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WORKPLACE HEALTH AND SAFETY - Employer obligations - Safety of workplace - Supervision - Liability - Of employer - Offences and enforcement - Offences - Failure to ensure health and safety of workers

Thursday, January 04, 2018 @ 8:36 AM  


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Trial of the accused numbered company charged with three Canada Labour Code offences of failure to ensure employee safety in particularized ways. The defendant numbered company was a federal corporation owned by Ornge air ambulance service that operated the rotor-wing division. The charges resulted from an accident that occurred in May 2013, in which an air ambulance helicopter crashed shortly after take-off from the airport at Moosonee Ontario. Two pilots and two paramedics were killed. The Crown ultimately only sought conviction on three counts 1) failing to provide pilots with a means to enable them to maintain visual reference while operating at night, 2) failing to provide pilots with a means to enable them to maintain visual reference while operating at night resulting in deaths, and 3) failure to provide adequate supervision for daily flight activities at Moosonee by eliminating a base manager position. The Crown argued the accident would not have occurred had the pilots been able to see the ground using night vision goggles (NVGs) and it was Ornge’s duty to ensure their safety by providing the goggles. The defence argued it complied with all legal and regulatory requirements of the industry at the time. The Crown also argued Ornge’s decision to discontinue the base manager position at Moosonee removed an important safety net. The defence argued this caused no reduction in safety.

HELD: Accused corporation acquitted. As of 2013, Transport Canada did not require NVGs for helicopter flying in general in Canada. Regulations were always relevant to the issue of whether the defendant exercised due diligence. However, with respect to industry practice and standards, the industry recognized that it was impossible to eliminate all risk and the best equipment or technology that would ensure the highest level of safety was not always provided. But, aside from issues of function, there were also practical obstacles to acquiring and using NVGs as they were only made in the USA and not always available. No reasonable operator in 2013 would have introduced an NVG program having regard to all the circumstances. While Ornge was negligent in respect of ensuring NVG capability, that negligence had no bearing on the accident and the charges at hand. The incident helicopter was equipped with a search light that could and should have been used during take-off. There was no evidence that the light was useless or that it did not provide a means to maintain visual reference to the ground. However, it was inferred from the fact that the take-off required use of instruments that the standard search light was not adequate to provide such acceptably safe visibility. Further, the Court was not satisfied the elimination of the base manager position compromised safety of the Moosonee operation. In the atmosphere of pilots being very safety conscious and with all of the responsible senior people around, there was little additional pulse-taking role for a base manager.

R. v. 7506406 Canada Inc. (Ornge), [2017] O.J. No. 5823, Ontario Court of Justice, B.W. Duncan J., November 10, 2017. Digest No. TLD-January12018008