The three representatives of some 4,500 members of a class action against Canadian Pacific (CP) on the sidelines of the Lac-Mégantic rail disaster are not giving up: they are appealing the decision handed down last December by the Superior Court which exonerated the rail carrier for its role in the tragedy.
The whole of Quebec was horrified by the derailment and explosion of a train carrying crude oil, which killed 47 people and completely destroyed the town center of the small Estrie municipality, on July 6, 2013.
The train driver, Thomas Harding, and two other Montreal Maine and Atlantic (MMA) employees were acquitted of criminal negligence in the case in January 2018 and the criminal charges were then dropped a few months later against the MMA, the Director of Criminal and Penal Prosecutions demanding a stay of proceedings for lack of evidence.
Civil proceedings continued, however, with class action representatives, the Quebec government and insurance companies compensating the victims claiming damages from CP and MMA.
CP was the convoy organizer
The rail carrier was and still is targeted by the plaintiffs because “CP was the organizer of the intercontinental transport of Bakken oil from North Dakota to the Irving refinery [au Nouveau-Brunswick]and coordinated and controlled virtually every aspect of it,” they recall in their notice of appeal.
They thus criticized CP for having chosen to transport oil using a section of railway belonging to MMA, despite its unsafe practices, and for having failed to ensure that the oil in question was properly classified. The Bakken-type hydrocarbons transported were highly volatile, but the employees believed they were dealing with a product that did not ignite.
Judge Martin Bureau had concluded, however, that the actions of CP “whether they are at fault or not, are not the direct, immediate and logical cause of the damage suffered by all the victims”. For the magistrate, the fault was attributable to the train driver Thomas Harding and his employer, the MMA.
Many other parties were also involved, but although the judge attributed them “some responsibility in this disaster”, the plaintiffs had stopped suing them because they had agreed to contribute to a compensation fund to compensate the victims. which reached 430 million dollars.
Canadian Pacific, however, refused to contribute.
“Credible evidence” rejected or ignored?
According to the plaintiffs’ notice of appeal, CP was aware of “a specific unsafe practice on the local railroad (MMA)” and had a duty to notify the shipper, consignee, regulations and to contact MMA management “for the purpose of ending the unsafe practice”. He also had the obligation to request supporting documents related to the classification of hazardous materials and to correct it if it was incorrect.
“Had CP met the above industry obligations, the derailment would not have occurred,” it wrote.
In particular, they criticize Judge Bureau for having rejected or ignored “credible evidence that CP was aware of MMA’s dangerous practice of leaving Bakken oil trains overnight, on the main railway line, on a hill at above the town of Lac-Mégantic”.
They also point out that, in their view, the judge rejected or ignored “credible evidence that MMA management was misled about the danger and volatility of Bakken oil due to its misclassification.”
In addition, they believe that the judge demonstrated a “poor understanding and [une] misapplication of the concept of causation, and [une] erroneous conclusion that Mr. Harding’s failure to apply sufficient brakes was the sole cause of the derailment”.
Quebec and the insurers are also appealing the decision
The court consolidated the three lawsuits against Canadian Pacific. In the case of the Quebec government, it was claiming $230 million from the rail carrier, while the insurers in the file were claiming $14 million to compensate for the compensation paid to the insured. The amount claimed by the representatives of the class action remained to be determined.
The Canadian Press has learned that the Attorney General of Quebec will also appeal the Superior Court’s decision. Similarly, most of the insurance companies that were involved in the initial procedure, namely Promutuel, L’Unique, Intact, Bélair and La Garantie, will also appeal the decision. Two insurers, Desjardins and The Personal, who participated in the application at first instance, withdrew the appeal.
