Judge clears Ornge, faults laws in fatal copter crash
An Ontario court judge has found that Ornge air ambulance service was not negligent for failing to provide nightvision goggles to two pilots killed in a helicopter crash more than four years ago.
Capt. Don Filliter, co-pilot Jacques Dupuy and flight paramedics Dustin Dagenais and Chris Snowball of Burlington were killed on May 31, 2013, when an Ornge Sikorsky S76 helicopter taking off from Moosonee in pitch darkness crashed shortly after takeoff.
In a decision highly critical of the safety regulations governing air ambulance services, Justice Bruce Duncan told a Brampton court Friday he was dismissing three charges under the Canada Labour Code that Ornge failed to ensure employee safety at the northern Ontario outpost on James Bay.
“The law requires that decisions be made in a dispassionate and objective manner. However, the unavoidable result of that is the proceedings may appear to be technical, analytical and maybe even cold,” Duncan told the court.
“I want to assure, particularly the families and friends and the public as a whole, that the tragic loss of life here has not been forgotten.”
In dismissing two of the counts related to Ornge’s decision not to outfit the pilots and helicopter with night-vision goggle capability, the judge ruled that “no reasonable operator” in 2013
would have introduced the visual aids for several reasons:
They were not required or urged by regulator Transport Canada.
Their use was not common practice in Canadian helicopter emergency medical services at the time.
The helicopters and the crew at Moosonee were all capable of flying on instruments alone.
The life expectancies of the S76s, already more than 30 years old, could not justify the public cost to retrofit them.
Duncan also spoke out on the remaining count, targeting Ornge’s decision to eliminate the position of base manager at Moosonee — a move the Crown argued deprived the operation of a vital safety check.
Duncan wrote that in his view the presence of experienced pilots and employees, including Filliter himself who had been base manager for a helicopter EMS company that operated out of the airport prior to Ornge, collectively filled any void in responsibility.
“There was also evidence that pilots as a group are very safety conscious — for obvious reasons — it is their lives that are at risk. There are no risk-taking heroes or cowboys among them,” he wrote in his 33page decision.
“In this atmosphere and with all the responsible senior people around (with nothing else to do in Moosonee) it seems to me that there would be little additional pulsetaking role for the base manager.”
While Justice Duncan dismissed the three charges, his ruling didn’t give Ornge a free pass and was in many ways a clear rebuke of the current regulatory framework within which air ambulance services operate.
He noted that as of 2013, Transport Canada did not require nightvision goggles for helicopter EMS operations or helicopter flights in general.
“And of this writing in 2017, it has still not done so!” Duncan wrote.
He also expressed concern about the absence of a North Americawide standard within the helicopter EMS industry to outfit aircraft with “reasonably available technology” to improve safety.
He highlighted, for example, that in the United States, a helicopter flown by a single pilot with no training in flying on instruments alone is considered acceptable.
“What is an acceptable level of safety within the industry is given a rather generous interpretation,” he wrote.
While Ornge was not facing any charge that alleged the crashed chopper, known as C-Gimy, was underequipped or unsafe, the judge nonetheless took aim at the agency saying it could have taken steps, such as installing autopilot and a ground proximity alarm, to avoid or lessen the possibility of an accident.
“I find it difficult to understand why these items were not required by the regulator or, absent such requirement, provided by the operator. This is the sort of extra step that in my view does fall in the space between regulation and an acceptable level of safety and for which an operator is responsible,” he wrote.
“A compelling case could be made that the overall lack of automation and safety equipment on C-Gimy was completely unacceptable.”
Crown attorney Nick Devlin told the Toronto Star that the trial and the judge’s reasons “put aviation operators across Canada on notice that they will be held to account where evidence suggests that they have not prioritized the safety of their employees, including those brave first responders who provide vital air ambulance services.”
He said the Public Prosecution Service of Canada will review the judgment before deciding whether an appeal is viable or in the public interest.
During the trial, which began in April, court heard that Ornge bought its newer, more powerful fleet of AgustaWestland 139 helicopters in 2008 without night-vision goggle capability.
Justice Duncan concluded that was “negligent” in this respect, but he noted that such negligence had no bearing on the S76s, the accident or the charges in this case.
The purchase of those 12 AgustaWestland aircraft under former Ornge boss Chris Mazza is now part of an OPP criminal investigation.
Ornge spokesperson James MacDonald said it is “mindful that this tragic accident claimed the lives of four friends and colleagues.”
MacDonald said the agency has taken “many steps” to enhance safety.