TSB Canada Summons and Search Warrant Powers

  • May 3, 2018
  • Brisset Bishop

A March 20, 2018, Federal Court judgment deals indirectly with the summons and search-warrant powers of Canada’s Transportation Safety Board (TSB).

In the course of investigating the grounding of a tour boat near Kingston, Ontario, the TSB had issued a summons requiring the owner/operator (owners) to provide information for the purposes of the investigation and consisting of the names and contact information for eyewitnesses who were variously passengers and employees of the owners. The owners refused to provide the information, and took a judicial review application in Federal Court, arguing that the summons exceeded the TSB’s authority under its governing legislation or failed to set out any basis for the request’s relevance to the investigation. The owners also argued that the summons was constitutionally invalid under the unreasonable search or seizure section of the Canadian Charter of Rights and Freedoms. The underlying motivations for the challenge are not described in the judgment, but speculating, there may have been privacy and labour relations issues.

While the owners’ judicial review application in Federal Court was awaiting hearing, the TSB sought and obtained ex parte a warrant from Ontario Criminal Court to seize the information in question from the owner’ offices.

The TSB was evidently asked, but refused, to abstain from using the seized information before the hearing of the Federal Court judicial review application. The owners then applied to Federal Court asking for an interlocutory injunction enjoining the TSB from making use of the information until the judicial review hearing. It is that injunction application which is the subject of the judgment.

The Federal Court declined to grant an injunction. It decided, noting that the issue before it was really the original TSB summons and not the warrant, that it was without jurisdiction to consider the validity of the Ontario Criminal Court warrant, and that any attempt to bring the warrant issues into Federal Court would amount to an impermissible collateral attack on another Court’s jurisdiction. If the warrant was to be challenged, it would have to be done in the Court which issued it, or an appropriate appeal or supervisory Court.

The Federal Court interestingly went on to remark the tack taken by the TSB, voicing its concern about the TSB’s use of the warrant procedure “to undermine an appropriately engaged judicial review proceeding at a time approaching the 11th hour to the upcoming hearing”.

There have not been many Court judgments dealing with the TSB’s powers. While this judgment does not deal directly with those powers, it is nevertheless helpful cautionary guidance to how the TSB should approach their exercise.

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