Canada: Ornge Stands Trial For Their Role In May 2013 Crash That Killed Four Personnel

Last Updated: May 8 2017
Article by Devry Smith Frank LLP

The trial against Ontario's air ambulance service, Ornge, in connection with the fatal helicopter accident that occurred in northern Ontario on May 31, 2013 began this week at the Superior Court of Justice in Brampton.

Ornge faces charges under the Canada Labour Code for failing to provide safe working conditions for its employees.

In the early hours of May 31, 2013, four Ornge employees (two pilots and two paramedics) were killed after their helicopter crashed shortly after takeoff, about 800 metres from the airport in Moosonee, Ontario.  The crew was on its way to a patient on the Attawapiskat First Nation reserve in northern Ontario, and was flying in total darkness at the time of the crash.  The four-person crew included captain Don Filliter, co-pilot Jacques Dupuy, and flight paramedics Chris Snowball and Dustin Dagenais.

One year after the crash, 17 charges were laid against Orgne by the Federal Ministry of Labour.  The charges included:

  • failing to ensure employee safety by failing to properly train the flight captain;
  • failing to ensure employee safety by failing to provide pilots with a means to enable them to maintain visual reference with the ground and water;
  • failing to ensure employee safety by failing to follow the policy which prevents the pairing of two pilots relatively new to their flying positions;
  • failing to ensure that supervisors and managers at Ornge had knowledge of the Canada Labour Code;
  • failing to ensure the health and safety of its employees by permitting pilots to fly without adequate training in the specific aircraft being used;
  • failing to provide adequate supervision for daily flight activities at Moosonee air base;
  • failing to ensure the safety of its employees by failing to adequately consult with the Work Place Health and Safety Committees on policies and procedural changes that effected their employees;
  • failing to ensure the health and safety of its employees by permitting an aircraft to be flown by a pilot with insufficient experience in night operations; and
  • failing to ensure the health and safety of its employees by permitting an aircraft to be flown by a pilot whose Pilot Proficiency Check was incomplete on the specific aircraft used.

Most of these charges were laid under section 148 which makes it an offence to contravene the occupational health and safety provisions of the Code.  If convicted, each offence carries a fine up to $1,000,000 and up to two years imprisonment.

148 (1) Subject to this section, every person who contravenes a provision of this Part is guilty of an offence and liable

(a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than two years, or to both; or

(b) on summary conviction, to a fine of not more than $100,000.

148 (2) Every person who contravenes a provision of this Part the direct result of which is the death of, serious illness of or serious injury to an employee is guilty of an offence and liable

(a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than two years, or to both; or

(b) on summary conviction, to a fine of not more than $1,000,000.

The trial against Orgne began on April 25, 2017, more than four years after the accident took place.

On the first day of trial, the Crown argued that the crash was "predictable and preventable" and that pilots were assigned to fly without the necessary experience and proper safety system.  The Crown claims that Ornge did not take steps to manage the risks to its personnel, but instead maximized these risks by failing to take the necessary steps to ensure their safety.

The Crown alleged that despite warnings, Ornge assigned the pilots who were involved in the crash to "one of the hardest pieces of work, on its most basic equipment—lacking many of the available systems to increase safety, without ensuring that either had enough recent experience or training in night instrument flight to do it safely."

The Crown's first witness was Malcolm MacLeod, the base safety officer for Ornge in Moosonee at the time of the incident.  He testified that more than eight months before the crash, he expressed concern to colleagues about potential safety risks. In September 2012, MacLeod sent an e-mail to Ornge's safety manager in Toronto, expressing his concern over new hires in Moosonee being scheduled to work night shifts despite little to no experience flying in the area.

"This seems to me to be a real safety concern," MacLeod said in the e-mail.  "I feel that safety is being jeopardized in an effort to make sure the slots are filled."

The captain, Don Filliter, joined Ornge in March 2013, but had flown more than 11,000 hours in his career as a helicopter pilot—860 of these hours were by night.  The co-pilot, Jacques Dupuy, joined Ornge nine months before the accident but had little to no real world night flying experience.

The defence countered by indicating that at the time of the accident in May 2013, the captain and co-pilot were no longer considered new hires.  Defence counsel referred to the pilots as "properly trained" and "well-experienced".

The Crown also argued that the pilots would have benefited from night vision goggles, but that they were not provided by Ornge, nor were they mandated by federal industry regulations.

Andrew Eaton, Ornge's former safety manager, told the court that almost two years before the fatal accident he told supervisors that night-vision goggles should be provided to pilots.

In the briefing note sent to his supervisors, Eaton stated, "The case for night-vision goggles is strong and simple and revolves around safety."  Eaton also posed the following question to supervisors, "Why would we fly around in the night unable to see details, upcoming weather and intentionally blind when we could simply put down a set of goggles and have 20/20 sight in near total darkness?"

Eaton testified that Ornge's management team was initially open to the idea of providing night-vision goggles to crew members—they even gave Eaton the go-ahead to look into retrofitting the company's newer, more powerful helicopters for night-vision capabilities.  But ultimately nothing happened due to the prohibitive cost of such changes.

Eaton also told the court that he left his position as safety manager for Ornge approximately five months before the crash due to the agency's lack of understanding of the proper role of a safety officer.

In additional to the criminal matter, the family of paramedic Chris Snowball has sued Ornge and Transport Canada for their role in an accident they call "completely avoidable" in their statement of claim.  The suit was filed by the medic's parents and 19-year-old daughter.  The family is seeking $3.7 million in damages.

The suit was filed shortly after the Transportation Safety Board released the results of its investigation into the crash.  The board concluded that the helicopter's inadvertent descent was not detected by the pilots because of the darkness and the lack of visual cues outside the cockpit.  The board also said that the cause of the accident went far beyond the actions of the captain and co-pilot.  The report noted that Ornge did not have experienced personnel to run its helicopter operations, that operating procedures were inadequate and that the two pilots lacked experience flying at night and in instrument conditions.  The report also revealed that Transport Canada inspectors knew of the issues at Ornge's but decided not to shut them down and instead opted for a more lenient approach that allowed the unsafe conditions to continue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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