T-18-88
Sky Charter Limited and S.T.S. Holdings Limited
(Applicants/Plaintiffs)
v.
Canadian Aviation Safety Board (Respondent/
Defendant)
INDEXED AS: SKY CHARTER LTD. V. CANADA (AVIATION
SAFETY BOARD) (T.D.)
Trial Division, MacKay J.—Toronto, June 19,
1989; Ottawa, September 11, 1990.
Air law — Owners of cockpit voice recorder, surrendered to
Canadian Aviation Safety Board after aircraft incident, en
titled to return of recording or complete transcript upon
request when investigation completed under Canadian Aviation
Safety Board Act, s. 21 — Right to recover not barred by
privilege accorded to recording under ss. 33 and 34 — No
conflict between privilege and owners' right to recover —
Privilege to assure access to recordings for investigation of
aircraft accidents while maintaining pilots' privacy — Poten
tial abuse of employees' rights by owner outside Board's
concern.
This was an application for a declaration that the plaintiffs
are entitled to the return of a tape recording or a transcript of
its entire contents. The plaintiffs owned a Lear jet including the
cockpit voice recorder (CVR) and flight data recorder (FDR).
The jet sustained substantial damage in attempting to land at
Pearson. Upon its demand, the plaintiffs turned over the CVR
and FDR to the Canadian Aviation Safety Board. Although the
Board's investigation has been completed, it has refused repeat
ed requests to return the tapes. Section 21 of the Canadian
Aviation Safety Board Act provides that anything seized under
paragraph 19(1)(c) shall be returned to the owner as soon as
possible after it has served the purpose for which it was seized,
unless the owner consents otherwise in writing. The plaintiffs
have commenced an action for damages arising from the
incident, alleging negligence on the part of Crown servants.
They believe that the tape could have obviated the need for that
action or could assist in its preparation. The issue was whether
the Board, having seized the tape from a CVR for purposes of
investigating an incident or accident, following conclusion of its
investigation can refuse to return the tape or a transcript of the
complete tape to the owner who has requested its return. The
defendant argued that the special privilege accorded to a CVR
under the Act, sections 33 and 34 bars release of the tape.
Those sections provide that the Board may release the record
ing or information from it only to a peace officer, coroner, or
person carrying out investigations on the order of a court or
coroner after examination of the recording in camera and after
the Board has had an opportunity to make representations
about release and release is warranted because the public
interest in the proper administration of justice outweighs the
privilege attached to the recording. The defendant argued that
the Act did not provide for access to the tape by the owner.
Held, the application should be allowed.
The plaintiffs are entitled to the return of the recording or at
least to a complete transcript in accordance with section 21.
The privileged status of a cockpit voice recording does not
conflict with the right of the owners to recover it. The purpose
of the privilege was to assure access to these recordings for
lawful purposes, particularly the investigation of 'aircraft acci
dents and incidents, while maintaining as much as possible the
privacy interests of pilots whose every sound is recorded. Privi
lege attached to the recording whether it was in the possession
of the owners, the Board or any other person. Possession of the
recording is irrelevant to the purposes of the Act and the
functions of the Board.
The potential for abuse of the employees' rights by an owner
who has access to the recording is outside the Board's concern.
Section 35 precludes use of the recording in disciplinary or
other proceedings, except for limited purposes in civil actions.
The uses to which such recordings can be put is regulated by
collective agreements or employment contracts between owners
and pilots.
The conditions governing release of the recording are set out
in the Act, particularly by the privilege accorded by subsection
33(1) and the limitation on its, use implied in that provision and
made explicit in section 35. The return of the recording is
desired for examination by the plaintiffs' counsel in assessing
and preparing the claims in the civil action and for examination
by the president of the plaintiff companies to understand the
incident with a view to improving aviation safety. Access for
counsel does not violate the privilege as counsel may be con
sidered as an extension of the plaintiffs. The advice from
counsel about possible legal proceedings is privileged and the
interests of justice warrant return of the recording to the
plaintiffs on terms permitting access to the recording by.coun-
sel. When returned, access by counsel to the recording should
be on a confidential basis solely for the purposes of advising
plaintiffs,
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Aviation Safety Board Act, R.S.C:, 1985, c.
A-12, ss. 2, 5(1), 7, 9, 10, 16, 19, 21, 32, 33, 34, 35,
36(3).
Canadian Aviation Safety Board Act, S.C.
1980-81-82-83, c. 165, s. 2(1), 4(1), 6, 8, 9, 12, 15, 16,
26, 27(3).
Cockpit Voice Recorder Order, C.R.C., c. 37.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
CASES JUDICIALLY CONSIDERED
APPLIED:
Wilson v. Minister of Justice, [1985] 1 F.C. 586; (1985),
13 Admin. L.R. 1; 20 C.C.C. (3d) 206; 6 C.P.R. (3d)
283; 46 C.R. (3d) 91; 16 C.R.R. 271; 60 N.R. 194
(C.A.).
AUTHORS CITED
Canada, Report of the Commission of Inquiry into Avia
tion Safety: Privilege with Respect to Evidence
Obtained by Investigators, Vol. 1, Part X (Ottawa:
Supply and Services Canada, 1981) (Commissioner: C.
L. Dubin).
COUNSEL:
W. A. Richardson for applicants/plaintiffs.
D. Bruce Garrow and F. Reinhardt for
respondent/defendant.
SOLICITORS:
Lilly, Blott, Fejér, Toronto for applicants/
plaintiffs.
Hughes, Amys, Toronto for respondent/
defendant.
The following are the reasons for judgment
rendered in English by
MACKAY J.: This proceeding, commenced by
notice of motion, was an application for a declara
tion that the applicants/plaintiffs were entitled to
have or keep or obtain from the respondent/
defendant a certain tape recording or a complete
transcript of its entire contents, and if necessary an
order of mandamus requiring the Board to deliver
to the applicants/plaintiffs the recording in ques
tion or a complete, unedited transcript of it.
Preliminary Issues
The respondent/defendant raised as a prelim
inary matter that the process adopted by the appli-
cants/plaintiffs was unnecessary because the appli-
cants/plaintiffs, in the course of other proceedings
already initiated against Her Majesty, could
request production or discovery of the recording
here in issue and the Court concerned could deter
mine whether production or discovery should be
ordered pursuant to the Canadian Aviation Safety
Board Act, R.S.C., 1985, c. C-12, section 34 [for-
merly S.C. 1980-81-82-83, c. 165, subsection
26(6)]. The applicants/plaintiffs in reply submit
that the process referred to presupposes the right
of the respondent/defendant to retain the record
ing, the very issue raised by the motion now before
this Court. In my view, the right of the Board to
retain the recording despite requests by the appli-
cants/plaintiffs, who are the owners of it, that the
recording or a transcript of its entire content be
delivered to them, could only be determined after
argument, if as a matter of procedure that argu
ment could be heard.
The Court then raised with counsel the proce
dural bar to hearing the motion as presented, that
is, that under the Rules of this Court proceedings
under section 18 of the Federal Court Act, R.S.C.
1985, c. F-7, for a declaration, as here sought by
the applicants/plaintiffs, cannot be commenced by
motion but must be commenced by action initiated
by a statement of claim. While the Rules do not
require the same process in seeking mandamus,
also sought in this case, implicitly the Rules
require that there be a trial of the matters at issue
when a declaration is sought. In this case the
applicants/plaintiffs had filed a statement of claim
on January 7, 1988 seeking relief of the same kind
as now sought by motion, but the file reveals no
further activity in the matter, none of the usual
pre-trial procedures for obtaining or clarifying evi
dence and no steps to bring the matter to trial,
until filing of this notice of motion in May 1989.
There is an exceptional course, recognized by the
Court of Appeal per Mahoney J. in Wilson v.
Minister of Justice, [1985] 1 F.C. 586 (C.A.),
where on consent and not merely in the absence of
objection the Court may order that the proceeding
be deemed to have been properly commenced pro
vided the parties place on the record an agreed
statement of all the facts upon which the issues are
to be adjudicated.
statement of all the facts upon which the issues are
to be adjudicated.
After a brief adjournment for consultation be
tween counsel, counsel for the respondent/defend-
ant advised the Court that he consented to dealing
with the motion being heard as if this were an
action on condition that clause 9(d) of the state
ment of claim filed January 7, 1989 be struck out.
That clause related to relief then claimed by the
applicants/plaintiffs and concerned the validity of
provisions of the Act providing for seizure of the
recording by the respondent/defendant. There was
consent by both counsel that that clause be struck
and there was agreement that there was no dispute
about facts giving rise to this matter.
In these circumstances, I ordered that, upon
hearing consent to proceed and agreement as to
the facts, these proceedings are deemed to have
been properly commenced, and that the facts as set
out in the statement of claim filed January 7, 1988
be taken as the agreed statement of facts. In that
statement paragraphs 1 to 8 set out facts; para
graph 9 sets out the relief claimed by the appli-
cants/plaintiffs, claims which I deem to be
replaced by the relief requested in the notice of
motion of May 10, 1989. Argument at the hearing
was concerned exclusively with the relief sought in
the notice of motion. The only difference in sub
stance between the relief claimed in the statement
of claim filed in January and in the notice of
motion is that the latter limits the relief to a
declaration and an order of mandamus relating to
a particular tape recording produced by a Cockpit
Voice Recorder (CVR) whereas in the statement
of claim relief sought also related to a second tape
produced by a Flight Data Recorder (FDR).
Facts Agreed and Relief Sought
For the record the following are the facts agreed
upon by counsel for the parties, as set out in
paragraphs 1 to 8 of a statement of claim filed by
the plaintiffs on January 7, 1989.
1. The Plaintiff/Applicant, Sky Charter Limited ("Sky Chart
er") and the Plaintiff/Applicant, S.T.S. Holdings Limited
("S.T.S."), are both companies incorporated pursuant to the
laws of the Province of Ontario. At all material times, Sky
Charter owned 40 percent and S.T.S. owned 60 percent of a
1973 Gates Lear Jet 25B bearing Serial No. 109 and Canadian
Registration C-GSAS ("C-GSAS"). At all material times, Sky
Charter leased 60 percent of C-GSAS from S.T.S.
2. The Defendant/Respondent, The Canadian Aviation Safety
Board ("the Board"), is a Federal Board established pursuant
to Section 4 of the Canadian Aviation Safety Board Act, S.C.
1980-81-82-83, c. 165, as amended ("the Act"). The Board's
object is to advance aviation safety by identifying safety defici
encies as . evidenced by aviation accidents; by conducting
independent investigations in order to make findings as to the
contributing factors and cause of such accidents; and by report
ing publicly on its investigations.
3. Pursuant to certain Air Navigation Orders respecting Cate
gory "C" aircraft (of which C-GSAS was one), C-GSAS was
at all relevant times equipped with, inter alfa, a Cockpit Voice
Recorder ("C.V.R.") and a Flight Data Recorder ("F.D.R.").
At all material times title and property in the C.V.R. and
F.D.R. tapes and their contents are and remain that of Sky
Charter and S.T.S.
4. A C.V.R. is a device which records on a continuous audio
cassette tape the last 30 minutes of oral dialogue between the
flight crew or between the flight crew and other aircraft or
ground facilities.
5. A F.D.R. is a device whereby certain flight parameters are
measured and recorded, by analogue means, on a foil tape strip.
6. On or about 0409 hours on April 3, 1985, C-GSAS was
involved in an incident upon attempting to land at the Lester B.
Pearson International Airport ("Pearson") in the Regional
Municipality of Peel, in the Province of Ontario. As a result of
the incident, C-GSAS was substantially damaged. In addition,
Sky Charter lost the use of C-GSAS between April 3, 1985 and
May 10, 1985.
7. Shortly after the incident, and in response to a demand by a
representative of the Board, Sky Charter and S.T.S. gave
possession of the C.V.R. and F.D.R. tapes and their contents to
him, solely for the purpose of assisting the Board in its investi
gation of the incident. At no time was title to the tapes or their
contents given or conveyed by Sky Charter and S.T.S. to the
Board.
8. Thereafter, and to date, the Board has wrongfully and
unlawfully refused to return to the Plaintiffs/Applicants either
the C.V.R. or F.D.R. tapes, or transcripts thereof, inspite [sic]
of numerous requests that it do so, and inspite [sic] of the fact
that it no longer has need of the tapes.
For the record I also set out the relief claimed
by the plaintiffs in the notice of motion dated May
10, 1989:
(a) a declaration that under the Canadian Aviation Safety
Board Act the owner of a Cockpit Voice Recorder
("C.V.R.") is entitled to have or keep or to obtain from
the Board, the C.V.R. tape or a complete transcript of its
entire contents; and, if necessary,
(b) an order of mandamus requiring the Board to release and
deliver to the Plaintiffs/Applicants the C.V.R. tape record
ed on C-GSAS on or about April 2 and 3, 1985, or a
complete, unedited transcript of the same.
For the record I also note certain other matters
set out in an affidavit of Irving Oscar Shoichet, the
president of both plaintiff companies, supporting
the motion now deemed an action before the
Court, and in an affidavit of Franz Reinhardt,
counsel to the defendant board filed in partial
reply to the affidavit of Shoichet, and matters
agreed upon by counsel at the hearing. While these
are not matters set out in the agreed statement of
facts, they provide some general background to
these proceedings. These are the following:
1) The affiant Shoichet states that another
action was commenced by statement of claim
filed in this Court September 30, 1985, (Court
File No. T-2145-85), seeking damages for losses
arising from the incident involving aircraft
C-GSAS allegedly as a result of negligence or
tortious action of servants or agents of Her
Majesty. That action was commenced in view of
a perceived limitation period in claims against
the Crown. Further, it is averred that with
consent of counsel for Her Majesty that action
has not been advanced beyond issuance and
service of the statement of claim pending the
outcome of the application herein for a declara
tion and for mandamus.
2) The affiant Shoichet believes that review and
analysis of the CVR tape by counsel and his
consultants for the plaintiffs could have obviated
the need for the action initiated against Her
Majesty, or would assist in preparing the action.
3) The affiant Shoichet states that while he has
never had occasion to utilize CVR recordings
for disciplinary measures against his employees,
he has on several occasions, with their knowl
edge and consent, listened to CVR recordings or
dialogue between his employees and air traffic
controllers, especially where his employees have
reported erroneous or conflicting instructions
from controllers. Further, he believes that an
owner/operator of an aircraft equipped with a
CVR and an FDR should have unfettered access
to the tapes produced or to transcripts of them
for the purpose of maintaining or improving
upon aviation safety, a purpose in which the
owner/operator has interests at least as great, if
not greater, than the interests of the defendant
board. As owner of CVR and FDR devices
installed on an aircraft the owner/operator or its
agents should be permitted unrestricted access
to all data concerning an incident in the inter
ests of improving aviation safety and of assisting
in the determination of civil liability.
4) The affiant Reinhardt states his belief that
evidence of the actual communications between
Sky Charter's employees aboard aircraft
C-GSAS and air traffic control, at the time
relevant to the incident in which the aircraft was
involved, is available from the air traffic control
recording, which may be released as required by
law under subsection 36(3) (formerly subsection
27(3)) of the Act, and a transcript of the air
traffic control recording is appended to his
affidavit.
5) Counsel were at least implicitly agreed at the
hearing that the investigation by the Board,
arising in relation to the aircraft incident involv
ing the plaintiffs' aircraft, was completed. Fur
ther, it was agreed that the cockpit voice record
er seized by the inspector for the Board had
been returned to the plaintiffs so that the issue
here dealt with the tape recording produced by
and originally contained in the recorder, which
recording was still in the possession or control of
the Board.
The Issue and the Legislative Regime
The main issue here raised can be stated quite
simply, that is, whether the defendant board,
having seized or otherwise obtained the tape from
a CVR for purposes of investigating an incident or
an accident, following conclusion of its investiga
tion can refuse to return the tape or a transcript of
the complete tape to the owner of the tape who has
requested its return.
Subordinate issues were raised in argument. So
far as these are not resolved in dealing with the
main issue, I propose to deal with them before
turning to the main issue since at least one was
raised by the respondent as a preliminary issue at
the commencement of the hearing.
Resolution of the principal issue depends on the
interpretation of certain provisions of the Act. The
statute was originally enacted in 1983 following
the report and recommendations of the Commis
sion of Inquiry into Aviation Safety headed by Mr.
Justice Charles Dubin, now Chief Justice of
Ontario. The provisions of the Act directly rele
vant in this matter are the following. (Citations
which follow refer to the relevant provisions of the
Act, R.S.C., 1985, c. C-12 and at the end of each
provision the comparable section or paragraph as
found in the original statute applicable at the time
of seizure of the tape here in issue by the defend
ant, and referred to by counsel throughout the
argument, is included in square brackets with the
word "formerly". References to the Act through
out the balance of these reasons are made in the
same way.)
19. For the purpose of conducting an investigation by the
Board under this Act, an investigator has the power, ...
(a) to enter any aircraft, place or property the entry of
which the investigator believes on reasonable grounds is
requisite for the purposes of the investigation;
(b) to inspect any aircraft, place or property mentioned in
paragraph (a), including any equipment, stock, cargo, bag
gage, records, documents, freight or other goods or any part
thereof found therein the inspection of which the investigator
believes on reasonable grounds is requisite for the purposes of
the investigation, and to make copies of or take extracts from
any of those records or documents;
(c) to seize, detain, remove, preserve and protect and to test
to destruction if necessary any aircraft, equipment, stock,
cargo, baggage, records, documents, freight or other goods or
any part thereof mentioned in paragraph (b) that the inves
tigator believes on reasonable grounds is involved in or
relates to any aviation occurrence that is being investigated
under this Act; (formerly section 15)
21. (1) Anything seized pursuant to paragraph 19(c) shall,
unless the owner thereof or a person who appears on reasonable
grounds to be entitled thereto consents otherwise in writing, be
returned to that owner or person as soon as possible after it has
served the purpose for which it was seized.
(2) Any person from whom anything was seized pursuant to
paragraph 19(c) or any other person who appears on reasonable
grounds to be entitled thereto may apply to a court of com
petent jurisdiction for an order that the thing seized be
returned to him.
(3) Where, on an application under subsection (2), the court
is satisfied that the thing seized has served the purpose for
which it was seized or should, in the interests of justice, be
returned to the applicant, it may grant the application and
order the thing seized to be returned to the applicant, subject to
any terms or conditions that appear necessary or desirable to
ensure that it is safeguarded and preserved for any purpose for
which it may subsequently be required by the Board under this
Act. (formerly subsections 16(1),(2),(3))
32. In sections 33 to 35, "cockpit voice recording" means the
whole or any part of any recording, transcript or substantial
summary of voice communications on the flight deck of an
aircraft, the aural environment of the flight deck, voice com
munications to and from the aircraft or audio signals identify
ing navigation and approach aids. (formerly subsection 26(1))
33. (1) Every cockpit voice recording is privileged and,
except as provided by this section or section 34, no person,
including any person to whom access is provided under this
section or section 34, shall
(a) knowingly release it or permit it to be released to any
person; or
(b) be required to produce it or give evidence relating to it in
any legal, disciplinary or other proceedings.
(2) Any cockpit voice recording that relates to an aviation
occurrence being investigated under this Act shall be released
to the Board or an investigator who requires access thereto for
the purposes of an investigation by the Board under this Act.
(3) The Board may make such use of any cockpit voice
recording obtained under this Act as it considers necessary in
the interests of aviation safety, but, subject to subsection (4),
shall not knowingly release or permit to be released any portion
thereof that is unrelated to the contributing factors and causes
of any aviation occurrence investigated under this Act.
(4) The Board shall release any cockpit voice recording
obtained under this Act to
(a) a peace officer authorized by law to gain access thereto;
(b) a coroner who requires access thereto for the purpose of
an investigation he is conducting; or
(c) any person carrying out a coordinated investigation
under section 17 or appointed by the Minister of Transport
pursuant to subsection 26(2) who requires access thereto in
order to carry out his duties and functions. (formerly subsec
tions 26(2),(3),(4),(5))
34. (1) Notwithstanding anything in section 33, where in
any proceedings before a court or coroner a request for the
production or discovery of a cockpit voice recording is made,
the court or coroner shall
(a) cause a notice of the request to be given to the Board, if
it is not a party to the proceedings,
(b) in camera, examine the cockpit voice recording, and
(c) give the Board a reasonable opportunity to make
representations with respect thereto,
and, 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
cockpit voice recording by virtue of section 33, the court or
coroner shall order its production and discovery, subject to such
restrictions or conditions as the court or coroner deems appro
priate, and may require any person to give evidence that relates
to the cockpit voice recording. (formerly subsection 26(6))
35. A cockpit voice recording shall not be used
(a) against any person referred to in subsection 36(1) in any
legal or other proceedings except civil proceedings; or
(b) against any person in any disciplinary proceedings or
proceedings with respect to the capacity or competency of
any officer or employee to carry out his duties and functions.
(formerly subsection 26(8))
An overview of the Act as a whole, to which
both parties subscribe in written submissions on
fact and law, reveals that the Act has as its object
the advancement of aviation safety through crea
tion of the respondent Board, with that general
objective and authority to identify safety deficien
cies as evidenced by aviation occurrences (defined
as any accident or incident associated with the
operation of aircraft and any situation which if left
unattended could induce such an event). The
Board may conduct independent investigations or
public inquiries, and may report publicly on these
and on its findings and recommendations designed
to eliminate or reduce safety deficiencies. The
Board is authorized to investigate any aviation
occurrence, except those involving military air
craft. It is not the object of the Board to determine
or apportion any blame or liability in connection
with aviation occurrences (sections 2, 5(1), 7, 16;
formerly sections 2(1), 4(1), 6, 12).
The Board appoints investigators pursuant to
sections 9 and 10 (formerly sections 8 and 9) who
have extensive authority under section 19 (former-
ly subsection 15(1)), including the authority "to
seize, detain, remove, preserve and protect ... any
aircraft, equipment ... records, documents ...
that the investigator believes on reasonable
grounds is involved in or relates to any aviation
occurrence that is being investigated" under the
Act, (paragraph 19(c), formerly paragraph
15(1)(c)). The authority to seize and detain things
is circumscribed by the mandatory return to the
owner of things seized, and the owner or other
person entitled to things seized may apply to a
court for an order that the thing seized be returned
(subsections 21(1) and (2); formerly subsections
16(1) and (2)).
After provisions for the Board, its creation and
operationL, and its administration, sections 32 to
41 (formerly sections 26 to 29) under the inserted
heading "Privilege", deal with cockpit voice
recordings, air traffic control recordings and state
ments relating to aircraft occurrences obtained by
the Board or an investigator, and for each of these
records Parliament has enacted particular provi
sions specifying restrictions on their use. In this
sense, these records are "privileged" as provided
by the Act. The provisions relating to cockpit voice
recordings are set out above, so far as those are of
interest in this case. These are considered in detail
in the reasoning that follows.
Subordinate Issues Raised
Since the respondent raised one issue as a pre
liminary matter, I propose to deal now with all
subordinate issues raised by counsel except those
necessarily dealt with in consideration of the main
issue.
The first of these is the submission of the
defendant that this action by the plaintiffs is
barred by operation of subsection 34(1) (formerly
subsection 26(6)) of the Act. The submission is
based on the potential application of that section
if, in the action commenced by filing the statement
of claim on September 30, 1985, the plaintiffs
request production or discovery of the recording
here in issue. In that event the Court, after notice
to the Board, would examine in camera the record
ing, give the Board an opportunity to make
representations and if the Court concludes the
public interest in the proper administration of
justice outweighs in importance the privilege
attached to the recording under section 33 it will
order production and discovery subject to restric
tions the Court deems appropriate.
Obviously, it would be open to the plaintiffs to
request production and discovery pursuant to sec
tion 34. Yet that is not an answer to the plaintiffs'
claim as owner to recover the tape or a complete
transcript of it at this stage in these proceedings.
The second subordinate issue raised was by the
plaintiffs that sections 32 to 35 [all formerly sec
tion 26] should be construed to permit the owner
of the CVR to either retain the CVR (I assume by
this is meant the tape recording and not the equip
ment or recorder) and provide a copy to the Board,
or to retain a copy of the recording and provide the
original to the Board. This issue is not raised by
the facts in this case. Moreover, under paragraph
19(c) (formerly paragraph 15(1)(c)) an inspector
is authorized to seize anything deemed useful for
an investigation. In this case, he demanded the
CVR be turned over to him, the owners had an
obligation to release it to him, and argument has
addressed the situation as one where the CVR with
its recorded tape was seized by the inspector. I see
no need to deal with the issue of what might be
done, but was not here done, by the owner in
response to the demand of an inspector that the
CVR and its tape recording be released to him for
an investigation.
Similarly, I see no need to consider in any detail
an issue stated by counsel for the defendant, that is
"whether the privileged information sought by the
applicant is readily available from another non-
privileged source". Presumably, the source
referred to is the transcript of the air traffic
control recording, released in this case as an exhib
it to the affidavit of Mr. Reinhardt in support of
the defendant, or possibly the source implied is the
recollection and statements, if any, made by pilots
of the aircraft to the owner, the plaintiffs here.
Neither of those is likely to be as complete as the
information on the tape which records all audible
aural sounds occurring in the cockpit during the
final thirty minutes of its flight and landing. But
even if they were as complete their availability is
not an effective response to the plaintiffs' claim to
recover the tape which they own.
The Main Issue—the Owner's Right to Recover a
Recording Seized by the Board
The plaintiffs' claim to recover the recording in
question is based upon section 21 (formerly section
16) of the Act which provides that anything seized
under paragraph 19(c) (formerly paragraph
15(1)(c)) "shall, unless the owner thereof or a
person who appears on reasonable grounds to be
entitled thereto consents otherwise in writing, be
returned to that owner or person as soon as possi
ble after it has served the purpose for which it was
seized". Here there is no question of the owner of
the tape, the plaintiffs, consenting to retention of it
by the Board; indeed, they have made repeated
requests for its return. Nor is there any question
that the purpose for which it was seized, the
investigation of the aircraft incident involving the
plaintiffs' aircraft, has been served. The Board's
investigation is admitted to be complete. The
plaintiffs are entitled to apply to the Court for an
order that the tape recording be returned, pursu
ant to subsection 21(2) (formerly subsection
16(2)), and unless there be some bar imposed
under the Act they are entitled to have the record
ing returned to them.
The defendant contends that there is indeed a
bar to releasing to the owner the tape recording in
question and that it has declined to return the
recording because of the special privilege accorded
to cockpit voice recordings under sections 33 and
34 of the Act (formerly subsections 26(2) to (7)).
It is argued that in light of the purposes of the Act,
to improve aviation safety by investigation and
reporting on aircraft incidents, for which purposes
a cockpit voice recording is a key element, the Act
created a special privilege, described in the defend
ant's memorandum as an "absolute privilege".
Aside from access by the Board and its investiga
tors for its responsibilities under subsection 33(3)
(formerly subsection 26(4)), the Act provides that
the Board may only release the recording or infor
mation from it in accord with subsections 33(4)
and section 34 (formerly subsections 26(5) and
(6)). These provide for release to a peace officer, a
coroner, or a person carrying out investigations
who require access for their lawful purposes of
investigations, and for release on the order of a
court or a coroner where a request for production
or discovery of a recording is made. Then release
only results from the decision of the court or
coroner after examination of the recording in
camera and after an opportunity is provided for
the Board to make representations about release,
and when the court or the coroner concerned
concludes that in the circumstances of the case
release is warranted because the public interest in
the proper administration of justice outweighs in
importance the privilege attached to the recording
under section 33 (formerly subsection 26(2)). The
defendant points out that the Act makes no provi
sion for access to the tape by the owner of it and
submits that any practice of the plaintiffs in listen
ing to tapes, with consent of its pilots, on previous
occasions is neither authorized by the Act nor
relevant to the issue before the Court.
The defendant refers to the definition of a
"cockpit voice recording" under section 32 (for-
merly subsection 26(1)) and to "release" under
section 2 (formerly subsection 2(1)), suggests that
the emphasis in these is with the information in the
recording, and urges that the plaintiffs as owners/
operators have no proprietary interest in the infor
mation. Yet the Board skirts the question of the
plaintiffs' proprietary interest in the tape on which
the recorded sounds are transcribed. It is not an
answer to the plaintiffs' claim to recover the tape
that the Board has returned to the owner the thing
seized by the investigator, that is the recorder, in
which the tape was contained when the CVR was
seized but not when it was returned.
Reference was made by counsel for both parties
to the Report of the Commission of Inquiry into
Aviation Safety, Volume I, Part X. That portion of
the Report deals with "Privilege with Respect to
Evidence Obtained by Investigators" and its
recommendations appear to have been incorpo
rated in the Canadian Aviation Safety Board Act,
subsequently enacted. The Report assists in under-
standing the background of the privilege accorded
to cockpit voice recordings under the Act. Its
purpose appears to have been to assure access to
these recordings for lawful purposes as set out in
the Act, particularly the investigation of aircraft
accidents and incidents, while maintaining so far
as possible the privacy interests of the pilots whose
every word, utterance or sound is recorded. Repre
sentatives of pilots at hearings before the inquiry
had expressed concerns about the unusual invasion
of privacy in the workplace created by CVR's and
had urged an absolute privilege except for pur
poses of investigations made to further aviation
safety. An absolute privilege was not recommend
ed and was not enacted by Parliament. Section 32
(formerly subsection 26(1)) does define a privilege
for a cockpit voice recording, and the Act provides
that except as provided by the statute no person,
including anyone to whom access is provided under
the Act, shall knowingly release it or permit it to
be released, or be required to produce it or give
evidence relating to it in any legal, disciplinary or
other proceedings (subsection 33(1), formerly sub
section 26(2)).
Neither the Report nor the statute include
provisions directly relating to ownership of the
tape recording or its content and no provision
relates directly to access to the recording by the
owner, except in so far as section 21 (formerly
section 16) may be applicable to circumstances
where, as here, the recording has been seized by or
on behalf of the Board and the owner seeks to
recover it. Antedating the Report and the statute,
Air Navigation Order, Series II, No. 14 ([Cockpit
Voice Recorder Order] C.R.C., c. 37), made under
the Aeronautics Act, R.S.C., 1985, c. A-2, has
provided that a commercial aircraft, like the one
here owned by the plaintiffs, C-GSAS, is not to be
operated unless it is equipped with a serviceable
and functioning cockpit voice recorder. The plain
tiffs' aircraft was equipped with a CVR which
they owned, including the tape, once contained in
the recorder, which continues to be retained by the
Board.
The Act affects the owner's rights in the CVR
and the recording in certain specified ways. The
CVR and the recording are subject to seizure by
an inspector under paragraph 19(c) (formerly
paragraph 15(1)(c)) which gives rise to an obliga
tion on the part of the Board to return the seized
property to the owner (subsection 21(1); formerly
subsection 16(1)); a recording that relates to a
matter being investigated is bound to be released
to the Board or an investigator who requires access
for the investigation (subsection 33(2), formerly
subsection 26(3)); the recording is subject to privi
lege as defined in the Act and is not to be released
except as provided in subsections 33(1) and (2)
and section 34 (formerly subsections 26(2),(3) and
(6)); and the recording shall not be used against
certain persons, including aircraft crew members
and air traffic controllers, or against any person in
any disciplinary proceedings or proceedings with
respect to the capacity or competency of any offi
cer or employee to carry out his duties and func
tions (section 35, formerly subsection 26(8)).
"Release" is defined in section 2, in relation to any
information, document, recording or statement as
meaning to communicate, disclose, or make avail
able the information, documents, recording or
statement. The obligation of the owner to release
the recording to the Board or an investigator does
not otherwise affect the owner's interests in the
recording.
I am not persuaded by the defendant's argument
that there is a conflict between the owners' right to
recover under section 21 (formerly section 16)
from the Board a recording that has been seized
and the privileged status of a cockpit voice record
ing under sections 32 to 35 (formerly section 26).
Privilege is attached to the recording whether it be
in the possession of the owners, the Board or any
other person to whom it is released in accordance
with the Act. Possession of the recording by the
owner, particularly after an investigation by the
Board is completed, is irrelevant to the purposes of
the Act and the functions of the Board.
One of the concerns expressed on behalf of the
Board was that the privilege attached to the
recording was designed in part to prevent abuse of
employees' rights by an owner who had access to
the information recorded on the tape. Section 35
(formerly subsection 26(8)) precludes use of the
recording in disciplinary or other proceedings,
including legal proceedings except for limited pur
poses in civil actions. Moreover, as the Dubin
Inquiry Report indicates, in some parts of the
industry the relationship of owner/operators and
their employed pilots in regard to use of the
recording is regulated by collective agreements.
Absent any statutory limitation, that relationship
continues to be a matter regulated by whatever
contract arrangements may apply to the employ
ment relationship, no doubt influenced by practice
in the industry. Those matters are not within the
direct concerns of the defendant Board.
Conclusion
It is my conclusion that the privilege attached to
a cockpit voice recording under the Act does not
conflict with the right of the owners of a recording
to recover it, after seizure by an investigator for
the Board when the purposes of the Board have
been fulfilled by completion of its investigation.
The plaintiffs are entitled to the return of the
recording in accord with section 21 (formerly sec
tion 16), or at least to a complete transcript of it if
that is satisfactory to them as would appear from
the relief sought.
The defendant submitted that if an order were
to be made granting the relief sought by the
plaintiffs that order should be subject to terms and
conditions controlling and limiting release of the
information and the uses to which the information
may be put. In large part those conditions are set
out in the Act, in particular by the privilege
assigned to cockpit voice recordings under subsec
tion 33(1) (formerly subsection 26(2)) and the
limitation on its use implied in that provision and
made explicit in section 35 (formerly subsection
26(8)).
In providing for an order to be made on the
owner's application for return of materials seized,
the Act does refer to terms or conditions necessary
or desirable to ensure it is safeguarded and pre
served for any purpose for which it may subse-
quently be required by the Board under the Act
(subsection 21(3); formerly subsection 16(3)). The
order made herein will include a term for that
purpose in the event the recording seized, rather
than a transcript of its contents, is returned to the
plaintiffs.
From the affidavit of Mr. Shoichet, president of
the plaintiff companies, it is apparent that the
return of the recording is desired for two reasons,
for examination by the plaintiffs' counsel and his
consultants in assessing and preparing the claims
of the plaintiffs in the action T-2145-85 against
Her Majesty, and for examination by the affiant
himself for purposes of understanding the incident
with a view to improving aviation safety. I agree
that the plaintiffs' interests in aviation safety are
as significant for their operations as those of the
Board, but their access to the recording for this
purpose is, as I have indicated, a matter of the
legal relationship between Sky Charter and its
pilots. As for the first purpose, to have access for
counsel, that would seem at first glance to violate
the privilege attaching to the recording under sub
section 33(1) (formerly subsection 26(2)) which
applies whether the recording is in the possession
of the owner, the Board or anyone else authorized
under the Act.
On the other hand, counsel advising the plain
tiffs may be considered as an extension of the
plaintiff companies, the advice from counsel about
possible legal proceedings is itself privileged, and it
is my view that the interests of justice warrant
return of the recording to the plaintiffs on terms
permitting access to the recording by counsel and
his consultants. This Court's authority under sub
section 21(3) (formerly subsection 16(3)) is to
order the recording seized to be returned where
"the court is satisfied that the thing seized has
served the purpose for which it was seized or
should, in the interests of justice, be returned ...."
When returned, access by counsel and his consult
ants to the recording should be on a confidential
basis solely for purposes of advising the plaintiffs
in relation to action T-2145-85. Counsel and any
of his consultants would have access subject to the
privilege attached to the recording under the Act.
While section 34 (formerly subsection 26(6)) does
not directly cover a situation where the owners of a
recording seek to use the recording in an action,
the owners' interests are still subject to the privi
lege attaching to the recording under subsection
33(1) (formerly subsection 26(2)), and any use in
the other action which would violate the privilege
should be authorized by the same process as set
out in section 34 in the case of any other party to
the action seeking production or discovery of the
recording.
An order will go declaring that the plaintiffs are
entitled to return of the recording seized on behalf
of the Board, or a transcription of its entire con
tent, and directing its return to the plaintiffs. The
order will incorporate terms limiting its use or
release and providing for preservation of the
recording if it is returned, in accord with these
reasons.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.