2022 ONSC 3781
DIVISIONAL COURT FILE NO.: DC-22-2701
DATE: 20220819
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATHESON, MEW & KURZ JJ.
BETWEEN:
TRANSPORTATION SAFETY BOARD OF CANADA
Applicant
– and –
DR. DAVID EDEN, CORONER
Respondent
David Wilson and David Taylor, for the Applicant
Heather Mackay, for the Respondent
HEARD: June 23, 2022 at Ottawa (by videoconference)
REASONS FOR DECISION
Matheson J.:
[1] This application for judicial review seeks to quash part of the order of Dr. David Eden, Coroner, dated April 5, 2022 (the “Decision”), made in an Inquest into the deaths of four people in a helicopter crash. The crash was an “aviation occurrence” within the meaning of the Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3 (the “CTSA”). As a result, the applicant Transportation Safety Board of Canada (the “TSB”) conducted an investigation. Documents from the investigation were later provided to the Coroner. In the Decision, the Coroner ordered the production of some information from the TSB’s investigation that the TSB submits is protected by the statutory privilege in s. 30 of the CTSA.
[2] For the reasons set out below, this application is granted.
Background
[3] In 2017, a helicopter transporting a crew of power line technicians crashed near Tweed, Ontario, resulting in the deaths of the pilot and the three technicians onboard. The TSB investigated the matter under its statutory mandate and released its investigation report in October 2019. A mandatory inquest into the deaths was announced in February 2020. As required by the CTSA, the TSB produced its investigative file to the Coroner. The file included on-board recordings and witness statements over which the TSB claimed a statutory privilege under the CTSA.
[4] The CTSA not only imposes a statutory privilege over certain documents but also prescribes the limited circumstances in which a coroner (or a court) may order the release of privileged material. The Coroner made preliminary rulings in the Decision, prior to engaging in the required decision-making process under the CTSA, in relation to anticipated requests for disclosure of the privileged material. Those rulings are the subject of this application.
[5] The Inquest hearing is expected to proceed in 2023.
Statutory regimes
[6] Two statutory regimes are the focus of this application, specifically the CTSA and the Coroners Act, R.S.O. 1990, c. C.37, which are intended to work together. That intended cooperation is reflected not only in the legislation but also in a Memorandum of Understanding between the TSB and the Office of the Chief Coroner of Ontario.
[7] The CTSA establishes the TSB, which has the objective of advancing transportation safety. As set out in s. 7 of the CTSA, the TSB fulfills that objective by conducting independent investigations into “transportation occurrences”, which include aviation accidents or incidents. The TSB is charged with conducting investigations in order to make findings about the causes of these occurrences, to identify safety deficiencies, and to make recommendations to reduce or eliminate those deficiencies. The TSB reports publicly on its investigations and findings.
[8] TSB investigators have the authority to compel witnesses to provide statements as set out in s. 19 of the CTSA. That same section provides that it is an offence to refuse to give a statement.
[9] The TSB’s mandate is broad, important, and depends to a considerable degree on the willingness of those involved to speak fully and frankly to the TSB: CNR Co. v. HMTQ et al., 2002 BCSC 1562, 8 B.C.L.R. (4th) 316, at paras. 4, 12-13, aff’d 2002 BCCA 689, 9 B.C.L.R. (4th) 247, at paras. 4, 10.
[10] The principal distinction between the roles of the TSB and the Coroner is that the federal responsibility is to investigate the cause of the accident and the provincial responsibility is to investigate the cause of death. Neither the TSB nor the Coroner make determinations of civil or criminal liability: CTSA, s. 7(2); Coroners Act, s. 31.
[11] The main focus of this application is the privilege imposed by s. 30 of the CTSA. That statutory privilege serves the above TSB mandate. All statements and witness identities, which are broadly defined in s. 30, are protected by the following statutory privilege:
30 (1) For the purposes of this section and section 19,
(a) statement means
(i) the whole or any part of an oral, written or recorded statement relating to a transportation occurrence and given, by the author of the statement, to the Board, an investigator or any person acting for the Board or for an investigator,
(ii) a transcription or substantial summary of a statement referred to in subparagraph (i), or
(iii) conduct that could reasonably be taken to be intended as such a statement; and
(b) where a statement is privileged, the identity of its author is privileged to the same extent.
(2) A statement is privileged, and no person, including any person to whom access is provided under this section, shall knowingly communicate it or permit it to be communicated to any person except as provided by this Act or as authorized in writing by the person who made the statement. [Emphasis added.]
[12] There is no dispute that there are documents now at issue that are “statements” under s. 30(1) of the CTSA.
[13] The statutory privilege promotes frankness in the giving of statements. The purpose of the privilege is to “encourage witnesses to be co-operative and forthcoming with TSB investigators, secure in the confidentiality of their evidence”: Société Air France v. Greater Toronto Airports Authority (2009), 85 C.P.C. (6th) 334 (Ont. S.C.), at para. 129, aff’d 2010 ONCA 598, 90 C.P.C. (6th) 205; see also Moore v. Reddy (1990), 44 C.P.C. (2d) 61 (Master, Ont. Gen. Div.), at pp. 63-64; Webber v. Canadian Aviation Insurance Managers, Ltd., 2002 BCSC 1414, 42 C.C.L.I. (3d) 148, at paras. 35-37; Chernetz v. Eagle Copters Ltd., 2003 ABQB 331, 335 A.R. 113.
[14] The statutory privilege is essential for the TSB’s purpose: Ouellet c. Compagnie de chemin de fer Canadien Pacifique, 2020 QCCS 1188, at para. 40.
[15] People who make statements to the TSB are entitled to rely on the statutory privilege: CNR (BCCA), at para. 4. Subsection 30(5) also gives them the right to authorize disclosure.
[16] Subsection 30(4) of the CTSA provides that all statements shall be made available to a coroner who requests access for the purpose of a coroner’s investigation. The CTSA circumscribes a coroner’s ability to disclose a privileged statement. Subsection 30(5) prescribes the process and the threshold for any disclosure:
(5) Notwithstanding anything in this section, where, in any proceedings before a court or coroner, a request for the production and discovery of a statement is contested on the ground that it is privileged, the court or coroner shall
(a) in camera, examine the statement; and
(b) 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 statement by virtue of this section, order the production and discovery of the statement, 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 statement.
[Emphasis added.]
[17] The exception to the privilege set out in s. 30(5) therefore requires that the decision maker address competing policy considerations, specifically the public interest in the administration of justice and the public interest in aviation safety that is served by the privilege: Air France (Ont. S.C.), para. 80. As shown by the cases cited in Air France, there are numerous cases that show that the privilege should not lightly be set aside.
[18] There are other privileges in the CTSA, including a privilege in s. 28 for on-board recordings, although the cases regarding on-board recordings show some differences in how those recordings are addressed: see e.g., Air France. The on-board recordings are not at issue in this application.
[19] As set out below, the Coroner has not yet embarked on the above balancing, required for any disclosure, and has not concluded that there ought to be disclosure. However, he has ordered that certain information about the documents and their content be disclosed at this juncture, which has prompted this application.
[20] There is no issue that the Coroner is required to conduct an investigation and an inquest into these deaths and determine by what means the four people came to their death, as set out in ss. 10, 15 and 31 of the Coroners Act. The purpose of an inquest is to inquire into the circumstances of the death and determine who the deceased was, and when, where, and by what means the deceased came to his or her death. An inquest has an important public interest function, as set out in s. 31(3) of the Coroners Act, to make recommendations directed at avoiding a death in similar circumstances or on any matter arising out of the inquest.
[21] There is also no issue that the Coroner is required to comply with the statutory privileges: s. 3(7) of the CTSA.
[22] As set out in s. 16 of the CTSA, the TSB is required to take all reasonable measures to ensure that its investigative procedures and practices are compatible with both Canada’s international commitments and the procedures and practices of provincial coroners. In keeping with s. 16, the parties entered into the above Memorandum of Understanding. It provides, in part, as follows:
AND WHEREAS the TSB has the knowledge, experience, skills and resources to conduct investigations into transportation occurrences to make findings as to their causes and contributing factors and identify safety deficiencies;
AND WHEREAS it is in the public interest that, during the investigation of a fatal transportation accident, the [Office of the Chief Coroner of Ontario] and the TSB coordinate their activities so that each can fulfill its obligations while optimizing the use of resources;
AND WHEREAS the parties recognize the desirability of cooperation through the exchange of information and services without compromising their respective independence;
AND WHEREAS the parties recognize the desirability of operating with minimal adverse effect on the other’s investigation;
AND WHEREAS section 16 of the [CTSA] requires the TSB to make all reasonable efforts to enter into agreements with the governments of the provinces in order to ensure that its investigation procedures and practices are compatible with those followed by coroners in the provinces;
THE PARTIES HERETO MUTUALLY AGREE AS FOLLOWS:
- SHARING OF INFORMATION …
5.7 The TSB recognizes that the information provided to the Coroner may, subject to 5.8, be used during a Coroner’s inquest.
- 8 The Coroner will be governed by the privilege provisions set out in sections 24, 25 28 and 30 of the [CTSA].
5.9 The parties will coordinate the release of information to the public by notifying each other of such release in advance. Only the TSB may release information pertaining to the causes and contributing factors of an occurrence that the TSB has investigated or intends to investigate. [Emphasis added.]
[23] As set out in para. 5.8, above, the Memorandum of Understanding acknowledges that the Coroner is governed by the s. 30 statutory privilege. Further, as set out in s. 44(3) of the Coroner’s Act, the Coroner’s right to admit evidence does not override the provisions of “any Act expressly limiting the extent to or purposes for which any … documents … may be admitted or used in evidence.”
Steps leading to the Decision
[24] Before providing the witness statements to the Coroner, the TSB contacted the witnesses. As a result, two witnesses consented to the release of their statements to the Coroner. Those statements are no longer at issue.
[25] The TSB asserted various statutory privileges over the remaining statements as well as on-board recordings. There is no issue that the TSB was obliged to assert the privileges.
[26] The Inquest parties intend to request copies of the statements received from the TSB. The Coroner acknowledges that he is required to conduct the balancing test in s. 30(5) of the CTSA before any statements can be disclosed to the Inquest parties.
[27] Prior to receiving production applications, the Coroner invited the parties to make submissions on a proposed procedure and preliminary issues relating to the adjudication of the production requests. The proposed procedure addressed the exchange of application materials and was not objected to. The Coroner also requested submissions on the following questions/topics regarding the “Preliminary Issues”:
Should the authors of the statements be notified about the Production Applications? If so, who should notify them and how?
To what extent, if any, should information about the on-board recordings or privileged statements be provided to inquest parties in advance to assist them in preparing production applications. If the information should be provided:
i. The extent of the information to be provided
ii. Who should provide this information (ex. [TSB], Coroner?)
iii. Any restrictions or conditions on the use of this information
Whether any part of the production application procedure should be ex parte and/or in camera?
Any objections or requested revisions to the proposed procedure. [Underlining added.]
[28] The Coroner held a hearing on the above preliminary issues in March of 2021. The focus was on what information, if any, the Inquest parties were entitled to have regarding the TSB investigative documents to assist them in their motions for production of those documents.
[29] The Coroner made two decisions on the preliminary issues. The first decision, dated July 27, 2021, dealt with the above questions 1, 3 and 4. The Coroner ordered that the TSB produce a list of the privileged documents before deciding question 2, and required that the list specify the specific privilege claim for each document along with other information.
[30] In the first decision, the Coroner acknowledged that the s. 30 privilege was created to further the public interest in quality investigations by ensuring that the TSB investigators could collect full and accurate information. The Coroner further acknowledged that the TSB had a duty to assert the privilege and no authority to waive it. The Coroner also underscored his fairness obligations to the Inquest parties, indicating that he needed to ensure that they could meaningfully exercise their participatory rights in the Inquest.
[31] The Coroner proceeded on the basis that the CTSA and the Coroners Act “were silent” on the above preliminary issues. The Coroner then relied on Rule 1.5 of the Chief Coroner’s Rules of Procedure for Inquests pursuant to s. 50.1 of the Coroners Act (“Rules”) as authority to make an order prescribing practice directions or procedures where necessary. The Coroner held that neither the CTSA nor the Coroners Act and Rules provided a specific procedure for adjudicating privilege claims. This could be read as contrary to s. 30(5) of the CTSA, yet it appears that the Coroner was focused on steps leading up to his required decision-making process under s. 30(5). The issues that arise on this application begin here.
[32] On questions 1, 2, and 4, the Coroner decided to notify the authors of the statements at issue, examine the on-board recording and statements in camera, receive written representations from the TSB (over which the TSB could claim privilege), and require that the TSB provide a list of the privileged documents with certain details (in respect of which the TSB could claim privilege). With regard to both potential privilege claims, the Coroner ruled that he would withhold the material from the Inquest parties pending the ultimate decisions under ss. 28 and 30 of the CTSA.
[33] The TSB provided the required list on August 31, 2021.
The Decision
[34] On April 5, 2022, the Coroner released the Decision, addressing question 2. He determined that four lists of documents would be released to the Inquest parties on April 12, 2022. Only the first list, regarding witness statements, is relevant to this application.
[35] In the Decision, the Coroner expressed frustration with what he saw as the unproductive shifting of the TSB’s position on some of the documents. He said that history provided “context” for the ruling. Whatever the Coroner meant by “context”, this frustration is not a reason to order disclosure of privileged information without satisfying s. 30(5) of the CTSA.
[36] The Coroner then reiterated his prior comments about fairness, acknowledging that the duty of fairness can be overridden by statute. The Coroner also noted that he should favour harmonious interpretations of the CTSA and the Coroners Act. However, he also repeated his prior observation that those statutes were “both silent” on the extent to which the Inquest parties were entitled to information on which to base their production requests.
[37] The Coroner agreed that he could not set aside the statutory privileges at that early stage, but also found that he could disclose what he saw as non-privileged elements of the otherwise privileged information. That characterization of certain parts of the information as “non-privileged” is at issue in this application.
[38] With respect to the privilege claimed under s. 30 of the CTSA, the Coroner agreed that it must be carefully protected and included the following:
(a) the statement itself;
(b) any part of the statement;
(c) a transcription or substantial summary of the statement;
(d) the identity of the author; and
(e) any potentially identifying information. [Emphasis added.]
[39] Despite those reasons, the Coroner then ordered that the Inquest parties would be entitled to considerable information about the statements. For each document, the Coroner would disclose its date, format (e.g., audio interview, written statement, email), length, the identity of the person taking the statement, the identity of any TSB employee who was a party to the documents that were emails, and the TSB’s original position on whether the item was privileged, if it was different from its current position. Further, the Coroner ordered the following disclosure, for all the statements in aggregate:
whether at least one statement is from a witness who:
a. observed the crash.
b. performed or immediately supervised maintenance and repairs to the helicopter or attached equipment.
c. directly interacted (not necessarily in person) with any of the deceased on the day of the accident.
d. gave instructions to any of the deceased specific to the crash flight, or
e. developed or implemented relevant policies and procedures.
[40] The Coroner reasoned that the above-noted information was not subject to the s. 30 privilege because it did not fall within the definition of “statement”. He indicated that, based on his review of the documents and his knowledge of his own investigative file, the above information was “not likely to reveal the identities of any of the authors.”
[41] The Coroner concluded that the above disclosed information would assist the Inquest parties in exercising their participatory rights in seeking production of the documents and ordered it be disclosed.
[42] The TSB commenced this application challenging the order for disclosure of the date, format, length, and release of the above information about the witness statements. The disclosure of other information would have been challenged, but it had already been disclosed in the Coroner’s April 5, 2022 reasons for decision.
Issues and standard of review
[43] The TSB raises two issues on this application:
(1) whether the Coroner erred in ordering disclosure of privileged information that is protected by s. 30 of the CTSA; and,
(2) whether there was a breach of procedural fairness in relation to the above steps.
[44] There is no applicable standard of review for the second issue – the required procedural fairness was either provided or it was not.
[45] The presumptive standard of review for the first issue is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 654, at paras. 16, 25.
[46] A reasonable decision is one that is based on an internally coherent reasoning and is justified in light of the legal and factual constraints that bear on the decision: Vavilov, at paras. 102, 105.
[47] Significant to this application, the relevant constraints that bear on the reasonableness of the Decision include the governing statutory regime, the principles of statutory interpretation, and other relevant statutory or common law principles, among other factors: Vavilov, at paras. 108-110 and 111-124. Questions of whether the decision-maker overstepped his jurisdiction are also a part of a reasonableness review: Vavilov, at para. 137.
[48] The decision-maker must interpret a contested statutory provision in a manner consistent with its text, context, and purpose, to discern meaning and legislative intent: Vavilov, at para. 121.
[49] The TSB submits that the Decision is unreasonable because it fails to follow the governing statutory regime, as follows:
(i) it is contrary to s. 30 of the CTSA, a governing statutory regime that mandates the procedure for any disclosure of statements protected by the statutory privilege;
(ii) it wrongly allows for disclosure before undertaking the balancing mandated in s. 30(5) of the CTSA and deciding that disclosure is warranted under that test;
(iii) it wrongly characterizes privileged information as not privileged, contrary to the broad scope of the privilege in s. 30 of the CTSA; and,
(iv) it wrongly construes the statutory privilege as subject to the Coroner’s jurisdiction to conduct the Inquest.
[50] The TSB further submits that the Decision is unreasonable because it does not apply well-established common law principles regarding privilege and confidential information.
Analysis
[51] Standing back from the detailed argument in this case, it is apparent what the Coroner was trying to do – he was trying to give as much information as possible to the Inquest parties to facilitate informed submissions about whether or not the privileged statements should be produced. While that objective is understandable, it led, in this case, to an unreasonable narrowing of the statutory protection that all agree must be upheld. Disclosure may only be made by the Coroner after examining the documents in camera, undertaking the required balancing under s. 30(5) of the CTSA, and concluding that disclosure ought to be ordered.
[52] The starting point is the statutory regime and long-standing principles of statutory interpretation.
[53] There is no issue that the words of the CTSA must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act as well as the intention of Parliament: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; see also Interpretation Act, R.S.C. 1985, c. I-21, s. 12.
[54] The TSB submits that the Coroner misstated the statutory test for disclosure in his reasons for decision. The reasons quote s. 30(5) as authorizing a coroner to set aside the privilege if the coroner concludes that the “public interest and proper administration of justice outweighs in importance the privilege” (emphasis added). The statute actually says the “public interest in the proper administration of justice” (emphasis added). While I agree that the reasons contain an error, I proceed on the basis that it was a typo, not a failure of analysis. The Coroner was not, in any event, engaged in that balancing in the Decision. I do not see this typo as an issue.
[55] The issues begin with the finding in the Decision that the CTSA is “silent” on the procedure for disclosure. Assuming this was meant to refer very generally to the procedural steps in an Inquest, it could be so. But the question being decided, as put forward by the Coroner, was about disclosure. Question 2 asked to what extent, if any, information about privileged statements should be provided to the Inquest parties. The CTSA is not silent on that subject. The mandatory procedure for disclosure of statements is set out in s. 30(5). The Coroner erred in approaching question 2 as if there was no prescribed procedure for disclosure.
[56] This misstep led to the formulation of a new procedure that conflicts with s. 30(5). In essence, the Coroner crafted a procedure that called for a document by document disclosure of specific facts, along with general information from the collection of documents. The Coroner found that this disclosure was “not likely” to reveal the identity of any of the authors. This procedure is contrary to both the words of the CTSA and the objectives of the statutory privilege. Subsection 30(1) broadly protects the authors of statements, subject only to s. 30(5), not subject to a likelihood test.
[57] As discussed above, the privilege serves the objective of advancing transportation safety by encouraging frankness, and people who make statements (i.e., authors) are entitled to rely on the statutory privilege. The Coroner may decide to disclose, but only if he concludes that the public interest in the proper administration of justice outweighs in importance the privilege attached to the statements (including the identity of the authors). The question is not whether some disclosure is “likely” to reveal the identity of the authors.
[58] This concept of a threshold based on likelihood is also in conflict with the Coroner’s own conclusion, at para. 28 of his reasons for decision, as follows:
To give effect to the purpose of the privilege, I should avoid disclosing any potentially identifying information at this time. [Emphasis added.]
[59] Before this Court, the Coroner submits that the TSB has “proffered no evidence” to support the “supposition” that the Inquest parties could ascertain the likely author of a statement. This submission shows the problem with introducing a “likelihood” test where none was intended. Introducing an evidentiary debate on this topic would either be unproductive or risk further diluting the privilege because it would encourage disclosure.
[60] The Decision rests in part on a conclusion that the information ordered disclosed is not privileged. The Coroner did not accept a broad interpretation that s. 30 protects information that might implicitly reveal an author’s identity. This is contrary to both the broad statutory language and the purpose of the privilege, which favours protecting statements and authors subject only to the exception in s. 30(5) of the CTSA.
[61] Subsection 30(1) broadly defines “statement” to encompass not only the whole statement but any part of it. It includes any substantial summary of a statement. It includes conduct that could be intended as a statement. It protects the author of a statement in the same manner as the statement itself. This definition shows a clear intention that the privilege be wide-ranging and comprehensive: CNR (BCSC), at para. 7; Chernetz, at para. 65.
[62] The Coroner further submits that the TSB has not offered any case law to support a broad reading of s. 30(2). That subsection prohibits communication of a privileged statement. When considering the scope of that prohibition, one must consider the scope of the privilege, which is defined in s. 30(1). The entire section should be considered in its statutory context and having regard for the above principles of statutory interpretation. There is certainly case law put forward that emphasizes the importance of the privilege, as discussed above.
[63] It is inconsistent with this broad definition to break down information about statements bit by bit and it is also inconsistent to disclose general information about whether there are statements from witnesses who observed the crash, performed or immediately supervised maintenance and repairs to the helicopter or attached equipment, directly interacted (not necessarily in person) with any of the deceased on the day of the accident, gave instructions to any of the deceased specific to the crash flight, or developed or implemented relevant policies and procedures.
[64] One could debate whether or not each bit of information is privileged or is “likely” to disclose the identity of an author. Such a debate would be problematic, as discussed above. Further, in cases like this, Inquest parties would ordinarily have a considerable amount of information from other sources, which could be deployed along with the above disclosure to result in effective disclosure of part of a statement or the identity of an author.
[65] I return to the objective of giving the Inquest parties information to facilitate their participatory rights in their applications for production. The Inquest parties already have access to the public report of the TSB regarding this aviation incident, which gives them substantial information that they are free to use to make submissions in favour of disclosure of the privileged statements.
[66] It seems obvious that the only benefit of the disclosure ordered in the Decision is to allow the Inquest parties to draw inferences about what might be in the statements in order to make relevant submissions about why they should be disclosed. The combination of document by document details plus aggregate information encourages those parties to draw inferences about the content of the privileged documents. Those inferences would either be incorrect, and therefore less helpful to the process, or correct, risking effective disclosure without the required process under s. 30(5).
[67] In response to this application, the Coroner relies on the recommendations of a federally-appointed commission – the Commission of Inquiry on Aviation Safety – chaired by the Honourable Mr. Justice Charles Dubin, which were reported in 1981 (the “Dubin Report”).
[68] The statutory privileges contained in the CTSA trace back to the Dubin Report and reflect an international recognition of the need for effective investigation of aviation accidents: Air France (Ont. S.C.), at para. 21. The Dubin Report’s recommendations included the development of an independent federal agency (now, the TSB) with a duty to investigate and report on aviation accidents and make recommendations concerning safety. It also recommended statutory privileges and a threshold for disclosure that was substantially incorporated into the CTSA.
[69] The Coroner raises the Dubin Report because it said that the statutory privileges were intended to be limited. That is so. But the limitation on disclosure in the Dubin Report is essentially that set out in s. 30(5) of the CTSA. As set out in the Dubin Report, at p. 240:
Section 21(6) of Bill C-40 herein before reproduced recognized a limited privilege to be attached to witnesses' statements, subject to the right of the court to examine them. If, in the court's judgment, the public interest in the proper administration of justice outweighs in importance the confidentiality attached to the statement, the court may order the production and discovery of the statement, subject to such restrictions or conditions as the court deems appropriate… [Emphasis added.]
[70] The above genesis of the privilege was noted by Strathy J., as he then was, in Air France (Ont. S.C.), at paras. 29-31. Strathy J. then went on to consider the focus of that case, specifically cockpit voice recordings (“CVRs”), noting that there were differences between CVRs and statements. He said, at para. 133, that the privacy concern that arises with CVRs was “generally illusory” because in some jurisdictions a transcript is included in the report of the investigating authority and in others it is entirely published. This was relevant to the balancing Strathy J. was engaged in under s. 28, not with respect to a preliminary procedure before that balancing took place.
[71] The Coroner relies on another statement made by Strathy J. at para. 129 that the “confidentiality” assurance given to witnesses was “largely illusory”, noting that the information provided by witnesses invariably finds its way into TSB reports. The Coroner puts forward this discussion suggesting that it undermines the importance of the privilege, despite acknowledging the importance of the privilege in his reasons for decision.
[72] This discussion in Air France does not support the preliminary disclosure ordered in the Decision. It rightly acknowledges that TSB reports give the public considerable information. That information is available to the Inquest parties already. It is not a reason to give more information. Air France does provide a good illustration of the detailed analysis a decision-maker undertakes when conducting the required balancing of interests, a prerequisite to any disclosure.
[73] Much has been said on behalf of the Coroner about his jurisdiction to control the procedure for the Inquest. He has substantial authority to do so. But that authority is subject to, among other things, the statutory privileges in the CTSA.
[74] The above interpretation error led to the conclusion that there was a procedural gap that needed to be filled when there was none. The Coroners Act, its Rules, the Memorandum of Understanding, and the Coroner before this Court, all acknowledge that the Coroner is governed by s. 30 of the CTSA.
[75] There is therefore no need to address the dispute between the parties about whether or not the Rules favour the Coroner’s position.
[76] There is also no need to address the dispute between the parties about other potentially relevant common law principles, such as the confidential informant privilege.
[77] The TSB submits that the Coroner also erred in relying on what the Coroner called the “principle of cooperative federalism.” Those words must be read in context. The Coroner was speaking about what he should do having (wrongly) concluded that both the CTSA and the Coroner’s Act were silent on the relevant procedure. He spoke of “harmonious interpretations” in that context. This does not disturb the binding effect of s. 30 and is no longer a relevant analysis given the above error.
[78] I conclude that the TSB has established that the parts of the Decision challenged in this application are unreasonable. They undermine the applicable legal regime in the CTSA and are not justified based on the applicable legal constraints. Further, the flaws are neither merely superficial nor are they peripheral to the merits of the Decision: Vavilov, at paras. 15, 100.
[79] Despite the above, I have no doubt that the Coroner was proceeding with the objective of fulfilling his responsibilities in good faith when he fell into error.
[80] I conclude that the Decision was not consistent with the text, context, and purpose of the statutory privilege and is unreasonable.
Procedural fairness
[81] The TSB submits that the procedure employed by the Coroner in relation to the disclosure issue was procedurally unfair. More specifically, the TSB submits that the decision to release aggregate information was made without any opportunity to be heard. That disclosure arose for the first time in the Decision. In response, the Coroner takes the position that the information was not privileged and there was therefore no need to invite submissions on the disclosure of that information.
[82] The process put forward by the Coroner to address the question of privilege formed part of the Coroner’s quasi-judicial decision-making (rather than his investigative role). As such, significant procedural fairness was required. It is apparent that the Coroner was attempting to afford that fairness by putting forward a suggested approach and inviting comments on it.
[83] The disclosure of aggregate information did not form part of the Coroner’s preliminary disclosure questions. Given the importance of the statutory privilege, and the strictures on any disclosure, the Coroner ought to have invited submissions before ordering disclosure. However, given the decision above, no additional remedy is needed to address this issue.
Order
[84] This application is therefore granted. The parties shall confer over the form of order and provide either their agreed form, or proposed forms, within 30 days from today. As agreed, there shall be no order as to costs.
Justice W. Matheson
I agree _______________________________
Justice G. Mew
I agree _______________________________
Justice M. Kurz
Released: August 19, 2022
2022 ONSC 3781
DIVISIONAL COURT FILE NO.: DC-22-2701
DATE: 20220819
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATHESON, MEW & KURZ JJ.
BETWEEN:
TRANSPORTATION SAFETY BOARD OF CANADA
Applicant
– and –
DR. DAVID EDEN, CORONER
Respondent
REASONS FOR decision
Released: August 19, 2022