Canadian Employment Law Today

the Moosonee base with a base manager, both that model and the model used by Ornge — managing from a central office — were used in the helicopter emergency medical services industry. While there was no base manager at the time of the fatal crash, there was "a number of senior experienced pilots and employees whose positions and presence in my view col- lectively filled any gap that may have been left," including paramedics, a training pilot, and the base safety officer. Many of these positions covered the functions of a base manager and there was no evidence the presence of a base manager would have changed the conditions leading up to the accident, said the court. In addition, the court noted that "pilots as a group are very safety conscious" and didn't need ex- tra supervision. e court dismissed the third count against Ornge. Searchlights sufficient on older helicopters: Court e court also found that the helicopter involved in the crash "was equipped with a searchlight that could have and should have been used during take-off." While it may have been the least effective means of visual reference to the ground compared to night-vision goggles or the temporary improved searchlights for the new heli- copters, there was no evidence it didn't provide a means of maintaining 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 safe- ty of its employees given the potential im- provements available. e 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 requirements for instrument-on- ly flying. In addition, at the time the safety manager recommended night-vision goggles, the technology was "just start- ing 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. e 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 fail- ure to do so meant it didn't exercise due diligence in its safety obligations 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 expect Ornge to introduce a night-vision goggles program for them when they were aging and were to be even- tually replaced. Additionally, 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 industry recognizes that it is impossible to eliminate all risk; the goal is to reduce and maintain risk at an ac- ceptable level; what is acceptable is highly variable; 'acceptable' is not equated with the optimal level of safety or least pos- sible level of risk; and the best equipment or technology that will ensure the highest level of safety is not always provided," the court said. e court determined that Ornge was not negligent in failing to provide night- vision goggles for the older Sikorsky heli- copter and dismissed the first two counts against the company as well. Ornge was negligent in not equipping its new heli- copters with the technology, but that was irrelevant to this case, said the court. For more information see: • R. v. 7506406 Canada Inc. Ornge), 2017 CarswellOnt 17694 (Ont. C. J.). Canadian HR Reporter, a Thomson Reuters business 2018 January 3, 2018 | Canadian Employment Law Today CREDIT: DAYOWL/SHUTTERSTOCK ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www.employmentlawtoday.com for more information.

• Cover