In R v 7506406 Canada Inc (2017 ONCJ 750) Ornge air ambulance services were charged with counts under the Labour Code following an air ambulance crash that killed two pilots and two paramedics on a night flight on May 31 2013. The crash occurred shortly after take-off from the airport at Moosonee, Ontario.
The three counts pursued by the Crown at the close of the hearing were as follows:
- Count 3 – that on or about May 31 2013, 7506406 Canada Inc failed to ensure employee safety, contrary to Section 124 of the Labour Code Part II, by failing to provide pilots with a means to maintain visual reference while operating at night, thereby committing an offence contrary to Section 148(1) of the Labour Code Part II.
- Count 4 – that on or about May 31 2013, 7506406 Canada Inc failed to ensure employee safety, contrary to Section 124 of the Labour Code Part II by failing to provide pilots with a means to maintain visual reference while operating at night, resulting in the deaths of Donald Mark Filliter and Jacques Dupuy and thereby committing an offence contrary to Section 148(2) of the Labour Code Part II.
- Count 10 – that on or about May 31 2013, 7506406 Canada Inc failed to ensure the health and safety of its employees, contrary to Section 124 of the Labour Code Part II by failing to provide adequate supervision for daily flight activities at Moosonee by way of eliminating the position of base manager, thereby committing an offence under Section 148(1) of the Labour Code Part II.
In 1999 Canadian Helicopters Limited (CHL) took over air ambulance services at Moosonee. The helicopter fleet owned by CHL included approximately 12 Sikorsky S76 A airframes (S76s). Eventually, Ornge took over the air ambulance operation from CHL.
S76s are older helicopters manufactured in 1980 – they are basic and lack modern helicopter features, including:
- an auto pilot system;
- a ground proximity warning system (also known as a terrain awareness warning system); and
- enhanced searchlights.
Moosonee is not a high-volume base – most flights occur during daylight hours and last three to four-minutes. However, flying out of Moosonee can be difficult, particularly at night. There is a lack of lighting provided by towns, farms, houses and cars, and on an overcast night the darkness can be cave-like.
There are two sets of rules and procedures in helicopter aviation:
- visual flight rules (VFR); and
- instrument flight rules (IFR).
While VFR require pilots to have visual reference to the surface, IFR are for flying on instruments. All CHL and Ornge pilots and helicopters were certified and capable of instrument flight.
IFR flights have unique requirements, including that an alternate airport must provide for the flight and a weather report from the destination airport must be available (neither are possible in remote locations). Moosonee had a longstanding practice of pilots declaring night flights as VFR flights, but conducting them as if they were IFR flights. This designation was accepted as a necessary bending of the rules if the medical mission of the operation was to be fulfilled. Transport Canada was fully aware of this quasi deceit and at least tacitly approved.
The S76s owned by Ornge were not retrofitted with night vision goggles – a game-changing technology that significantly enhances visibility and makes night flights considerably safer. Night vision goggles can be costly, especially when retrofitting them to old helicopters such as the S76. Further, US military and US domestic operators have priority over Canadian carriers when obtaining night vision goggles. Despite internal memos at CHL and Orgne recommending the addition of night vision goggles to the S76, these were not acted on due to cost concerns.
The crash on May 31 2013 was ruled a 'controlled flight into terrain' (ie, no mechanical failure or external influence such as a weather event had caused or contributed to the accident).
Essentially, the pilots of the S76 helicopter turned too steeply at too low an altitude. The pilots did not appear to be monitoring the instruments as they were engaged in post-take-off procedures. Had the pilots been able to see the ground, the danger would have been obvious to both pilots and would have been avoided without difficulty.
The Crown took the position on Counts 3 and 4 that the accident would not have occurred had the pilots been able to see the ground using night vision goggles, and that it had been the duty of their employer (Ornge) to ensure their safety by providing this technology. Ornge took the position that it had complied with all of the legal and regulatory requirements.
The Crown's position on Count 10 was that Ornge's decision to discontinue the base manager position at Moosonee had removed an important safety net. Ornge disagreed.
The counts were offences of strict liability. The Crown need only prove the actus reus beyond a reasonable doubt. The defendant may avoid a conviction by proving on a balance of probabilities that it exercised reasonable care or due diligence that it was not negligent. In this case, the Crown had to prove:
- Counts 3 and 4 – failure to ensure safety and provide the pilots with a means to maintain visual reference while operating at night; and
- Count 10 – failure to ensure safety and provide adequate supervision by eliminating the position of base manager.
The Ontario Court of Justice dealt with Count 10 first. The base manager position was employed by CHL, but removed by Ornge. Base manager duties included determining the fortnightly shift schedule and the pairings of captain and first officer for each shift. Ornge replaced this system with scheduling and pairing for all bases determined from a central office in Toronto.
The court was unconvinced that the elimination of the base manager position compromised the safety of the Moosonee operation because:
- centralised scheduling was used in the helicopter emergency medical services industry; and
- senior, experienced pilots and employees collectively filled any gap that may have been left.
The court dismissed this count.
The court held that the first element of Counts 3 and 4 (ensuring employee safety) was prima facie made out because an accident had occurred.
On the second element (failing to provide pilots with a means of maintaining visual reference while operating at night), the court found that Ornge had provided a means of seeing the ground (ie, searchlights). However, the court interpreted this finding in conjunction with the first element – that is, Ornge prima facie did not provide an acceptable level of safety as the searchlight was inadequate to provide acceptably safe visibility. As such the actus reus of Counts 3 and 4 were made out.
Accordingly, the court considered a due diligence defence. While it held that Ornge fully complied with Transport Canada's and Orgne's regulations and requirements for night flying, it agreed with the Crown that "there is an undefined area or space between the regulatory scheme and the [centralised load control] where the general obligation to conduct a safe operation may apply and impose additional obligations".
The court also considered industry practice and standards, finding that industry recognises that it is impossible to eliminate all risk and that the goal is to reduce and maintain risk at an acceptable level. Further, it was not industry practice in Canada to equip all medical helicopters with night vision goggles. Therefore, Ornge was held not to be negligent in failing to provide night vision goggles for the S76 helicopters and Counts 3 and 4 were dismissed as well.
The court could not consider allegations of negligence relating to the failure to provide enhanced searchlights for reasons of trial fairness because the Crown had focused its case on night vision goggles.
For further information on this topic please contact Carlos P Martins or Abbas A Kassam at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800) or email (email@example.com or firstname.lastname@example.org). The Bersenas Jacobsen Chouest Thomson Blackburn LLP website can be accessed at www.lexcanada.com.
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