Lac-Megantic residents appeal decision that exonerated CP Railway

Excavators search the rubble on the site of a train crash explosion in Lac-Megantic, Que., Monday, July 15, 2013. THE CANADIAN PRESS/Jacques Boissinot

The three representatives of some 4,500 members of a class-action suit against Canadian Pacific (CP) in connection with the Lac-Mégantic train disaster are not giving up: they are appealing the Superior Court decision in December that exonerated the rail carrier for its role in the tragedy.

All of Quebec was shaken by the derailment and explosion of a train carrying crude oil, which killed 47 people and destroyed the town centre of the small Eastern Townships 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 criminal charges were subsequently dropped a few months later against the MMA. Crown prosecutors called for a stay of proceedings for lack of evidence.

Civil proceedings continued, however, with the class-action representatives, the Quebec government and the insurance companies that compensated the victims claiming damages from CP and MMA.

Canadian Pacific was and still is the target of the plaintiffs because "CP was the organizer of the intercontinental transport of Bakken oil from North Dakota to the Irving refinery (in New Brunswick), and coordinated and controlled virtually all aspects of it," they said in their notice of appeal.

They accused CP of choosing to transport oil using a section of track owned by MMA despite its unsafe practices and for failing to ensure that the oil in question was properly classified. The Bakken hydrocarbons being transported were highly volatile, but the employees believed they were dealing with a product that would not ignite.

However, Judge Martin Bureau concluded that CP's actions "whether or not they were at fault, were not the direct, immediate and logical cause of the harm suffered by all the victims." In the judge's view, the fault lay with the train driver Thomas Harding and his employer, the MMA.

Many other parties were also involved, but although the judge found them "somewhat responsible for the incident," the claimants had stopped suing them because they had agreed to contribute to a $430 million fund to compensate the victims.

Canadian Pacific, however, had refused to contribute.

JUDGE DISMISSED OR IGNORED EVIDENCE, SAY APPELLANTS

According to the plaintiffs' notice of appeal, CP had knowledge of "a specific dangerous practice on the local railway (MMA)" and had a duty to inform the shipper, the consignee, the regulator and to contact the management of the MMA "with a view to stopping the dangerous practice."

It also had an obligation to request supporting documentation relating to the classification of the dangerous goods and to correct the classification if it was incorrect, according to the appeal.

"Had CP complied with the above industry obligations of the industry, the derailment would not have occurred," they wrote.

In particular, they criticize Justice Bureau for rejecting or ignoring "credible evidence that CP knew about MMA's dangerous practice of leaving Bakken oil trains overnight on the mainline track on a hill 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 because of its misclassification."

In addition, they say the judge demonstrated a "misunderstanding and misapplication of the concept of causation, and an erroneous conclusion that Harding's failure to apply sufficient brakes was the sole cause of the derailment."

QUEBEC INSURERS ALSO APPEAL

The court had consolidated the three Canadian Pacific lawsuits. In the case of the Quebec government, it was claiming $230 million from the rail carrier, while the insurers in the case were claiming $14 million to make up for the compensation paid to policyholders. The amount claimed by the class-action representatives has yet to be determined.

The Canadian Press has learned that the Attorney General of Quebec will also appeal the Superior Court decision. As well, most of the insurance companies that were involved in the original proceedings, namely Promutuel, L'Unique, Intact, Belair and La Garantie, will also appeal the decision.

Two insurers -- Desjardins and La Personnelle, who were involved in initial case -- have withdrawn their participation in the appeal.

This report by The Canadian Press was first published in French on Jan. 13, 2023