Richard D. Butler

The Transportation Safety Board of Canada appealed an order requiring the production of an aircraft's cockpit voice recorder (CVR) to NAV Canada in the context of civil litigation arising from an airplane crash.

The Board argued the motion judge applied the wrong legal test under s. 28(6) of the Canadian Transportation Accident Investigation and Safety Board Act.

The Court of Appeal dismissed the appeal, finding the motion judge correctly balanced the public interest in the proper administration of justice against the statutory privilege attached to the CVR.

The court upheld the production order, noting the CVR's high relevance and reliability, but reversed a minor order regarding a flight animation that was not properly before the motion judge.

The moving party sought leave to appeal a Divisional Court decision and filed an affidavit containing evidence directed at the issue of public importance.

The responding party objected, arguing that any material filed on a leave motion must already exist within the court file.

The chambers judge held that a party seeking leave to appeal may file factual evidence directed at the issue of public importance, but must follow the proper procedure by filing a motion to admit the evidence along with the application for leave to appeal.