Court Ruling to Release CVR Data

[J.O.]

This is going to be interesting. 
 

https://www.msn.com/en-ca/news/canada/passengers-win-court-challenge-in-lawsuit-over-2015-air-canada-crash/ar-BBX3TdH?ocid=spartandhp

[Seeker]

....and all the promises made when the technology was installed are cast aside by an ignorant judge.  All the discussions held in his chambers over the years have relevance to the parties involved, I wonder if he will be releasing that information?  No?  Why not?

[JL]

Happened with Air France A340 overrun too.

[Seeker]

1 minute ago, JL said:

Happened with Air France A340 overrun too.

Yes, it's happened before and every time it's get s little easier to justify.

[boestar]

10 hours ago, J.O. said:

This is going to be interesting. 
 

https://www.msn.com/en-ca/news/canada/passengers-win-court-challenge-in-lawsuit-over-2015-air-canada-crash/ar-BBX3TdH?ocid=spartandhp

Slippery Slope.

[boestar]

Hmmmmm.  Why does the CVR Circuit breaker keep popping on every aircraft I fly.....

We have been down this road in the past.

 

 

[J.O.]

The TSB should be first in line speaking out against this.

[Don Hudson]

The notion of "the public interest" is the sole legal justification for this and previous rulings by Canada's courts.

The court's ruling is wrong. Such release of safety data does not serve "the public interest."

There is no other good reason to release CVR data, and plenty of good reasons not to.

For good and demonstrable reasons, flight safety programs such as confidential reporting systems, flight data monitoring systems, incident review systems and SMS are protected by confidentiality agreements. Such programs are staffed by experts who are trained and experienced in flight safety work.

Left to their design and purpose, such safety systems are proven to work effectively, while time and again, the release of, and even the legal threat to release flight safety data is proven to "chill" such safety programs, potentially destroying earned, long-term trust in the integrity of such programs.

Trust and integrity are the only currencies that flight safety programs possess. Once trust in such programs is destroyed, it is extremely difficult to regain.

Any ruling that threatens such programs by the public release of the products of such flight safety programs for narrow, possibly-picayune justifications therefore acts against "the public interest". There is no evidence that such rulings enhance airline and aviation safety or "the public interest".

This is because "the public interest" is already best-served by robust, effective and confidential flight safety programs.

The "interesting case" would be a countersuit, arguing the above, brought by the TSB, ATAC and all Canadian pilot associations.

 

[Vsplat]

Don, you will know that I agree with you.

How many times of late have we seen the progress of ignorance and rank over expertise and reason? 

It almost has the appearance of ageism in law.  If a law or standard is too old, it must be obsolete.  A court presumes to sight read the situation and upend a safeguard.

I wonder how long it will be before an enquiry into this mistake is triggered by its payload.

Vs

[J.O.]

Of course I completely agree with my two learned colleagues above. The problem is Section 28 of the TSB ACT includes language that allows such court rulings for “public interest”. Is this new? I don’t pretend to know all of the acts and regulations but I do not recall seeing this language in the past ...

Quote

Power of court or coroner

(6) Notwithstanding anything in this section, where, in any proceedings before a court or coroner, a request for the production and discovery of an on-board recording is made, the court or coroner shall

• (a) cause notice of the request to be given to the Board, if the Board is not a party to the proceedings;

• (b) in camera, examine the on-board recording and give the Board a reasonable opportunity to make representations with respect thereto; and

• (c) 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 on-board recording by virtue of this section, order the production and discovery of the on-board recording, subject to such restrictions or conditions as the court or coroner deems appropriate, and may require any person to give evidence that relates to the on-board recording.

 

[Don Hudson]

The definition of what consitutes "the public interest" needs to be examined and where necessary, challenged if this is what it permits.

This isn't good enough for a risk-based business such as aviation that, unlike some endeavours which eschew reality, must deal in hard and present realities and, ultimately, in life-and-death processes, decision-making and accountabilities.

[Vsplat]

I don't believe the wording is new, but its application is.

AFAIK that provision was intended to allow assistance to a coroner's inquest or other enquiry (as Dubbin or Dryden) to have full access to information they may need in the pursuit of public interest.  In this case, it appears to me there is a much narrower application, that being civil litigation.

Put another way, I sincerely doubt that the lawyers seeking this release would give a second's consideration to a collateral finding that improved safety but did not get their clients a nickel.  I could, of course, be wrong.

Vs

[Airband]

Quote

Conclusion

[61]        Video recordings are used in places where safety and security of the person or of property are important concerns. Thus, audio and visual recordings in the workplace are common today. As a general observation we have found that societal interests are well served where the frailties of human observation and memory can be supplemented by such recordings to ensure that the truth-seeking exercise is best served.

[62]        Parliament has accorded a privilege to the recorded workplace communications that take place in an aircraft’s cockpit. In doing this, however, Parliament has seen fit to give discretion to the courts to determine how the public interest is best served when competing interests clash over whether there should be exemption to the privilege granted.

[63]        I have concluded that, in the circumstances of this case, the public interest in the administration of justice outweighs the importance attached to the statutory privilege protecting the cockpit voice recorder.

[64]        The contents of the CVR are relevant and reliable. The conversation recorded does not contain private or scandalous material.

[65]        This litigation is important and substantial both in personal, and in monetary, terms. It is important that the process of determining the claims is fair to all parties and provides the best opportunity for the court to fulfill its function in trial. The public interest is served in this way.

[66]        Section 7(1)(d) of the Class Proceedings Act provides that in certifying an action it is, among other things, important to achieving a fair and efficient resolution of the dispute. Behaviour modification is an objective of a class action. This too provides a public interest rationale for transparency in the litigation process.

[67]        The flight crew’s Discovery evidence showed gaps in their ability to provide relevant and material facts about their conduct at material times in the flight. This information is important to having a complete understanding of the crew’s awareness and response to factors that were significant to the decision to land the aircraft in the conditions existing at that time. 

[68]        Notwithstanding the able arguments to the contrary, I am not convinced that the release of the CVR under the very stringent conditions proposed would interfere with aviation safety, damage relations between pilots and their employers, or would impede investigation of aviation accidents.

[69]        For these reasons, the TSB is required to produce a copy of the CVR and transcript to counsel for use in this litigation. Subject to any further order of the trial judge, these records shall remain confidential and shall be used for the purposes of these proceedings only. They shall not be disclosed by the parties to anyone other than their experts, consultants, insurers and lawyers, without further order of the court. The provisions of Section 28(7) of the TSB Act will apply.

'Balancing the Competing Interests'

[Don Hudson]

Thanks, Airband.

[UpperDeck]

There is of course, a perspective that is that of someone who does not have a vested interest in confidentiality; someone actually versed in the law but with SOME appreciation of the issues of aviation safety......but I doubt that perspective is of any interest to this audience.

[Johnny]

There are very few issues that I would consider dropping tools for, this is definitely one of them.

[Don Hudson]

The basis for and the popular notion of "justice" and more recently, "the public interest" appear to me to be resident in historical tort law. Tort law, (British Common Law) supercedes private confidentiality agreements of all kinds including those agreements intended to protect "the greater good", which is the notion that I apply to flight safety programs and processes. Clearly there will be disagreements regarding such interpretation, and I am a flight safety person and not educated/trained as a lawyer. It seems to me that one cannot argue against the long history of British Common Law, upon which Canadian law, with the exception of Quebec, is based.

But there is a broader question of judgement, which of course tort law can and does accomodate in argument; it has to be reasonably demonstrated and logically-argued and it can go either way as we have seen. Even the Nova Scotia ruling is careful to detail its considerations while taking cockpit voice recordings into the semi-public sphere.

Keeping society "safe" is a recent notion and priority, brought about chiefly through litigation and the new notion of targeted accountability. None of this is disputable in my view.

What is disputable is the claim of efficacy of the use of such data in enhancing "the public interest". The ruling claims "balance" but fails to demonstrate how such balance is materially achieved. The opposing case is easily demonstrated: release data into the public sphere, and such data-gathering, self-reporting and SMS programs will swiftly shut-down, citing the very principle that originally mandates such programs, "due diligence".

The question here is, who benefits from this ruling and why? 

 

[UpperDeck]

And I repeat my undertaking to refrain from comments regarding how one ought to operate an aircraft. LOL

"Tort law".....certainly has been a vehicle by means of which public safety has been enhanced in all methods of transportation including aviation.

"Privileged communications" in a broad sense is an area of law that is NOT specific to negligence law and is and has been an area within the law of evidence that is ever-changing.

 

As an aside.....and I welcome correction....I have a recollection that it was an aviation specialist lawyer who narrowed the causation search down on the US Airways Flt. 427 to a rudder "jackscrew". 

When an incident occurs that is captured by a CVR, I doubt that the flight crew in those crucial moments is concerning themselves ( and tailoring their remarks) with reference to the existence of a recording device. And no one is concerned with the everyday exchanges that occur in the cockpit.

If those crucial exchanges can identify communication or training issues, how can one deny that disclosure is in the public interest?

The fact that disclosure was sought and obtained within the context of a lawsuit is irrelevant much akin to blaming a pilot for a defective IFE. The existence of a lawsuit is simply a vehicle by means of which to get from A to B.