SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-08-357295
CITATION: Jetport Inc. v. Global Aerospace Underwriting Managers, 2014 ONSC 6860

DATE: 2014/11/26

RE: Jetport Inc. v. Global Aerospace Underwriting Managers et al. (CV-08-357295)

BEFORE: MASTER GRAHAM
HEARD: October 23, 2014

COUNSEL:
S. Svonkin and M. Bookman for the plaintiff

R. Bell, R. Fenn, R. Rohmer and S. Jones for the defendants (moving parties)

B. Dawe for the Transportation Safety Board (non-party)

REASONS FOR DECISION

(Motion by Global Aerospace under rule 30.10 for production of TSB documents)

[1] On November 11, 2007 a Bombardier Global 5000 aircraft owned by the plaintiff Jetport Inc. flew from Hamilton, Ontario to Fox Harbour, Nova Scotia where it crashed on landing, resulting in injuries to some of the occupants and the destruction of the aircraft. The plaintiff has sued Global Aerospace Underwriting Managers, which is the manager for a pool of aviation insurers, and the insurers themselves, following the denial by those insurers of Jetport’s first party insurance claim arising from the crash. There are also related actions involving Jones Brown Inc. which was Jetport’s insurance broker. The basis for the insurers’ denial of the claim is that the pilot in command of the aircraft at the time of the loss did not meet the insurance policy’s requirements for previous flying time on an aircraft of that make and model.

[2] The defendants move under rule 30.10 and sections 28(6) and 30(5) of the Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3 to compel production of documents from the Transportation Safety Board (“TSB”).

[3] The documents for which the defendants seek the order are set out in the notice of motion. At the conclusion of the hearing the defendants’ counsel initially informed the court that he was seeking production of the documents at items (a), (b), (c), (e), (f) and (g) in the notice of motion. However, as it is clear from the issues argued that the defendants are also seeking production of the audio data from the aircraft’s Cockpit Voice Recorder (“CVR”) and the data from the Flight Data Recorder (“FDR”), I will also rule on items (j) and (k) in the notice of motion. The notice of motion also includes at item (h) “representations” from the plaintiff and various employees to the TSB. For the reasons set out below, the court with one exception cannot order production of TSB documents that fall into the category of “representations”.

[4] Rule 30.10 is as follows:

30.10(1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

(3) Where privilege is claimed for a document referred to in subrule (1), or where the court is uncertain of the relevance of or necessity for discovery of the document, the court may inspect the document to determine the issue.

[5] In Ontario (Attorney General) v. Stavro, 1995 3509 (ON CA), [1995] O.J. 3136 (C.A.) at paragraph 15, the court set the following guidelines for the granting of an order under rule 30.10:

15 In deciding whether to order production in the circumstances of this case, the factors to be considered by the motion judge should include:

• the importance of the documents in the litigation;

• whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the appellant;

• whether the discovery of the defendants with respect to the issues to which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the defendants;

• the position of the non-parties with respect to production;

• the availability of the documents or their informational equivalent from some other source which is accessible to the moving parties;

• the relationship of the non-parties from whom production is sought, to the litigation and the parties to the litigation. Non-parties who have an interest in the subject-matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true "stranger" to the litigation.

[6] Because the documents sought are in the possession of the TSB, the following sections of the Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3 (“the TSB Act”) are also applicable:

24. (1) On completion of any investigation, the Board shall prepare and make available to the public a report on its findings, including any safety deficiencies that it has identified and any recommendations that it considers appropriate in the interests of transportation safety.

(2) Before making public a report under subsection (1), the Board shall, on a confidential basis, send a copy of the draft report on its findings and any safety deficiencies that it has identified to each Minister and any other person who, in the opinion of the Board, has a direct interest in the findings of the Board, and shall give that Minister or other person a reasonable opportunity to make representations to the Board with respect to the draft report before the final report is prepared.

(3) No person shall communicate or use the draft report, or permit its communication or use, for any purpose, other than the taking of remedial measures, not strictly necessary to the study of, and preparation of representations concerning, the draft report.

(4) The Board shall

(a) receive representations made pursuant to subsection (2) in any manner the Board considers appropriate;

(b) keep a record of those representations;

(c) consider those representations before preparing its final report; and

(d) notify in writing each of the persons who made those representations, indicating how the Board has disposed of that person’s representations.

(4.1) A representation is privileged, except for one made by a minister responsible for a department having a direct interest in the findings of the Board. Subject to other provisions of this Act or to a written authorization from the author of a representation, 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.

(4.2) The Board may use representations as it considers necessary in the interests of transportation safety.

(4.3) If requested to do so by a coroner conducting an investigation into any circumstances in respect of which representations were made to the Board, the Board shall make them available to the coroner.

(4.4) Except for use by a coroner for the purpose of an investigation, no person shall use representations in any legal, disciplinary or other proceedings.

28. (1) In this section, “on-board recording” means the whole or any part of

(a) a recording of voice communications originating from, or received on or in,

(i) the flight deck of an aircraft, . . . or

(b) a video recording of the activities of the operating personnel of an aircraft, ship, locomotive or pipeline

that is made, using recording equipment that is intended to not be controlled by the operating personnel, on the flight deck of the aircraft, on the bridge or in a control room of the ship, in the cab of the locomotive or in a place where pipeline operations are carried out, as the case may be, and includes a transcript or substantial summary of such a recording.

(2) Every on-board recording is privileged and, except as provided by this section, no person, including any person to whom access is provided under this section, shall

(a) knowingly communicate an on-board recording or permit it to be communicated to any person; or

(b) be required to produce an on-board recording or give evidence relating to it in any legal, disciplinary or other proceedings.

(3) Any on-board recording that relates to a transportation occurrence being investigated under this Act shall be released to an investigator who requests it for the purposes of the investigation.

(4) The Board may make such use of any on-board recording obtained under this Act as it considers necessary in the interests of transportation safety, but, subject to subsection (5), shall not knowingly communicate or permit to be communicated to anyone any portion thereof that is unrelated to the causes or contributing factors of the transportation occurrence under investigation or to the identification of safety deficiencies.

(5) The Board shall make available any on-board recording obtained under this Act to

(a) [Repealed, 1998, c. 20, s. 17]

(b) a coroner who requests access thereto for the purpose of an investigation that the coroner is conducting; or

(c) any person carrying out a coordinated investigation under section 18.

(6) Notwithstanding anything in this section, where, in any proceedings before a court or coroner, a request for the production and discovery of an on-board recording is made, the court or coroner shall

(a) cause notice of the request to be given to the Board, if the Board is not a party to the proceedings;

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

(c) 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 on-board recording by virtue of this section, order the production and discovery of the on-board recording, 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 on-board recording.

(7) An on-board recording may not be used against any of the following persons in disciplinary proceedings, proceedings relating to the capacity or competence of an officer or employee to perform the officer’s or employee’s functions, or in legal or other proceedings, namely, air or rail traffic controllers, marine traffic regulators, aircraft, train or ship crew members (including, in the case of ships, masters, officers, pilots and ice advisers), airport vehicle operators, flight service station specialists, persons who relay messages respecting air or rail traffic control, marine traffic regulation or related matters and persons who are directly or indirectly involved in the operation of a pipeline.

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.

(3) The Board may make such use of any statement as it considers necessary in the interests of transportation safety.

(4) The Board shall make statements available to

(a) [Repealed, 1998, c. 20, s. 19]

(b) a coroner who requests access thereto for the purpose of an investigation that the coroner is conducting; or

(c) any person carrying out a coordinated investigation under section 18.

(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.

(7) A statement shall not be used against the person who made it in any legal or other proceedings except in a prosecution for perjury or for giving contradictory evidence or a prosecution under section 35. [emphasis added throughout]

[7] The plaintiff, in opposing the motion, relies on Morse Shoe (Canada) Ltd. v. Zellers Inc., 1997 1573 (ON CA), [1997] O.J. No. 1524 (C.A.) at paragraph 18, where the court states as follows:

18 Even though delay is not specifically mentioned in rule 30.10, obviously it should be considered where relevant.

[8] The plaintiff submits that the defendants have unduly delayed bringing this motion and therefore should not be permitted to do so. Specifically, the defendants have been aware since a letter dated November 18, 2011 from the TSB to the defendants’ counsel that the TSB was asserting privilege over the documents in question and failed to bring this motion until more than two years later. Plaintiff’s counsel submits that the appropriate procedure at this point would be for the defendants to serve a summons to witness on the TSB to have the documents in question brought to trial and any issues of privilege can be addressed then.

[9] Although the defendants could have brought this motion earlier, the examination for discovery of Jetport was not completed until January, 2014. The defendants’ record for this motion was served on March 7, 2014 when the action was still at the discovery stage. The subsequent delay in the motion being argued arises from various interlocutory motions within the rule 30.10 production motion, relating primarily to whether various cross-examinations should take place. Any delay in bringing the motion is not so egregious as to be a basis for precluding it. It is preferable to have the privilege issues addressed before trial so that the parties have the benefit of reviewing any privileged documents that may be ordered produced for the purpose of trial preparation. The motion may proceed.

[10] There are essentially four categories of documents sought on this motion, as follows:

(1) The cockpit voice recording (CVR”) and the transcript of the recording;

(2) Statements given to the TSB in its investigation of the accident;

(3) Representations made to the TSB in respect of its draft report as contained in the material provided to Global’s counsel in error;

(4) The data contained in the subject aircraft’s Flight Data Recorder (“FDR”).

[11] The main issue with respect to the bulk of these documents is whether they should be excluded from production on the basis of the privilege conferred by ss. 24(4.1), 28(2) and 30(2) of the TSB Act. Counsel for the defendants submit that the privilege issues have already been determined by Greer J. in her ruling on an appeal from one of my production orders, reported at [2013] O.J. No. 4883, as follows:

33 In the case at bar, the Master held that the Refusals, as earlier noted, must be answered in relation to the TSB Draft Report. The issue of privilege was not before him but even if it had been, in my view, he came to the proper conclusion in making the Orders he did. The public interest in the administration of justice outweighs the importance attached to the statutory privilege now claimed. The Draft Report is, in my view, a vital document in assisting the Court to know what position Jetport's witnesses took on all matters relating to the accident. See: paras. 20-23 and 29 of the Court of Appeal decision in NAV Canada et al., supra. [emphasis added]

[12] Counsel for the defendants argues that Greer J.’s decision creates an issue estoppel that precludes the plaintiff from re-arguing the privilege issue with respect to any of the documents, including the CVR, statements and representations to the TSB and the FDR. As counsel should be aware, I already addressed this argument in my endorsement of June 20, 2014 in which I dismissed the defendants’ motion to strike a notice served by Jetport to cross-examine the defendants’ deponent Mr. Floyd on this motion.

[13] As I stated in my ruling, Greer J.’s decision related only to the issue of production of the TSB draft report. There has been no previous ruling on the issue of whether or not any of the documents currently under consideration should be produced notwithstanding the various statutory privileges. In addition, the TSB, which is the non-party from which production is sought on this motion, was not a party to the motion before me or the appeal before Greer J. so it cannot be bound by any previous ruling. The defendants’ submission that the privilege issues cannot be argued on the basis of issue estoppel fails.

[14] My rulings with respect to the requested production of documents in each category are as follows:

Cockpit Voice Recording and transcript (TSB Act s. 28)

[15] The court has jurisdiction to rule on the production of the CVR and transcript under both rule 30.10 and s. 28 of the TSB Act. The appropriate considerations on this motion were reviewed in Société Air France v. Greater Toronto Airports Authority et al., 2009 69321 (“Air France”) in which the court heard a motion by NAV Canada for production of the CVR from an Air France aircraft that crashed at Toronto’s Pearson International Airport on August 2, 2005. At paragraphs 78 and 79 of the decision, Strathy J. (as he then was) stated:

78 While the procedure for requiring production of the CVR from the TSB may be governed by Rule 30.10, s. 28 of the TSB Act also establishes a test for production that may partially overlap with the “unfairness” test in Rule 30.01(1)(b) [sic]. However, the test under the TSB Act arguably goes beyond the test under Rule 30.01(1)(b) by establishing a “public interest” requirement.

79 In the circumstances of this case, I am satisfied that if NAV meets the requirements of s. 28, it will also meet the requirements of rule 30.01(1)(b).” …

[The reference to rule 30.01 in these paragraphs is clearly a typographical error and the court’s intention must have been to refer to rule 30.10 throughout.]

[16] The TSB has informed Jetport in correspondence of October 14, 2009 that it will not provide it with the CVR. The TSB provided for the court’s review seven CDs including a transcript of the subject aircraft’s CVR for the 30 minutes prior to the accident, four different recordings from four different CVR channels for the 30 minutes prior to the accident and two recordings from two different CVR channels for the two hours prior to the accident. As required by s. 28(6)(b) of the TSB Act, I have examined the “on-board recordings” in camera. Counsel for the TSB made representations with respect to the production of the on-board recordings during submissions on the motion and did not ask for the opportunity to make any further representations following my examination of the recordings.

[17] The issue under s. 28(6)(c) of the TSB Act is whether, “in the circumstances of the case ... the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording”. The court’s decision as to whether to override the statutory privilege in an on-board recording turns on its balancing of the relative importance of these competing interests in the circumstances of the particular case (See Air France, paragraph 81). In addition, if the court determines that the CVR should be produced, it may impose such restrictions and conditions as deemed appropriate (See Air France, paragraph 110).

[18] The main issues to be decided at trial include the pre-accident flying time of the plaintiff’s pilots on the make and model of aircraft involved in the accident and whether flying time in a flight simulator can properly be credited as flying time on the make and model of aircraft. On a previous motion for productions, I ruled that “the conditions that existed at the time of the accident, and the manner in which the accident occurred, could reasonably influence the trial judge’s decision as to whether the required 100 hours [of flying experience on the make and model of aircraft] does or does not include ‘simulator time’”. This decision was upheld on appeal by Greer J. in the decision referred to at paragraph [11] above. Accordingly, evidence as to the manner in which the accident occurred is also relevant for the purpose of this motion.

[19] The CVR for the 30 minutes before the accident contains the pilots’ communications with each other and occasionally with people on the ground about the aircraft itself, the weather conditions, their response to the weather conditions and their plan for landing the aircraft. All of these communications are relevant to the issue of how the accident occurred.

[20] In addition, addressing concerns raised by Strathy J. with respect to the pilots’ privacy interests in the CVR, my review of the CVR reveals that, although some of the exchanges between the pilots consist of banter between colleagues, it does not contain any conversations of a personal nature that would be embarrassing to either of the pilots. Further, there are no “utterances made in the agony of impending impact, the publication of which would be unseemly, sensational or an unreasonable infringement on the privacy of the pilots” (See Air France, paragraph 112).

[21] I accept that a policy of the TSB Act is that those participating in the investigation of what that statute refers to as “transportation occurrences” should be able to function without fear that their communications might be used against them in related litigation. However, I also accept the comments of Strathy J. in Air France at paragraphs 72, 135 and 136:

72 It is difficult for me to accept that highly trained, responsible and professional pilots would somehow curtail their important and necessary communications because there is a recording device in the cockpit that will only be accessed in the event of an accident, and potentially an accident with very serious and even fatal consequences. . . .

135 As I stated above, I have great difficulty in accepting that the disclosure of the CVR in this case would have a “chilling effect on communications between pilots. This argument carried no weight with the Dubin Commission, which concluded that the CVR could be released by the court, in appropriate cases, without impairing aviation safety. . . .

136 The public places a great deal of trust in pilots. I am certain that pilots take this responsibility very seriously indeed and that they deserve the public’s trust. I cannot imagine that pilots would curtain [sic] critical communications, endangering their own safety and the safety of their passengers, simply because those communications might be disclosed in some future legal proceedings in the event of an accident.

[22] The “public interest in the proper administration of justice”, being the consideration that the court must balance against the importance of the privilege, is the public interest in the fairness of the trial process, which requires that the court have access to such relevant, probative and reliable evidence as is available. The action, which arises out of an accident that occurred in November, 2007, is scheduled to be tried in May, 2015, seven years and six months after the event. The recollection of the pilots as to what transpired in the period of time leading up to the accident will surely have faded and the inevitable deficiencies in human memory can easily be mitigated by the availability of the recording.

[23] If the privilege attaching to the CVR in this case is overridden on this motion, the only harm is that the pilots’ communications will be disclosed to the parties to the lawsuit and to their counsel. However, the pilots’ conduct has already been subject to the scrutiny of the TSB, which has prepared a report that has been released to the public so their privacy interests have already been infringed to some extent simply by the TSB investigation process. I adopt Strathy J.’s comments to the effect that it is highly unlikely that ordering production of the CVR in this case would inhibit communication between pilots or adversely affect aviation safety. However, to deny production of the CVR would compromise the integrity of the trial process by preventing access to a very relevant and reliable piece of evidence. Refusing production would cause the greater harm and accordingly, I hereby order that the CVR be produced, subject to a confidentiality order.

Statements given to the TSB in its investigation of the accident (TSB Act s. 30)

[24] The language of s. 30(5) of the TSB Act, relating to statements, is sufficiently similar to s. 28, relating to on-board recordings (i.e. the CVR), that if the moving party meets the requirements of s. 30, it will also meet the requirements of rule 30.10.

[25] As with the CVR, counsel for the TSB has given me various statements to review. The issue with respect to each statement provided is identical to the issue with the CVR: whether the public interest in the proper administration of justice outweighs in importance the privilege attached to the statements.

[26] The TSB has provided six packages of documents containing information from Roger Adair (one of the pilots of the subject aircraft), Dwayne Johnston (described as the first officer), Peter Phillips (one of the passengers), Tim Armstrong (the president of Jetport and also a passenger), Mike Charters (Jetport’s director of maintenance) and Dean Kent (Jetport’s former operations manager). There is a seventh package containing “Passenger Seating Information” and interview information for four more passengers on the aircraft.

[Full detailed rulings on each document category follow exactly as in the original decision.]

Flight Data Recorder

[33] The court has already determined that the manner in which the accident occurred is relevant. Section 28 of the TSB Act relates to “on-board recordings” including voice communications (in this case the CVR) and video recordings. This section does not apply to the Flight Data Recorder and there is nothing in the Act that makes the FDR privileged. The FDR would contain data relevant to the issue of how the accident occurred and as there is no applicable privilege, it shall be produced.

Timing of production

[34] The timing of the hearing of this motion, which was delayed by the interlocutory proceedings referred to in paragraph [37] below, combined with the significant number of documents provided for the court’s review and the fact that the pre-trial conference is scheduled to proceed on February 13, 2015, has created some urgency in the matter. All documents ordered produced shall be produced by the TSB to the defendants and the plaintiff within 20 days of the release of these Reasons.

Sealing order

[35] The documents provided for my review and reviewed above, consisting of the envelope and contents marked “Patrick Floyd” provided by counsel for the defendants, and the envelopes and contents marked “CVR Transcript and Audio”, “Roger Adair”, “Dwayne Johnstone”, “Peter Phillips”, “Tim Armstrong”, “Mike Charters”, “Dean Kent” and “passengers” provided by counsel for the TSB are hereby ordered sealed.

Confidentiality order

[36] Although the notice of motion refers to a confidentiality order “in the form attached as Schedule “A” hereto”, there was no order attached. If counsel still seek a confidentiality order, and can agree among themselves as to terms, they may submit an order to me, along with the consent of all parties, for my signature.

Costs

[37] If the parties cannot otherwise agree, the costs of this motion, which include the motions to strike the notice of examination served on Mr. Floyd, to strike portions of Mr. Laporte’s affidavit and to compel rule 39 examinations of Mr. Harding and Mr. Fenn, are reserved to the trial judge, who will be in the best position to determine the importance of the productions obtained on the motion to the ultimate disposition of the action.

MASTER GRAHAM

November 26, 2014