The Toronto Star
Tracey Tyler
Legal Affairs Reporter
It has been five years since Air France flight 358 overshot a runway at Pearson International Airport and burst into flames.
The pilots knew, before taking off from Charles de Gaulle Airport in Paris, that Toronto was bracing for thunderstorms so they took on extra fuel in case they had to circle or divert to Ottawa.
Instead, they landed at Pearson, with first officer Frederic Naud struggling to control the Airbus A340 in turbulence, lightning and heavy rain before it crashed into a ravine.
Now, all these years later, a major legal battle has developed over access to the cockpit voice recorder that was recovered from the wreckage and described by one judge as an “electronic fly on the cockpit wall.”
It captured every word spoken by the pilots during the last two hours of the Aug. 2, 2005 flight, including the critical moments of descent into Toronto.
In a case coming before the Ontario Court of Appeal next week, NAV Canada, the agency responsible for air traffic control, says it needs access to the recording device to defend itself against a $200 million lawsuit brought by Air France.
The airline and its insurers are suing NAV Canada, the Greater Toronto Airports Authority and the Attorney General of Canada, representing the federal environment and transportation departments, for loss of the plane and indemnity for all losses.
NAV Canada alleges the pilots were negligent.
But in its attempt to gain access to the recorder, NAV Canada faces massive opposition from the Air Canada Pilots Association and the Air Line Pilots Association International, which represents some 54,000 pilots across North America, as well as the Transportation Safety Board.
The pilots argue the cockpit is their place of employment, much like a lawyer’s office, and allowing parties to the litigation to have access to what is said in that environment would infringe their privacy and dignity.
In Canada, the contents of an aircraft’s “black box” — the cockpit voice recorder and the flight data recorder — are privileged communications, to be reviewed only by accident investigators and never to made public or disclosed during litigation arising from a crash.
The restrictions are set out in federal legislation governing transportation accident investigations and stem from the recommendations of a royal commission headed by former Ontario chief justice Charles Dubin into the 1978 crash of a Boeing 737 jet in Cranbrook. B.C.
There can, however, be exceptions and a court can order the contents of the cockpit voice recorder to be disclosed to litigants when there is an overriding public interest, which is exactly what Justice George Strathy concluded in a decision that went largely unnoticed last fall.
The cockpit voice recording, he found, would help ensure a fair trial because it would be the most reliable evidence in the case — a case in which the actions of Naud and Captain Alain Rosaye will be under the microscope and doubts linger about whether either will provide useful testimony.
Rosaye is fighting a court order to appear for pre-trial questioning and Naud had difficulty two years ago in describing what transpired in the cockpit.
“I cannot recall what was actually said on that day,” the first officer testified during an examination for discovery.
In court documents, however, the pilots argue if they can no longer assume privacy in on-board discussions, which can also include personal conversations, they could become much more guarded about what they say, which could jeopardize the speed and quality of their decision-making.
Strathy found that hard to fathom.
“The public places a great deal of trust in pilots,” he said. “I cannot imagine that pilots would curtail 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.”
The judge, who reviewed the cockpit voice recording, said there was nothing sensational or embarrassing about the words spoken, no terrifying screams.
But the pilots and Transportation Safety Board officials are appealing his decision. The board says opening up access to the recording could impair their investigations because pilots are more willing to be interviewed after a crash if they know inflight recordings won’t be used against them in a lawsuit.