Case Report – Production favoured over privacy interests in two orders relating to Air France crash litigation

The Ontario Superior Court of Justice has issued two production-related decisions in litigation flowing from the 2005 Air France crash in Toronto. On December 12th of last year, it held that the Transportation Safety Board should produce Air France’s cockpit voice recorder. On January 14th, it ordered Air France to produce relevant medical records and an internal investigation report.

Strathy J. issued the cockpit voice recorder decision. He held that production was warranted despite the statutory privilege for “on-board recordings” in section 28 of the Transportation Safety Board Act. This privilege is based on a need to protect pilot privacy and a need to encourage free communication between pilots, both necessary given that continuous voice recording is invasive. Strathy J. held that, in the circumstances, these interests did not outweigh the public interest in the “integrity of the judicial fact-finding process and the reliability of the evidence before the court.” He stressed that the cockpit voice recorder evidence was highly relevant, probative and reliable and that the pilots’ remaining privacy interest was minimal given their pre-crash communications were fully probed by the TSB and discussed publicly in its accident report.

Master Brott issued the second production-related decision. She rejected Air France’s argument that that production of a captain’s medical records should not be ordered given strict French privacy laws and because Air France had produced a certificate of medical fitness. She held that the captain was a party to the action, that “Medical records in France and Ontario belong to the patient” and that the records were relevant in light of the pleadings. Master Brott also rejected an argument that an internal investigation report prepared by Air France as a matter of due diligence was immune from production on account of case-by-case privilege.

Société Air France v. Greater Toronto Airports Authority, 2009 CanLII 69321 (ON S.C.).

Société Air France v. Greater Toronto Airports Authority et al, 2010 ONSC 432 (CanLII).