TSB Policy on Representations on Confidential Draft Reports

Effective July 1, 2018, revised September 18, 2019

1. Context

1.1 In accordance with subsection 24(1) of the Canadian Transportation Accident Investigation and Safety Board Act (CTAISB Act), upon completion of any investigation, the Board must prepare a report on its findings and make it available to the public. However, before the report is finalized, pursuant to subsection 24(2) of the Act and in accordance with procedures contained in the Board bylaws, the Board sends a confidential draft of the investigation report to each minister and any other persons (organizations and individuals) who, in the opinion of the Board, have a direct interest in the Board’s findings.

It is an underlying principle of the Board to strive to ensure that fairness, accuracy, confidentiality, international commitments and legal obligations, as outlined in the Act, are taken into account when identifying such persons.

The Board must provide these persons a reasonable opportunity to make representations on the draft report before the final report is prepared.

2. Definitions

2.1 “Confidential draft report review” (CDR review) is the stage of the investigation process at which designated reviewers are invited to make representations on the draft report.

2.2 “Designated reviewers” (DRs) are organizations and individuals who, in the opinion of the Board, have a direct interest in the Board’s findings and can contribute to the completeness and accuracy of the report. DRs are identified using the criteria defined in this policy.

3. Policy objective

3.1 The purpose of this policy is to define the criteria for the selection of DRs who will be invited to make representations on confidential draft reports (CDRs) and to establish a framework for handling representations on CDRs.

4. Policy requirements

Selection of designated reviewers

4.1 The organizations and individuals who, in the opinion of the Board, meet one of these criteria are selected as DRs:

  • Ministers who have a regulatory and/or oversight role over the activities examined in the investigation
  • Organizations and individuals who may be adversely affected by the report because it describes their performance, behaviour, or products
  • Organizations and individuals who have a substantial involvement in the investigation or may otherwise contribute to the completeness and accuracy of the report
  • Organizations such as foreign investigation bodies (e.g., Australian Transport Safety Bureau, Bureau d'Enquêtes et d'Analyses, National Transportation Safety Board) who can be named as DRs in accordance with international agreements.

4.2 Normally, the next-of-kin of a deceased crew member is named as a DR, not the executor of the deceased’s estate. However, the next-of-kin may request the executor to represent him or her for the CDR review.

4.3 Other individuals (e.g., passengers, passengers’ next-of-kin, unions, insurance companies, local community leaders) may have an interest in an occurrence and the associated TSB report. However, these individuals are not usually considered to be DRs because their input is unlikely to add to the completeness and accuracy of the report.

4.4 Coroners are not enlisted as DRs because they conduct their own investigations or inquiries.

Confidential draft report review

4.5 At the discretion of the Board, the DRs will be provided with a complete CDR or just the sections relevant to them, and be invited to make representations. The Board may also provide laboratory reports to some DRs to help them fully understand the issues discussed in the CDR.

4.6 If the Board perceives a risk to the confidentiality of a CDR, it will determine the measures to be taken to mitigate the risk. It may, for instance, require that DRs sign an undertaking to respect subsection 24(3) of the CTAISB Act (i.e., a confidentiality agreement) before they are given a copy of the CDR.

4.7 DRs may ask another person or expert to help them review the CDR and prepare their representations. However, DRs must ensure that any person providing such assistance maintains the confidentiality of the CDR.

4.8 All representations must be submitted to the Board in writing.

4.9 The Board does not meet with DRs to discuss their representations. This ensures that all DRs are given equal consideration and that all representations are fully documented in the investigation file.

4.10 The Board considers the representations and, if appropriate, changes the report; representations are not included in the report.

4.11 The Board's response to the representations are sent to the DRs in writing, along with a copy of the final report.

4.12 DR representations and identities are privileged under section 24 of the CTAISB Act. Except for those made by a minister, representations cannot be released without the consent of the DR.

Time allowed for representations

4.13 For class 1, class 2 and class 3 investigation reports, DRs are given 30 days to submit their representations.

4.14 For Class 4 investigation reports, DRs are given 15 days to submit their representations.

4.15 DRs may request an extension beyond the stipulated response date if they need more time to review the CDR and submit their representations to the Board.

4.16 Requests for an extension must be submitted in writing, include bona fide reasons for the extension, and specify the amount of extra time requested.

4.17 Extensions for DR representations may be authorized in the following circumstances:

  • The DR did not receive the CDR.
  • The DR is away from his or her workplace for an extended period and does not have access to the required supporting materials.
  • The CDR is long and complex.
  • The DR must retain his or her own experts to help review a complex report.
  • There are exceptional circumstances beyond the control of the DR (e.g., a death in the family).

4.18 The submission period for class 4 investigation reports may be extended by a maximum of 7 days. For other classes of investigation reports, the submission period may be extended by a maximum of 30 days.

4.19 After considering the specific circumstances, the extension may be approved for a shorter period or denied.

Further consultations after consideration of representations

4.20 After considering representations, the Board may conclude that significant amendments to its investigation report and findings are required. Depending on the nature and extent of the changes, the Board has discretion to provide an opportunity for further representations.

4.21 Organizations or individuals who, in the opinion of the Board, would be affected by the changes to the CDR can then be given the amended CDR, in whole or in part. These organizations or individuals may be all or some of the original DRs.

4.22 There may also be other persons who, because of the changes to the CDR, now become DRs per the Board’s policy.

4.23 The Board will determine the submission period for the second round of representations, based on the extent and complexity of the changes made to the CDR.

5. Authorities

5.1 This policy is issued under the authority of the Board in accordance with sections 8(1)(b), 8(1)(c) and 24(4) of the CTAISB Act. It was approved by the Board on June 20, 2018, and revised on September 18, 2019, after consultation with the Executive Committee.

5.2 This policy will be reviewed and may be updated in response to changes in government priorities or TSB strategic direction, but at least once every 5 years.

6. Roles and responsibilities

6.1 Board

The Board is responsible for determining the organizations or individuals who will be DRs invited to make representations on CDRs in accordance with this policy.

The Board is also responsible for approving the responses to all representations received.

6.2 Chair

The Chair is responsible for initiating the periodic review and update of this policy by the Board.

The Chair is also responsible for granting extensions to DRs in accordance with this policy.

6.3 Chief operating officer

The chief operating officer (COO) is responsible for the overall implementation, monitoring and oversight of this policy, as well as for seeking interpretation and guidance from the Board from time to time.

The COO, as the Chair’s delegate, may approve extensions to the submission period for DRs’ representations on CDRs.

6.4 Directors of investigations

Each DOI is responsible for ensuring that investigators adhere to this policy. The DOI is also responsible for recommending extensions to the submission period for representations, in accordance with this policy.

When delegated to do so by the Board, the DOI is responsible for approving the confidential draft class 4 report, determining the individuals or organizations to be DRs, approving the release of laboratory reports to DRs, and approving extensions to the submission period.

6.5 Investigator-in-charge

The IIC is responsible for proposing a list of organizations and individuals who could be invited to be DRs.

7. References

7.1 The following acts, regulations and international conventions apply:

8. Enquiries

8.1 Questions about this policy may be addressed to:

General enquiries
1-800-387-3557
1-819-994-3741
communications@bst-tsb.gc.ca

Date de modification :