In a previous post, we reported the decision of Justice Strathy of the Ontario Superior Court requiring production by the TSB of the cockpit voice recording taken from the Air France A340 which crashed at Toronto Airport on August 2, 2005.
That decision was appealed by the TSB to the Court of Appeal for Ontario which recently dismissed the appeal and confirmed the decision of Justice Strathy. Click here for the Court’s ruling.
In its appeal, the TSB argued that the motion judge had failed to apply the proper legal test set out in Section 28(6) of the Canadian Transportation Accident Investigation and Safety Board Act (the “Act”) for determining whether production of the CVR should be ordered. The Court of Appeal disagreed, approving the “thoughtful and comprehensive reasons” of the motion judge who balanced the “public interest in the proper administration of justice” against the “importance of the privilege attached to the CVR” by the Act.
The TSB argued that only in circumstances which were “exceptional”, “rare”, “compelling” or “unusual” should production of the CVR be ordered. The Court of Appeal rejected this position concluding:
“What the Court must find is that in the particular case, the public interest in the administration of justice outweighs the importance attached to the statutory privilege.”
These decisions provide an authoritative analysis of the test in the Act for release of the CVR, which will assist the parties to aircraft crash litigation in obtaining access to the highly relevant cockpit voice recordings.