(Montreal) Does the Canadian Pacific Railway Company (CP) have any legal responsibility in the train disaster which left 47 dead in Lac-Mégantic on July 6, 2013?
This is the question that the Court of Appeal will have to answer, for a second time, following the exoneration of CP by Judge Martin Bureau, of the Superior Court, on December 14, 2022.
Judge Bureau ruled that the conduct of the CP, whether faulty or not, was not “the direct, immediate and logical cause” of the damage suffered by the victims. This responsibility rested instead, according to the magistrate, in the hands of the train driver, Thomas Harding, and his employer, Montreal, Maine and Atlantic (MMA).
Three lawsuits
The court thus ruled on three consolidated lawsuits, one from a group of citizens and businesses victims of the tragedy, one filed by the government of Quebec and another by the insurance companies which had to compensate the victims.
Canadian Pacific was the only entity out of 24 companies involved that refused to voluntarily participate in a compensation fund that now totals some $460 million.
The three plaintiffs appealed Judge Bureau’s decision, and a three-judge bench of the Court of Appeal began hearing the appellants on Monday.
Information obligation
On the side of the Attorney General of Quebec, it was argued that CP, which was the shipper of oil from North Dakota to New Brunswick, failed to notify MMA that the oil it was transporting on the The last piece of rail was poorly labeled and was not inert and non-flammable crude, but a highly volatile and explosive product. The judge made an error of law by not recognizing that the CP had an obligation to provide information and, therefore, that its responsibility was indeed engaged, argued Me Rosary Arcand.
“The whole dispute is there, currently, namely what would the MMA have done if it had been warned that the product was more dangerous than what was announced on the transfer slips,” asked Robert Bellefleur, spokesperson from a coalition of citizens and businesses from Lac-Mégantic, at the end of the hearing.
“They might not have sent just one man on the train – because normally we have two men on the train. He might not necessarily have parked the train on a slope, with the engine running, on the side of a road without supervision. »
“A dangerous and archaic railway culture”
In his turn at the bar, the lawyer for the plaintiffs of the class action, Mr.e Joel Rochon, broadened the spectrum of the judges’ upcoming decision well beyond Lac-Mégantic. “If this judgment is allowed to stand, it will have the effect of perpetuating a dangerous and archaic railway culture, a culture that places profit above safety,” he argued.
Canadian Pacific, which had owned this railway line for more than a century before selling it to MMA, knew all the curves, all the slopes and all the dangers, he argued. . Its risk assessment was faulty, especially knowing that its subcontractor had a fairly heavy record in terms of safety breaches. In any case, “parking a train at the top of a hill is always dangerous, whatever its cargo”, insisted Me Rochon.
The rail giant, he told the three magistrates, knew that MMA left the train in Nantes at the top of the slope overlooking Lac-Mégantic unsupervised. “CP should have taken the necessary steps to tell MMA, ‘You cannot leave a train full of oil unattended at this location.’”
Tolerance
But this tragedy, he clarified, is the result of the fact that Transport Canada has long tolerated this type of extremely dangerous practice. Judge Bureau, he denounced, erred in concluding that CP had not acted irresponsibly. “He preferred to side with industry practices and standards rather than favor the obligations of a reasonable person,” as defined by the Civil Code.
The insurance companies and Canadian Pacific itself will then appear before the Court of Appeal this week. Six lawyers defend the CP.
The issue is not trivial. The sums claimed by Quebec, the insurance companies and the victims far exceed the 460 million amassed by the fund. If Canadian Pacific was found partially responsible, it would have to pay millions.
But whatever the court’s decision, it would be surprising if it was not itself appealed to the Supreme Court, given what is at stake on both sides.