Canada (Transportation Safety Board) v. Carroll-Byrne, 2021 NSCA 342022 SCC 48 (39661)

“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.”

The SCC (7:2) dismissed the appeal. 

Justice Kasirer wrote as follows (at paras. 3-12):

“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.

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”).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.

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.

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).

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.

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.

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.

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.

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.

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.”