In ruling on disclosure of airplane cockpit voice recordings, SCC considers pilot privacy

In a class action stemming from an airplane accident, a judge made no error when he denied the Transportation Safety Board of Canada’s (TSB) request to make submissions, in camera, on the disclosure of recordings from the cockpit’s on-board voice recorder, the Supreme Court of Canada has found.

The case revolved around s. 28 of the Canadian Transportation Accident Investigation and Safety Board Act. The court dealt with the balance, prescribed in the legislation, between preserving the privilege of cockpit recordings for the sake of pilot privacy and airline safety, and including all relevant evidence for the sake of the proper administration of justice.

“The court has now made it clear that there may be special circumstances in which the TSB can be given permission by the court to make submissions in the absence of the parties,” says Jamie Thornback, counsel for one of the class-action plaintiffs.

“That hasn't been done before. And it didn't happen in this case. And the court didn't say it should have happened in this case, but as an option in the appropriate case – that's clear that that's now a possibility.”

Thornback notes that while the ruling in Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48 applies to an airplane incident, the substantive issues it deals with will also apply in the rail context, which also have on-board audio recorders.

Chris Rootham, counsel for an intervenor, the Air Canada Pilots’ Association, says Friday’s decision is “an important validation of the right of workers to privacy in the workplace.” The pilots in the case were under constant surveillance, justified in the interests of airline safety, and the SCC was clear that the pilots’ privacy interests are not illusory and have a right to protection “except when safety or the administration of justice require otherwise.”

“While in this case the infringement of privacy by producing the cockpit voice recorder was justified, the court’s reasons make it clear that such infringements should not be routine and will not be justified in the majority of cases,” says Rootham. “This conclusion should apply to all workers, and this decision therefore supports workers’ right to privacy in the workplace.”

In March 2015, while landing at Halifax Stanfield International Airport, Air Canada flight AC624 hit the ground 740 ft short of the runway and slid to a stop. Twenty-five of the airplane’s 138 passengers and crew members were hospitalized in the accident. A number of the passengers commenced a class action, claiming negligence on the part of the airline, pilots, aircraft manufacturer, airport, and others.

As part of its statutory mandate, the TSB investigated the incident, which included obtaining the cockpit voice recording, which documents the flight crew’s on-board communications. Airbus S.A.A., a defendant to the class action, brought an interlocutory motion to have the TSB release the recordings and transcripts of their contents. Airbus said this release was necessary to deal with causation, which would be central to the civil action, and essential for a fair trial.

The TSB opposed the disclosure motion and argued that it could not be produced as evidence because the recording was subject to statutory privilege under s. 28 of the Canadian Transportation Accident Investigation and Safety Board Act.

The chambers judge, however, ordered the TSB to release the recording after listening to its contents, in camera. The judge found it was “reliable and relevant evidence that was necessary to resolving the dispute,” said the SCC’s ruling.

This interlocutory judgment was confirmed at the Court of Appeal for Nova Scotia, and the TSB appealed to the SCC.

In Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, the court was split 7-2. The majority found no reviewable error on the part of the chambers judge and dismissed the Board’s appeal. Justices Suzanne Côté and Russell Brown would have allowed the appeal and remitted the matter to be heard by a different chambers judge.

Under s. 28(2)(b) of the Canadian Transportation Accident Investigation and Safety Board Act, on-board recordings are privileged, and no person can “be required to produce an on-board recording or give evidence relating to it in any legal, disciplinary, or other proceedings.” And under s. 28(6), in proceedings before a court or coroner, if “a request for the production and discovery of an on-board recording is made, the court or coroner shall … (b) in camera, examine the on-board recording and give the Board a reasonable opportunity to make representations with respect thereto.”

According to the court’s majority, though the law does not give the Board a “general entitlement” to make submissions on the disclosure without the public and other parties present, the judge has discretion to request such a thing. The chambers judge had found that it was neither appropriate nor necessary to receive in camera submissions to determine the motion, and the majority adds that “the Board was more than capable of arguing its case without disclosing the contents of the CVR or defeating the statutory privilege.”

When the request is made, s. 28(6)(c) involves analysing whether the public interest in the proper administration of justice – “right to a fair trial and to present all relevant evidence that is necessary to resolve the dispute” – outweighs the public interest in preserving the privilege, the purpose of which is to protect pilot privacy and help ensure airline safety, said the majority. Non-disclosure is the default, and the party seeking the recording’s production is tasked with establishing that the recording may contain “relevant, probative,” and “necessary” evidence, that it is not obtainable elsewhere.

According to the majority, the chambers judge had properly identified and weighed these two competing interests. The judge had ordered the recording’s disclosure “to fill the gaps in the pilots’ evidence that were central to determining causation and thus liability for the accident.”

Justices Côté and Brown, on the other hand, thought the chambers judge had erred by not allowing the Board to make in camera submissions, to which it was entitled according to a “textual and purposive interpretation” of s. 28(6)(b).

Justices Côté and Brown also found the chambers judge incorrectly assessed the balance between the importance of statutory privilege and the public interest in the proper administration of justice. The judge had used the test articulated in Société Air France v. Greater Toronto Airports Authority, which Justices Côté and Brown said, “overemphasizes irrelevant factors,” leading to an inappropriate inflation of the administration-of-justice side of the scale, and a diminishing of “the privacy and safety goals that animate the privilege conferred by Parliament.”

The chambers judge based the public-interest analysis on a “consideration of the policies and objectives of class actions,” an “irrelevant factor,” which Justices Côté and Brown said amounted to a reviewable error. There were also “multiple errors” in the chambers judge’s reasoning on the importance of the privilege because the judge had adopted Air France in the assessment of privacy and safety, they said.