T-3972-78
Pacific Western Airlines Ltd., and Canadian
Acceptance Corporation Limited (Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Cattanach J.—Ottawa, April 8 and
15, 1980.
Practice — Discovery — Plaintiffs move for production of
tape recordings for 10 days, and that plaintiffs shall be at
liberty to remove the tapes to the U.S. for the purpose of
testing, them by use of specialized laboratory equipment in
privacy and without interference — Recorded conversations
might establish an absolute defence to plaintiffs' allegations of
defendant's liability for damages resulting from plane crash
— Recording might be obliterated, distorted, or rendered
unintelligible by tests to be conducted by plaintiffs — Nature
of tests and type of equipment to be used has not been
disclosed — Motion denied.
MOTION.
COUNSEL:
Robert Allen for plaintiffs.
W. J. A. Hobson, Q.C. for defendant.
SOLICITORS:
Lane, Breck, Toronto, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: By notice dated March 13,
1980 the plaintiffs move for an order requiring the
defendant to make available to the plaintiffs tape
recordings listed as Crown productions numbered
547 and 548 of Schedule I, Part I of the defend
ant's affidavit of documents, referred to as the
"Cranbrook Aeradio tape" for a period of ten days
and that the plaintiffs shall be at liberty to remove
the tapes to the Institute of Voice Identification of
Michigan State University, East Lansing, Michi-
gan for the purpose of testing these tapes by an
expert in voice analysis and identification by use of
specialized equipment in a laboratory at the Uni-
versity in complete privacy and without physical
interference.
There was also included in its application a tape
referred to as the "Calgary ATS tape" but that
tape has been made available and is no longer an
issue.
The other two tape recordings are communica
tions between the pilot or crew operating the plain
tiffs' aircraft and ground control employees of the
defendant. The content of those communications
recorded on the tapes are of vital importance in
this action, and many other actions in other juris-
dictions, arising from the crash of an aircraft at
Cranbrook, B.C., on February 11, 1978.
The defendant readily acknowledges that the
tapes should be made available to the plaintiffs for
their examination and testing but is most reluctant
to release its custody of its tapes for transportation
out of the jurisdiction and, because of the sensitive
nature of the recorded voices on the tapes, without
first being satisfied of the type of equipment to be
utilized in the tests and the nature of those tests.
That reluctance is based upon the circumstance
that the equipment may be available in Canada to
conduct the tests and on the circumstance that the
conversations recorded might establish an absolute
defence to the plaintiffs' allegations of the defend
ant's liability for damages resulting from the crash
which recording might be obliterated, distorted or
rendered unintelligible by the tests to be conducted
by the plaintiffs.
I share, with counsel for the defendant, his
conviction that the tapes should be made available
for examination and testing by the plaintiffs. How
ever counsel for the defendant is most reluctant to
deliver those tape recordings up to the plaintiffs,
for testing outside the jurisdiction. I, too, would be
reluctant to so order unless I was first satisfied, as
I am not at this time, that the equipment necessary
to conduct the tests by the expert engaged by the
plaintiffs is not available in Canada. The nature of
the tests must be known to ascertain if such equip
ment is available in Canada. It is quite conceivable
that material produced from the tapes for an
ultimate test to be conducted or analyzed else
where can be produced in Canada.
It was submitted that the tests to be conducted
by the expert engaged by the plaintiffs must be
conducted in complete privacy and without physi
cal interference of any kind. Counsel for the
defendant has expressed a willingness to permit of
this being done if the tests are conducted by the
use of equipment available in Canada. For my part
I should like to be satisfied that absolute privacy is
essential to the conduct of the tests by the expert
bearing in mind that the evidence in chief to be
given by the expert as a consequence of his exami
nation and analysis of the tapes must be set out in
an affidavit in accordance with Rule 482.
I have been assured in general terms that the
tests contemplated by the plaintiffs can only be
conducted on the original tapes, not recordings
thereof, and on the equipment in a laboratory at
Michigan State University in East Lansing.
Whether this is so cannot be known without first
knowing what equipment is to be used in East
Lansing, whether the same equipment is available
in Canada and the nature of the tests to be
conducted.
Assuming it is established that there is no like
equipment in Canada upon which the tests con
templated are to be conducted by the plaintiffs'
expert elsewhere (which cannot be established
unless the plaintiffs' expert knows what equipment
is available to him in Canada), which is dependent
on the nature of the tests, and assuming also it is
established that there is little or no likelihood of
the recordings on the tape being destroyed or
rendered less useful than in their original state it is
my view that safeguards should be provided
against such eventuality. I have in mind a prior
agreement that, should such event occur, a record
ing before the delivery up of the tapes would be
acceptable in evidence in place of the original or
some such similar arrangement to be agreed upon
among the parties.
Until all such circumstances are known, in my
opinion, it would be premature to order the release
of the tapes for subjection to tests to be conducted
by the plaintiffs out of the jurisdiction.
It is for these reasons that the plaintiffs' motion
is denied.
At the same time as the plaintiffs' application
was called, counsel for the defendant filed a notice
of motion on short notice, to which objection was
not taken by counsel for the plaintiffs, to compel
the affiant of the affidavit in support of the plain
tiffs' motion to answer questions as to the type of
equipment proposed to be used in testing the tapes
and the type of tests to be carried out on the tapes.
The reasons expressed for which the plaintiffs'
application should be refused at this time consti
tute the reasons why the defendant's motion is
granted.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.