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Rail accidents: public safety victim of deregulation


In Ohio, the environmental tragedy caused by the Norfolk Southern train derailment transporting hazardous materials and which has released toxic chemicals into the air and into local waterways will require lengthy decontamination. And if we rely on a similar train tragedy in Canada, it will take even longer to know the causes of the accident and the extent of the damage.

Nearly a decade has passed since a runaway train carrying 72 tank cars full of highly volatile shale oil from the Bakken field derailed and exploded in Lac-Mégantic. The tragedy resulted in the death of 47 people, orphaning 26 children, spilling six million liters of toxic products and destroying the city centre.

The July 6, 2013 accident was the worst industrial disaster on Canadian soil in over a century. Ten years later, the community is still suffering the economic, health and environmental consequences.

A trauma that never ends

A bypass projectoriginally conceived as a restorative measure, perpetuates the trauma suffered by the community of Lac-Mégantic since that terrible night.

The construction of the bypass has still not started. The route favored by Canadian Pacific Railway Ltd., which will own the bypass once it is completed, and supported by the federal government, has created deep divisions in neighboring municipalities.

Citizens of the town of Frontenac voted overwhelmingly against the route. The public expressed their concerns about the possible environmental and material damage that Transport Canada would not have taken into account.

The dispute over the bypass is just one of the problems facing the citizens of Lac-Mégantic. Their recent move to seek justice in the courts had a disappointing outcome on December 14, 2022.

Justice Martin Bureau of the Superior Court of Quebec ruled that the Canadian Pacific Railway could not be held responsible for the damage suffered by the victims of the Lac-Mégantic disaster. The plaintiffs appealed this decision.

A man touches a stone memorial to the 47 victims of the 2013 oil-filled train derailment in Lac-Mégantic, Quebec.
The Canadian Press/Paul Chiasson

Liability issues

This case raises serious questions about who should be considered responsible in the case of complex events that result in serious damage. It also shows us that private litigation does not make it possible to understand disasters and the actions necessary to better protect the interests of citizens. A public inquiry is the only possible answer.

A class action lawsuit has been filed against Montreal Maine & Atlantic Canada Co and 25 other defendants. MM&A then went bankrupt.

In 2016, 24 of the defendants ended the lawsuits against them by paying $460 million into a compensation fund. These include Transport Canada, for $75 millionIrving Oil ($75 million) and World Fuel Services Corp, the US owner of the oil carried by the train ($135 million). This was not an altruistic gesture, but rather a means of avoiding the risk of prosecution, since the settlement excludes them from the class action.

CP says it has nothing to be ashamed of

Canadian Pacific did not join the settlement. CP has always maintained that it did not commit any wrongdoing. The company refused to acknowledge any responsibility for the Lac-Mégantic tragedy, as the derailment occurred after the train was handed over to Montreal Maine & Atlantic in Montreal for the final leg of the trip.

After reviewing the extensive evidence presented at trial, the court determined that CP was not responsible for the events in Lac-Mégantic.

The judge ruled that CP had no duty to intervene and that it had not been negligent since it had complied with industry practices. Moreover, even if there had been negligence on the part of CP, the judge concluded that there was no indication that society was “the direct, immediate and logical cause of the damage suffered by all the victims” as a result of the derailment.

In finding that CP was not at fault, the judge relied on industry practice to assess whether CP had fulfilled its duty to act in a reasonably prudent manner, according to article 1457 of the civil code of Quebec.

The court was strongly influenced by the absence, in the applicable railway regulations, of binding obligations that would have required CP to take the actions that the plaintiffs deemed necessary.

No risk monitoring

The judge agreed with CP that it was only required to carry out a risk assessment on its tracks. The court held that since the government had a duty to ensure that the cargo was properly classified and that Montreal Maine & Atlantic met the required safety standards on its portion of the route, CP had no obligation to control the risks posed to the public by the companies with which it collaborates.

The court held that CP had no duty to check whether the shale oil in the tank cars had been properly classified or whether it was more volatile than conventional crude oil. Nor was CP negligent in choosing Montreal Maine & Atlantic to transport the fatal cargo through Lac-Mégantic, despite the fact that CP knew the MM&A practices and the risks that these posed for the transport of oil.

The court’s conclusions are based on a vision of the regulatory framework that does not take into account the reality of the balance of power between the industry and the regulatory authorities.

Two rail companies, Canadian National and Canadian Pacific, determine laws, rules and regulations – with the complicity of bureaucrats and legislators – in a way that serves their own interests and protects against criminal liability in the event of a disaster. .

A plume of smoke rises in the air, with houses in the background
A plume of smoke rises over East Palestine, Ohio after the controlled detonation of part of the carriages of the Norfolk Southern train which derailed on February 6.
(AP Photo/Gene J. Puskar)

The reduction in Transport Canada’s independent oversight capacity is the result of a decades-long process of deregulation and resource reduction. The regulator oversees safety plans developed by railway companies instead of carrying out actual on-the-spot inspections.

In other words, the railway companies themselves define the “industry practices” that serve as benchmarks to assess the reasonableness of their conduct.

A narrow view of causality

In addition to concluding that CP was not negligent, the Quebec court attributed legal liability only to the last link in the causal chain: Tom Harding, the train driver.

This verdict is concerning, as it incriminates Harding for his role in a complex event when he had little control over his working conditions and company policy. By relying solely on Harding’s decision as to how many hand brakes to apply, the court ignores all of the other conditions that contributed to the derailment, including the fact that the train was parked on the main track ahead of the derailment. a town with a mislabeled cargo of highly explosive and volatile crude oil.

Harding has been acquitted of all criminal charges in 2018.

This case shows how difficult it is for plaintiffs, under current legal rules, to prove fault and causation for complex events, particularly when several parties are involved, each of whom seeks to minimize his exposure to legal liability.

Not only do private parties lack the power to demand evidence, but even if they did, the costs of collecting evidence relating to the elements that contributed to an event of the magnitude of the Lac derailment -Mégantic would be prohibitive.

Given the inability of a failing legal system to bring justice to the citizens of Lac-Mégantic, a independent commission of inquiry is the only way to shed full light on this event, its causes, the people who should be held responsible and the policies that should be implemented to prevent future disasters. However, successive governments have rejected such an inquiry.

Ten years after Lac-Mégantic, corporate negligence and lack of regulation remain prevalent systemic features of the transportation of dangerous goods by rail in North America, as evidenced by the recent derailment and spill of toxic chemicals. in East Palestine, Ohio. The status quo cannot be tolerated. Public safety must take precedence over shareholder value.

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