Who’s who?

After an aircraft accident, multiple investigations are advanced by various agencies, each with a different purpose. Although not set in Canada, the recent Hollywood movie Flight exemplified the confusion many people have about the overlapping post-accident roles of the Transportation Safety Board and other agencies, including the RCMP, Transport Canada, Employment and Social Development Canada (ESDC), workers’ compensation boards, insurance adjusters, as well as lawyers acting on behalf of interested private parties. 

While a book could be written about the inaccuracies in Hollywood’s aviation movies, never mind the fictions portrayed in legal dramas, the purpose of this article is to provide a brief synopsis of the different players a Canadian operator may encounter in the aftermath of an accident. 

The sole mandate of the Transportation Safety Board of Canada (the TSB) is to advance the travelling public’s safety. 

To fulfil its mandate, the TSB investigates select occurrences and makes findings as to their causes and contributing factors. The agency’s final report identifies safety deficiencies and makes recommendations intended to improve safety. It is important to note the TSB does not assign fault or mete out punishment, as this would be counterproductive to achieving the cooperation of all interested parties in the investigation. Similarly, interested parties’ communications with the TSB remain confidential, and the TSB’s report—and the opinion and evidence of its investigators—are not admissible in later court proceedings for the purpose of establishing liability. 

Nonetheless, since the TSB’s final report is often made public before limitation periods to sue expire, the practical reality is that many lawyers retained by potential plaintiffs will turn to the TSB’s published report as the starting point to familiarize themselves with the nature of the accident, to identify potential defendants, and to particularize the allegations of negligence against those identified defendants. Therefore, while an operator should never obstruct the TSB’s investigation and should offer its good faith cooperation at all times, it is important to obtain the guidance of legal counsel while doing so. This is particularly critical when the operator receives the TSB’s confidential draft report. Legal counsel can assist the operator to prepare a confidential responsive statement, a “representation,” that identifies any factual inaccuracies or disputed findings in the draft report. This is the operator’s one chance to provide input on items included in the TSB’s final, public report, and it is an opportunity that should not be missed. 

Most operators are thoroughly familiar with the role of Transport Canada, the aviation industry’s federal regulator. However, an operator should be prepared for extra attention from Transport Canada in the aftermath of a loss, and should consider whether certain demands made by the regulator, which may appear benign on the surface, will detrimentally affect their interests. It is important to keep in mind that the confidentiality protections available when corresponding with the TSB are not available in communications with Transport Canada. Documents generated as a result of Transport Canada’s investigation may, therefore, become evidence in subsequent civil or criminal proceedings. 

Depending on the nature of the accident, there may be a criminal investigation against the operator or pilot. For ex-ample, under section 249 of the Criminal Code, a pilot can be charged with dangerous operation of an aircraft causing death or bodily harm, an indictable offence punishable by imprisonment up to a maximum of 14 years. The rights of an accused in a criminal investigation are complex, and legal counsel can assist the accused with his or her cooperation with authorities. A criminal proceeding against a pilot or operator is separate from any civil proceedings started on behalf of injured parties. 

If an operator’s employee is injured or killed on the job, notice must be given to Employment and Social Development Canada (ESDC) and/or a provincial WCB, and a visit by representatives of one or both should be expected. Both bodies have the statutory power to investigate an accident causing injury or death to a worker, and the ESDC in particular can charge and prosecute an operator with an offence under the Canada Labour Code. A conviction could result in a fine of up to $1 million or imprisonment. 

Aircraft operators are required to carry minimum amounts of liability insurance for each aircraft. Assuming coverage for the loss is not at issue, an operator’s insurer will respond after an accident in several ways. After being informed by the operator of an accident, an insurance broker will report the claim to insurers and often act as a liaison to the operator’s insurer. Thereafter, an operator may be visited by an independent loss adjuster who will investigate the facts, collect the relevant evidence, including documents and photographs, and prepare an estimate of the damages, for the dual purposes of determining an amount of an indemnity to the operator and/or to estimate the exposure to potential third party claims for property damage or bodily injury. 

If an accident results in the death or injury of a passenger or person on the ground, or other property damage, it is not uncommon for a lawsuit to be started. Canadian tort law clearly conveys that if a person suffers loss or injury due to the negligence of a “tortfeasor,” the injured person is entitled to be put back in the same position they were in had the accident not happened. This is achieved with monetary compensation. 

Where litigation is anticipated, an operator’s insurer will often appoint a lawyer to protect the operator’s interests even before any lawsuit is commenced. If, at a later date, an injured party retains a lawyer and commences a lawsuit, the operator’s lawyer will continue to protect the operator’s interests through to judgment or settlement. To achieve recovery under Canada’s common law, the plaintiff must establish that the operator, or its employee or agent (whom it is vicariously liable for) was negligent. Although most civil lawsuits conclude via settlement, there are often many factors that significantly affect which party is liable (i.e. an operator, manufacturer or maintenance provider) and the appropriate valuation of damages. 

In the unlikely event an operator suffers an accident, its insurance broker, insurer, adjuster and lawyer will all provide assistance in navigating the different investigations that may occur after the accident. Nonetheless, it is helpful to have a general understanding—certainly greater than the understanding exhibited by Hollywood in movies like Flight—of the identity and purpose of the many parties that may be involved in post-accident investigations. 

The above is intended as a brief overview and should not be considered legal advice. If legal advice is required, please consult a lawyer (a real lawyer, not an actor).