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Upholding TSB’s Mandate

The mandate of the Transportation Safety Board of Canada (TSB) is to advance transportation safety in Canada. The TSB is an independent agency and reports to Parliament through the Queen’s Privy Council.
 
The TSB conducts independent investigations, conducts public inquiries to identify safety deficiencies with respect to accidents and then reports publicly on its findings. The board’s function is not to assign blame or fault, nor to determine civil or criminal liability in relation to an accident or incident. 

None of the findings of the TSB are binding on any party in a legal, disciplinary, or any other proceeding before a court. This makes perfect sense. The TSB must ensure safe flight operations. It wants to step in and fix something in order to protect the public. Complete candour is required from everyone in order to meet that mandate. An investigator has the power to compel statements under oath, as well as the power of search and seizure. What you disclose to an investigator in the performance of his/her duty should be used to advance safety, not to get someone into trouble. 

Sections 32 and 33 of the Canadian Transportation Accident Investigation Safety Board Act state that an investigator is not competent or compellable to appear as a witness in any proceeding unless a court orders otherwise for “special cause,” and that an “opinion” of an investigator is not admissible in any legal proceeding. Being found not competent or compellable simply means that you cannot be forced into court to give evidence in a proceeding. Does this mean that a finding of the TSB, and/or an investigator’s comments will never find its way into a courtroom? The short answer is “no.” There are a few circumstances where information gathered on a TSB investigation will be used in court. 

The first involves a situation where information gathered flows to another country first. I touched on the concept of our courts following the decisions of courts from other jurisdictions in an earlier column. There have been cases in Canada where TSB information found its way back into Canada from a court in the United States. Because we accept the rulings from other jurisdictions, in certain circumstances, the information attached to that ruling will become part of our court records. In through the back door!

The second situation occurred in a recent British Columbia case. The case involved a catastrophic failure of a part or parts that caused the pilot to lose control of the aircraft, and crash. The TSB investigation centred around specific parts that were to be tested in such a way that could not be replicated once completed. In this type of circumstance, observers are often invited if they are deemed to have a direct interest in the subject matter of the investigation. This invitation is discretionary, and observers have been removed or denied access on occasion. In this case, observers were never invited to attend, so there was no opportunity to gather independent evidence.

The judge considered how relevant the evidence was, and whether it could be available from other sources, and whether the parties did everything possible to find those sources. Usually the testing will be replicated by the various parties involved in the incident, which will then be presented in court. That was not possible here. The judge also considered whether the proper administration of justice outweighed the administrative convenience of having an investigator deemed not competent or compellable to testify. In other words, would there be an injustice to one party if the evidence did not come out? 

The judge found here that an injustice would arise, and ordered the investigator to give his evidence. The opinions and conclusions reached by the investigator following his testing could not be presented in court, however. These are considered narrow circumstances in which an investigator will be called to testify, but again the back door is open slightly. 

One final situation would be where a part has gone missing after having been tested by the TSB. I would argue that a judge would consider the facts using the above decision, and rule that the investigator must give evidence at trial. This question has yet to be judicially considered.

The TSB needs to be completely independent in order to uphold its mandate with respect to public safety. In my opinion it should be only under the narrowest of “special causes” that an investigator should be compelled to testify in court. We should all be guarding the back door!

Neil MacDonald is a lawyer with Harper Grey LLP, practising in Aviation Law. He holds an ATPL-H, and flies part time as an Air Ambulance pilot. This is not a legal opinion. Readers should not act on the basis of this article without first consulting a lawyer for analysis and advice on a specific matter.