Canadian Employment Law Today

Ornge cleared of charges after fatal helicopter crash Air ambulance service provider should have looked into night-vision technology for new helicopters, but crash involved older one equipped with searchlight BY JEFFREY R. SMITH A n Ontario air ambulance com- pany has had all charges against it dismissed in the wake of a fatal helicopter night-time crash and a controversy over night-vision goggles for its pilots. Moosonee, Ont., has been the home of helicopter emergency medical services for the surrounding region since at least the 1980s. Most of the flying involves short flights between the base and a hos- pital in Moose Factory, Ont., on a nearby island. New hires were often placed there, though some experienced pilots also worked there as there were challenges with night flying because there were no light sources on the ground to provide reference for pilots. As a result, night fly- ing was generally done completely by in- struments, which required different rules than visual flying in daylight hours. It was a long-standing practice at the Moosonee base that night flights were declared to be under visual flying rules but actually were operated under instru- ment flying rules. is was to circumvent the requirements that instrument-only flights were supposed to have an alternate airport available and a weather report from the destination airport — neither of which were possible in remote locations such as Moosonee. In addition, the exist- ing helicopters in Moosonee — Sikorsky S76 A airframes — had searchlights that could be used to reference the ground. Transport Canada tacitly approved this practice. In 1999, Canadian Helicopters Limited (CHL) took over the service in Moosonee, adding it to other operations it ran else- where in Ontario. CHL handled all as- pects of the operation, including medical and the flying services. Eventually, Ornge — a non-profit company contracted by the Ontario Ministry of Health to provide air ambulance service — started provid- ing the medical services and contracted the flying duties to CHL, who owned the helicopter fleet. Ornge soon decided to take charge of the flying part of the Moosonee operation as well and ordered 12 new helicopters with the intention of gradually phas- ing out the older aging fleet. In 2011, the contract between Ornge and CHL wasn't renewed and Ornge recruited several key employees from CHL who had been working at the Moosonee base. After a period of transition, Ornge took com- plete control of the helicopter emergency medical services in Moosonee in March 2012. All pilots and helicopters with both CHL and Ornge were certified and ca- pable of instrument-only flight in dark conditions. Base manager job eliminated, new technology for night flying declined When Ornge took over, it eliminated the position of base manager — who drew up the schedule for two-week shifts and the captain-first officer pairings for each shift — and the position's responsibilities were managed from a central office in Toronto. In the summer of 2011, the safety man- ager at the Moosonee base suggested to Ornge that a program for using night-vi- sion goggles be established to assist with night flying, along with a short-term ac- quisition of enhanced searchlights until the goggles were in place for all the heli- copters. Ornge looked into it, but the new helicopters weren't configured for the night-vision goggles and it would be too expensive to retrofit them. It also didn't see the need to retrofit its existing fleet of older Sikorsky S76 helicopters, as they would eventually be replaced and were equipped with searchlights that helped with flying in dark conditions. In addi- tion, about 80 per cent of the flying out of Moosonee was done in the daytime. In March 2013, the assistant chief pilot for Ornge test flew one of the new heli- copters in dark conditions. He noted that it was challenging and wrote to Trans- port Canada that night-vision goggles were the answer to easier flying in dark conditions. CHL had been operating under the Quebec region of Transport Canada and Ornge was under the regulatory super- vision of the Ontario regions, so it had to make some changes at the Moosonee base. As a result, there was some diffi- culty filling certain positions and those who were hired — including the employ- ees who had come over from CHL — were overworked and stressed. Due to limited resources, Ornge couldn't assign a new helicopter to Moosonee, so the base re- mained equipped with older Sikorsky helicopters. On May 31, 2013, an Ornge pilot was flying a Sikorsky air ambulance at night by his instruments. Shortly after take- off from Moosonee base, the helicopter crashed after a steep turn that caused it to descend quickly, killing four people on board — pilots Don Filliter and Jacques Dupuy along with two paramedics, Dustin Dagenais and Chris Snowball. Ex- amination of the cockpit voice recording revealed that there was no mechanical failure or weather issues, and the pilots likely could have avoided the crash had the ground been visible as they could have seen how steep their descent was. Ornge was charged with three viola- tions of the Canada Labour Code: • Failing to ensure employee safety by not providing pilots with a means to main- tain visual reference while operating at night through available technology such as night-vision goggles • Failing to ensure employee safety by not providing night-vision goggles that re- sulted in the deaths of employees • Failing to ensure the health and safety of employees through adequate super- vision for daily flight activities at the Moosonee base when it eliminated the base manager position. e court found that while CHL staffed 4 Canadian HR Reporter, a Thomson Reuters business 2018 CASE IN POINT: HEALTH AND SAFETY EMPLOYERS HAVE A LEGAL obligation to take all reasonable precautions to ensure the safety of their employees. However, this doesn't necessarily mean doing everything that is technically possible, as some measures may not be feasible even though they're available. Air ambulance company Ornge faced this issue when it was charged with safety violations following a fatal night-time helicopter crash after it determined night-vision systems were too costly and difficult to install on its existing helicopter fleet. BACKGROUND

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