Yesterday, the British Columbia Court of Appeal held that it ought not relieve B.C. Ferries from a confidentiality agreement it had entered into with the Canadian Transportation Investigation and Safety Board as a condition of receiving data from its own hard drive that had been recovered from its sunken vessel and seized by the Board. So it could respond to the Board’s draft investigation report on the sinking, B.C. Ferries agreed to the following confidentiality covenant:
The [data] will be kept in confidence by BC Ferries and is to be used only for the purposes of responding to the draft report subject to the parties’ agreement to permitted uses prior to the release of [the Board’s] final report or order of the court.
B.C. Ferries argued that the Board did not exercise its discretion to grant relief from the confidentiality covenant in good faith. The majority, in a fact-specific judgement written by Mr. Justice Lowry, held that the clause did not grant a discretion subject to an implicit good faith requirement, but rather, was simply an agreement “subject to further agreement.” Mr. Justice Hall adopted the majority’s reasons and added that the public interest in the safety of the traveling public might have otherwise justified an order of relief, but that there was insufficient evidence of such an interest on the record.
British Columbia Ferry Services Inc. v. Canadian Transportation Accident Investigation and Safety Board, 2008 BCCA 40.