On-board Audio Recordings: Supreme Court Of Canada Rules They May Be Disclosed In A Lawsuit

• Published date: 22 December 2022
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Aviation, Marine/ Shipping, Rail, Road & Cycling, Class Actions, Trials & Appeals & Compensation
• Law Firm: Borden Ladner Gervais LLP
• Author: Nigah Awj and Jean-Marie Fontaine

The Transportation and Safety Board of Canada (the TSB) is mandated under the Canadian Transportation Accident Investigation and Safety Board Act (the Act) to investigate air, rail and shipping incidents to determine the root cause(s) of an accident in order to prevent its re-occurrence in the future.

During these investigations, the TSB inspectors will habitually seize the video data recorder (VDR) on a vessel or other on-board recording devices on planes or trains. This can be quite frustrating to ship owners who do not have access to the VDR in subsequent litigation.

In Canada (Transportation Safety Board) v. Carroll Byrne, 2022 SCC 48, the Supreme Court rendered a decision on Nov. 25, 2022, explaining in what circumstances an on-board recording can be released.

Background

In March 2015, an Air Canada flight from Toronto had an accident upon landing in unforgiving weather conditions at Halifax airport, causing injuries to several passengers. Certain passengers commenced a class action in the courts of Nova Scotia against the airline, the pilots, the aircraft manufacturer, and the airport.

Independently of the litigation, the TSB investigated the accident pursuant to its mandate to improve safety under the Act. The TSB published its investigation report focusing on the causes and contributing factors leading to the accident without assigning any civil or criminal liability to any party. The TSB is not a party to the class action proceedings.

In order to establish the circumstances surrounding the landing, the aircraft manufacturer requested the disclosure of the on-board recording of the pilots' communications, which are part of the "black box" from the aircraft, officially a cockpit voice recorder (the CVR).

The TSB refused to release the CVR, claiming that it is protected by statutory privilege under section 28 of the Act and cannot be used as evidence in legal proceedings unless ordered by a court or coroner. After listening to the CVR in camera (not in public), the judge allowed the admission of the CVR into evidence, claiming that the fair administration of justice outweighed the statutory privilege. This decision was upheld on appeal.

The...