TORONTO — The family of a British soldier killed in a Canadian helicopter crash in Afghanistan has lost its bid to sue the federal government in Ontario.
In a decision Friday, the Court of Appeal said the province's courts had no jurisdiction to hear the lawsuit.
Capt. Ben Babington-Browne, 27, was a passenger in a Griffon C-146 in July 2009 that clipped a security wall on take-off from a base in Afghanistan, flipped over and burst into flames. He had been deployed on a coalition mission directed by Canada's Department of National Defence.
The crash also killed two Canadian soldiers, Master Cpl. Pat Audet, 38, of Montreal, a flight engineer, and Cpl. Martin Joannette, 25, a gunner from St-Calixte, Que. Three other Canadians aboard were hurt, one seriously.
The Briton's mother, Nina Babington-Browne, and brother, Daniel Babington-Browne sued Ottawa for negligence. Among other things, they claim Canada failed to maintain the landing zone and failed to use appropriate techniques in light of the adverse environmental conditions and physical structure of the landing zone during the take-off.
Also named as defendants were the helicopter pilot, captain and flight engineer.
Last fall, Superior Court Justice Martin James struck the claim against the government on the basis that the court lacked jurisdiction to hear it because the claim arose outside of Ontario, prompting the relatives to appeal.
Ottawa argued the case should properly be heard in Federal Court — an argument the Court of Appeal accepted.
"The bulk of the alleged negligent acts that caused the helicopter crash took place in Afghanistan," Appeal Court Justice John Laskin wrote in the decision.
However, the court also ruled the claim against the three other defendants can proceed in Ontario Superior Court — which the federal government has accepted.
Ottawa also said the claim was brought too late, but James rejected that argument on the grounds the plaintiffs had to wait for a Canadian Forces board of inquiry to report its findings on the crash.
At the time, blinding dust whipped up by the helicopter's rotors were considered a contributing cause of the crash as the chopper lifted off in gusty wind.
Babington-Browne was from the 22 Engineer Regiment, Royal Engineers.
The chopper, part of Canadian Helicopter Force Afghanistan based at Kandahar Airfield, had flown to a remote American forward operating base in the Tarnak va Jaldak district of southwest Zabul province, about 80 kilometres northeast of Kandahar city. The mission was to pick up the British engineer.
