TSB Feature Articles
This article was published in The Journal of Parliamentary and Political Law, Volume 2 Number 3, in May 2009
No Fault, No Blame: Protecting Evidence in Transportation Accident Investigations
by Wendy A. Tadros – Chair, Transportation Safety Board of Canada
and Allen C. Harding – General Counsel, Transportation Safety Board of Canada
The Transportation Safety Board of Canada (TSB) leads the world in accident investigation and the protection of safety information. In this practice note, we will discuss the role of the TSB and how it advances transportation safety. We will also examine the protections in place for information received by the TSB and the public policy reasons behind the protection of this information. Lastly, we will discuss what can happen when other organizations seek to use the same information for other purposes and the key court rulings in this area.
1. Role of the Transportation Safety Board of Canada
To begin, it's important to understand the role of the Board. The TSB is an independent body that investigates selected transportation accidents in the federal system. The sole purpose of these investigations is to make transportation safer. The TSB accomplishes this purpose by determining what happened; why it happened; and what needs to be done to ensure it never happens again.
The TSB's enabling legislation is The Canadian Transportation Accident Investigation and Safety Board (CTAISB) Act1. Through this legislation, Parliament provided the TSB with a toolkit of powers to carry out its mandate. For instance, investigators can seize evidence, conduct searches and compel witnesses to give statements. These powers ensure the TSB can carry out detailed and comprehensive investigations. The legislation also provides a number of important protections which are modeled on the International Civil Aviation Organization2.
In all its investigations, the Board needs to understand the role the people, the companies and the systems played in the chain of events. The need to gather and rely on human evidence presents challenges for the TSB and the power to compel only gets investigators through the door. That is because there is often tension between speaking the truth and the interests witnesses may be defending in concurrent legal actions. Witnesses may also be concerned about loss of employment, relations with their co-workers, their unions, or their families.
2. Protections for TSB-Gathered Information
The fact is, if people are preoccupied with these concerns, statements may not be provided in a timely manner or in a complete and detailed way. Canadian law makers purposely took these concerns out of the equation in a number of ways. Firstly, they made it clear in section 7 of the CTAISB Act that "it is not the function of the Board to determine civil or criminal liability" and "no finding of the Board shall be construed as assigning fault or determining civil or criminal liability".
These prohibitions were extended to make it clear that "the findings of the Board are not binding on the parties to any legal, disciplinary or other proceedings."
The second thing Parliament did was to recognize that confidential and privileged information is crucial for the long term success of this accident investigation body. The CTAISB Act preserves the confidentiality or privilege of key information and establishes a set of rules about how others can use the information collected by the TSB. For example, the information in the TSB's draft reports is confidential. Cockpit voice recordings and witness statements are privileged.
These protections are tempered by other public interest factors. For instance, the Board has the discretion to use this information in its final report. It does so only when the information is necessary to reach findings or report on safety deficiencies. Also, there is a "Back Door" to allow the justice system to make use of information in very specific circumstances. Nothing is absolute but on the whole, these protections assist the Board in meeting its objectives. And, on the whole, human evidence is protected.
3. Examples of Key Court Rulings
Every so often legal counsel will try to access information gathered in a TSB investigation. The Courts have consistently recognized the critical importance, in the long-term, of employing TSB-held information strictly for safety investigation purposes. They have generally opposed its short-term use in litigation.
Three examples will help to explain the key court rulings in this area. The first relates to cockpit voice recorders, or CVRs. CVRs allow investigators to understand what was happening in the cockpit and in turn with the aircraft. Legislation states that it cannot be knowingly communicated or used in legal, disciplinary or other proceedings.
This protection was designed to ensure crews will continue to support the recording of their workplace for safety purposes but it is not absolute. A Coroner or Court may allow for the production of CVR if it determines "the public interest in the proper administration of justice outweighs in importance the privilege." CVR recordings and transcripts have rarely been released to litigation counsel. In the case of Propair3 in 2003 the Quebec Superior Court (Viau J.) ordered the release of a CVR but only on the condition it remained confidential and would not be disclosed to 3rd parties nor be part of the Court public record.
The second example relates to witness statements. Clearly, complete and detailed statements from witnesses are invaluable in understanding the factors that led to an accident. Parliament addressed this public policy goal by stating no person shall knowingly communicate or permit a witness statement to be communicated.
Protections in the CTAISB Act ensure witnesses can be forthright with investigators. And, the Board believes, there is a cumulative effect to honouring these protections thereby ensuring human evidence will be there for future investigations. This privilege has been upheld across the country in the courts of British Columbia, Alberta, the Northwest Territories, Ontario and Nova Scotia. In the case of Webber the Supreme Court of British Columbia (Sinclair-Prowse J.)4 dismissed an application by the Defendant Insurance Company for the production and discovery of a statement made to the Board by the Plaintiff. The Court maintained the privilege and ruled it was not in the interest of the proper administration of justice to set aside the privilege.
The third and final example relates to draft reports. As an investigation proceeds, the legislation requires the Board to produce and circulate for comment a draft report. The theories in the draft undergo a form of scientific challenge from those with a direct interest. These challenges are part of the investigation and they help to ensure the Board is absolutely sure of its facts before making them public.
Legislation states that our draft can only be used to make representations. It can neither be communicated nor used in legal, disciplinary or other proceedings. There are two reasons for this protection. Firstly, it guards against preliminary and sometimes inaccurate information being released to the public. Secondly, it allows investigators to work professionally on what is still a developing theory. The confidential nature of this information was recognized by the Supreme Court of Nova Scotia (Gruchy J.) in 2000 in Canadian Press5. This decision prevented members of the press from communicating the contents of a draft report on a marine accident. The Court ordered the media to return its copy to the Board and refrain from making any further copies.
Canadians expect - even demand - a safe and sound transportation system along our waterways, railways and in our skies. It's fundamental to the public interest.
The TSB exists to protect this interest by advancing transportation safety. Much of its efforts centre on the collection and analysis of confidential and privileged information during an investigation. It's crucial to gaining the most complete understanding of an accident. And, only by gathering this information is the TSB able to develop the most comprehensive set of recommendations to mitigate risks in our transportation system. Parliament understands this too, and has established strict rules that keep our information privileged and confidential. It's fundamental - not only to the future success of our organization, but also to the public interest.
S.C. 1989, c. 3↑
ICAO Annex 13 Chapter 5, Section 12 and Attachment E, Legal Guidance For Protection of Information From Safety Data Collection and Processing Systems↑
Propair et al v. BF Goodrich (30 January 2003), No. C.S. Montréal 500-05-058549-005, 2003 CarswellQue 111 (que. S.C.)↑
Webber v. Canadian Insurance Managers Ltd. (2002) 2002 CarswellBC 2323 (20020) B.C.J. No 2270 (S.C.)↑
Canadian Transportation Accident Investigation and Safety Board v. Canadian Press, (2000) N.S.J. No 66↑
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