



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


