The Transportation Safety Board probe into a deadly helicopter crash off Newfoundland is flawed and unfair, say lawyers for the victims of Cougar Flight 491.
A confidential draft of the board's report into last year's tragedy began circulating among reviewers it selected last month. It's part of the federally mandated process to collect feedback before the report is finalized and made public.
But lawyers for the crash victims are questioning why they're shut out. Neither sole survivor Robert Decker nor the families of the two pilots and 15 passengers who died March 12, 2009, were deemed "interested parties" entitled to assess the draft report, they say.
"I think the concern that the public should have is that the investigative process appears to be closed-door," said Vancouver lawyer Joe Fiorante.
"We know that … the operator Cougar and the manufacturer Sikorsky are given access and the opportunity to comment on the draft report, whereas the victims are not. So I think what's at stake is the appearance of whether the investigation is impartial and conducted fairly."
Fiorante, a civil litigator specializing in international aviation, says the board has consistently taken the position in the past that passengers are not to be included in the report review stage.
"It has come as a shock to all of our clients in past cases - and in this case - that they're being shut out of a government investigative process in which Mr. Decker himself personally survived, or in other cases, their loved ones were killed.
"They are put in the same position as the rest of the public and told to wait for final findings."
The Canadian Transportation Accident Investigation and Safety Board Act directs the TSB to send its draft report to "anyone who, in the opinion of the board, has a direct interest in the findings of the board."
TSB spokesman John Cottreau said the identities of those who received a draft copy are confidential. But he said they fell into two categories the board looks at "for according draft reviewer status."
"The first category is those whose performance or behaviour or products might be commented on in the report and who might see themselves as being adversely affected by the report. The second category is those who can contribute to the completeness and accuracy of the scientific report.
"Essentially, the families do not fall under those two broad categories so they are not accorded draft reviewer status."
Fiorante, part of a consortium of lawyers representing the Cougar families, says that approach defies logic.
"Mr. Decker survived this ordeal. He may well have information that could touch on the survivability of these types of accidents in the future and what could be done to prepare passengers for an ocean ditching."
The pilots were taking offshore oil workers to the Hibernia and White Rose sites when they reported a loss of oil pressure in the chopper's main gearbox and headed back toward land. Eleven minutes later, the helicopter plunged into the sea about 55 kilometres east of St. John's.
Two weeks after Flight 491 went down, the TSB said two of three titanium studs that secure the oil filter bowl assembly to the helicopter's main gearbox broke in flight, causing the loss of oil pressure.
Decker, then 27, survived 75 minutes in the frigid North Atlantic after a harrowing escape from the fast-sinking chopper. He was interviewed by the safety board, Fiorante said.
"But he certainly isn't going to get a chance to see what their take is, and how they view it in terms of their analysis of the accident in a draft, confidential report."
St. John's lawyer Steve Marshall, who is also representing the crash victims, said an exclusive review process undermines the perception of fairness.
"They should all be in the same category."
Cottreau said the process is independent and thorough.
"The Transportation Safety Board of Canada performs complete, fair and unbiased investigations to get at what happened, why it happened, and how we might be able to prevent it from happening again."
Reviewers had 30 days to make comments on the draft report that are each answered in writing by the board. Reviewers can request extensions, however, and Cottreau would not speculate on when the final report will be made public.
Fiorante isn't convinced that document will be as complete as it should be.
"We're going to review it very carefully on behalf of the families, and we are going to look to make sure that it is thorough. But our past experience has been that we believe firmly that the passengers and their families have information that's important to an investigation of the cause of the crash.
"And we've had a number of cases where we felt the final report didn't fully canvass all the causes or all the important information."
The Canadian Press