of a privilege in the first place.

As properly stated in Hyde Park , when considering the side of the scale relating to the public interest in the administration of justice, the court should focus on 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.

Conversely, when balancing the importance of the privilege, the court should give appropriate weight to the privilege, including both the privacy and the safety considerations that animate the privilege, in order to avoid routinely allowing disclosure simply because of the probative value normally attached to audio recordings of events. On the public interest side of the scale, the chambers judge based his analysis on a specific consideration of the policies and objectives of class actions, by taking into account the behaviour modification goal of class actions.

By doing so, he incorrectly considered an irrelevant factor, adding undue weight to this side of the scale. Such an improper statement of the law amounts to a reviewable error. Contrary to the position adopted by the majority, an incorrect legal finding need not be “decisive” to the overall outcome in order to taint a discretionary decision. The exercise of judicial discretion is governed by legal criteria, and consequently, their definition as well as a failure to apply them or a misapplication of them raise questions of law which are subject to appellate review.

If a judge considers an irrelevant factor and gives it any weight whatsoever, he or she has effectively applied the wrong legal test, and any conclusion that follows is inherently flawed. Moreover, while there is agreement with the majority that care should be taken to not order production merely because the CVR would be helpful and provide complete evidence, the chambers judge explicitly ordered production for this very reason, which amounts to a reviewable error. On the side of the scale relating to the importance of the privilege, again, the chambers judge’s reasons disclose multiple errors.

There is disagreement with the majority’s reading of Air France regarding the two principles that animate the statutory privilege, namely, the protection of privacy and the protection of safety. With respect to privacy, there is agreement with the majority that the concern for pilot privacy does not become “largely illusory” simply because the Board releases a report that may document in some

manner what the pilots said. However, this more nuanced understanding of privacy was not adopted in Air France or by the chambersjudge. In Air France, the Ontario Superior Court of Justice was of the view that judicial vetting of the CVR and sterile cockpit rulesalready addressed pilot privacy concerns. According to its reasoning then, there is no need to account for privacy concerns in thebalancing test given that those concerns are addressed by other mechanisms. This is not the law.

By adopting those reasons to reject thesuggestion that privacy interests will be inappropriately invaded, the chambers judge erred in law. As to safety, there is agreement withthe majority’s statement of the law, but once again, this is not the law as articulated in Air France or by the chambers judge. Byendorsing the court’s statement in Air France that rejected aviation safety and its relevance as a factor in the analysis, the chambersjudge, whose reasons are notably silent on any potential safety considerations, erred in law. In addition, the chambers judge’s findings are incomplete and conclusory.

They do not provide sufficient information for theCourt to conclude that production of the CVR was necessary to resolving the dispute. The chambers judge made a vague finding thatproduction of the CVR was necessary to answer important questions, but there is nothing in his reasons that indicates what questions orhow many questions from the flight crew’s discovery evidence can be answered only with the disclosure of the CVR. The nature andprobative value of the evidence in this particular case and how necessary this evidence is for the proper determination of a core issuebefore the court are therefore unclear.

Moreover, to the extent that the chambers judge found that production of the CVR was necessary,this needs to be understood in light of his statements, made two separate times in the reasons, that it was important to have completeinformation before the court. These erroneous statements cast doubt on the chambers judge’s purported finding of necessity. Cases Cited By Kasirer J. Considered: Société Air France v. Greater Toronto Airports Authority (2009), 85 C.P.C. (6th) 334, aff’d in

part 2010ONCA 598, 324 D.L.R. (4th) 567; Wappen-Reederei GmbH & Co. KG v. Hyde Park (The), 2006 FC 150, [2006] 4 F.C.R. 272; referredto: Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287; Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R.205; P. (W.) v. Alberta, 2014 ABCA 404, 378 D.L.R. (4th) 629; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Canada(Director of Investigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748; C.B. v. The Queen, (SCC), [1981] 2 S.C.R. 480; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; Ruby v.

Canada (Solicitor General), 2002 SCC 75,[2002] 4 S.C.R. 3; Society of Composers, Authors and Music Publishers of Canada v. 960122 Ontario Ltd., 2003 FCA 256, 26 C.P.R.(4th) 161; Hover v. Metropolitan Life Insurance Co., 1999 ABCA 123, 91 Alta. L.R. (3d) 226; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R.389; Reference re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721; R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R.217; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Laurentide Motels Ltd. v. Beauport (City), (SCC), [1989] 1 S.C.R. 705; R. v.

Mac, 2002 SCC 24, [2002] 1 S.C.R. 856; Medovarski v. Canada (Minister of Citizenshipand Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539; R. v. S.A.C., 2008 SCC 47, [2008] 2 S.C.R. 675; Doré v. Verdun (City), (SCC), [1997] 2 S.C.R. 862; Hunter v. Canada (Consumer and Corporate Affairs), (FCA), [1991] 3 F.C.186; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140; R. v. Gruenke, (SCC), [1991] 3 S.C.R. 263; Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521; R. v.National Post, 2010 SCC 16, [2010] 1 S.C.R. 477; Babcock v.

Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; Globe andMail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592; Denis v. Côté, 2019 SCC 44, [2019] 3 S.C.R. 482; Carey v.Ontario, (SCC), [1986] 2 S.C.R. 637; M. (A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157. By Côté J. (dissenting) Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3; Re Associated Commercial Protectors Ltd. andMason (1970), (MB KB), 13 D.L.R. (3d) 643, aff’d (1970), (MB CA), 16 D.L.R. (3d) 478; BathurstPaper Ltd. v. Minister of Municipal Affairs of New Brunswick, (SCC), [1972] S.C.R. 471; R. v.

Daoust, 2004 SCC 6,[2004] 1 S.C.R. 217; Société Air France v. Greater Toronto Airports Authority (2009), 85 C.P.C. (6th) 334, aff’d 2010 ONCA 598, 324D.L.R. (4th) 567; Wappen-Reederei GmbH & Co. KG v. Hyde Park (The), 2006 FC 150, [2006] 4 F.C.R. 272; Canada (AttorneyGeneral) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; British Columbia(Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371. Statutes and Regulations Cited Canada Evidence Act, R.S.C. 1985, c. C-5, s. 39.1. Canadian Aviation Safety Board Act, R.S.C. 1985, c.

C-12, s. 34(1). Canadian Aviation Safety Board Act, S.C. 1980-81-82-83, c. 165, ss. 26 to 28. Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3, ss. 2 “transportation occurrence”, 3, 7, 16, 19(3),28, 29, 30, 32, 33. Nova Scotia Civil Procedure Rules, r. 23.14(1)(b). Treaties and Other International Instruments Convention on International Civil Aviation, Can. T.S. 1944 No. 36. Authors Cited Canada. Canadian Transportation Accident Investigation and Safety Board Act Review Commission. Advancing Safety. Ottawa, 1994. Canada. Commission of Inquiry on Aviation Safety.

Report of the Commission of Inquiry on Aviation Safety. Ottawa, 1981.

Canada. House of Commons. House of Commons Debates , vol. XXIII, 1st Sess., 32nd Parl., June 28, 1983, p. 26842. Canada. Transport Canada. Estey report respecting the Arrow Air accident at Gander, Newfoundland, Dec. 12, 1985 , by Willard Z. Estey. Ottawa, July 21, 1989. Canada. Transportation Safety Board. Aviation Investigation Report A15H0002 . Gatineau, 2017. Canadian Oxford Dictionary , by Katherine Barber, ed. Don Mills, Ont.: Oxford University Press, 1998, “camera”. Côté, Pierre-André, et Mathieu Devinat. Interprétation des lois , 5 e éd. Montréal: Thémis, 2021.

Doucet, Michel. “Le bilinguisme législatif”, dans Michel Bastarache et Michel Doucet, dir., Les droits linguistiques au Canada , 3 e éd. Cowansville, Que.: Yvon Blais, 2013, 179. Fournier, Julien. “Les privilèges en droit de la preuve: un nécessaire retour aux sources” (2019), 53 R.J.T.U.M. 461. Grand Robert de la langue française , t. 3, 2 e éd. par Alain Rey, dir. Paris: Le Robert, 2001, “ huis ”. International Civil Aviation Organization. Annex 13 to the Convention on International Civil Aviation: Aircraft Accident and Incident Investigation , 12th ed. Montréal, 2020. International Civil Aviation Organization.

Manual on Protection of Safety Information,

Part I — Protection of Accident and Incident Investigation Records , Doc. 10053, 1st ed. Montréal, 2016. Lederman, Sidney N., Michelle K. Fuerst and Hamish C. Stewart. Sopinka, Lederman & Bryant: The Law of Evidence in Canada , 6th ed. Toronto: LexisNexis, 2022. Mayrand, Albert. Dictionnaire de maximes et locutions latines utilisées en droit , 4 e éd. Cowansville, Que.: Yvon Blais, 2007, “ ex parte ”, “ in camera ”. McWilliams’ Canadian Criminal Evidence , 5th ed. by S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds. Toronto: Thomson Reuters, 2013 (loose-leaf updated July 2022, release 3).

Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence , 8th ed. Toronto: Irwin Law, 2020. Sullivan, Ruth. The Construction of Statutes , 7th ed. Toronto: LexisNexis, 2022. APPEAL from a judgment of the Nova Scotia Court of Appeal (Bryson, Derrick and Beaton JJ.A.), 2021 NSCA 34 , 70 C.P.C. (8th) 142, [2021] N.S.J. No. 158 (QL), 2021 CarswellNS 251 (WL), affirming a decision of Duncan J., 2019 NSSC 339 , 45 C.P.C. (8th) 124, [2019] N.S.J. No. 493 (QL), 2019 CarswellNS 816 (WL). Appeal dismissed, Côté and Brown JJ. dissenting . David Taylor , Richard W.

Norman and Alyssa Holland , for the appellant. Jamie L. Thornback , Raymond F. Wagner , K.C. , and Kate Boyle , for the respondents Kathleen Carroll-Byrne, Asher Hodara and Georges Liboy. Clay Hunter , for the respondents Air Canada, John Doe #1 and John Doe #2. Christopher Hubbard , Emmanuelle Poupart , Jesse Hartery and Brittany Cerqua , for the respondent Airbus S.A.S. Stephen Ronan and Robert B. Bell , for the respondent NAV CANADA. Michelle L. Chai , Scott R. Campbell and Erin J. McSorley , for the respondent the Halifax International Airport Authority.

John Provart , for the respondent the Attorney General of Canada representing His Majesty The King in Right of Canada. Christopher C. Rootham , Andrew Montague-Reinholdt and Adrienne Fanjoy , for the respondent the Air Canada Pilots’ Association. The judgment of Wagner C.J. and Moldaver, Karakatsanis, Rowe, Martin, Kasirer and Jamal JJ. was delivered by Kasirer J. — I. Overview [ 1 ] An accident occurred when a commercial flight from Toronto landed in Halifax. A number of people were hurt. Property, including the aircraft, was damaged.

Some of the passengers commenced a class action alleging that negligence on the part of the airline, its pilots, the aircraft manufacturer, the airport and others had caused them harm. [ 2 ] In an exercise unrelated to the civil action, the Transportation Safety Board of Canada (“Board”), an independent federal agency, investigated the accident pursuant to its statutory mandate to advance transportation safety. The Board released a report to the public indicating the causes or contributing factors of the accident and the safety measures to be taken by those concerned.

In keeping with its role, the Board did not assign blame for the incident.

[ 3 ] One of the defendants in the class action, Airbus S.A.S., brought an interlocutory motion before the Supreme Court of Nova Scotia seeking an order that the Board release the cockpit voice recorder (“CVR”) containing the flight crew’s communications — part of the so-called “black box” from the aircraft — as well as the transcripts made of the recorded data. The Board, a stranger to the litigation, had the only copy of the CVR and used it in the preparation of its report.

The defendant Airbus, the aircraft manufacturer, said the release of the device was necessary for a fair trial, in particular to resolve the causation issue that would be central to the civil action. The motion alleged that what happened on landing, key to determining who was responsible for the alleged losses, was not clear from the pilots’ testimony on discovery and this missing evidence was otherwise unobtainable. The Board opposed the motion for disclosure. It was joined in this by the defendant airline, Air Canada, and its pilots, who are alleged to have acted negligently.

For the Board, the CVR was subject to a statutory privilege and consequently could not be produced in evidence in the civil action. [ 4 ] As an “on-board recording”, the CVR is indeed privileged under s. 28 of the Canadian Transportation Accident Investigation and Safety Board Act , S.C. 1989, c. 3 (“ Act ”). [1] No one can be required to produce the CVR or give evidence relating to it in legal proceedings, except with the authorization of a court or coroner. [ 5 ] After listening to the CVR in camera , the chambers judge decided it was reliable and relevant evidence that was necessary to resolving the dispute.

He ordered the Board to release the privileged recording to the parties, subject to what he called “very stringent conditions” to protect its confidentiality. In the judge’s view, production of the CVR was permitted because, according to the test set forth in the Act , the public interest in the proper administration of justice outweighed in importance the privilege attached to the on-board recording. His interlocutory judgment was confirmed on appeal. The Board appeals to this Court to assert the statutory privilege.

It says, in essence, that Parliament’s purposes in establishing the privilege — protecting pilot privacy and promoting public safety in air transportation — would be undermined if the CVR were disclosed in the class action. [ 6 ] Where a person seeks to exclude relevant evidence in a civil action on the strength of a statutory privilege, they pit the search for truth — what this Court called “the cardinal principle in civil proceedings” in Imperial Oil v.

Jacques , 2014 SCC 66 , [2014] 3 S.C.R. 287, at para. 24 — against matters of public policy, distinct from the trial process, that the legislature has seen fit to protect by preventing disclosure of information before the courts.

The truth-seeking function of the law of evidence in a civil trial is thus in “tension” with these other values that the legislature has chosen to champion by statute in establishing the privilege (I borrow the term [ translation ] “tension” in this context from scholar Julien Fournier, “Les privilèges en droit de la preuve: un nécessaire retour aux sources” (2019), 53 R.J.T.U.M. 461, at p. 468).

Often, the legislature will stipulate how this tension should be resolved, for example by directing that the privilege is absolute, or by recognizing discrete exceptions, or again by providing a decision-maker with the discretion to decide whether or not the truth-seeking should give way to the privilege.

Subject to constitutional constraints, the courts should abide by the choice reflected in a statutory privilege and recognize that, where the legislature has given pride of place to a privilege, otherwise relevant and trustworthy evidence that might advance the just resolution of a civil trial will be excluded by “overriding societal interests” (S. N. Lederman, M. K. Fuerst and H. C.

Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶14.1). [ 7 ] This appeal invites the Court to consider the circumstances in which Parliament has said that the privilege over the CVR should take precedence over the presumably relevant and trustworthy evidence that the CVR might provide at trial on the merits of the class action. The outcome of the appeal turns on the will of Parliament as to how this tension should be resolved under the Act .

In my view, the courts should not impose their own sense of when evidence should be produced where, by valid statute, the legislature has said how values other than the truth-seeking function of the law of evidence should take precedence in civil, administrative or criminal proceedings. [ 8 ] As I shall endeavour to explain, in this instance, Parliament has tempered its preference that the CVR be inaccessible to civil litigants. The privilege it created is [ translation ] “discretionary”, as opposed to a non-discretionary statutory privilege with or without fixed exceptions (see Fournier, at p. 495).

Unlike absolute statutory privileges, for which a court has no power to weigh the relative merits of the societal interests against the search for truth in a civil trial, a discretionary privilege typically tasks a decision-maker with weighing the public interest reflected in the privilege against the truth-seeking role of the law of evidence according to identifiable criteria. On the contrary, where the legislature chooses to create or recognize a non-discretionary privilege, the decision-maker does not have a weighing function.

Rather, the decision-maker must apply the privilege, as the statute directs, subject to any exception recognized by law. [ 9 ] By creating a privilege under s. 28 of the Act that excludes the CVR from production and discovery in proceedings before a court or coroner, Parliament recognized that the values of pilot privacy and aviation safety presumptively outweigh the values underlying the administration of justice, such as trial fairness.

But Parliament has invested courts and coroners with the power to order the production of the CVR where “the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording by virtue of this section”. Unlike certain other statutory privileges, Parliament has not expressly set out the criteria for the exercise of this discretion. This appeal turns on the identification and application of those criteria. A court or coroner seized of a request for production and discovery of an on-board recording pursuant to s. 28(6)(

c) is charged with deciding whether the public’s stake in the administration of justice — ultimately rooted in trial fairness — outweighs in importance the interests Parliament sought to protect in establishing the privilege.

In this balancing exercise, the decision-maker must place two competing public interests on the scales: on one side, the relevance, probative value and necessity of the on-board recording to the fair resolution of the dispute and, on the other, the effects of disclosure on pilot privacy and aviation safety. [ 10 ] For the reasons that follow, I would uphold the chambers judge’s discretionary decision to permit production and discovery of the CVR at trial and dismiss the appeal.

First, the chambers judge correctly identified, as a matter of law, the underlying purposes of pilot privacy and public safety in air transportation relevant to weighing the “importance of the privilege” as recognized by Parliament. Second, he did not adopt an

interpretation of the counterweighted “public interest in the proper administration of justice” that undermined the statutory privilege bearing on the CVR. He did not, for example, suggest that the importance of the privilege could be outweighed merely because the CVR was relevant and trustworthy. The judge was satisfied that the information in the privileged on-board recording could not be produced in evidence by any other reasonable means. He thus ordered disclosure of the CVR not just because it was highly probative but, first and foremost, because it was necessary to resolve the civil action. To exclude it could have precluded a fair trial on a matter central to the dispute.

[ 11 ] Mindful of the constraints on his task, the chambers judge exercised the discretion afforded to him by Parliament. He ordered the release of the CVR subject to conditions that would, notwithstanding disclosure, assure a measure of confidentiality and, as Parliament directed, prohibit the use of the on-board recording in certain other proceedings ( s. 28(7) of the Act ).

In my view, the judge’s discretionary choice deserves deference on appeal; that was Parliament’s intention under the Act when it created a discretionary privilege. [ 12 ] I would also reject the Board’s argument that, as a general proposition, the Act provides it with the right to make submissions on the scope of the privilege privately with the judge and in the absence of other parties. Properly interpreted, the Act provides no such general entitlement.

While Parliament does not preclude a court or coroner from asking the Board for assistance with its in camera review of the on-board recording, the chambers judge made no error in refusing the Board’s request as such submissions were not, in his view, necessary in this case. II. Background [ 13 ] The accident occurred when Air Canada Flight AC624 landed in wind and snow late on a March night in 2015 at Nova Scotia’s Halifax Stanfield International Airport. The Airbus Industrie A320-211 was carrying 133 passengers and 5 crew members.

On descent, the aircraft struck the ground about 740 feet short of the runway before sliding to an eventual stop. A number of people were injured, including 25 who were taken to local hospitals. While there was no post-impact fire, the aircraft was later destroyed. [ 14 ] The Board has a statutory mandate to advance transportation safety by conducting independent investigations into “transportation occurrences” ( s. 2 of the Act ; the French-language equivalent, “ accident de transport ”, is arguably more telling than “transportation occurrence”).

The Board undertook an investigation into the Halifax accident in order to make findings, as charged by s. 7(1) of the Act , as to its causes and contributing factors, to identify and reduce or eliminate safety deficiencies evidenced by the event and to report on the investigation to the public. In keeping with its mandate, the Board’s purpose in conducting and reporting on the investigation was not to assign fault.

Its findings cannot be construed as assigning fault or used to determine civil or criminal liability (s. 7(2), (3) and (4)). [ 15 ] The Board collected two flight recorders from Flight AC624 following the accident. The CVR contains sounds in the cockpit, including conversations among members of the flight crew. The flight data recorder (“FDR”) records flight parameters, including altitude and airspeed. After retrieving the CVR, the Board downloaded the data electronically.

It then erased the material before returning the recorder to the aircraft owner. [ 16 ] Drawing on a range of materials, including interviews with the flight crew and the CVR, the Board prepared a report of the occurrence that was subsequently released to the public. According to affidavit evidence produced by Mr. Jean L.

Laporte, the Board’s Chief Operating Officer, investigators reviewed the CVR and used it along with the data in the FDR to “recreate the cockpit environment on descent and landing” (A.R., at p. 1862, para. 57). [ 17 ] While the CVR is privileged, the Board may make such use of the recording as it considers necessary in the interests of transportation safety ( s. 28(4) of the Act ). The Board’s report in this case includes references to and quotations from the CVR contents.

The first page of the report notes that the Board is not permitted to communicate the contents of the CVR on matters unrelated to the causes or contributing factors of the accident or to the identification of safety deficiencies.

It also states that the CVR information included in the report has been “carefully examined in order to ensure that it is required to advance transportation safety” (Transportation Safety Board of Canada, Aviation Investigation Report A15H0002 (2017), at p. 1). [ 18 ] According to the Board’s reported findings as to the causes and contributing factors of the occurrence, the aircraft touched down in advance of the runway because of low visibility, airline standard operating procedures and inappropriate decisions made by the flight crew, including a failure to monitor the angle of the aircraft while it was descending.

Among the other factors mentioned, the Board also concluded that the lighting conditions on the runway were inadequate. [ 19 ] Following the accident, a class action was commenced on behalf of certain passengers seeking damages against Air Canada (the air carrier responsible for the flight and employer of the pilots), Airbus (the aircraft manufacturer), Halifax International Airport Authority (the airport operator), NAV CANADA (the air navigation service provider), the Attorney General of Canada (representing Transport Canada as the owner and occupier of the airport), and John Doe #1 and #2 (the Captain and First Officer).

The plaintiffs allege that the injuries and financial losses they suffered as a result of the accident were caused by the negligence of the defendants, including the negligence of the flight crew, inadequate training of the flight crew, inadequate runway lighting and landing systems, as well as inadequate weather observations and communications and inadequate safety precautions taken in anticipation of landing. [ 20 ] The plaintiffs’ claim against Air Canada and the flight crew is of particular relevance to this appeal.

In addition to allegations that Air Canada provided substandard training for the flight crew, the plaintiffs allege that the airline improperly managed the risks associated with the procedure for landing the aircraft used by the flight crew and adopted an approach procedure that lacked an adequate margin of safety.

They also say that Air Canada is vicariously liable, as employer, for loss caused by the flight crew’s negligence, which they allege includes not complying with regulatory minimums for visibility prior to approach, choosing not to abort the landing and divert to another airport, not requesting updated weather information from air traffic control, not following the instructions of air traffic control, not declaring an emergency in a timely manner, and operating the aircraft without due care and skill.

The other defendants, Airbus, the Attorney General of Canada, NAV CANADA, and Halifax International Airport Authority, filed cross-claims against Air Canada and the flight crew on the same basis as part of their defences. Air Canada denies negligence on its part or on the part of its employees and similarly cross-claims against its co-defendants. [ 21 ] The Board is not a party to the proceedings. The class action was certified in 2016.

Pleadings are now closed and disclosure and discovery are complete. [ 22 ] As part of its defence and cross-claim, Airbus filed an interlocutory motion pursuant to s. 28(6) of the Act for disclosure of the audio and transcript of the CVR from the Board. In its application, which is at the origin of this appeal, Airbus stated

that it does not seek release of portions of the CVR that contain purely personal discussions amongst members of the flight crew. It only seeks the flight crew’s utterances that are directly relevant to a matter in issue. Airbus noted several key questions essential to resolving the liability of Air Canada and the flight crew that require release of the CVR.

These include whether the flight crew noticed that the airplane diverted from the pre-set descent path; why they failed to notice the divergence or, if they noticed the divergence, why they did not take steps to avoid the accident; and whether they had sufficient visual cues to continue with the landing. Airbus noted, too, that this evidence could not be obtained from the flight crew, as they could not remember crucial details when questioned at examination on discovery.

Without the CVR to fill these evidentiary gaps, says Airbus, a fair trial of the class action would not be possible because there are no other reliable or admissible sources for much of this evidence. Noting that the Board relied on the CVR for its report, Airbus alleges that it is plain that the Board needed this material to supplement information received from the pilots in order to understand what happened on the flight.

At paragraph 55 of its motion, Airbus states: In short, the CVR recording contains unique information that is highly relevant to the claims and defenses and may reveal crucial evidence that is absent from the current evidentiary record. It is evidence that cannot be obtained from any other sources, and is necessary to ensure the parties obtain a fair trial. (A.R., at p. 1300) [ 23 ] Furthermore, Airbus proposed that the production of the CVR be subject to stringent conditions to protect the confidentiality of the on-board recording.

Airbus’s application was supported by the plaintiffs and several other defendants, who generally expressed agreement that production of the CVR is necessary to the success of their respective positions. [ 24 ] The Board remains in possession of the CVR. It was granted intervener status and permitted to make submissions before the chambers judge. The Air Canada Pilots’ Association (“ACPA”) was also granted intervener status. They both argued against disclosure of the CVR. Air Canada and the flight crew opposed disclosure before the chambers judge.

They continue to support the position advanced by the Board but made no written or oral submissions before our Court. III. Decisions Below A. Supreme Court of Nova Scotia

(1) Decision Rendered Orally on September 4, 2019 (Duncan J.) [ 25 ] In advance of the hearing on the production of the on-board recording before the Supreme Court of Nova Scotia, the Board wrote the court, with copies to all the parties to the class action litigation, requesting to make “ ex parte representations to the [c]ourt with respect to the contents of the CVR” (A.R., at p. 1511). It argued that the reference to “ in camera ” in s. 28(6) (

b) of the Act meant that the Board should have a reasonable opportunity to make submissions relating to disclosure both in camera and ex parte . In other words, the Board should be able to make representations as to the admissibility of the CVR in the absence both of the public and of the other parties and interveners. The Board said it intended to make submissions on two points: first, on the CVR’s contents and the availability of alternative sources for the information it contained and, second, on certain technical aspects of the CVR in order to help the court understand the materials.

Speaking to either of these matters in open court would, said the Board, reveal confidential information and undermine the very protection Parliament intended when it put the privilege in place. [ 26 ] In reasons rendered orally, the chambers judge refused the Board’s request to make further submissions in the absence of the other parties.

After listening to the CVR in private and considering the evidence and the open court submissions of all counsel, including those of the Board, he found that he had no difficulty understanding the materials and how they related to the pleadings on the determination of liability in the principal action.

In the circumstances, the further submissions the Board sought to make were therefore not needed, and accordingly, it was unnecessary to resolve the question of whether the Act permitted the Board to make representations in the absence of the public and the parties. [ 27 ] The chambers judge also announced his decision to grant the motion for production of the CVR, with written reasons to follow.

In the interval, counsel on all sides could make submissions as to whether it would be appropriate, out of an “abundance of caution and having regard to the statutory privilege”, to redact or otherwise limit the publication of the written reasons to ensure compliance with the confidentiality requirements under the Act (A.R., at pp. 9-10).

(2) Reasons for Decision, 2019 NSSC 339 , 45 C.P.C. (8th) 124 (Duncan J.) [ 28 ] In his written reasons ordering the Board to produce the CVR and transcripts, the chambers judge concluded that the recording contained information that was reliable, relevant and material to the determination of causation, an issue that was central to civil liability in the class action (paras. 29, 31 and 50). Specifically, he wrote that the flying officers’ perceptions and decision-making in electing to land how and where they did was “central to the action of the plaintiffs” (para. 23).

He found that the pilots could not remember many key details of the events leading up to the accident. The discovery evidence of these two flight officers was “necessary to answering important questions” and, since the pilots themselves could not fill the evidentiary gaps, the CVR represented the “only way” to get that information (para. 48). The chambers judge was satisfied that the CVR had important evidentiary value and was “necessary” to resolve the litigation (para. 49). [ 29 ] The chambers judge relied on the law as stated by the Ontario Superior Court of Justice in Société Air France v.

Greater Toronto Airports Authority (2009), 85 C.P.C. (6th) 334 , aff’d on this point 2010 ONCA 598 , 324 D.L.R. (4th) 567, in which Strathy J. (as he then was) examined the history and purpose of s. 28 of the Act and ordered the production of an on-board recording. In particular, the chambers judge agreed with Strathy J. that the public interest in the administration of justice protects the ability of the parties to make out their case and meet the case against them and preserves the integrity of the judicial fact-finding process (para. 51).

These concerns apply to the current circumstances because “there are issues of trial fairness and fulfillment of the objectives of class proceedings present” (para. 52).

[ 30 ] He also relied on Air France for the conclusion that the purposes of the statutory privilege are to protect pilot privacy and to protect public safety by encouraging free and uninhibited communications between the pilots (para. 54). The chambers judge held that the pilot privacy and public safety interests in this case were similar to those in Air France , but he did note two factual differences. First, although there were gaps in the pilots’ evidence, the CVR was not used to refresh their memories, unlike in Air France .

Second, the pilots in this case opposed the motion for disclosure, while in Air France the pilots did not object to the CVR’s release. Given the gaps in the evidence here and the fact that the pilots had been unable to provide important information, the CVR “has the potential to assist the trier of fact in its truth-seeking function” (para. 57). [ 31 ] The chambers judge balanced the two interests referred to under s. 28(6)(

c) and found that the importance of the recording to the administration of justice in the class action outweighed the importance of the statutory privilege. The release of the CVR was necessary to resolve the civil dispute. Disclosure would not interfere with aviation safety, damage relations between pilots and their employers, or impede the investigation of accidents.

Moreover, the CVR did not contain private or scandalous material (paras. 63-68). [ 32 ] The chambers judge directed the Board to produce a copy of the CVR and transcript to counsel for use in the class action “under . . . very stringent conditions”, specifying that disclosure would be limited to the parties and their experts, consultants, insurers and lawyers in order to preserve confidentiality (paras. 68-69). B. Nova Scotia Court of Appeal, 2021 NSCA 34 , 70 C.P.C. (8th) 142 (Bryson, Derrick and Beaton JJ.A.) [ 33 ] The Board was granted leave to appeal from the interlocutory judgment ordering disclosure.

It argued that the chambers judge erred in law by failing to allow the Board to make ex parte submissions prior to his decision authorizing disclosure of the CVR. Further, the chambers judge erred in interpreting s. 28(6) (

c) when he held that the public’s interest in the proper administration of justice outweighed the importance of the statutory privilege associated with the CVR. [ 34 ] On the first issue, Bryson J.A., writing for the court, observed that “ in camera ” and “ ex parte ” have different meanings. The term “ ex parte ” means “in the absence of other parties to litigation” as opposed to the exclusion of the public. Section 28(6) (

b) only refers to “ in camera ”. He considered the English version of s. 28(6) (

b) and the relevant portion of the French version of s. 28(6) before concluding that the provision created no ambiguity. Plainly read, the Act authorizes the court, not the parties, to listen to the CVR in camera . The Board, which is not a party in the ordinary sense, is then given an opportunity to make representations, but it is not entitled to do so either in camera or ex parte . [ 35 ] On the facts of the case, the Board had not demonstrated that ex parte submissions would have had any impact on the court’s analysis.

Moreover, the chambers judge found that he did not need any assistance in understanding the recording. If there were alternative sources for the information contained in the CVR that could address the gaps identified by Airbus, the Board failed to identify them. [ 36 ] On the second issue, Bryson J.A. concluded that the chambers judge did not err by ordering disclosure. The chambers judge did not apply the wrong test by relying on Strathy J.’s reasons in Air France rather than Wappen-Reederei GmbH & Co. KG v. Hyde Park (The) , 2006 FC 150 , [2006] 4 F.C.R. 272.

The criteria in Hyde Park are largely subsumed in the Air France analysis. As for a “possibility of a miscarriage of justice”, alluded to in Hyde Park (at para. 74) as a threshold requirement for admitting the CVR, this criterion is not mentioned in the Act and was not retained in Air France . A term more commonly associated with criminal law, a “miscarriage of justice” is a retrospective test that is ill-suited to the prospective analysis for balancing under s. 28(6) (c). As a bar, it is too high.

In any event, the recordings in Hyde Park were not “crucial” and the information contained in them would have been available from other sources. The chambers judge found otherwise here. Hyde Park is thus distinguishable on its facts (para. 60). [ 37 ] Bryson J.A. was satisfied that the chambers judge did not “emasculat[e]” the statutory privilege by reducing the balancing test in s. 28(6)(

c) to one of simple relevance (para. 85). Instead, the chambers judge found that the information contained in the flight crew’s communications was relevant to causation, was necessary for answering important questions central to the dispute, and could be obtained only through the CVR (para. 67, citing paras. 48 and 50 of the N.S.S.C. reasons). The chambers judge weighed the public interest in the administration of justice against the purpose of the privilege and concluded, after reviewing all the evidence, that disclosure was warranted.

The Board identified no legal error or clear and material error in his consideration of the evidence. The discretionary decision of the chambers judge to order disclosure of the CVR was thus entitled to deference. IV. Issues [ 38 ] There are two issues on appeal. First, is the Board entitled to make submissions in the absence of other parties and the public pursuant to s. 28(6) (

b) of the Act ? Second, did the chambers judge commit a reviewable error when he ordered the disclosure of the CVR pursuant to s. 28(6) (c)? [ 39 ] Insofar as the Board alleges that the chambers judge erred in his

interpretation of s. 28(6)(

b) by denying it the right to make submissions in the absence of the public and the parties, the first question engages a question of law reviewable on a standard of correctness. If, however, the chambers judge had the discretionary authority to invite or to refuse such submissions, his choice is deserving of deference on appeal. [ 40 ] The parties disagree on the standard of review for the second issue. The Board argues that the standard is correctness, as it relates to whether the chambers judge applied the correct legal test. Some of the respondents disagree.

They say that the Board is, instead, asking this Court to reweigh the factors and to revisit findings of fact, which are entitled to deference. [ 41 ] The disagreement is more apparent than real.

A discretionary decision, such as the one contemplated by Parliament in s. 28(6)(c), is generally entitled to deference and may only be interfered with if there is a legal error (considered to be an error in principle), a palpable and overriding factual error (viewed as a material misapprehension of the evidence) or a failure to exercise discretion judicially (which includes acting arbitrarily or being “so clearly wrong as to amount to an injustice”) ( Canada (Attorney General) v. Fontaine , 2017 SCC 47 , [2017] 2 S.C.R. 205, at para. 36 , quoting P. (W.) v.

Alberta , 2014 ABCA 404 , 378 D.L.R. (4th) 629, at para. 15 ). An error in the

interpretation of s. 28(6) (

c) of the Act plainly raises a question of law reviewable on correctness. Thus, if the

chambers judge applied the wrong test in weighing the public interest in the administration of justice, or misunderstood the privilege inlaw by misidentifying its statutory purpose, as the Board alleges, he erred in law (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2S.C.R. 235, at para. 27; Canada (Director of Investigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748,at para. 36). I would add that such an error would preclude affording the deference that is ordinarily given to a judge who undertakes thefundamentally discretionary exercise of weighing interests provided for by the Act.

Should it be determined that, due to amisapprehension of the law, the chambers judge put the wrong weights on the scales, his balancing would be inherently flawed. If, onthe other hand, the chambers judge correctly identified the factors to be weighed but, in his appreciation of the evidence, assigneddifferent weights than the Board would have wished, the alleged error should be understood as one that attacks the discretionarycharacter of the balancing contemplated by s. 28(6)(c).

Absent a palpable and overriding error in his appreciation of the evidence, orproof that the chambers judge did not exercise his discretion under the Act judicially, his decision on the production and admissibility ofthe CVR deserves deference. V. Analysis [42] Before considering whether the chambers judge erred in refusing the Board the opportunity to make submissions onthe CVR in the absence of the public and the parties (

B) and whether he erred in weighing the interests in play when he chose to set theprivilege aside (C), I turn first to an overview of the statutory scheme (A). A. The Statutory Scheme [43]

Section 28 of the Act is the provision most directly engaged by this appeal. Section 28(2) sets out the statutoryprivilege, s. 28(6)(

b) speaks to the Board’s entitlement to make submissions to the chambers judge and s. 28(6)(

c) provides for thediscretionary authority to order disclosure of the CVR. Under the heading “Privilege”, s. 28 provides: Definition of on-board recording 28

(1) In this section, on-board recording means the whole or any part of (

a) a recording of voice communications originating from, or received on or in, (

i) the flight deck of an aircraft, (ii) the bridge or a control room of a ship, (iii) the cab of a locomotive, or (iv) the control room or pumping station of a pipeline, or (

b) a video recording of the activities of the operating personnel of an aircraft, ship, locomotive or pipeline that is made, using recording equipment that is intended to not be controlled by the operating personnel, on the flight deck of the aircraft,on the bridge or in a control room of the ship, in the cab of the locomotive or in a place where pipeline operations are carried out, as thecase may be, and includes a transcript or substantial

summary of such a recording. Privilege for on-board recordings

(2) Every on-board recording is privileged and, except as provided by this section, no person, including any person to whom access isprovided 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. Access by Board

(3) Any on-board recording that relates to a transportation occurrence being investigated under this Act shall be released to aninvestigator who requests it for the purposes of the investigation. Use by Board

(4) The Board may make such use of any on-board recording obtained under this Act as it considers necessary in the interests oftransportation safety, but, subject to subsection (5), shall not knowingly communicate or permit to be communicated to anyone anyportion thereof that is unrelated to the causes or contributing factors of the transportation occurrence under investigation or to theidentification of safety deficiencies. Access by peace officers, coroners and other investigators

(5) The Board shall make available any on-board recording obtained under this Act to (a) [Repealed, 1998, c. 20, s. 17] (

b) a coroner who requests access thereto for the purpose of an investigation that the coroner is conducting; or (

c) any person carrying out a coordinated investigation under

section 18. Power of court or coroner

(6) Notwithstanding anything in this section, where, in any proceedings before a court or coroner, a request for the production and discovery of an on-board recording is made, the court or coroner shall (

a) cause notice of the request to be given to the Board, if the Board is not a party to the proceedings; (

b) in camera , examine the on-board recording and give the Board a reasonable opportunity to make representations with respect thereto; and (

c) if the court or coroner concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording by virtue of this section, order the production and discovery of the on-board recording, subject to such restrictions or conditions as the court or coroner deems appropriate, and may require any person to give evidence that relates to the on-board recording. Use prohibited

(7) An on-board recording may not be used against any of the following persons in disciplinary proceedings, proceedings relating to the capacity or competence of an officer or employee to perform the officer’s or employee’s functions, or in legal or other proceedings, namely, air or rail traffic controllers, marine traffic regulators, aircraft, train or ship crew members (including, in the case of ships, masters, officers, pilots and ice advisers), airport vehicle operators, flight service station specialists, persons who relay messages respecting air or rail traffic control, marine traffic regulation or related matters and persons who are directly or indirectly involved in the operation of a pipeline.

Definition of court

(8) For the purposes of subsection (6), court includes a person or persons appointed or designated to conduct a public inquiry into a transportation occurrence pursuant to this Act or the Inquiries Act . [ 44 ] Under the Act, the Board’s object is to advance transportation safety by several designated means.

Section 7 sets forth the Board’s mission in service of that object, which includes “conducting independent investigations . . . into selected transportation occurrences in order to make findings as to their causes and contributing factors” and to report publicly on its findings (s. 7(1)(

a) and (d)). The Board is also charged with identifying “safety deficiencies” that come to light following accidents and making recommendations designed to eliminate or reduce those deficiencies ( s. 7(1) (

b) and (c)). [ 45 ] In conducting investigations, the Board does not assign fault or determine civil or criminal liability (s. 7(2) to (4)).

The purpose of the Board is not to “arrive conclusively at a cause” but instead to “make recommendations with respect to aviation safety” (Canadian Transportation Accident Investigation and Safety Board Act Review Commission, Advancing Safety (1994), at p. 145, quoting Estey report respecting the Arrow Air accident at Gander, Newfoundland, Dec. 12, 1985 (July 21, 1989), at p. 28). [ 46 ] Although the Board’s findings cannot be used to establish liability, blame “might be inferred by others from the Board’s findings” ( Advancing Safety , at p. 143).

The Board need not “concern itself with what outsiders may speculate about who was at fault” when publishing its report as to the causes of an accident ( Advancing Safety , at p. 144). Yet Parliament contemplates that the Board’s investigators, its reports, and the evidence it gathers may have information relevant to legal proceedings.

Importantly, s. 7(2) explicitly recognizes the possibility of an overlap between the Board’s findings on investigation of an occurrence and matters relating to fault or liability where it states that “the Board shall not refrain from fully reporting on the causes and contributing factors merely because fault or liability might be inferred from the Board’s findings”. [ 47 ] The Act puts many of the sources of the Board’s findings on the causes of accidents beyond the reach of litigants, criminal prosecutors and employers.

Investigators are not competent or compellable in legal proceedings, except in special circumstances, nor are their opinions admissible in evidence (ss. 32 and 33). Similarly, some of the Board’s investigative sources, notably the CVR and witness statements, are presumptively privileged and can only be disclosed in limited circumstances ( ss. 28 and 30).

Air traffic control records, while not privileged, cannot be used in designated legal proceedings (s. 29). [ 48 ] The rules bearing on aircraft accident investigations were significantly reviewed in the 1980s, following the publication of the Report of the Commission of Inquiry on Aviation Safety in 1981 (“Dubin Report”). After public criticism of an investigation into an aircraft accident in British Columbia, Justice Charles L.

Dubin was appointed to chair an inquiry relating to the management of air transportation and to recommend changes to the legislative scheme to improve air safety (Dubin Report, at pp. 1-10). [ 49 ] The Dubin Report recommended that on-board recordings be protected by a new statutory privilege (p. 258). It did so for two reasons. First, CVRs presented the risk of a “unique invasion of [pilot] privacy” (p. 235). The Dubin Report noted that pilots

complained “that no other employees are subjected to electronic eavesdropping in their work place” (p. 225). It recognized that pilots have a right to be protected against invasions of privacy except when safety or the administration of justice require otherwise (pp. 235-36). Second, the Dubin Report documented a widely held conviction amongst accident investigators that “confidentiality is essential to the effectiveness of their work” (p. 147).

The Dubin Report recorded concerns that information obtained could be used in litigation to the benefit of the Crown, which might result in investigators being viewed as “partisan” and cause their information sources to dry up (p. 147). [ 50 ] While the Dubin Report recognized the important interests supporting some form of confidentiality over such recordings, it also acknowledged that the information contained in these recordings could be relevant for other legal proceedings, including civil actions (see pp. 234-37).

The Dubin Report recommended against granting an absolute privilege over on-board voice recordings such as CVRs, as that would effectively prevent their use in other proceedings and would “decide, once and for all, against the public interest in the administration of justice” (p. 234). This might deprive an injured person of the only evidence that could establish the cause of, or liability resulting from, an accident (p. 234).

As a result, the Dubin Report proposed a middle ground between an absolute statutory privilege and the unlimited accessibility of CVRs under the ordinarily applicable rules for the production of evidence. Recordings should be presumptively privileged and only available for use by the Board in investigations.

However, a discretionary power should be established for setting the privilege aside in civil proceedings where the public interest in the administration of justice outweighs the importance of the reasons for the privilege (pp. 236-37). [ 51 ] Soon after the publication of the first volume of the Dubin Report, Parliament enacted the precursor to the present Act , the Canadian Aviation Safety Board Act , S.C. 1980-81-82-83, c. 165 (“ CASB Act ”), to implement the recommendations.

On second reading of the bill, the federal Minister of Transport noted that many of the recommendations in the Dubin Report were adopted and that Parliament had never “gone against what Dubin had recommended” ( House of Commons Debates , vol. XXIII, 1st Sess., 32nd Parl., June 28, 1983, at p. 26842). The CASB Act established an independent aviation safety board to investigate aviation accidents (see House of Commons Debates , at p. 26841).

In setting down the procedure for investigations, Parliament accepted the Dubin Report’s recommendation to provide a statutory privilege for evidence obtained by Board investigators, including a privilege over CVRs (see Dubin Report, at pp. 258-61; CASB Act , ss. 26 to 28). [ 52 ] Transportation safety was again significantly reformed in 1989 with the introduction of the Canadian Transportation Accident Investigation and Safety Board Act . The Act established a multimodal scheme for oversight of aviation, marine, railway and pipeline occurrences ( s. 3 ).

The Act did not significantly change the mechanics of the statutory privilege attached to CVRs and witness statements, although more modes of transportation are now covered by the legislative scheme. [ 53 ] The privilege in the Act still largely accords with what was recommended by the Dubin Report. An on-board recording is privileged and may only be disclosed for use in litigation if, on request, a court or coroner concludes that the public interest favours disclosing the recording. If disclosure and production are ordered, appropriate restrictive conditions may be put in place ( s. 28(6) (c)).

Significantly, the use of the on-board recording is prohibited in certain legal settings, for example in proceedings against air traffic controllers ( s. 28(7) ). [ 54 ] The use of evidence gathered by accident investigators has also been the subject of attention by international bodies charged with aviation safety. The international sources, while not decisive for the

interpretation of s. 28(6), generally align with the recommendations in the Dubin Report.

Section 16 of the Act requires the Board to “take all reasonable measures” to ensure that its investigation practices are consistent with international agreements and conventions to which Canada is a party. This underscores Parliament’s intention that the Act conform to Canada’s international obligations. Annex 13 of the Convention on International Civil Aviation , Can.

T.S. 1944 No. 36 (“ Chicago Convention ”), ratified by Canada, provides that certain accident investigation records (including CVRs) should not be made available for purposes other than investigation unless, following an exercise of balancing interests, “their disclosure or use outweighs the likely adverse domestic and international impact such action may have on that or any future investigations” (International Civil Aviation Organization, Annex 13 to the Convention on International Civil Aviation: Aircraft Accident and Incident Investigation (12th ed. 2020), at p. 5-5, standard 5.12).

Further, Appendix 2 of Annex 13 recognizes that disclosure of such records in proceedings or to the public “can have adverse consequences for persons or organizations involved in accidents and incidents, likely causing them or others to be reluctant to cooperate with accident investigation authorities in the future” (p. APP 2-1). Further, CVRs and other recordings “may be perceived as constituting an invasion of the privacy of operational personnel if disclosed or used for purposes other than those for which the recordings were made” (p.

APP 2-2). [ 55 ] These materials confirm the purposes of the statutory privilege. First, it protects pilot privacy by preventing access to the CVR except when requested by investigators. Second, it protects transportation safety by “encourag[ing] full, accurate, and objective communication between flight crew members” and by protecting potential witnesses who may otherwise decline to provide statements to the Board out of fear of repercussions (see Laporte Affidavit, A.R., at pp. 1871-72, paras. 83-85). Importantly, the privilege is not absolute.

Parliament contemplated that it may be set aside when warranted in the interests of justice on a discretionary basis and charged courts and coroners with making that decision. Even when on-board recordings are disclosed, they may be subject to restrictions as deemed appropriate by the court or coroner. And, as noted, their use is prohibited outright in some legal proceedings. B. Can the Board Make Submissions Without the Other Parties or the Public Present? [ 56 ] Before presenting arguments as to whether production was properly ordered in this case, the Board raises a preliminary i

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