Aug 7, 2014

Originally published on February 24, 2010 on the Alexander Holburn Beaudin + Lang LLP Aviation Law Blog: http://aviationlawblog.ahbl.ca/

Author: Alexander Holburn Beaudin + Lang LLP


A judge of the Ontario Superior Court has ordered the Canadian Transportation Safety Board to produce a copy of the cockpit voice recording (“CVR”) in the multi-million dollar litigation which followed an overrun accident at Toronto’s Lester B. Pearson Airport. On August 2, 2005, Air France Flight 358 approached Toronto Airport in a severe thunderstorm. The aircraft landed almost halfway down the 9000 foot runway and reverse thrusters were not fully deployed for a further 17 seconds. The aircraft left the end of the runway at approximately 80 knots, continuing over an open area until it slid into a ravine where it caught fire. Click here for the Court’s ruling.

ICAO Annex 13, dealing with “Aircraft Accident and Incident Investigation”, provides that cockpit voice recordings and related transcripts shall not be made available unless a judge determines that disclosure outweighs the adverse effect on the integrity of future accident investigations. In the United States and Europe, where domestic legislation echoes the ICAO language, safety authorities commonly disclose some or all of the contents of cockpit voice recordings, often attaching them as an appendix to accident investigation reports.

In Canada, the Transportation Safety Board has been far more rigorous in protecting the legal privilege conferred upon cockpit voice recordings by Section 28 of the Canadian Transportation Accident Investigation and Safety Board Act. The disclosure of cockpit voice recordings has been aggressively opposed by Canadian pilot unions, who express concern that the contents of the recordings may be used for disciplinary purposes against pilots and argue that pilots may disable cockpit voice recorders rather than permit possible disclosure.

The Ontario Superior Court judge concluded that the CVR contained “highly relevant, probative and reliable evidence that is central to the issues in the litigation”. He found that there was no basis upon which one could conclude that the release of the CVR in this case (under appropriate restrictions of confidentiality) would interfere with aviation safety or damage relations between pilots and their employers. On the contrary, he found that without the CVR evidence in this case, there would be a real risk that the parties and the Court would not have the best and most reliable evidence concerning the central issues in the case. This case has been appealed by the Transportation Safety Board. If the Court of Appeal sustains the trial court decision, it will provide a powerful precedent for a more balanced approach to the production of CVRs in Canada.