CSR | March 2018 | News
Impossible to eliminate all risk in industry standards: Court
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filled any gap that may have
been left," including paramed-
ics, a training pilot, and the base
safety officer. Many of these po-
sitions covered the functions of a
base manager and there was no
evidence the presence of a base
manager would have changed
the conditions leading to the ac-
cident, said the court. In addi-
tion, the court noted that "pilots
as a group are very safety con-
scious" and didn't need extra su-
pervision. The court dismissed
the third count against Ornge.
Searchlights sufficient
on older helicopters: Court
The court also found that the
helicopter involved in the crash
"was equipped with a search-
light that could have and should
have been used during take-off."
While searchlights may have
been the least effective means
of visual reference to the ground
compared to night-vision gog-
gles or the temporary improved
searchlights for the new heli-
copters, there was no evidence it
didn't provide a means of main-
taining that visual reference, said
the court.
However, the court noted that
it had to be established whether
the means Ornge provided was
sufficient to ensure the safety of
its employees given the potential
improvements available.
The court also noted that
aviation in Canada is heavily
regulated by Transport Canada
and Ornge was in full regula-
tory compliance. Night-vision
goggles were not required by
any regulation, the helicopter
in question was certified and
equipped for night flying, and
both pilots met the require-
ments for instrument-only fly-
ing. In addition, at the time the
safety manager recommended
night-vision goggles, the tech-
nology was "just starting to get
a foothold in civilian (helicopter
emergency medical service) in
Canada" and was not an industry
standard at the time of the crash,
the court said.
The court found that the
introduction of night-vision
goggles would be a major and
expensive step for Ornge for its
new fleet of helicopters, but it
should have done research on
the possibility — its failure to
do so meant it didn't exercise
due diligence in its safety obli-
gations in this regard. However,
this was a moot point because
the crash happened with one of
its older Sikorsky helicopters,
and it wasn't reasonable to ex-
pect Ornge to introduce a night-
vision goggles program for them
when they were aging and were
to be eventually replaced. Addi-
tionally, Ornge was in a bind with
its resources and couldn't station
a new helicopter in Moosonee at
the time, even if it was equipped
with night-vision goggles, said
the court.
"With respect to industry
practice and standards, the in-
dustry recognizes that it is im-
possible to eliminate all risk; the
goal is to reduce and maintain
risk at an acceptable level; what
is acceptable is highly variable;
'acceptable' is not equated with
the optimal level of safety or least
possible level of risk; and the best
equipment or technology that
will ensure the highest level of
safety is not always provided,"
the court said.
The court determined that
Ornge was not negligent in fail-
ing to provide night-vision gog-
gles for the older Sikorsky he-
licopter and dismissed the first
two counts against the company
as well. Ornge was negligent in
not equipping its new helicop-
ters with the technology, but it
was irrelevant to this case, said
the court.
For more information see:
• R. v. 7506406 Canada Inc.
(Ornge), 2017 CarswellOnt
17694 (Ont. C. J.).
Ornge < pg. 5
