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Nearly five years after an Air Canada Airbus A320-211 crashed short of the runway at Halifax Stanfield International Airport, the legal battle continues over whether cockpit voice recorder data should be released to both sides in a class-action lawsuit.
The Canadian Transportation Accident Investigation and Safety Board Act states that “every on-board recording is privileged” but a Nova Scotia Supreme Court judge directed the Transportation Safety Board of Canada (TSB) to release the recordings as well as any transcripts.
However, TSB spokesperson Chris Krepski told Skies Jan. 3 that it not only wants the ruling by Justice Patrick Duncan stayed but also would be appealing. The filing was confirmed by Kate Boyle, a member of the class actions group within the Halifax-based law firm Wagners.
The Nova Scotia Court of Appeal has set Feb. 6 for a hearing on the TSB’s request that the motion should be stayed and June 9 for a hearing on the appeal.
The TSB and the Air Canada Pilots Association (ACPA) would not comment further on the specifics of the case. The TSB’s Krepski said only that “as this is a matter before the courts, the TSB will not make further comments,” while his ACPA counterpart, Julie Rolph, would only reiterate the organization’s disappointment at Duncan’s ruling.
Rolph did cite an affidavit submitted to the court by Capt David Cadieux, chair of ACPA’s flight safety division, which states that “the privacy of pilots should be protected, especially when personal information incidental to events is recorded.” Cadieux also said that “as the privilege . . . is eroded, so too is the vital ability of pilots to speak freely while flying and while dealing with emerging in-flight issues, a prospect that raises broader and significant safety concerns.”
Five crewmembers and 133 passengers were aboard AC 624 from Toronto on a non-precision approach at 12:30 a.m. on March 29, 2015. According to the TSB report, the aircraft “severed power lines, then struck the snow-covered ground about 740 feet before the runway threshold.” It “continued airborne through the localizer antenna array, then struck the ground twice more before sliding along the runway,” coming to rest “about 1,900 feet beyond the threshold.” There no was fire but the Airbus was a write-off.
The TSB report found that the aircrew — identified in the court documents as John Doe #1 and John Doe #2 — had not monitored altitude and distance from the threshold and had not adjusted to the flight path angle once they had begun their descent. It also noted that the “challenging conditions” made it likely that the crew delayed disconnecting the autopilot “until beyond the minimum descent altitude” and that “reduced brightness of the approach and runway lights” had “diminished the flight crew’s ability” to notice that they were short of the runway.
Twenty-five persons required hospital treatment for what Air Canada described at the time as “observation and treatment of minor injuries.” The class action lawsuit, alleging negligence causing injury and seeking compensation, was filed against Air Canada, Airbus, the airport authority and the federal government. The TSB and ACPA were granted intervenor status.
The statement of claim filed by Wagners alleges that the aircrew ignored regulatory runway approach minimums, opted not to divert to another airport, did not request weather updates from air traffic control, did not follow ATC instructions, did not declare an emergency “in a timely manner” and had operated the Airbus “without due care and skill despite knowing that damage would probably result.”
The statement also alleged negligence not only by the airport authority with regard to runway lighting but also by Nav Canada for what the plaintiffs’ lawyers say included “a failure to inform the flight crew of unsafe weather conditions, unserviceable equipment and poor visibility.”
Moreover, Airbus allegedly failed “to provide adequate instructions and training” on “systems that would be pertinent to the possible causes of the accident” and Transport Canada “failed to fulfill its responsibility as an industry regulator, including how it assessed and approved Air Canada’s non-precision approach procedures.”
In addition to the plaintiffs in the class action, Airbus, the airport authority and Nav Canada asked that the TSB hand over the recording and any transcripts, but the board claimed statutory privilege.
But Justice Duncan, who heard arguments last July, stated in his November written ruling that “statutorily prescribed exceptions” in the legislation mean the definition of “privilege” is limited in scope. “The necessary implication is that the TSB can, subject to statute, communicate contents that are related to the causes or the identification of safety deficiencies. . . . In the circumstances of this case, the public interest in the administration of justice outweighs the importance attached to the statutory privilege protecting the cockpit voice recorder.”
CVR data were an issue after the August 2005 crash of Air France Flight 358, an Airbus A340-313 arriving from Paris at Toronto International Airport, ran off the end of the runway and crashed into a ravine.
On final approach, the crew received a report from an aircraft ahead that heavy precipitation was compromising runway traction. Approximately 320 feet above the ground, the crew took manual control but crossed the threshold 40 feet above the glide slope and landed 3,800 feet down the 8,000-foot runway. Two crewmembers and 10 passengers were seriously injured and the plane was destroyed by fire.
Justice Duncan pointed out that in hearing a case brought by Air France against the Toronto airport authority, Ontario Chief Justice George Strathy, faced with “the same balancing exercise” and noting that one pilot had not objected, had ordered the CVR data released because it included “highly relevant, probative and reliable evidence that is central to the issues in the litigation.”