The tragedy of Lac Mégantic is now moving into its legal phase, as tragedies in our society invariably seem to do. The death toll stands at 50 people but more are expected as the search for the missing continues. One thing is certain though: the law suits are sure to fly thick and fast, and the potential targets run the gamut from the Feds, for their lack of oversight of the rail industry, to the now infamous rail company’s engineer responsible for setting the breaks that failed thus causing the disaster (unless you want to be more conspiratorial than me, and consider the possibility of foul play as a cause).
The civil law suits based on the liability of Rail World Inc. is now accepted by everyone including its grandfatherly CEO Ed Burkhart who said at a recent press conference from the town “We’re acknowledging liability. We’re not standing around saying we don’t have responsibility.” That means it’s no longer a question of whether monetary compensation will be paid to the victims of the train wreck, but how large a payout they can expect from the courts.
When the dust settles on this one I wouldn’t be surprised if we see damages similar to that which were paid by BP after the Deep Water Horizon. The oil company was forced to pay 42 billion in reparations including 4 billion in fines for various kinds of negligence, including criminal, which it committed.
BP had been found guilty of cutting costs at the expense of safety on its offshore oil rig, in much the same way that Rail World Inc is facing accusations today of neglecting safety in favour of greater profits in its oil shipping business. Another similarity with the Gulf catastrophe is the charges of criminal negligence against the companies involved. BP was actually found guilty not only of criminal stupidity under US law but also of involuntary homicide or manslaughter for the deaths of 11 roughnecks who were killed in the explosion.
But what about proving that the employees of the Rail World Inc., and by extension the corporation that hired them, were guilty of criminal behaviour?
Let’s begin with the definition of criminal negligence in Canada: “ Everyone is criminally negligent who in doing anything or omitting to do anything, that it is his (please note the sexist language) duty to do, shows wanton or reckless disregard for the lives of others.” It should be understood that this is quite unique, in that the law says an individual is still guilty of a crime even if they have done nothing and had the best intentions.
The precedents of Canadian law tell us a couple of key things about the criminal liability of corporations that are responsible, directly or indirectly, for death and destruction in cases like this one. First of all, the whole corporate structure (from secretaries to CEOs), not just individual employees, can be implicated in criminal negligence.
Secondly, no matter how much the company denies it, they are obligated to take all necessary measures required by law to ensure the safety of their employees and the general public. Any failure to do this could constitute criminal negligence.
The threshold that needs to be met for this “reckless disregard for the lives of others” to be established in court is tricky to do, to say the least. If past cases are any guide, the judge hearing this case will probably use the standard known as the “reasonable person” to decide the matter.
What does that mean in practice? In this instance, do the actions of engineer who set the breaks on the runaway train reflect what an average person would consider common sense? For that matter, did the company’s rules and practices on securing a train carrying explosive materials?
You see the problem. Unless the engineer was high on crack when he checked the train’s breaks or the company’s polices were written by a 10 year old, this is basically a subjective judgement that more often than not depends on a judge’s whims.