Also, here is the link to Moshansky's presentation to the Royal Aeronautical Society at ICAO Headquarters in Montreal on October 16, 2007. The paper was entitled, "
THE ROLE OF THE JUDICIARY IN AVIATION SAFETY
The Inside Story and Legacy of Dryden
by
The Honourable Virgil P. Moshansky, C.M., Q.C., FRAeS
Justice of the Court of Queen's Bench of Alberta (Ret.)
and
Donald L Van Dyke, FRAeS *
Chairman, Royal Aeronautical Society – Montreal Branch
Presented at Montreal ICAO headquarters, on October 16, 2007
ABSTRACT: The Commission of Inquiry into the Air Ontario Crash at Dryden, Ontario was appointed in 1989 just days after a tragic accident in which twenty-four were killed. The Government of Canada called on Mr. Justice Virgil P Moshansky of the Court of Queen’s Bench of Alberta, a licensed pilot, to conduct the inquiry. His mandate was to inquire into and report on the contributing factors and causes of the crash, and to make such recommendations as he may deem appropriate in the interests of aviation safety.
This paper reviews systemic conditions preceding the accident, details unique challenges facing what became the most exhaustive judicial review in aviation history, cautions that current conditions are perilously familiar, and proposes permanent roles for the judiciary in organizational approaches to aircraft accident investigation and international aviation safety enhancement.
1.3.2. My first experience with CASB practice occurred shortly after my appointment when I, together with my Counsel and expert advisors, met in Ottawa with the outgoing CASB Executive to arrange handover of initial investigation records to my Commission. I was taken aback by the counsel of a senior CASB member suggesting that I undoubtedly would wish to massage investigator reports and witness interviews, which he made clear was CASB practice. The term “massage” in this context meant to me manipulation of accident investigator findings to fit an agenda, which later events suggested was not to unduly disturb the aviation industry’s comfort with its own performance.
1.3.3. Frankly, coming from a judicial background where one seeks to ascertain truth rather than subvert it, I was appalled by this advice and dismissed it out of hand. With such questionable ethics, it is small wonder that the CASB and Arrow Air accident investigation were discredited.
1.3.3.1. Independence and dignity. At first, the Privy Council Office in Ottawa advised that the Inquiry would be established as a departmental investigation under Part II of the Inquires Act, under the auspices of the Minister of Transport to whom my Commission would be directly answerable. I immediately objected, recognizing that Transport Canada Civil Aviation3, as one of the integral components of the aviation system, would be a subject of the Inquiry since I intended to probe possible related failings on the part of the regulator. I insisted upon and obtained agreement from the Government for my Commission to be constituted under Part I of the Inquiries Act, reporting to the Governor General in Council, to assure its independence, dignity and public profile as an objective body.
1.3.3.2. Transparency. Transparency is an essential element of credibility and to this end, I ensured that Commission hearings were public and open to the media, that daily briefings were provided, and that I and my advisors were available for interviews when requested. Extensive national and local television, radio and print media coverage generated massive interest and focused public attention on Canada’s aviation system. Eventually, this pressured both government and regulator to act on recommendations made in my reports.
1.3.3.3. Freedom from constraint or influence. The Commission mandate, obtained from the government as a condition of my accepting appointment, was not limited to investigation of the Dryden accident but included all components of the aviation system with a charge to make recommendations in the interests of aviation safety generally.
1.4. Challenges to the Commission
1.4.1. Upon the Commission being organized and headquartered in Toronto, I dispatched senior investigators to Ottawa to seek production of all Transport Canada records related to Air Ontario and its F-28 operations, as well as certain Transport Canada witnesses identified as critical to the Inquiry. Rebuffed by Transport Canada management, the Commission investigators returned to Toronto virtually empty-handed.
1.4.2. At this point, the power and value of a Commission of Inquiry became very apparent. Only after giving notice to Transport Canada that I would issue subpoenas to senior management to appear before the Inquiry were the requests granted, although not completely. Transport Canada refused to release 24 documents and sheltered them from Commission review, citing provisions of Section 39 of the Canada Evidence Act.
1.4.3. A certificate issued by the Clerk of the Privy Council stated that these documents contained confidences of the Privy Council for Canada (an elaborate term for Cabinet secrets) but revealed nothing as to their nature. It is not unreasonable to assume that this claim to confidence originated with Transport Canada. Is it conceivable that this was done to withhold evidence of regulatory mismanagement or Cabinet-level interference? We will never know since the documents remain a state secret.
1.4.4. Apart from invoking state secrets provisions of Section 39 of the Canada Evidence Act, Transport Canada continued efforts to confine the Dryden Inquiry to the facts of the accident itself, as opposed to a system-wide investigation. Counsel for Transport Canada alleged that I was going beyond the terms of my mandate and threatened to seek a Federal Court injunction unless I backed off. I elected to continue to interpret my mandate broadly. These demands to limit the scope of my Inquiry, after it had barely begun, came to the notice of the national media. Senior Transport Canada officials, in their wisdom, ordered threats of legal action against me withdrawn and an era of relative cooperation with the regulator ensued, for the eventual good of all.
1.4.5. The counsel for Air Ontario challenged my intention to name in the Final Report individuals found culpable of contributing factors to the crash. Air Ontario brought action against me in the Federal Court of Canada seeking an injunction requiring that I make only generic findings in my Final Report and that I be prevented, firstly, from making findings of misconduct against any individuals and, secondly, from naming any individuals found culpable. I did not intend to make findings of misconduct against any individuals but I did intend to make adverse findings against individuals where justified by evidence. I would report findings fairly and accurately but could not do so without identifying individuals, entities and organizations - at all levels of responsibility - who had been afforded full benefit of the principles on natural justice during the Inquiry. The Inquiry was adjourned while the issue was tried in Federal Court on an expedited basis. The outcome was favourable for the Commission. The Air Ontario action to muzzle me was dismissed and many names appeared in my Final Report.
1.4.6. The Canadian Air Line Pilots Association (CALPA) had full standing before the Commission. Counsel for CALPA, supported by Counsel for Air Ontario, brought an application to prevent calling five Air Ontario pilots as witnesses to discuss post-crash statements made to their company Safety Officer related to the airline’s F-28 operations. The applicants claimed the statements were privileged, based on confidentially. The evidence of these pilot witnesses was critical to the conduct of a full Inquiry and, after considering legal argument, I ruled that safety must trump confidentiality. The pilots were required to testify.
1.4.7. Finally, it was industry’s turn to take a run at me and my Commission, viewed by many in the industry as an outsider threat to the status quo. This hostility was exemplified in remarks by the Principal and Chief Pilot of a business jet charter operation in Calgary published in Aviation Canada in 1991, in which he criticized the clean wing regulation, enacted by Transport Canada based on recommendations contained in my Second Interim Report dealing with the ground de-icing of aircraft. He described the new law as a “crock” and stated that “there is a lot of nonsense about contaminated wings emanating out of the offices of the Department of Transport for the past few months”. He concluded his article by stating “… we should at least be hoping that we have learned a few lessons from it all... the inevitable waste of time, money and effort inherent in judges and lawyers becoming involved in matters better handled by someone who understands the problem”. Naturally, I regarded the latter statement as a personal shot, but in a way it was useful as it illustrated that we had some distance to go in order to combat ignorance and achieve a heightened awareness in the aviation community of all aspects of the wing contamination issue.4
1.4.8. The foregoing is some, but not all, of the inside story never before publicly told of how my Commission’s role was expanded - against widespread opposition - from that of simply investigating the Dryden crash into a comprehensive probe of the state of national aviation safety generally.