Charges dismissed in fatal ORNGE helicopter crash
But judge takes aim at lax safety rules for air ambulance services
A provincial court judge has found that the ORNGE air ambulance service was not negligent for failing to provide nightvision goggles to two pilots killed in a helicopter crash in Moosonee more than four years ago.
In a decision highly critical of the safety regulations governing air ambulance services, Judge Bruce Duncan told a Brampton court 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 on Friday.
“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.”
Capt. Don Filliter, co-pilot Jacques Dupuy and flight paramedics Dustin Dagenais and Chris Snowball were killed on May 31, 2013, when an ORNGE Sikorsky S-76 helicopter departing from Moosonee in darkness crashed shortly after takeoff.
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.
Among the reasons cited, the ruling said night-vision goggles 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; and the life expectancies of the S-76s, already more than 30 years old, could not justify the cost to retrofit them.
On the remaining count, targeting ORNGE’s decision to eliminate the position of base manager at Mooso- nee — 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 33-page 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 pulse-taking role for the base manager.”
Although 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 night-vision goggles for helicopter EMS opera- tions or helicopter flights in general.
“And of this writing in 2017, it has still not done so!” Duncan wrote.
He also expressed concern with the absence of a North America-wide standard within the helicopter EMS industry to outfit aircraft with “reasonably available technology” to improve safety. He highlighted, for example, that in the U.S., a helicopter flown by a single pilot with no training in flying on instruments alone is considered acceptable.
ORNGE was not facing any charge that alleged the crashed chopper, known as C-Gimy, was underequipped or unsafe, but 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.
Crown Attorney Nick Devlin told the 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.”
The purchase of those 12 Agusta Westland aircraft under former ORNGE boss Chris Mazza is now part of an OPP criminal investigation involving allegations of kickbacks, among other things. An OPP spokesperson told the Star that the almost six-year-old probe is ongoing.
In a statement, ORNGE spokesperson James MacDonald said that while the agency is “grateful to the court for the careful manner in which it has evaluated the evidence,” it is “mindful that this tragic accident claimed the lives of four friends and colleagues.”
He said the agency has taken “many steps” to enhance safety. “These include investments in equipment, training, and changes to policies and procedures. Night-vision goggles are in place at a number of ORNGE bases across Ontario, with full implementation across our fleet to be completed by early 2018.”