A Provincial court justice’s ruling is shedding more light on a February, 2015 incident in which 58 rail cars were left unattended without adequate braking on tracks in the hills above Revelstoke.
Provincial Court Justice Richard Hewson’s judgment was released on July 23. The ruling, in which the director of dispatching at the CP Rail operations centre in Calgary Tim McLelland was found guilty, but superintendent of the Mountain Subdivision Mark Jackson and the Canadian Pacific Railway Company were found not guilty, sequences a series of events in the early morning hours of Feb. 15, 2018, just as CP Rail workers were beginning a strike.
The strike action meant that trains would have to be locked down and stored safely as work came to a halt. This created a logistical challenge as CP Rail tried to store the trains in various locations on the network, including the railyard in Revelstoke.
The train in question, train 401, was en route from Donald, B.C. to Revelstoke. Due to the fact that the Revelstoke railyard was already congested with parked trains, CP Rail management sought solutions for locking down the train in preparation for the strike.
Train 401 was operated by conductor Stefaney Pacey and engineer Curtis Ayotte. It was made up of 152 cars and was nearly two miles long. The crew had started with the train at Donald en route to Revelstoke where it would be stored.
However, due to congestion at the Revelstoke railyard, the train would not fit safely, so CP Rail made plans to split the train and store part of it on a “backtrack” — a side track not on the main line.
A key consideration was a July, 2013 Transport Canada emergency directive in the wake of the Lac-Megantic disaster. The emergency directive specified the procedures for locking down trains, in particular trains that contained more than 20 cars containing dangerous goods. The rules specify what kind of braking procedures were appropriate according to conditions when locking down trains. It also stipulates that trains with more than 20 cars of dangerous goods can’t be stored on the main line. Train 401 had 21 cars with dangerous goods; there were 19 cars carrying fuel oil and two containing ammonium nitrate.
The plan, as communicated to the crew by Calgary-based Rail Traffic Controller Chris Plumb, was to split the train near Greeley, separate out the 19 cars containing fuel oil and store them on a backtrack, then reconnect the train, where the shortened train would now have fewer than 20 cars with dangerous cargo, and would be in compliance for storage.
The process would involve forwarding and reversing the train several times so that the cars could be disconnected, the cars containing fuel oil to be separated out and stored on the backtrack, and then the train be reconnected.
The plan, however, caused the crew difficulty. A court document noted that they’d never carried out such a procedure before or since, and the dark, winter conditions. They expressed their confusion with the orders, and concerns about their ability to complete it. They were concerned about the implications of the braking requirements under Transport Canada’s emergency directive.
Of particular note was the first separation of the train. It would mean leaving 58 cars on the track with only their emergency airbrakes applied, unless the crew applied handbrakes to the cars before leaving them. This was in contravention of the Transport Canada emergency directive, which required additional handbrakes to be applied to the train.
The confusion caused the crew to verify the instructions with the rail traffic controller, who then contacted his superior Tim McClelland, the director of dispatching at the CP Rail operations centre in Calgary, to seek clarification.
A series of telephone and radio communications from the early morning hours of February 15 presented as evidence in court painted a picture of confusion and unclarity about the situation on the ground as management tried to sort out what to do and relay communications to the crew. At 1:47 a.m., McClelland called his supervisor Mark Jackson to seek clarity on the instructions. He complained of being asked “one hundred and one” questions by rail traffic controller Chris Plumb, and sought clarification on the braking procedure:
MCCLELLAND: Now, of course, they’re saying, “We’re gonna tie on 40 handbrakes, then we’re gonna push the cars in, then we’ll knock off the 40 handbrakes and then come into Revelstoke and tie on another 40 handbrakes.”
JACKSON: No, no, no, no, no.
MCCLELLAND: Just leave it in emergency, right?
JACKSON: Yeah. Right on the main track, you’ll leave it right there with the train.
MCCLELLAND: Yeah, leave it in emergency ‘cause –
JACKSON: He’s being stupid.
MCCLELLAND: Yeah, I know, exactly.
Jackson went on to ask the names of the crew members, and when told, he called them “two idiots.”
After the conversation, McClelland relayed the instructions that the separated train was to be left on the main line with only the emergency brakes to the rail traffic controller.
In the radio conversation with the crew at 1:51 a.m., the controller relayed the instructions to the crew on train 401:
“RTC: Okay, as per (Tim McClelland), and he had a conversation with Mark Jackson, you guys are directed to not apply handbrakes when you separate there as per (Mark Jackson).
AYOTTE: Okay. They don’t want us to put handbrakes on the south track portion while we’re setting off those cars, is that correct?
RTC: That is what I have been directed to relay.
AYOTTE: Okay. As per the director and Mark Jackson, all right.
RTC: Okay, fair enough, guys. And, yeah, up to Greely and we’ll go from there.”
The initial separation of the train left 58 cars on the track uphill from Revelstoke without hand brakes applied, mirroring the situation that led to the Lac Megantic disaster, when the emergency brakes failed and the unattended train descended uncontrolled before crashing and exploding, killing 47 people and devastating the Quebec town with large explosions and fire.
In his decision, Justice Richard Hewson found Tim McClelland guilty of unlawfully contravening the emergency directive, but found Mark Jackson and the CP Rail company not guilty.
Justice Hewson’s ruling involves legal arguments that focus on liability, due diligence, reasonable mistake of fact, and reasonable doubt.
With respect to the guilty verdict for Mr. McClelland, Justice Hewson noted that McClelland opted not to testify in court.
“It was clear from Mr. McClelland’s conversation with Mr. Jackson that he knew that the crew was concerned with the number of handbrakes that would have to be applied,” Hewson wrote in his ruling. “If Mr. McClelland mistakenly thought that his subordinates understood his direction to mean that the tail end was not to be left unattended when he ordered that the train be left in emergency, his mistake was not reasonable.
“With respect to any due diligence, the steps taken by Mr. McClelland to inform himself about what the crew were about to do were also not reasonable. He did not contact the crew directly. He did not instruct the RTC to tell them exactly where he wanted them to make the cut.”
In finding Mark Jackson not guilty, Justice Hewson focused on whether Jackson “reasonably believe[d] in a mistaken set of facts.” He noted that Jackson relied on information relayed to him by McClelland in the early morning hours of July 15, and noted some of the information was “incorrect or misleading.”
Justice Hewson wrote: “Mr. McClelland’s tone suggested that he was exasperated with his subordinates, and given Mr. McClelland’s experience and depth of knowledge, it would be reasonable for Mr. Jackson to assume Mr. McClelland’s exasperation was also reasonable.”
Justice Hewson found Jackson’s mistake was “reasonable” given the circumstances:
“Although Mr. Jackson could have asked questions and obtained greater detail about the situation, which might have led to the discovery of where the crew believed they were to make the cut, the evidence on the trial establishes on a balance of probabilities that his mistake was reasonable.”
CP Rail’s defence focused on due diligence. Justice Hewson noted that CP Rail has a training and operational plan that required employees to seek clarification from superiors when seeking clarity for confusing directions.
He wrote that it was not reasonable for CP Rail to foresee that McClelland, “would perform his duties in a way that resulted in a direction that railway equipment be left unattended without being properly secured.” Justice found that CP Rail “exercised all due diligence to prevent the commission of the offences.”
Justice Hewson also rejected submissions that the railway placed profits over safety. “In some of the questions asked and submissions made during the trial, there was a suggestion that the Canadian Pacific Railway Company placed more emphasis on efficiency and profitability than on compliance with railway safety rules. On the evidence led at the trial, I cannot make that finding of fact.”
As reported earlier in the Revelstoke Mountaineer, Tim McClelland is due back in Vernon provincial court on July 25 for sentencing.
The February, 2015 incident was revealed after Transport Canada raided CP Rail’s Calgary Headquarters in June, 2015.
The court trial began in Revelstoke in May 2017 when Jackson, CP Rail, and McClelland pleaded not guilty at the Revelstoke Law Court. The charges were laid in November 2016.