An aircraft struck the ground while attempting to land at Halifax Stanfield International Airport during a snowstorm, injuring passengers who subsequently commenced a class action.
The aircraft manufacturer brought an interlocutory motion to compel the Transportation Safety Board to produce the cockpit voice recorder and transcripts, which were protected by statutory privilege under s. 28 of the Canadian Transportation Accident Investigation and Safety Board Act.
The Board sought to make submissions in the absence of the public and other parties, which the chambers judge refused.
The Supreme Court of Canada dismissed the Board's appeal, holding that s. 28(6)(b) does not confer a general right on the Board to make submissions in the absence of other parties, and that the chambers judge did not commit a reviewable error in ordering disclosure after concluding that the public interest in the proper administration of justice outweighed the statutory privilege.
The majority held the test under s. 28(6)(c) requires the moving party to establish that the recording is relevant, probative, and necessary to resolve the dispute — not merely relevant — and that disclosure should not be routine.
Côté and Brown JJ. dissented, finding the chambers judge committed multiple reviewable errors in his balancing analysis.
