Date: 20010614
Docket: T-465-01
Neutral Citation: 2001 FCT 659
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
- and -
THE EXECUTIVE DIRECTOR OF THE CANADIAN TRANSPORTATION
ACCIDENT INVESTIGATION AND SAFETY BOARD
Respondent
[1] By this application, under Rules 303(1)(a) and 104(1)(b) of the Federal Court Rules, 1998, ("the Rules") NAV CANADA requests an order adding it as a respondent to the application and, in the alternative, to be added as an intervenor pursuant to Rule 109 with the right to file evidence, participate in cross-examinations, file written representations and make oral arguments.
1. Facts
[2] Since November 1, 1996, NAV CANADA, a private corporation, has been the primary provider of civil air navigation services within Canada and within international airspace for which the responsibility has been delegated to Canada. Such services include the provision of air traffic control services, flight information and aeronautical information services.
[3] The provisions by NAV CANADA's air traffic controllers and flight service specialists of air traffic control, flight and aeronautical information services is a highly specialized and complex activity requiring specially trained personnel engaged in, inter alia, communication with air crews.
[4] NAV CANADA makes and records conversations involving its air traffic controllers and flight service specialists and crews of air flights engaged in performing functions, in all instances, for its own purposes. Before November 1, 1996, Transport Canada operated the civil air navigation services. It maintained the confidentiality of these recordings and any transcripts arising therefrom. Since NAV CANADA assumed responsibility for the civil air navigations system, it has consistently maintained that these recordings and transcripts derive therefrom are confidential and not to be released to the public.
[5] Three reasons emanate from the affidavit of Kathleen C. Fox, a Certified Air Traffic Controller. They arise from portions of her affidavit not challenged by the applicant ("the Commissioner").
[6] Firstly, audiotape recordings and transcripts of such tapes of Air Transport Services ("ATS") communications only provide a partial picture of the totality of events in the cockpit and at the controller/position. Their release has the potential to misinform third parties with respect to actual events.
[7] Secondly, when NAV CANADA assumed operation of the civil air navigation system, it agreed with the Government to provide civil air navigation services to the same extent as provided by the Crown. Following the transfer, NAV CANADA, the latter used the same procedures as the Government. The policy of confidentiality of ATS communications and the ban on disclosure of audiotapes or transcripts of such tapes predates NAV CANADA's assumption of operation of the air navigation system.
[8] Thirdly, NAV CANADA is restricted in its use of such tapes by provisions of its current collective agreements with, inter alia, the Canadian Air Traffic Controllers Association ("CATCA") the certified bargaining agent representing NAV CANADA's air traffic controllers.
2. The Instant Proceedings
[9] In these proceedings, the Commissioner has brought an application pursuant to the provisions of the Access to Information Act (R.S.C. 1985, c. A-1) ("the Act") seeking an order requiring the respondent ("the Transportation Safety Board") to release certain audiotapes of conversations between NAV CANADA's air traffic controllers and a particular flight crew related to an air crash near Clarenville, Newfoundland, on May 19, 1998, involving a Kelner Airways aircraft. The application alleges that the Transportation Safety Board erred in its application of section 19 of the Act. That section allows the head of a government institution to refuse disclosure containing personal information as defined in section 3 of the Privacy Act (R.S.C. 1985, c. P-21).
[10] The audiotapes in question were provided to the Transportation Safety Board by NAV CANADA and contain the voices of NAV CANADA employees while acting in the course of their employment.
[11] In an unchallenged portion of her affidavit, Kathleen C. Fox states that to her knowledge Transport Canada has never released audio recordings or transcripts of such to the public and NAV CANADA has never released such recordings or transcripts to the public nor consented to the public release of these recordings or transcripts.
[12] However, on one occasion in the past, prior to providing the actual audio recording to the Transportation Safety Board, NAV CANADA made and provided an in-house transcript of the recording to the Transportation Safety Board. When it became known that the Transportation Safety Board planned to release the transcript, NAV CANADA objected and the Transportation Safety Board agreed not to release it, but prepared its own transcript and released it without prior notification to NAV CANADA.
3. Law and Jurisprudence
[13] Rule 303(1)(a) provides that every person directly affected by an order sought in an application shall be named as respondent to the application. It reads as follows:
303.(1) Respondents - Subject to subsection (2), an applicant shall name as a respondent every person
(a) directly affected by the order sought in the application, other than a tribunal in respect of which the applicant is brought;
[14] And Rule 104(1)(b) stipulates that the Court may add a person as a party, at any time, where the person ought to have been joined as a party, or where the person's presence before the Court is necessary to ensure that all matters in dispute may be effectually and completely determined.
[15] In Apotex Inc. v. Canada (Attorney General) et al. (1994), 79 F.T.R. 235, my colleague Simpson J. set out the following five factors as being relevant to the court's exercise of its discretion to join a respondent in an application for judicial review:
1. The status of the case. What is the procedural and substantive development of the matter to date? How well have the issues been defined?
2. The impact of the decision. Who will be affected? Are the issues of interest to the parties, to a broader group such as an industry or to the public at large?
3. The nature of the rights which the moving parties assert. Are they direct or remote? Are they substantive, procedural, economic?
4. The nature of the evidence the proposed parties or intervenors are in a position to adduce and whether it will assist the court in reaching its decision.
5. The ability of the existing parties to adduce all the relevant evidence and their apparent enthusiasm for the task.
4. Analysis under the Five Criteria
[16] Firstly, as to the status of the case, the Notice of Application was issued and the application commenced. The Commissioner has filed some affidavits and so has the Transportation Safety Board in response. There have been no cross-examinations as yet and there is agreement between counsels that no cross-examination will be held pending the determination of NAV CANADA's status. Thus, this matter is not so far advanced as to rule out the addition of a second respondent.
[17] Secondly, as to the impact factor, the parties affected in addition to the pilot of the flight will be NAV CANADA and its employees and, more particularly, the air traffic controllers whose voices are on the tape.
[18] Thirdly, the nature of the rights asserted by NAV CANADA. They are direct and more than procedural as the disclosure of the information may affect its relations with its own employees and possibly the general public.
[19] Fourthly, the nature of the evidence that NAV CANADA is in position to adduce, because of its technical experience in the matter, can assist the Court in reaching its decision. NAV CANADA is the sole organization in Canada providing air traffic control for the whole country under the Civil Air Navigation Services Commercialization Act (S.C. 1996, c. 20). It has been authorized to do so since November 1, 1996.
[20] Fifthly, the existing parties do not have the ability that NAV CANADA offers to provide some of the relevant evidence which NAV CANADA is enthusiastic to provide. Moreover, the existing respondent supports NAV CANADA's instant application.
5. The Transportation Safety Board's Submissions
[21] The Transportation Safety Board submits that the participation of NAV CANADA in these proceedings would be of assistance to the Court as it will bring a different point of view to the complex issues involved. NAV CANADA would be in a position to address the issues of the persons whose voices are recorded and, in particular, the expectation of privacy that air traffic control personnel have in their audio communications. It can provide an elaboration of the environment within which air traffic controllers operate and the potential prejudice to the rights and interests of those individuals in respect to disclosure. It is the owner of the record which is the subject of these proceedings and the rights of their employees are directly affected. Further, NAV CANADA possesses extensive knowledge and expertise with respect to air traffic control services.
[22] Because of the failure to give notice to NAV CANADA under section 27 of the Act, NAV CANADA was precluded from making representations under section 20 to the Transportation Safety Board. As a party respondent, NAV CANADA would be allowed to make full representations on all relevant issues.
6. The Commissioner's Submissions
[23] Alternatively, the Commissioner would not object to NAV CANADA's participation as an intervenor limited to written and oral representations only, without right of appeal and cross-examination. However, he objects to granting the full status of respondent to NAV CANADA on the grounds that NAV CANADA has no standing as it is not a government institution and is therefore not exempted from the Act. He submits that NAV CANADA wishes to intervene only to ensure that its rights, as the owner of the audiotapes in question, are protected and that its interests in other litigations under the Act are preserved. These issues are raised under subsection 20(1) of the Act but NAV CANADA is precluded from raising these new grounds under the instant proceedings. Moreover, NAV CANADA's position is adequately defended by the Transportation Safety Board and there is really no need for NAV CANADA to intervene and much less to participate as a respondent.
[24] In my view, these allegations are premature as they go mostly to the merits of the case that NAV CANADA would have presented, if it had been issued a third party notice under section 27 of the Act. The Commissioner's arguments will be heard in due course. At present, it is sufficient to decide whether NAV CANADA is directly affected by the order sought in the application and, in my view, it is: therefore, it should be allowed to appear as a respondent. It cannot be assumed that the Transportation Safety Board will look after NAV CANADA's interests.
7. Disposition
[25] The application is granted and it is hereby ordered pursuant to Rules 303(1)(a) and 104(1)(b) of the Federal Court Rules, 1998 that NAV CANADA be added as a respondent to the instant application.
OTTAWA, Ontario
June 14, 2001
Judge