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."
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