COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	British Columbia Ferry Services Inc. v. Canadian Transportation Accident Investigation and Safety Board,
	2008 BCCA 40

Date: 20080128

Docket: CA035432

Between:

British Columbia Ferry Services Inc.

Appellant

(Petitioner)

And

Canadian Transportation Accident
Investigation and Safety Board

Respondent

(Respondent)

Before:	The Honourable Mr. Justice Hall
	The Honourable Mr. Justice Lowry
	The Honourable Mr. Justice Frankel

 

W.S. Berardino, Q.C. and B.B. Olthuis	Counsel for the Appellant
A.M. Mersey and M.E. Fancourt-Smith	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
January 16, 2008
Place and Date of Judgment:	Vancouver, British Columbia
January 28, 2008

 

Written Reasons by:

The Honourable Mr. Justice Lowry

Concurred in by:

The Honourable Mr. Justice Frankel

Concurring Reasons by:

The Honourable Mr. Justice Hall  (P. 7, para. 14)

Reasons for Judgment of the Honourable Mr. Justice Lowry:

[1]                British Columbia Ferry Services Inc. ("B.C. Ferries") appeals the order of Mr. Justice Hinkson dismissing its application to be relieved of an obligation of confidentiality assumed under an agreement made with the Canadian Transportation Accident Investigation and Safety Board (the "Board").  The reasons for judgment are cited as 2007 BCSC 1434.  The question that arises is whether the judge properly exercised his discretion in disposing of the application as he did.

[2]                The Board has undertaken an investigation into the cause of the sinking of a B.C. Ferries vessel in March 2006.  The Board recovered a computer hard drive from the vessel containing electronic chart data that had been submerged in salt water for three months.  The data was retrieved from the hard drive and copies were made for use in the investigation. 

[3]                The Board's authority to seize property is governed by the Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3.  Under ss. 19 and 20, the Board was authorized to seize the computer hard drive and to retain it until the purpose for which it was seized has been served.  Subsection 20(2) provides for an application to be made in the event the drive is not returned, and s. 20(3) provides the court may order its return when the purpose of its seizure has been served or the interests of justice require. 

[4]                In due course, the Board provided B.C. Ferries with a draft copy of the report it proposes to publish in concluding its investigation.  The draft was provided in confidence and B.C. Ferries was invited to comment.  B.C. Ferries sought disclosure of the data in order to be able to make a meaningful assessment of the report.  The Board declined to return the hard drive or, more particularly, to release the data until after its investigation was completed and its report was published unless B.C. Ferries agreed to hold the data in confidence until the Board's report was published. 

[5]                B.C. Ferries filed a petition seeking the return of the hard drive or the release of a copy of the data free of any restriction on its use.  The parties then entered into an agreement pursuant to which the Board delivered a copy of the data to B.C. Ferries on the following condition:

The [data] will be kept in confidence by BC Ferries and is to be used only for the purposes of responding to the draft report subject to the parties' agreement to permitted uses prior to the release of [the Board's] final report or order of the court.

[6]                B.C. Ferries has already published its own internal report about the sinking of its vessel.  Upon reviewing the data, a decision was made to issue an addendum to its report based on the data.  It wishes to do so now before the Board's final report is published.  (The report is expected before the anniversary of the sinking.)  A draft of the addendum was given to the Board but the Board was and remains unwilling to relieve B.C. Ferries of the obligation to hold the data in confidence.  B.C. Ferries amended its petition and applied for a declaration that it be at liberty to use the data in publishing the addendum.

[7]                Without a s. 20(2) application before him, the judge was not prepared to assume that such an application would succeed – that the seizure of the hard drive had served its purpose and, had an application been made, the drive would be ordered returned before the Board's final report is published.  He took the view that, having made an agreement to hold in confidence the enhanced copy of the data, given for a limited purpose, it was not open to B.C. Ferries to circumvent the legislation by applying to have the court order the data could be disclosed as though B.C. Ferries had obtained the return of the hard drive.

[8]                B.C. Ferries contends the judge erred in his analysis.  It says the disclosure of the data is to be determined by terms of the agreement which the judge failed to enforce.  B.C. Ferries maintains that, because the agreement was made subject to agreed permitted uses of the data before the Board's report is published, it is not open to the Board to withhold its consent to the publication of the addendum, or insist the confidentiality upon which the data was given to B.C. Ferries be maintained, except on grounds that are objectively reasonable, citing this Court's decision in Jack Wookey Holdings Ltd. v. Tanizul Timber Ltd. (1988), 27 B.C.L.R. (2d) 221, quoting at 224-225, Greenberg v. Meffert (1985), 18 D.L.R. (4th) 548 at 554 (Ont. C.A.).  B.C. Ferries says no such grounds exist because the disclosure of the data could not impair the Board's investigation and would not be in any way inconsistent with the provisions of the Act.  B.C. Ferries does not advance any evidentiary basis for urgency but says that, as a matter of principle, in the absence of the Board establishing reasonable grounds for preserving confidence, B.C. Ferries should be permitted to use the data as it wishes before the Board's report is published. 

[9]                The agreement was made to resolve the impasse over the return of the hard drive, and more particularly the data it contained, to permit B.C. Ferries to comment on the Board's draft report in a meaningful way.  It governs the whole basis on which the data copied from the hard drive was given to B.C. Ferries.  It was given for a limited purpose on the basis it be held in confidence until the Board's report was issued at the conclusion of its investigation.  As B.C. Ferries says, the Act does not provide for the Board's imposition of the obligation of the confidence assumed, but the agreement does.  Rather than pursuing a s. 20(2) application, B.C. Ferries chose to agree to hold in confidence what it was given by the Board subject to further agreement or the order of the court on permissible uses to which the data might be put.

[10]            B.C. Ferries would read the agreement as effectively providing that, with the consent of the Board which may not be unreasonably withheld, the data may be used in any way B.C. Ferries wishes.  But that is not what the agreement says and I do not consider the wording employed bears that interpretation.  Viewed objectively, having regard for the purpose for which it was made, the agreement reflects no more than the intention the data be held in confidence subject to any further agreement the parties may make, on such terms as may be mutually acceptable, or the court may order, with respect to the use by B.C. Ferries of the data.

[11]            Further, the decision of this Court upon which B.C. Ferries relies for the principle on which it founds its argument had nothing to do with relieving one of two parties to an agreement of its obligation of confidence.  The concern was whether in a timber production agreement which provided for termination if one party was dissatisfied with the performance of the other, dissatisfaction was to be measured on a subjective or objective basis.  It was held the satisfaction clause in that case was readily susceptible to objective measurement and imposed a standard of reasonableness. 

[12]            I question the applicability of the principle for which the case is cited, but even if it could be said a standard of reasonableness with respect to agreeing to the disclosure of the data was imposed on the Board, I am unable to accept that a sound basis has been established upon which the judge would necessarily have had to conclude the Board has acted unreasonably in insisting the obligation of confidence B.C. Ferries chose to assume when it obtained the data be fulfilled.  In my view, it was open to the judge to conclude that the fact the data was given in confidence was of itself sufficient reason for the Board's refusal:  the terms of the agreement do not oblige the Board to justify B.C. Ferries' obligation which, as I have said, was the whole basis upon which the vessel's owner was given the data. 

[13]            I would dismiss the appeal.  

“The Honourable Mr. Justice Lowry”

I agree:

“The Honourable Mr. Justice Frankel”

Reasons for Judgment of the Honourable Mr. Justice Hall:

[14]            I have read in draft the reasons of Lowry J.A.  I concur in his disposition of this appeal substantially for the reasons he gives.  I would only add that although assertions were advanced about concerns of the appellant relative to the safety of the travelling public on ferries, I do not consider that the record here establishes a compelling case to permit a court to relieve the appellant of its agreement to hold in confidence the information it had earlier obtained.  I do not doubt that a judge in a proper case might relieve a party to such an agreement as the one in the case at bar from an obligation to hold information in confidence but such order could only be made on a clear demonstration of powerful grounds (an example might be urgent considerations of public safety).  I do not consider an evidentiary framework existed before the learned judge at first instance that would have furnished a sound basis permitting him to make the order sought on behalf of the appellant.

[15]            In this area, where there exist strong public policy reasons for affording confidentiality to activities of the respondent in order to facilitate effective investigation of transport accidents, I consider an applicant in the position of this appellant bears a heavy onus in seeking to persuade a court to relieve it of an agreement of the type here under consideration.  While the judge might have more expansively set forth his reasons for declining to exercise his discretion, I am in no doubt that he reached the correct result in refusing to relieve the appellant from its agreed obligation of time limited confidentiality. 

[16]            I too would dismiss this appeal.

“The Honourable Mr. Justice Hall”