Halifax plane crash voice recording can be disclosed in civil case, Supreme Court rules

[conehead]

I'm surprised this hasn't been posted yet.. what are your thoughts folks?

Transportation Safety Board opposed release of recording

 

Jim Bronskill · The Canadian Press · Posted: Nov 25, 2022 1:02 PM AT | Last Updated: November 25

 

Air Canada flight AC624 crashed in March 2015 during a snowstorm at Halifax Stanfield International Airport. The Transportation Safety Board of Canada described the accident in a release as a 'collision with terrain,' though airline officials called it a 'hard landing.' (Andrew Vaughan/Reuters)

The cockpit voice recording from an Air Canada plane that crashed on a Halifax runway can be disclosed to parties in a class-action lawsuit, the Supreme Court of Canada has ruled.

In a 7-2 judgment Friday, the top court upheld a Nova Scotia judge's decision to make the recording available on the basis it contained information that was reliable, relevant and key to resolving the dispute.

Several people were injured when Flight AC624 landed in wind and heavy snow in late March 2015, prompting a lawsuit against Air Canada, plane manufacturer Airbus S.A.S. and others.

The plane, arriving from Toronto, hit the snow-covered terrain short of the runway, bounced into the air and struck the ground twice more before sliding along the tarmac and coming to rest. Twenty-five people were taken to hospital.

In preparing a public report on the accident, the federal Transportation Safety Board drew on a variety of materials, including the recording of conversations among flight crew members and other sounds in the cockpit.

 

A Transportation Safety Board investigator inspects an engine at the crash site of Air Canada AC624 that crashed during a snowstorm, at Stanfield International Airport in Halifax on March 30, 2015. (Andrew Vaughan/Reuters)

A statutory privilege of confidentiality applies to cockpit voice recordings, meaning the authorization of a court or coroner is needed before they can be used in legal proceedings.

Gaps in record

Halifax lawyer Ray Wagner and his firm represent more than a hundred passengers in the class-action lawsuit against Air Canada, Nav Canada, Transport Canada, the Halifax International  Airport Authority and Airbus.

The lawsuit was filed on April 28, 2015, in the Nova Scotia Supreme Court and Wagner said it can now proceed.

He said while the defendants were collectively responsible for the accident, having a complete record was important for assigning proportional responsibility.

"[Passengers] want to have it resolved. They want to move on with their lives. And some people need it because they can't work and they need care," he said.

Wagner said the cockpit voice recording is necessary to fill in gaps in the evidentiary record.

According to Wagner, there were two competing interests that the judges had to weigh — the privacy of the pilot and co-pilot and the interest of the administration of justice. 

"The big question was balancing those two important interests to determine which is the prevailing interest here," he told CBC News..

"The pilot and co-pilot didn't have a great recollection of the nuances and the particulars and the communications in the cockpit as it approached to Halifax International Airport. And so there were gaps."

Wagner said he does not have a timeline for when the cockpit voice recording will be turned over to his firm but expects it should be within 10 days.

 Airbus wanted access

Airbus S.A.S. sought access to the voice recording and a transcript, arguing it was necessary for a fair trial — a move the Transportation Safety Board, though not a party in the class action, opposed in court.

A Nova Scotia judge refused to allow the safety board to make submissions in the absence of other parties and the public. He also directed the board to produce a copy of the recording and transcript for use in the class action under "very stringent conditions," limiting disclosure to the parties and their experts, consultants, insurers and lawyers in order to preserve confidentiality.

The Nova Scotia Court of Appeal upheld both the refusal to hear private submissions and the disclosure order, prompting the safety board to take its case to the Supreme Court of Canada.

The board contended that Parliament's aim in establishing the privilege attached to cockpit voice recordings — protecting pilot privacy and promoting public safety in air transportation — would be undermined if the Halifax recording were disclosed in the class action.

No reviewable error

In writing for a majority of the Supreme Court, Justice Nicholas Kasirer found the Nova Scotia judge made no reviewable error in refusing to allow the board to make closed-door submissions in the matter, nor in ordering disclosure of the recording.

Kasirer said it was evident the judge applied the correct test concerning disclosure, properly identifying and weighing the two competing interests — the public interest in the proper administration of justice and the public interests underlying the privilege.

"The overall weighing of the factors by the chambers judge was fact-driven and discretionary. Based on the evidence and the strength of his findings of fact, he was entitled to conclude that limited production should be ordered," Kasirer wrote.

"Others might have balanced differently by assigning more weight to some of the factors and less to others in the circumstances. But absent an error of law, a palpable and overriding error of fact or proof that discretion has been abused, the chambers judge's balancing should not be disturbed."

[Moon The Loon]

There are going to be a lot of erased CVR's as a result of this decision. Litigators all started this in NZ about 15 years ago. So here goes TC's next regulation, similar to what they have in India - The erase functions of CVR's is to be disabled.

And there goes one of the most important tools of accident investigation.

"Mixture, Pitch, Power, Gear, Flaps, Identify, Confirm, Feather, ERASE!"

[Kip Powick]

20 minutes ago, Moon The Loon said:

There are going to be a lot of erased CVR's as a result of this decision. Litigators all started this in NZ about 15 years ago. So here goes TC's next regulation, similar to what they have in India - The erase functions of CVR's is to be disabled.

And there goes one of the most important tools of accident investigation.

"Mixture, Pitch, Power, Gear, Flaps, Identify, Confirm, Feather, ERASE!"

I'm sorry, I don't follow you.... are you  advocating that we, pilots, want to have the ability to erase a CVR. . If not, who is erasing the CVRs.....?.......as far as I know pilots can not erase the CVR.

If the erase function of a CVR is disabled how to we lose the most important tool of an accident investigation??

As you can tel...I'm a little confused 

[Guest2]

11 hours ago, Kip Powick said:

I'm sorry, I don't follow you.... are you  advocating that we, pilots, want to have the ability to erase a CVR. . If not, who is erasing the CVRs.....?.......as far as I know pilots can not erase the CVR.

If the erase function of a CVR is disabled how to we lose the most important tool of an accident investigation??

As you can tel...I'm a little confused 

Seems that it can be done at least based on this but only after engine shutdown.

The standard (EUROCAE ED-112) provide for a means to erase voice and video recordings following completion of a flight. Interlocks prevent erasure before the aircraft has landed safely (on ground, engines off). Mostly political so that idle comments made in flight aren't used by the airline against the pilots. Not too likely though as the CVR has to be removed from the a/c before any recordings can be offloaded. 

– Gerry

 

CVR Erase Function | IFALPA Abstract

In view of recent developments, the Federation believes that it is necessary to restate its position that a Cockpit Voice Recorder (CVR) erase function, accessible by the flight crew, should continue to be installed in the flight deck of all commercial transport aircraft. There have been numerous examples of CVR recordings being used for purposes other than accident or serious incident investigation, including publication in the media (e.g. American Airlines flight 965 and GOL flight 1907) and listening to flight crew conversations by airline staff for internal use.

 

The following from our Canadian regulations say you may not but the cvrs can be installed with an erase button but you are forbidden to use it.  ......

 

 

Requirements

(1) Subsection 605.34(5) of the CARs states that no person shall erase any communications that have been recorded by a cockpit voice recorders.

You may find the following of interest where it mentions the CVR.

FM010_Appellant_Transportation-Safety-Board-of-Canada.pdf (scc-csc.ca)

[Jaydee]

3 hours ago, Skeptic said:

Seems that it can be done at least based on this but only after engine shutdown.

Many moons ago I flew with a 747 Capt, (who happened to be an accident investigator for the union), his last action on EVERY leg was to reach up and hit the erase button. I asked him why. He said, Obviously we made it here safely with no problems so it’s ours and only our business what was said and done on this flight. PYA

[Moon The Loon]

16 hours ago, Kip Powick said:

I'm sorry, I don't follow you.... are you  advocating that we, pilots, want to have the ability to erase a CVR. . If not, who is erasing the CVRs.....?.......as far as I know pilots can not erase the CVR.

If the erase function of a CVR is disabled how to we lose the most important tool of an accident investigation??

As you can tel...I'm a little confused 

Hi Kip: I think Skeptic elaborated what I tried to say as far as the ability to erase the CVR record. My concern is if there is a mishap where one or more of the flight crew members survives an incident, there currently exists this ability to erase valuable information, helpful to accident investigators, so the crew member(s) do not self-incriminate down the road during any litigation.

Hence my conjecture that TC may react to this Supreme Court ruling with legislation to prohibit erasure of the CVR.

I am personally appalled the SC has made this decision.

Do you (and other forum participants) recall the debate on recording cockpit video additionally to audio? I recall there was absolute condemnation of the proposal, partly as a result of a CVR recording from a New Zealand flight that the lawyers down there got hold of and used against a crew. I think there was an incident in Manitoba a few years ago where lawyers tried to use a CVR recording against a crew. I can't recall the outcome of that event.

Hope that helps.

Edited November 29, 2022 by Moon The Loon

[conehead]

Here's a case in B.C. where a judge ordered the release of the recording...

https://www.cbc.ca/news/canada/british-columbia/yvr-plane-crash-cockpit-voice-2017-1.3999375

 

[Kip Powick]

4 hours ago, Moon The Loon said:

 

Hence my conjecture that TC may react to this Supreme Court ruling with legislation to prohibit erasure of the CVR.

I am personally appalled the SC has made this decision.

Do you (and other forum participants) recall the debate on recording cockpit video additionally to audio? I recall there was absolute condemnation of the proposal, partly as a result of a CVR recording from a New Zealand flight that the lawyers down there got hold of and used against a crew. I think there was an incident in Manitoba a few years ago where lawyers tried to use a CVR recording against a crew. I can't recall the outcome of that event.

Hope that helps.

OK Thanks for the clarification, however, I do differ with anyone who advocates being able to erase a CVR but I do so with a caveat. If I were King, "CVR audio may only be used by authorized incident/accident investigators and will not be made available  to any, and all, non-authorized persons, or groups of persons. Unauthorized personnel obtaining  any  CVR audio  will be prosecuted to the fullest extent of the law with minimum fines of $1,000,000.00 in addition  to 15 years in prison".  

Well, you know what I just wrote will never see the light of day, however  I still beieve that CVRs should never be erased by flight crews. They should, however, be only available to Incident / Accident Investigators.

Flight crew who erase the CVR after a successful  flight, in my opinion, suffer from a slight case of paranoia.

[boestar]

It is actually in the TSB Mandate that the CVR FDR  NOT be used in this fashion or for this purpose.  This is a bad decision that I hope gets appealed

 

[st27]

Don’t you think it’s odd that a government can hide behind solicitor client privilege or cabinet confidence in making  decisions regarding personal freedoms, at the same time claiming clear and transparent government,  but the Supreme Court rules to release the CVR tapes??

Food for thought.

[Moon The Loon]

15 minutes ago, boestar said:

It is actually in the TSB Mandate that the CVR FDR  NOT be used in this fashion or for this purpose.  This is a bad decision that I hope gets appealed

 

A Supreme Court of Canada decision cannot be overruled/appealed. UNLESS Parliament enacts CVR legislation prohibiting its use by litigators. Like some legislation, it could be made retroactive.

[Moon The Loon]

1 hour ago, Kip Powick said:

 If I were King, "CVR audio may only be used by authorized incident/accident investigators and will not be made available  to any, and all, non-authorized persons, or groups of persons. Unauthorized personnel obtaining  any  CVR audio  will be prosecuted to the fullest extent of the law with minimum fines of $1,000,000.00 in addition  to 15 years in prison".  

Well, you know what I just wrote will never see the light of day, however  I still beieve that CVRs should never be erased by flight crews. They should, however, be only available to Incident / Accident Investigators.

Flight crew who erase the CVR after a successful  flight, in my opinion, suffer from a slight case of paranoia.

Agree. In a perfect world.

[Vsplat]

Hmmm.

Well there's no doubt the Supreme Court's decision is disappointing. That said, this won't be the first case where that information was accessed and the sky has not fallen.

Since the CVR and FDR first came into being, we've seen the introduction of all sorts of on board recording, much of it in the hands of passengers and the the crew themselves (think that landing captured on GoPro is protected in court?).    All of that video and audio captured in the wild, along with the engine monitoring, fms non volatile memory, etc, etc is fair game.  Personally, I think I might prefer to have official data, intepreted by actual experts, there to combat the sensionalised BS from buddy's iPhone.

But that's just me.

Vs

Edited November 30, 2022 by Vsplat

[boestar]

its in the ACT.  How is the supreme court overturning this law.

 

Privilege for on-board recordings

(2) Every on-board recording is privileged and, except as provided by this section, no person, including any person to whom access is provided under this section, shall

• (a) knowingly communicate an on-board recording or permit it to be communicated to any person; or

• (b) be required to produce an on-board recording or give evidence relating to it in any legal, disciplinary or other proceedings.

[Airband]

1 hour ago, boestar said:

its in the ACT.  How is the supreme court overturning this law.

They're not overturning it, they're acting within it:

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.

[Vsplat]

It's a very, very thin line. A I read the TSB Act, the term 'court' is defined and is not just any judicial proceeding.  I'm not sold that a class action suit meets the test.

I know the supreme court is supposed to be the end of the line, but in this case, I think maybe there's more to come.

Vs

[Moon The Loon]

9 hours ago, boestar said:

its in the ACT.  How is the supreme court overturning this law.

 

Privilege for on-board recordings

(2) Every on-board recording is privileged and, except as provided by this section, no person, including any person to whom access is provided under this section, shall

• (a) knowingly communicate an on-board recording or permit it to be communicated to any person; or

• (b) be required to produce an on-board recording or give evidence relating to it in any legal, disciplinary or other proceedings.

The Supreme Court can rule a rule/Act invalid. An Act cannot reverse a SC ruling. They can reinstate a similar act with conditions.

[IFG]

7 hours ago, Vsplat said:

It's a very, very thin line. A I read the TSB Act, the term 'court' is defined and is not just any judicial proceeding.  I'm not sold that a class action suit meets the test ....

• "Definition of court
• "(8) For the purposes of subsection (6), court includes a person or persons appointed or designated to conduct a public inquiry into a transportation occurrence pursuant to this Act or the Inquiries Act."

Hi, Vsplat - I think that section may broaden any generic definition of 'court', rather than trimming it (not a lawyer, just my $0.02  ... Hey, UpperDeck Esq?)

Re: "That said, this won't be the first case where that information was accessed and the sky has not fallen." - Sadly agree.

IAC, for those trying to wrap their heads around the subtleties, here's a dispassionate summary:

Determining Qualified Privilege Applicable to On-Board Recordings in Transportation Cases – The Canadian Perspective

Cheers - IFG 

Edited December 1, 2022 by IFG