Canada Labour Code and Employee Safety: Is a Helicopter Medevac Operator Required to Provide Night Vision Goggles?

In the early hours of May 31, 2013, a Sikorsky S 76A helicopter operated by Ornge Air Ambulance crashed shortly after take-off from Moosonee airport (northern Ontario), resulting in the deaths of the two pilots and two paramedics.  The Crown brought charges against Ornge under the Canada Labour Code for failing to ensure employee safety, by failing to provide its pilots with night vision goggles (“NVGs”).  Ornge denied committing any offence arguing that it had complied with all legal and regulatory requirements and provided for an acceptable level of safety consistent with the standard of care that prevailed in the helicopter aviation industry at the time.  The Ontario Court of Justice recently released its decision R.v. 7506406 Canada Inc. (Ornge), 2017 ONCJ 750.

Helicopter Emergency Medical Services (HEMS) have been based out of Moosonee airport since the 80’s.  Canadian Helicopters Ltd. (CHL) took over HEMS operations at Moosonee in 1999, flying Sikorsky S-76A helicopters.  Ornge initially became involved with simply providing medical services and contracting the flying to CHL.  They subsequently decided to take over flying and in 2008 Ornge ordered 12 AW 139 aircraft.  Ornge began operations in Moosonee in April 2012.  All Ornge aircraft and pilots were certified and capable of instrument flight.

Moosonee airport is not overly busy but can be challenging at night because of the lack of cultural lighting.  In Moosonee and northern Canada, there is a known practice of declaring a night flight as VFR but conducting it as an IFR flight to avoid the need for an alternate airport and Wx report.  Transport Canada was aware and tacitly approved of this.  The helicopter involved in the accident had operated at Moosonee since 1999, without serious incident.  The court described it as basic but capable.  It complied with the regulations but lacked available upgrade equipment which the judge found could enhance safety.  The new AW 139 helicopters were more sophisticated and powerful but reportedly had maintenance issues.  The first one arrived in 2010 and the plan was to phase out the S-76A, although Ornge had no plan to station one at Moosonee as they considered it unsuitable for that area.  Neither the Sikorsky nor AW 139 were equipped with NVGs.  Witnesses at trial promoted NVG equipment, describing it as a near miraculous game changer which could turn night into day.

Because of the failure to provide NVGs, charges were brought against Ornge.  The Crown was required to prove 2 elements, namely that (1) there was a failure of Ornge to ensure safety (2) by failing to provide the pilots with a means to enable them to maintain visual reference while operating at night.  The court noted that “ensure” means: to make certain; to secure.  However, in aviation one cannot completely eliminate risk.  Therefore, the Court found that “safety” in aviation means:  the state in which the risk of harm to persons or property is reduced to and maintained at or below an acceptable level.  Surprisingly, and without detailed analysis or explanation, the judge simply held that when an accident occurs, an acceptable level of safety has automatically not been ensured.  The judge also inferred from the fact that the take-off required the use of instruments that the standard search light was not adequate to provide an acceptable level of safety, although it was in essence an IFR departure.

Ornge was then required to prove on a balance of probabilities that it was not negligent and exercised reasonable care or due diligence.  Put another way, Ornge had to show that it did what was reasonably practicable for a helicopter operator in its position to ensure the health and safety of its employees engaged in night flying out of Moosonee.  Ornge argued that NVGs are not required by any regulation, not required by Canadian HEMS industry standard and not feasible.  The court agreed that Ornge was in regulatory compliance, noting that Canadian aviation is heavily regulated with strict standards and oversight.  The court also found that use of NVGs were not the industry standard for Canadian HEMS operations.  It did note that they were used by operators in different industries and that almost all HEMS operators in the US used them (although US pilots and aircraft are not certified and qualified for IFR operations).

Based upon how the charges were framed and pursued by the Crown, the focus of evidence was almost exclusively on the failure to provide NVGs.  However there was consideration of other steps that Ornge could have taken to avoid or lessen the possibility of the accident, such as installing an auto-pilot or TAWS.  The judge found it difficult to understand why they weren’t required by the regulator or provided by the operator.  He also referred to the availability of an enhanced search light.  Although the evidence about these lights was meager, the court found that it provided a strong rebuttal to the defendant’s claim of due diligence, as these lights reportedly lit up everything and had been internally recommended by someone within Ornge.  The judge said that Ornge had to answer why they had not installed the lights and show that it was impractical or cost-prohibitive.  Based on the evidence at trial, the court held that Ornge had not done so.  Although the judge found Ornge was negligent for failing to provide enhanced search lights, that was not the charge against them.  The narrow charge against Ornge was that it failed to provide NVGs and not another alternate theory.  As a result, all three counts were dismissed.  While this decision appears to recognize that the operator fully complied with applicable regulations and met industry standards, it narrowly over-emphasized the availability of some enhanced equipment.