Air ambulance service provider should have looked into night-vision technology for new helicopters, but crash involved older one equipped with searchlight
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.
An Ontario air ambulance company 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 hospital 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 flying was generally done completely by instruments, 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 instrument flying rules. This 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 existing 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 elsewhere in Ontario. CHL handled all aspects 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 providing 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 phasing 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 complete control of the helicopter emergency medical services in Moosonee in March 2012. All pilots and helicopters with both CHL and Ornge were certified and capable 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 manager at the Moosonee base suggested to Ornge that a program for using night-vision goggles be established to assist with night flying, along with a short-term acquisition of enhanced searchlights until the goggles were in place for all the helicopters. 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 addition, 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 helicopters in dark conditions. He noted that it was challenging and wrote to Transport 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 supervision of the Ontario regions, so it had to make some changes at the Moosonee base. As a result, there was some difficulty filling certain positions and those who were hired — including the employees 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 remained 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. Examination 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 violations of the Canada Labour Code:
• Failing to ensure employee safety by not providing pilots with a means to maintain 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 resulted in the deaths of employees
• Failing to ensure the health and safety of employees through adequate supervision for daily flight activities at the Moosonee base when it eliminated the base manager position.
The court found that while CHL staffed 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 collectively 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 extra supervision. 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 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 helicopters, 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 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 regulatory 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-only flying. In addition, at the time the safety manager recommended night-vision goggles, the technology 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 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 eventually 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 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 failing to provide night-vision goggles for the older Sikorsky helicopter and dismissed the first two counts against the company as well. Ornge was negligent in not equipping its new helicopters 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.).
