Interesting development, it could set some precedent for the future.
OTTAWA — The government has given up its fight to be shielded from a lawsuit filed by widows of a deadly helicopter crash — a move some say is a blow to Ottawa's efforts to minimize its liability in cases involving possible negligence of government inspectors.
Transport Canada confirmed Monday the government is not appealing a decision of the B.C. Supreme Court, which ruled in December that the department can be found liable, in certain circumstances, to the public when it exercises its regulatory powers in a negligent way.
The Crown had argued that there was no cause of action against the government in this case because Ottawa cannot be sued for regulatory negligence in certain instances. The case involves Transport Canada's relationship with the person who certified the helicopter as airworthy, despite an alleged checkered history as a maintenance engineer.
Although the specifics of this case involve Transport Canada, the principle of regulatory negligence and the government's duty of care can be applied to other departments charged with keeping the public safe by enforcing safety regulations.
"It started off as minister of transport motion to strike the claim against them as a matter of law. Their position was the Supreme Court of Canada in a couple of cases had changed the ground rules as to when the government could be found liable in negligence," Joe Fiorante, a partner at the Vancouver law firm Camp Fiorante Matthews, said in an interview Monday.
The B.C. Supreme Court rejected the government's "insufficient proximity" as part of its argument to minimize its regulatory exposure.
"The negligence alleged against Transport Canada is with respect to something over which it had direct control: the designation of maintenance personnel and organizations who are authorized to perform work on and certify aircraft," concluded B.C. Supreme Court Judge E.M. Myers.
The trial, set to proceed in May, will now proceed with the federal government as a defendant alongside Art Comeault, who repaired the helicopter and certified it as airworthy.
"Typically, the regulator is going to want to limit its liability. In making arguments like this, it's going to rely on cases that support that end result. I guess I'm not surprised," said Carlos Martins, a partner at the Toronto-based law firm of Bersenas Jacobsen Chouest Thomson Blackburn and a specialist in aviation regulations.
"It means in this case that the judge wasn't persuaded that Transport Canada was going to walk away from liability and the judge is going to allow the plaintiff to move forward with the allegation and will prove them or not prove them."
Transport Canada declined to comment on the case, saying it would be inappropriate for it to comment on legal action that the department is currently engaged in.
The case involves the circumstances that led to a deadly helicopter crash in Duncan, B.C., on Sept. 17, 2005. Robert Honour, 51, had purchased the helicopter a few months before the crash, and he was piloting the aircraft at the time of the crash. Les Chadwick, 29, who was his sole passenger at the time of the crash, also died.
Comeault, who was designated as an approved maintenance engineer by Transport Canada under the Canadian Aviation Regulations, repaired and certified the helicopter as airworthy through his company, A & L Aircraft Maintenance — also certified and licensed as an Approved Maintenance Organization.
The widows of the two deceased allege that the department owed a duty of care to remove Comeault from the position of a certified person responsible for maintenance — given Comeault's prior conviction for offences under the Aeronautics Act involving making false entries in a journal log with an intent to mislead. The regulations prohibit anyone with his prior conviction from acting as a person responsible for maintenance.
An earlier Transport Canada audit of A & L also found that the company was maintaining aircraft that were not in compliance with policy manuals and other required practices, the lawsuit alleges.
The Transportation Safety Board, which investigated the crash, has already determined that the helicopter was not serviced or maintained in accordance with existing regulations and, as a result, maintenance actions to correct serious engine-driven fuel pump defects were not completed.
The board also found that Transport Canada did not inspect the company performing maintenance on the helicopter within the specified three years — "resulting in a missed opportunity to learn that maintenance had not been performance in accordance with Canadian regulations."
It may not be a victory, Doc, but it shows that we're missing something in our system. Like Cat said, this is a very long process, but at least the awareness is there and the public is once again being brought into the loop. If the right people get a hold of the idea, it could blossom into other endavours to improve our industry.
Poor oversight? maybe? It is also the owner's responsibility to make sure that maintenance gets done on time and that the required AD's and whatnot are complied with. Although the work performed by the AMO may not have been done properly, I don't think you can blame TC for it.
Heliian wrote:Poor oversight? maybe? It is also the owner's responsibility to make sure that maintenance gets done on time and that the required AD's and whatnot are complied with. Although the work performed by the AMO may not have been done properly, I don't think you can blame TC for it.
How about if they knew this was going on and did not intervene?
CL-Skadoo! wrote:How about if they knew this was going on and did not intervene?
I would find it a stretch that TC knew directly that the AMO was still performing shoddy maintenance. The AMO made corrections to it's MPM/MCM the first time and were found to be in compliance. Unfortunately, TC can't be looming in the shadows of every AMO and operator nationwide. Don't get me wrong, I am not a fan of the SMS system on it's own, we still need TC oversight and inspections. It's frustrating to see the decline of TC over the years, we need hundreds of more inspectors to cover the country properly. You can't enforce yourself, and that's what this SMS crap is trying to do. For now, we just have to roll with it. Our company just got audited last year and they found zilch, they couldn't even come up with anything small that had to be corrected. Obviously they weren't looking hard enough, every other audit i've been through brings about many small findings, "knit picky" stuff, paperwork errors and such. TC has definitely lost their edge and it won't be until a majour carrier scoffs at the laws and has an occurence that things will change.
Lets get this straight, TC must approve the DOM, the company can only appoint the DOM, from the statement of claim, this individual had a dubious record. I expect TC knew exactly what was going on. Until TC gets out of approving individuals, approving manuals and mandating content, they should be held liable. TC dictates too much even in the SMS world, and since they are dictating then they should be held liable. What TC needs to do is get out of the approval business and audit to standards only
This is quite the circular argument. I remember years ago how operators continually complained about how Transport Canada interfered with them by conducting audits. Pre-audit activities included effectively stowing all the company skeletons in a closet and praying TC wouldn't find them.
Now we have a situation where TC is moving to make the people who bankroll these operations accountable, and there is opposition once again. So which is it? Do operators want TC out of their face or do they want them sitting in the hangar?
It's important to note that aircraft accidents due to poor maintenance is not a new phenomenon. It's been happening since the early days of aviation. It's impossible for a regulator to prevent every accident no matter what the system. TC has had many victories. The shutting down of Skyward for example. The strong message sent by suspending FastAir's OC. And there have been instances, like the one in this story, where a slimy AME managed to finally kill someone. But who is ultimately responsible for the crash? I say the AME and the AMO. Blaming TC in this case will just send the message, "don't worry, be slimy, TC will take the blame for not catching you".
In my opinion, SMS is a step in the right direction. Yes, it's an unpopular statement in this forum, perhaps because people don't want to be accountable. They want the "cop" to be blamed for them running a red light.
How about if I call the cops to tell them there's a guy running red lights all over the city and that he's going to kill someone, they reply "sounds neat, let us know how it turns out". If he mauls down a bus stop full of people, the cops have no blame? I'm all for SMS, but the oversight has to exist, it doesn't work without TC playing an active roll?.
I guess the same goes for operators who see other operators break the law. Should all the operators who knew that this guy was shady be held liable too? From what I've experienced, it is very likely that other people even within the same company knew what was going on.
I pose that question only as a formality because I think in the case of the guy running the red lights, you would be doing the right thing in reporting him to the police. Whether or not the police act before he kills someone doesn't take away the blame from the speeder or your duty to report him.
In the end, the police (or TC for that matter) aren't our babysitters. We are responsible for our own actions even if there is inadequate (subjective term) oversight or enforcement.
Can you imagine what would happen in the industry if an employee of a competing company was charged for neglecting to inform the authorities of a dangerous situation?
CID wrote:
In the end, the police (or TC for that matter) aren't our babysitters. We are responsible for our own actions even if there is inadequate (subjective term) oversight or enforcement.
That makes Transport Canada what, exactly? An advisory board? People who recommend we be safe? We are responsible for our own actions, so think of the money we'll save on fire, police, paramedics as we rely on ourselves to be a safe, conscientious, law-abiding population. All I would like to see is a little oversight, a little more participation.
Lets get this straight, TC must approve the DOM, the company can only appoint the DOM, from the statement of claim, this individual had a dubious record. I expect TC knew exactly what was going on. Until TC gets out of approving individuals, approving manuals and mandating content, they should be held liable. TC dictates too much even in the SMS world, and since they are dictating then they should be held liable. What TC needs to do is get out of the approval business and audit to standards only 
