Supreme Court of Canada

Appeal Heard: March 17, 2022 Judgment Rendered: November 25, 2022 Docket: 39661

Between: Transportation Safety Board of Canada, Appellant

and

Kathleen Carroll‑Byrne, Asher Hodara, Georges Liboy, Air Canada, Airbus S.A.S., NAV CANADA, Halifax International Airport Authority, Attorney General of Canada representing His Majesty The King in Right of Canada, John Doe #1, John Doe #2 and Air Canada Pilots' Association, Respondents

Indexed as: Canada (Transportation Safety Board) v. Carroll‑Byrne

2022 SCC 48

File No.: 39661.

2022: March 17; 2022: November 25.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

On appeal from the Court of Appeal for Nova Scotia

Headnote

Transportation law — Statutory privilege for on‑board recording — Power of court to order production and discovery of on‑board recording — Aircraft striking ground when attempting to land in snowstorm — Passengers bringing class action for damages for negligence against airline, manufacturer and others — Manufacturer bringing motion for disclosure of audio and transcript of cockpit voice recorder held by federal agency who investigated crash — Agency opposing disclosure and requesting to make submissions to motion judge in absence of public and other parties — Motion judge refusing permission to make such submissions and ordering disclosure of cockpit voice recorder — Whether agency entitled to make submissions before motion judge in absence of public and other parties — Whether motion judge committed reviewable error in ordering disclosure of cockpit voice recorder based on weighing of public interest in proper administration of justice and importance of statutory privilege — Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3, s. 28(6)(b), (c).

Reasons for Judgment

(paras. 1 to 125)

Kasirer J. (Wagner C.J. and Moldaver, Karakatsanis, Rowe, Martin and Jamal JJ. concurring)

Dissenting Reasons

(paras. 126 to 186)

Côté J. (Brown J. concurring)

Counsel

For the appellant: David Taylor, Richard W. Norman and Alyssa Holland.

For the respondents Kathleen Carroll‑Byrne, Asher Hodara and Georges Liboy: Jamie L. Thornback, Raymond F. Wagner, K.C., and Kate Boyle.

For the respondents Air Canada, John Doe #1 and John Doe #2: Clay Hunter.

For the respondent Airbus S.A.S.: Christopher Hubbard, Emmanuelle Poupart, Jesse Hartery and Brittany Cerqua.

For the respondent NAV CANADA: Stephen Ronan and Robert B. Bell.

For the respondent the Halifax International Airport Authority: Michelle L. Chai, Scott R. Campbell and Erin J. McSorley.

For the respondent the Attorney General of Canada representing His Majesty The King in Right of Canada: John Provart.

For the respondent the Air Canada Pilots' Association: Christopher C. Rootham, Andrew Montague‑Reinholdt and Adrienne Fanjoy.

Summary

An accident occurred when an Air Canada flight landed in wind and snow at Halifax Stanfield International Airport. A number of people were injured. Following the accident, a class action was commenced on behalf of certain passengers alleging that negligence on the part of the airline, its pilots, the aircraft manufacturer, the airport and others had caused them harm. As part of its defence and cross‑claim, the manufacturer filed an interlocutory motion pursuant to s. 28(6) of the *Canadian Transportation Accident Investigation and Safety Board Act* ("Act") for disclosure of the audio and transcript of the cockpit voice recorder ("CVR"). The CVR had been collected from the aircraft by the Transportation Safety Board of Canada ("Board"), an independent federal agency, which investigated the accident pursuant to its statutory mandate to advance transportation safety and released a report to the public indicating the causes or contributing factors of the accident and the safety measures to be taken by those concerned. As an "on‑board recording", the CVR is privileged under s. 28(2) of the Act; no one can be required to produce it or give evidence relating to it in legal proceedings, except with the authorization of a court or coroner.

The Board, a stranger to the litigation, relied on the statutory privilege to oppose the motion for disclosure. In advance of the hearing on the motion, the Board sought to make representations to the chambers judge as to the admissibility of the CVR in the absence of the public and of all the other parties in order to protect privileged information. The chambers judge refused the Board's request, as in his view further submissions from the Board were not necessary. The chambers judge then granted the motion for production of the CVR, as he was satisfied that it had important evidentiary value and was necessary to resolve the litigation. The Court of Appeal dismissed the Board's appeal. It found that the Board had not demonstrated that ex parte submissions would have had any impact on the chambers judge's analysis, as the chambers judge had determined that he did not need any assistance in understanding the recording. Further, it concluded that no legal error or clear and material error in the chambers judge's consideration of the evidence had been identified and that he had thus not erred by ordering disclosure.

Held (Côté and Brown JJ. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Moldaver, Karakatsanis, Rowe, Martin, Kasirer and Jamal JJ.: Section 28(6)(b) of the Act neither grants the Board the right to make submissions in the absence of the public or the other parties, nor does it preclude the court or coroner from asking for them should they be necessary to decide the issue. Accordingly, the chambers judge made no reviewable error in not allowing the Board to make submissions in the absence of the public and the parties. Furthermore, the chambers judge did not commit a reviewable error when he ordered the disclosure of the CVR pursuant to s. 28(6)(c) of the Act. The chambers judge's overall weighing of the relevant factors was fact‑driven and discretionary. In the absence of an error of law, a palpable and overriding error of fact or proof that discretion has been abused, his balancing should not be disturbed.

Section 28(6)(b) of the Act provides that when a request for production and discovery of an on‑board recording is made, the court or coroner shall "in camera, examine the on‑board recording and give the Board a reasonable opportunity to make representations with respect thereto". A request to make submissions in the absence of the public and other parties is in substance a request to make submissions both in camera and effectively ex parte, in the sense of "without a party". Although the term ex parte is often defined as a proceeding undertaken without notice to an adverse party, providing notice to adverse parties does not convert what would otherwise be a hearing held in the absence of the parties into one held in camera. Properly understood, "in camera" refers to the exclusion of the public, not the exclusion of parties. A proceeding in which an adverse party is aware of the hearing but is prevented from making submissions is not an in camera proceeding.

The words "in camera" in the English text of s. 28(6) of the Act, like the equivalent expression "à huis clos" in the French text, only refer to the judge's examination of the recording and not to the Board's ability to make submissions. The legislative history of s. 28(6) supports the view that when Parliament made largely formal changes to the structure of the provision, it did not seek to extend to the Board an opportunity to make submissions in the absence of the other parties. Further, there is no ambiguity in s. 28(6)(b) arising from a discordance between the English and French texts. The presence of a comma following the term "in camera" in the English text, which is absent from the French, does not create a consequential discordance of meaning because both "in camera" and "à huis clos" refer to the same idea. The comma in the English text does not suggest that the English text, unlike the French, is reasonably capable of meaning something different, namely that the Board's submissions are to be made in the absence of the other parties. Even if the comma following "in camera" created a true disparity between the French and English texts, their shared meaning aligns with the unambiguous French text, which would be preferred on the basis of both its narrower meaning as well as other indicia of legislative intention.

While s. 28(6)(b) does not provide the Board with a general entitlement to make submissions in the absence of the public and the other parties, a decision‑maker faced with a disclosure request nevertheless has the discretion to invite such submissions. The general rule is that the Board should make the submissions contemplated in s. 28(6)(b) in open court and in the presence of other parties. Exceptionally, should the decision‑maker determine that assistance from the Board is needed in order to decide on the motion for disclosure, the decision‑maker may permit or ask the Board to make further submissions in the absence of the public, in the absence of other parties, or both, so that the recording can be properly reviewed without defeating the applicable statutory privilege. Such submissions should be done in a manner that would be fair to all parties, by providing them with notice. In the instant case, the chambers judge decided that, having regard to the evidence and submissions already received, as well as the questions that had to be answered to determine the motion, it was not appropriate or necessary to receive such submissions. The Board was more than capable of arguing its case without disclosing the contents of the CVR or defeating the statutory privilege.

Under s. 28(6)(c) of the Act, an on‑board recording must only be disclosed for production and discovery if, upon request, a court or coroner is satisfied 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". Notably, the public interest informs both sides of the balance: the public has an interest in the proper administration of justice as it does in ensuring transportation safety. The balancing model used by Parliament in s. 28(6)(c) directs that non‑disclosure applies by default; it falls to the party seeking production to explain why the privilege should not apply, as an exception to the default rule. The test under s. 28(6)(c) invites the court or coroner to undertake a discretionary balancing of the interests at stake, in a manner similar to the test used for case‑by‑case privileges.

What Parliament has designated as the public interest in the proper administration of justice concerns a party's right to a fair trial and to present all relevant evidence that is necessary to resolve the dispute. At its core, this relates to the question of whether withholding evidence will interfere with the fact‑finding process to such an extent that it would undermine a party's right to a fair trial and, consequently, public confidence in the administration of justice. The very existence of the privilege suggests that Parliament is prepared to subordinate the truth‑finding function of a civil trial to what it sees as potentially higher values. The burden is on the moving party to establish that the CVR may contain relevant, probative but also necessary evidence, in that it is not obtainable elsewhere.

Properly understood, the test for production developed by the Federal Court in *Wappen‑Reederei GmbH & Co. KG v. Hyde Park (The)*, 2006 FC 150, [2006] 4 F.C.R. 272, does not stand in substantial opposition to the test applied by the Ontario Superior Court in *Société Air France v. Greater Toronto Airports Authority* (2009), 85 C.P.C. (6th) 334, aff'd on this point 2010 ONCA 598, 324 D.L.R. (4th) 567. Air France neither imposes a simple relevance test to outweigh the privilege in the name of the public interest in the administration of justice nor reduces the interest in the administration of justice to a consideration of mere relevance. In practice, the factors and balancing articulated in the two decisions are not discordant. Disclosure should not be routinely authorized simply because audio recordings offer reliable or trustworthy evidence. Necessity is an essential component of the analysis. Where evidence is crucial to a central issue in the case, its exclusion on any basis may threaten trial fairness. Class actions should not be isolated as having heightened significance in the weighing exercise. However, the chambers judge's comments on class actions in this case were not shown to have had a material effect on his ultimate decision to order production and discovery of the CVR.

The privilege attached to the on‑board recording by virtue of s. 28 of the Act is animated by two purposes: first, protecting pilot privacy and second, promoting aviation safety. The ultimate balancing requires the court or coroner to identify the relevant factors and decide whether, in light of all of the circumstances, the public interest in the administration of justice commands production and discovery of the CVR, notwithstanding the weight accorded to the privilege by Parliament. When measuring the public interest in the administration of justice, the decision‑maker should consider the recording's relevance, probative value and necessity to resolving the issues in dispute as factors that point to the importance of the recording to a fair trial. On the privilege side of the scale, the decision‑maker should consider the effect of release on pilot privacy and on aviation safety, as fostered by free communications in the cockpit. Air France and Hyde Park correctly identified most of these factors as relevant to the balancing exercise.

The test for production is not a simple relevance test. A court must consider not only the existence or number of gaps in the evidence but also the significance of the gaps in relation to the facts and legal issues in dispute. Other ways of filling gaps, including by refreshing pilots' memory using the Board's report or through witness statements, should also be considered. As the decision to order or refuse production is a discretionary one, a judge's conclusion is entitled to deference, insofar as the proper test and the relevant factors to be weighed were identified and applied in an appropriate manner.

In the instant case, when the chambers judge's reasons are read as a whole, it is evident that he applied the correct test under s. 28(6)(c). He properly identified the two competing interests — the public interest in the proper administration of justice and the public interests underlying the privilege — and how they are relevant on the facts of this case, and he weighed these competing interests against each other. Importantly, the chambers judge considered all of the evidence supporting the statutory privilege. Further, he did not order the production of the CVR to achieve a complete understanding of the pilots' role in the accident. Rather, he found that the disclosure of the CVR was necessary in order to fill the gaps in the pilots' evidence that were central to determining causation and thus liability for the accident. This conclusion was plainly open to him.

Per Côté and Brown JJ. (dissenting): The appeal should be allowed. The chambers judge erred by refusing to permit the Board to make submissions in camera. Furthermore, although there is agreement with much of what the majority says about the test for production under s. 28(6)(c) of the Act, there is disagreement on the application of the standard of review. The chambers judge's reasons disclose numerous errors of law. As a result, his discretionary decision to order production of the CVR is fundamentally tainted and is owed no deference. Given that no member of the Court has heard the CVR or read the transcript of its contents, it is simply not in a position to reweigh the evidence and conduct the discretionary balancing required under s. 28(6)(c) of the Act. The matter should therefore be remitted to be heard by a different chambers judge.

In *Ruby v. Canada (Solicitor General)*, 2002 SCC 75, [2002] 4 S.C.R. 3, the Court explained that ex parte, in a legal sense, means a proceeding, or a procedural step, that is taken or granted at the instance of and for the benefit of one party only, without notice to or argument by any adverse party. Ex parte proceedings are therefore distinct from in camera proceedings. Given that the Board agreed to provide notice to the other parties as well as to provide them with a non‑privileged summary of its submissions, its request to make its submissions in the absence of the public and the other parties cannot be characterized as a request to make ex parte submissions; rather, it is more properly characterized as a request to make in camera submissions.

A textual and purposive interpretation of s. 28(6)(b) of the Act leads to the conclusion that the Board is entitled to make its submissions in camera — that is, in the absence of the public and the other parties. The expression "in camera", at the beginning of the provision, followed by a comma, means that "in camera" qualifies all of the words that follow. Accordingly, both the examination of the CVR by the court as well as the Board's "reasonable opportunity" to make representations concerning the CVR are to be in camera. The structural difference between the former s. 34(1) of the Canadian Aviation Safety Board Act and s. 28(6)(b) of the Act is also relevant in discerning legislative intent. Any ambiguity under the former provision has now been resolved by collapsing former paras. (b) and (c) and by removing the comma after "recording", thus bringing the phrase "opportunity to make representations" within the scope of the "in camera" qualifier. Accordingly, the only plausible interpretation is that "in camera" was intended to apply to both the examination of the recording and to the opportunity to make representations. As to the French version of the provision, it has a fundamentally different structure than the English version. The text of the English version indicates that submissions are to be made in camera, whereas the text of the French version is silent on the nature of the Board's submissions. The discordance between the two versions justifies having recourse to the purposive approach rather than looking for a shared meaning that is simply absent, and only the English version is consistent with a purposive interpretation of the provision. The Board's right to make reasonable representations must be interpreted in light of the Board's statutory object as well as Parliament's decision to create a statutory privilege. To the extent that it is necessary to protect the privilege, the Board has a right to make submissions in camera. Such an interpretation furthers the object of the Act and helps to protect the privilege, ensuring that it yields only when it is truly in the public interest to do so.

The test for production of the CVR under s. 28(6)(c) requires the court to assess whether "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". There are two sides of the scale that must be assessed and weighed: (i) the public interest in the proper administration of justice; and (ii) the importance of the statutory privilege attached to the CVR. This weighing, and the corresponding decision about whether to order production of the CVR, is discretionary. The test as articulated in Air France, and as adopted by the chambers judge in the instant case, places the wrong weights on both sides of the scale. On the side relating to the public interest in the administration of justice, Air France overemphasizes irrelevant factors, such as the existence of a class action, thereby inappropriately inflating the need to ensure that the evidence before the court is as complete and reliable as possible. On the other side of the scale, regarding the importance of the privilege, Air France diminishes the privacy and safety goals that animate the privilege conferred by Parliament, thereby eviscerating the privilege. As a result, Air France effectively reduces the test for production of the CVR to a consideration of relevance and reliability. Requiring only that relevance and reliability be established — without otherwise requiring proof that production of the CVR is necessary to the resolution of a core issue in the litigation — would be fundamentally inconsistent with the creation of a privilege in the first place. As properly stated in Hyde Park, when considering the side of the scale relating to the public interest in the administration of justice, the court should focus on the nature and probative value of the evidence in the particular case and how necessary this evidence is for the proper determination of a core issue before the court. Conversely, when balancing the importance of the privilege, the court should give appropriate weight to the privilege, including both the privacy and the safety considerations that animate the privilege, in order to avoid routinely allowing disclosure simply because of the probative value normally attached to audio recordings of events.

Reasons for Judgment

The judgment of Wagner C.J. and Moldaver, Karakatsanis, Rowe, Martin, Kasirer and Jamal JJ. was delivered by

Kasirer J. —

I. Overview

[ 1 ] An accident occurred when a commercial flight from Toronto landed in Halifax. A number of people were hurt. Property, including the aircraft, was damaged. Some of the passengers commenced a class action alleging that negligence on the part of the airline, its pilots, the aircraft manufacturer, the airport and others had caused them harm.

[ 2 ] In an exercise unrelated to the civil action, the Transportation Safety Board of Canada ("Board"), an independent federal agency, investigated the accident pursuant to its statutory mandate to advance transportation safety. The Board released a report to the public indicating the causes or contributing factors of the accident and the safety measures to be taken by those concerned. In keeping with its role, the Board did not assign blame for the incident.

[ 3 ] One of the defendants in the class action, Airbus S.A.S., brought an interlocutory motion before the Supreme Court of Nova Scotia seeking an order that the Board release the cockpit voice recorder ("CVR") containing the flight crew's communications — part of the so‑called "black box" from the aircraft — as well as the transcripts made of the recorded data. The Board, a stranger to the litigation, had the only copy of the CVR and used it in the preparation of its report. The defendant Airbus, the aircraft manufacturer, said the release of the device was necessary for a fair trial, in particular to resolve the causation issue that would be central to the civil action. The motion alleged that what happened on landing, key to determining who was responsible for the alleged losses, was not clear from the pilots' testimony on discovery and this missing evidence was otherwise unobtainable. The Board opposed the motion for disclosure. It was joined in this by the defendant airline, Air Canada, and its pilots, who are alleged to have acted negligently. For the Board, the CVR was subject to a statutory privilege and consequently could not be produced in evidence in the civil action.

[ 4 ] As an "on‑board recording", the CVR is indeed privileged under s. 28 of the *Canadian Transportation Accident Investigation and Safety Board Act*, S.C. 1989, c. 3 ("Act").[^1] No one can be required to produce the CVR or give evidence relating to it in legal proceedings, except with the authorization of a court or coroner.

[ 5 ] After listening to the CVR in camera, the chambers judge decided it was reliable and relevant evidence that was necessary to resolving the dispute. He ordered the Board to release the privileged recording to the parties, subject to what he called "very stringent conditions" to protect its confidentiality. In the judge's view, production of the CVR was permitted because, according to the test set forth in the Act, the public interest in the proper administration of justice outweighed in importance the privilege attached to the on‑board recording. His interlocutory judgment was confirmed on appeal. The Board appeals to this Court to assert the statutory privilege. It says, in essence, that Parliament's purposes in establishing the privilege — protecting pilot privacy and promoting public safety in air transportation — would be undermined if the CVR were disclosed in the class action.

[ 6 ] Where a person seeks to exclude relevant evidence in a civil action on the strength of a statutory privilege, they pit the search for truth — what this Court called "the cardinal principle in civil proceedings" in *Imperial Oil v. Jacques*, 2014 SCC 66, [2014] 3 S.C.R. 287, at para. 24 — against matters of public policy, distinct from the trial process, that the legislature has seen fit to protect by preventing disclosure of information before the courts. The truth‑seeking function of the law of evidence in a civil trial is thus in "tension" with these other values that the legislature has chosen to champion by statute in establishing the privilege (I borrow the term [translation] "tension" in this context from scholar Julien Fournier, "Les privilèges en droit de la preuve: un nécessaire retour aux sources" (2019), 53 R.J.T.U.M. 461, at p. 468). Often, the legislature will stipulate how this tension should be resolved, for example by directing that the privilege is absolute, or by recognizing discrete exceptions, or again by providing a decision‑maker with the discretion to decide whether or not the truth‑seeking should give way to the privilege. Subject to constitutional constraints, the courts should abide by the choice reflected in a statutory privilege and recognize that, where the legislature has given pride of place to a privilege, otherwise relevant and trustworthy evidence that might advance the just resolution of a civil trial will be excluded by "overriding societal interests" (S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶14.1).

[ 7 ] This appeal invites the Court to consider the circumstances in which Parliament has said that the privilege over the CVR should take precedence over the presumably relevant and trustworthy evidence that the CVR might provide at trial on the merits of the class action. The outcome of the appeal turns on the will of Parliament as to how this tension should be resolved under the Act. In my view, the courts should not impose their own sense of when evidence should be produced where, by valid statute, the legislature has said how values other than the truth‑seeking function of the law of evidence should take precedence in civil, administrative or criminal proceedings.

[ 8 ] As I shall endeavour to explain, in this instance, Parliament has tempered its preference that the CVR be inaccessible to civil litigants. The privilege it created is [translation] "discretionary", as opposed to a non‑discretionary statutory privilege with or without fixed exceptions (see Fournier, at p. 495). Unlike absolute statutory privileges, for which a court has no power to weigh the relative merits of the societal interests against the search for truth in a civil trial, a discretionary privilege typically tasks a decision‑maker with weighing the public interest reflected in the privilege against the truth‑seeking role of the law of evidence according to identifiable criteria. On the contrary, where the legislature chooses to create or recognize a non‑discretionary privilege, the decision‑maker does not have a weighing function. Rather, the decision-maker must apply the privilege, as the statute directs, subject to any exception recognized by law.

[ 9 ] By creating a privilege under s. 28 of the Act that excludes the CVR from production and discovery in proceedings before a court or coroner, Parliament recognized that the values of pilot privacy and aviation safety presumptively outweigh the values underlying the administration of justice, such as trial fairness. But Parliament has invested courts and coroners with the power to order the production of the CVR where "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". Unlike certain other statutory privileges, Parliament has not expressly set out the criteria for the exercise of this discretion. This appeal turns on the identification and application of those criteria. A court or coroner seized of a request for production and discovery of an on-board recording pursuant to s. 28(6)(c) is charged with deciding whether the public's stake in the administration of justice — ultimately rooted in trial fairness — outweighs in importance the interests Parliament sought to protect in establishing the privilege. In this balancing exercise, the decision‑maker must place two competing public interests on the scales: on one side, the relevance, probative value and necessity of the on-board recording to the fair resolution of the dispute and, on the other, the effects of disclosure on pilot privacy and aviation safety.

[ 10 ] For the reasons that follow, I would uphold the chambers judge's discretionary decision to permit production and discovery of the CVR at trial and dismiss the appeal. First, the chambers judge correctly identified, as a matter of law, the underlying purposes of pilot privacy and public safety in air transportation relevant to weighing the "importance of the privilege" as recognized by Parliament. Second, he did not adopt an interpretation of the counterweighted "public interest in the proper administration of justice" that undermined the statutory privilege bearing on the CVR. He did not, for example, suggest that the importance of the privilege could be outweighed merely because the CVR was relevant and trustworthy. The judge was satisfied that the information in the privileged on‑board recording could not be produced in evidence by any other reasonable means. He thus ordered disclosure of the CVR not just because it was highly probative but, first and foremost, because it was necessary to resolve the civil action. To exclude it could have precluded a fair trial on a matter central to the dispute.

II. Background

[ 11 ] — [ 37 ] [Factual background and procedural history — see full text of reasons]

III. Issues

[ 38 ] There are two issues on appeal. First, is the Board entitled to make submissions in the absence of other parties and the public pursuant to s. 28(6)(b) of the Act? Second, did the chambers judge commit a reviewable error in ordering the disclosure of the CVR pursuant to s. 28(6)(c) of the Act?

IV. Standard of Review

[ 39 ] Insofar as the Board alleges that the chambers judge erred in his interpretation of s. 28(6)(b) by denying it the right to make submissions in the absence of the public and the parties, the first issue is a question of law reviewable on the correctness standard.

[ 40 ] The parties disagree on the standard of review for the second issue. The Board argues that the standard is correctness, as it relates to whether the chambers judge applied the correct legal test. The respondents argue that it is a standard of palpable and overriding error, since the chambers judge's weighing of factors is a discretionary and fact‑driven exercise.

[ 41 ] The disagreement is more apparent than real. A discretionary decision, such as the one contemplated by Parliament in s. 28(6)(c), is generally entitled to deference and may only be interfered with in the absence of an error of law, a palpable and overriding error of fact or proof that discretion has been abused (see *Housen v. Nikolaisen*, 2002 SCC 33, [2002] 2 S.C.R. 235; *Canada (Attorney General) v. Fontaine*, 2017 SCC 47, [2017] 2 S.C.R. 205, at para. 47).

V. Analysis

A. Statutory Framework

[ 42 ] — [ 53 ] [Legislative history and statutory context]

B. Was the Board Entitled to Make Submissions in the Absence of the Public and the Parties?

[ 54 ] — [ 85 ] [Analysis of s. 28(6)(b)]

[ 62 ] First, the Board's argument that s. 28(6)(b) gives it a general entitlement to make submissions "in the absence of the other parties" cannot succeed (A.F., at para. 5). The request to make submissions in the absence of other parties is not in substance, as the Board argues, "a request to make submissions in camera" (A.F., at para. 45). It is, instead, a request to make submissions both in camera and effectively ex parte, in the sense of [translation] "without a party" (A. Mayrand, Dictionnaire de maximes et locutions latines utilisées en droit (4th ed. 2007), at p. 168). An in camera hearing is one held in the absence of the public, either in the judge's private chambers or in a courtroom (C.B., at p. 493; Mayrand, at p. 214). This ordinary, legal meaning of an "in camera" hearing is, barring clear indication to the contrary, to be preferred. As Cromwell J. wrote in *R. v. D.L.W.*, 2016 SCC 22, [2016] 1 S.C.R. 402, "[w]hen Parliament uses a term with a legal meaning, it intends the term to be given that meaning" (para. 20). Proceedings held in the absence of other parties are not in camera proceedings and are often held in open court (see *Ruby v. Canada (Solicitor General)*, 2002 SCC 75, [2002] 4 S.C.R. 3, at paras. 25-26, speaking to ex parte proceedings taken "without notice to or argument by any adverse party").

[ 63 ] The Board argues that it is not, strictly speaking, seeking an opportunity to make ex parte submissions because ex parte proceedings are conducted without notice to adverse parties. It says that it does not seek to proceed without notice to the other parties, but instead simply to make submissions in their absence, with notice.

[ 64 ] The term "ex parte" is often defined as a proceeding undertaken without notice to an adverse party (see, e.g., Ruby, at para. 25; *Society of Composers, Authors and Music Publishers of Canada v. 960122 Ontario Ltd.*, 2003 FCA 256, 26 C.P.R. (4th) 161, at para. 29; *Hover v. Metropolitan Life Insurance Co.*, 1999 ABCA 123, 91 Alta. L.R. (3d) 226, at para. 22; see also Nova Scotia Civil Procedure Rules, r. 23.14(1)(b) (the moving party on an ex parte motion must explain "why it is appropriate for the judge to grant the order without notice to another person")). But even on this understanding of the term, I disagree with the Board that providing notice to adverse parties converts what would otherwise be a hearing held in the absence of the parties into one held in camera. Properly understood, "in camera" refers to the exclusion of the public from a proceeding, not the exclusion of parties. A proceeding in which an adverse party is aware of the hearing but is prevented from making submissions is not an in camera proceeding (see, e.g., *R. v. Basi*, 2009 SCC 52, [2009] 3 S.C.R. 389).

[ 65 ] Second, I agree with the respondents that the words "in camera" in the English text, like the equivalent expression "à huis clos" in the French text of s. 28(6), only refer to the judge's examination of the recording and not to the Board's ability to make submissions.

[ 66 ] The legislative history supports the respondents' interpretation of s. 28(6)(b). The predecessor to the Act as it appeared in the 1985 Revised Statutes of Canada, the Canadian Aviation Safety Board Act, R.S.C. 1985, c. C‑12, contained a provision similar to s. 28(6)(b), but stated slightly differently. In s. 34(1) of the Canadian Aviation Safety Board Act, the decision‑maker was required to,

(b) in camera, examine the cockpit voice recording, and

(c) give the Board a reasonable opportunity to make representations with respect thereto . . . .

These requirements were separated into two paragraphs, thereby indicating that "in camera" in the English text only applied to the decision‑maker's examination of the recording and not to the Board's representations. The English text of the present s. 28(6)(b) of the Act maintains the use of subparagraphs but combines paras. (b) and (c) of s. 34(1). The comma following "in camera" in the English text remains in place.

[ 67 ] It is true that there is a presumption that legislative changes are to be viewed as purposive. However, this presumption can be displaced where the change to the law was not so intended (see R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 23.02; P.-A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at paras. 1470 and 1767). This is, in my respectful view, just such a case. In a clause‑by‑clause overview of the present Act prepared when the bill was introduced, Transport Canada observed that s. 28(6) "allows a court or coroner in any proceedings to examine in camera an on‑board recording" (Bill C-2: Transportation Accident Investigation Board — Clause by Clause, at p. 33, reproduced in the Attorney General of Canada's book of authorities, at p. 76). Transport Canada noted that the new bill contained the "[s]ame privileged conditions for information as in [the] CASB [Act]" (TAIB Act — C-2: Overview of Bill, reproduced in the Attorney General of Canada's book of authorities, at p. 68). I agree with the Attorney General of Canada that the history of s. 28(6) suggests that the amendments did not change the underlying meaning of the section from the law as it was stated in s. 34(1) of the Revised Statutes version it replaced. Parliament did not seek to extend to the Board an opportunity to make submissions in the absence of the other parties when it made largely formal changes to s. 28(6). Rather, the legislative history demonstrates Parliament's continuous intention that the words "in camera" in the English version of the text apply only to the court or coroner's review of the on‑board recording.

[ 68 ] I also reject the Board's argument that s. 28(6)(b) is ambiguous based on a discordance between the English and French texts. The two texts should be read together, as befits the interpretation of federal statutes given that they are equally authoritative expressions of Parliamentary intention (see, e.g., *Reference re Manitoba Language Rights*, [1985] 1 S.C.R. 721; M. Doucet, "Le bilinguisme législatif", in M. Bastarache and M. Doucet, eds., Les droits linguistiques au Canada (3rd ed. 2013), 179, at pp. 224‑25).

[ 75 ] While s. 28(6)(b) does not therefore provide the Board with a general entitlement to make submissions in the absence of the public and the other parties, can the decision‑maker faced with a disclosure request nevertheless invite such submissions if they would be useful? The purpose and scheme of the Act suggest that, notwithstanding the absence of a general rule allowing for such submissions, there must be a way for the Board to make representations about the content of a recording without defeating the privilege entirely.

[ 80 ] To be clear, the general rule is that the Board should make the submissions contemplated in s. 28(6)(b) in open court and in the presence of other parties. Exceptionally, should the decision-maker determine that assistance from the Board is needed in order to decide on the motion for disclosure, the decision-maker may permit or ask the Board to make further submissions in the absence of the public, in the absence of other parties, or both, so that the recording can be properly reviewed without defeating the applicable statutory privilege. Such submissions should be done in a manner that would be fair to all parties, by providing them with notice.

[ 85 ] As a result, I agree with Bryson J.A. that the chambers judge made no reviewable error in not allowing the Board to make the submissions it requested. This was a discretionary decision that is entitled to deference.

C. Did the Chambers Judge Commit a Reviewable Error in Ordering Disclosure of the CVR?

[ 86 ] Following the recommendation of the Dubin Report, Parliament enacted a balancing test for the production of on‑board recordings. The privilege would be discretionary rather than absolute, similar to some, but not all, statutory privileges (Dubin Report, at pp. 258‑59).

[ 92 ] What Parliament has designated as the public interest in the proper administration of justice concerns a party's right to a fair trial and to present all relevant evidence that is necessary to resolve the dispute.

[ 102 ] The court or coroner must decide if, in the circumstances of the case, the public interest in the proper administration of justice outweighs in importance the privilege attached to the recording by virtue of s. 28. The Board argues that there are two purposes relevant to the importance, for Parliament, of the statutory privilege: first, to protect pilot privacy and second, to protect safety, by reducing adverse impacts on disclosure in future investigations. Privacy and safety were recognized in the Dubin Report and the International Civil Aviation Organization's recommendations, and I accept that these two principles animate the statutory privilege.

[ 108 ] This argument should be rejected. I agree with the Dubin Report's conclusion that it would be "undesirable to create a privilege on the ground that those seeking it would otherwise not obey the law" (p. 234). The risk of intentional erasing or sabotage of a CVR cannot legitimately support the statutory privilege. This supposed justification runs counter to the Act's goal of improving transportation safety and is predicated on the implausible and undocumented premise that professional pilots would wilfully put aircraft at risk. Strathy J. correctly dismissed the concern of intentional sabotage as incapable of supporting the privilege (Air France, at para. 135).

[ 111 ] The ultimate balancing requires the court or coroner to identify the relevant factors and decide whether, in light of all of the circumstances, the public interest in the administration of justice commands production and discovery of the CVR, notwithstanding the weight accorded to the privilege by Parliament. When measuring the public interest in the administration of justice, the decision‑maker should consider the recording's relevance, probative value and necessity to resolving the issues in dispute as factors that point to the importance of the recording to a fair trial. On the privilege side of the scale, the decision‑maker should consider the effect of release on pilot privacy and on aviation safety, as fostered by free communications in the cockpit.

[ 112 ] All parties recognize that the test for production is not a simple relevance test. Care should be taken to not order production merely because the CVR would be helpful and provide complete evidence, something that Gauthier J. in Hyde Park rightly brought to light (para. 74). As the ACPA noted, disclosure should not be routinely authorized simply because audio recordings offer reliable or trustworthy evidence.

[ 114 ] As the decision to order or refuse production is a discretionary one, the chambers judge's conclusion is entitled to deference, insofar as the proper test and the relevant factors to be weighed were identified and applied in an appropriate manner. Importantly, it is not enough to state the test correctly if it is misapplied, and a judge's reasons must be read as a whole to understand whether the test was applied correctly.

[ 115 ] The Board argues that the chambers judge placed too much weight on relevance and reliability and did not consider whether there were other ways that the parties could obtain the evidence. I disagree. The chambers judge's analysis centred on the necessity of the recording to the resolution of the dispute, correctly taking a broader view of the relevant factors.

[ 123 ] 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. Others might have balanced differently by assigning more weight to the privilege. But the absence of a palpable and overriding error in the findings of fact, combined with the absence of an error of law and proper exercise of discretion, prevents this Court from substituting its own view.

[ 124 ] The appeal is dismissed. The appellant did not seek costs and asked that no costs be awarded against it.

[ 125 ] I acknowledge that appeals to the Court of Appeal and this Court, initiated by the Board, may have delayed the prosecution of the underlying class action. However, all parties in this dispute have a stake in safe air transportation; they share a stake in the public interest in the administration of justice. No costs are awarded in this Court.

Dissenting Reasons

Côté J. (Brown J. concurring) —

[ 126 ] I have had the benefit of reading the reasons of my colleague Kasirer J. As my colleague outlines, there are two principal issues in this appeal, both of which involve the interpretation of the Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3 ("Act"). The first is a procedural question: whether the Board is entitled to make submissions in the absence of the public and the other parties. The second is a substantive question: whether the chambers judge committed a reviewable error in ordering the production of the CVR.

[ 127 ] With respect to the procedural issue, I disagree with my colleague's conclusion that the Board's request to make submissions in the absence of the public and the other parties is, in substance, a request to make ex parte submissions. In my view, the Board's request to make submissions in the absence of the public and the other parties is properly characterized as a request to make in camera submissions.

[ 128 ] With respect to the substantive issue, my colleague and I part company on two main points. First, I agree with much of what my colleague says about the test for production under s. 28(6)(c) of the Act. However, I disagree with his application of the standard of review. Even on my colleague's test, the chambers judge's reasons disclose multiple errors of law that taint his discretionary decision to order production of the CVR.

[ 129 ] Therefore, and with respect, I cannot agree with parts of my colleague's reasons and with his disposition of this appeal. For the reasons that follow, I would allow the appeal and remit the matter to the Supreme Court of Nova Scotia.

[ 130 ] Section 28(6)(b) of the Act states that where a request for the production and discovery of an on‑board recording is made, "the court or coroner shall . . . in camera, examine the on‑board recording and give the Board a reasonable opportunity to make representations with respect thereto".

[ 132 ] Contrary to my colleague's conclusion, I agree that the Board is properly seeking to make in camera, rather than ex parte, submissions. In *Ruby v. Canada (Solicitor General)*, 2002 SCC 75, [2002] 4 S.C.R. 3, this Court explained that "[e]x parte, in a legal sense, means a proceeding, or a procedural step, that is taken or granted at the instance of and for the benefit of one party only, without notice to or argument by any adverse party" (para. 25). Ex parte proceedings are therefore distinct from in camera proceedings. Given that the Board agreed to provide notice to the other parties as well as to provide them with a non‑privileged summary of its submissions, its request to make its submissions in the absence of the public and the other parties cannot be characterized as a request to make ex parte submissions; rather, it is more properly characterized as a request to make in camera submissions.

[ 140 ] In s. 28(6)(b) of the Act, the comma following the expression "in camera" qualifies the words subsequent to it. "In camera" applies to everything after the comma because of the comma. By contrast, when the comma is omitted, s. 28(6)(b) reads as follows:

in camera examine the on‑board recording and give the Board a reasonable opportunity to make representations with respect thereto;

Without the comma, "in camera" applies only to the word "examine". This, however, lacks grammatical sense. One does not "in camera examine" something. It is therefore plainly obvious that "in camera", as a qualifier, only makes sense when followed by a comma. Had Parliament intended for "in camera" to apply only to "examine", the Latin expression would follow the term "examine" — "examine in camera".

[ 141 ] Second, the structural difference between the former s. 34(1) of the Canadian Aviation Safety Board Act, R.S.C. 1985, c. C‑12 ("CASB Act"), and s. 28(6)(b) of the Act is relevant in discerning legislative intent. Under s. 34(1) of the CASB Act, the decision maker was required to

(b) in camera, examine the cockpit voice recording, and

(c) give the Board a reasonable opportunity to make representations with respect thereto . . . .

By comparison, s. 28(6)(b) of the Act reads as follows:

(b) in camera, examine the on‑board recording and give the Board a reasonable opportunity to make representations with respect thereto;

[ 145 ] It follows that meaning ought to be given to Parliament's choice of combining paras. (b) and (c) in s. 28(6) of the Act. In this instance, the only plausible interpretation is that "in camera" was intended to apply both to the examination of the recording and to the opportunity to make representations.

[ 147 ] I acknowledge that the French version of the provision has a fundamentally different structure than the English version. The relevant portion of the French version provides as follows:

(6) Par dérogation aux autres dispositions du présent article, le tribunal ou le coroner qui, dans le cours de procédures devant lui, est saisi d'une demande de production et d'examen d'un enregistrement de bord examine celui-ci à huis clos et donne au Bureau la possibilité de présenter des observations à ce sujet après lui avoir transmis un avis de la demande, dans le cas où celui‑ci n'est pas partie aux procédures.

[ 148 ] In my view, the text of the English version indicates that submissions are to be made in camera, whereas the text of the French version is silent on the nature of the Board's submissions. My colleague's understanding of the French version, however, may be accepted, and it may be readily acknowledged that the French version has one meaning and the English version another. In any case, there is a discordance between the two versions, which justifies having recourse to the purposive approach rather than looking for a shared meaning that is simply absent.

[ 151 ] A purposive interpretation of s. 28(6)(b) supports the Board's position that it has a right, to the extent necessary, to make in camera submissions about the contents of the CVR. Pursuant to s. 28(6)(b), the Board must be provided with a "reasonable opportunity to make representations" regarding the request for production of the CVR. In my view, the Board's right to make reasonable representations must be interpreted in light of the Board's statutory object as well as Parliament's decision to create a statutory privilege.

[ 166 ] My colleague suggests that an incorrect legal finding must be "decisive" to the overall outcome in order to taint a discretionary decision (para. 100). I respectfully disagree with this formulation of the inquiry. The exercise of judicial discretion is governed by "legal criteria," and consequently, "their definition as well as a failure to apply them or a misapplication of them raise questions of law which are subject to appellate review" (*British Columbia (Minister of Forests) v. Okanagan Indian Band*, 2003 SCC 71, [2003] 3 S.C.R. 371, at para. 43). Be it as it may, if a judge considers an irrelevant factor and gives it any weight whatsoever, he or she has effectively applied the wrong legal test, and any conclusion that follows is inherently flawed.

[ 172 ] However, the chambers judge did not adhere to this approach. To the contrary, he wholly endorsed the law as stated in Air France, which emphasized that the information available to the court for determining liability in a class action should be "as complete and reliable as possible" (para. 51, quoting Air France, at para. 127). Later in his reasons, the chambers judge again stated that disclosure of the CVR was needed to have "a complete understanding of the crew's awareness and response to factors that were significant to the decision to land the aircraft in the conditions existing at that time" (para. 67 (emphasis added)). Thus, rather than taking care not to order production simply because the CVR would provide complete evidence, the chambers judge explicitly ordered production for this very reason.

[ 181 ] In my respectful view, the chambers judge's findings are incomplete and conclusory. For example, he found that there were gaps in the flight crew's discovery evidence (paras. 46‑48). While "some questions" could be answered by other means, his "overall observation" was that disclosure of the CVR was "necessary to answering important questions" (para. 48). He then concluded that the "CVR has important evidentiary value and is necessary" (para. 49).

[ 184 ] In my view, given that no member of this Court has heard the CVR or read the transcript of its contents, this Court is simply not in a position to reweigh the evidence and conduct the discretionary balancing required under s. 28(6)(c) of the Act. This Court should not selectively overemphasize some of the chambers judge's conclusory and ambiguous findings while discounting other statements from his reasons that disclose a misapprehension of the legal test.

III. Disposition

[ 185 ] For the foregoing reasons, I would allow the appeal and remit the matter to the Supreme Court of Nova Scotia to be heard by a different judge.

[ 186 ] The Board did not seek costs. I would therefore order no costs in this Court.

Appeal dismissed without costs, Côté and Brown JJ. dissenting.

Solicitors

Solicitors for the appellant: Conway Baxter Wilson, Ottawa; Cox & Palmer, Halifax.

Solicitors for the respondents Kathleen Carroll‑Byrne, Asher Hodara and Georges Liboy: Camp Fiorante Matthews Mogerman, Vancouver; Wagners, Halifax.

Solicitors for the respondents Air Canada, John Doe #1 and John Doe #2: Paterson MacDougall, Toronto.

Solicitors for the respondent Airbus S.A.S.: McCarthy Tétrault, Toronto.

Solicitors for the respondent NAV CANADA: Lerners, Toronto.

Solicitors for the respondent the Halifax International Airport Authority: Stewart McKelvey, Halifax.

Solicitor for the respondent the Attorney General of Canada representing His Majesty The King in Right of Canada: Department of Justice, National Litigation Sector, Halifax.

Solicitors for the respondent the Air Canada Pilots' Association: Nelligan O'Brien Payne, Ottawa.

[^1]: As the equivalent of the French term "protection", Parliament employs "privilege" to refer to the privilege set forth in s. 28(6)(c) of the Act.