2021 MBPC 38, 2021 MBPC 38

Citation: 2021 MBPC 38 THE PROVINCIAL COURT OF MANITOBA THE PAS COURT CENTRE IN THE MATTER OF: THE FATALITY INQUIRIES ACT C.C.S.M. c. F52 AND IN THE MATTER OF: KEVIN ANDERSON, Deceased (DATE OF DEATH: SEPTEMBER 16, 2018) Decision on Setting the Scope of the Inquest Associate Chief Judge Malcolm McDonald Issued this 31 st day of August 2021 M. McDonald, ACJ Introduction [ 1 ] A hearing on the scope of this Inquest took place on July 12 th , 2021.

Eight of the ten parties with standing filed written submissions, supporting materials and made oral submissions. [ 2 ] In essence, certain of the parties maintain the provisions of the Fatality Inquiries Act (FIA) require this Inquest to inquire into the causes of the derailment that resulted in the injuries that in turn caused the death of Mr. Kevin Anderson. Other parties maintain the provisions of the FIA and, in particular, the terms of reference set out in the Chief Medical Examiner’s (CME) letter dated February 14, 2020 to Chief Judge M.

Wiebe set the appropriate scope for the Inquest asserting that the CME’s letter directs that an inquiry into the causes of the derailment should not be undertaken by this Court. Background Facts respecting the Derailment and Rescue Efforts [ 3 ] It is important, in this Court’s view to understand the essential facts of this matter when considering the appropriate scope of this Inquest. [ 4 ] On September 15, 2018, at 1200 Central daylight time (CDT) the train departed The Pas destined for Thompson, Manitoba. The crew consisted of the conductor, Mr. Kevin Anderson and the locomotive engineer, Mr.

Christopher Rushton. [ 5 ] My

summary of the remaining facts is in turn a

summary of the “Factual Information”

section of the Transportation Safety Board’s (TSB) report into the derailment of freight train 995-15 found at pages 3 to 9: At 1632 CDT, while the train was proceeding northward at 25 mph on a raised portion of the track, the crew observed a void in the roadbed surface ahead at mile 99.59. The rails were in place, but the roadbed surface had been washed out. The track collapsed as the train travelled over the unsupported

section of track. The head end of the train struck the opposite side of the washout. The three head- end locomotives, two empty gondola air dump ballast cars and two tank cars loaded with liquefied petroleum gas (LPG) derailed. The lead locomotive folded to an approximate 45° angle at its midpoint resulting in the generator and electrical cabinet being pushed forward into the cab pinning the conductor and locomotive engineer inside. The second and third locomotives came to rest on their side. All three locomotives leaked diesel fuel from the fuel tanks and oil from the engines.

The derailment occurred in a remote area of northern Manitoba accessible only by car or rail. The accident site was approximately 9.1 miles or 15 km south of Manitoba Provincial Trunk Highway, #6 grade crossing at Ponton, Manitoba which is located at mile 108.6 of the Wekusko subdivision. Ponton is is 239 km northeast of The Pas and 156 km southwest of Thompson. At 1715 CDT, the crew of a helicopter en route to pick up surveyors in the area saw the train derailment.

At 1735 CDT, the helicopter returned to the site of the derailment and landed on a nearby sandbar. A helicopter crewmember first called 911 and then a member of the Snow Lake Royal Canadian Mounted Police detachment reported the derailment location and the current situation. This information was relayed to the RCMP control centre which then contacted the helicopter crew for more details concerning the derailment site and the equipment required to rescue the train crew. At 1807 CDT the RCMP notified the rail traffic controller of the accident.

At 1818 CDT the RCMP informed Thompson Fire and Emergency Services (TFES) of the derailment, but did not initially advise that the train crewmembers were pinned inside the locomotive cab and that some of the derailed cars were transporting dangerous goods (DG). TFES dispatched an Emergency Medical Services (EMS) team consisting of two paramedics and an ambulance. At 1823 CDT, the rail traffic controller (RTC) notified a Hudson Bay Railway Company (HBR) supervisor that there had been a rail accident and that the RCMP was on scene.

The RTC also told the supervisor that the crewmembers are pinned inside the locomotive cab. Hudson Bay Railway Company management was informed, and they responded from The Pas. The road repair truck and hazardous materials trained personnel was put on standby. An HBR company engineering employee was dispatched to the scene in a high rail vehicle. At 1853 CDT, the TFES received additional information, including photographs indicating that two people were injured and trapped in the cab of the lead locomotive and that dangerous goods were present.

A general alarm was issued, paging all members of TFES; however, this additional information was not relayed to HBR. At 1855 CDT, the pilot arrived back at the site with the RCMP officers who said that TFES would respond. The pilot then flew the helicopter back to Ponton to transport any TFES personnel or supplies that might aid in the response. However, TFES did not send in any equipment. At 1900 CDT, once on site, the RCMP reported there was a smell of diesel fuel and possibly propane.

The RCMP then informed TFES that diesel fuel was leaking and the train had been carrying DG tank cars containing LPG, which might also be leaking. At 1905 CDT, even though a helicopter had access to the site, considering the risk of a DG release involving diesel fuel and LPG, the TFES decided, in accordance with established emergency response protocol, to keep all responders away from the accident site until its hazmat team had conducted an assessment of the DG hazards. As a result, EMS personnel were informed they could not access the site using the surveyor’s helicopter until the site assessment was complete.

TFES knew that two RCMP officers and first aid supplies had been flown in by helicopter and had told the RCMP officers to keep 300 to 500 metres away from the derailed tank car containing propane. Nonetheless, the RCMP officers decided to stay with the injured crewmembers. At 1912 CDT, a TFES rescue team, with hazmat trailer and related equipment, departed Thompson for Ponton. While on route, TFES requested a Shock Trauma Air Rescue Service (STARS) air ambulance from Winnipeg.

TFES was told that the air ambulance would not be able to depart, due to poor weather conditions in Winnipeg, but another helicopter and pilot were staged at Island Lake, about 250 km east of the derailment site, and would attend the scene later that night. Meanwhile, shipping documents were obtained from HBR, the Office of the Fire Commissioner of Manitoba, and CANUTEC were informed; and additional TFES personnel and equipment were dispatched from Thompson. At 1940 CDT, the EMS team that had been dispatched from Thompson arrived at Ponton.

The pilot of the surveyors’ helicopter told EMS at Ponton that the injured train crew required first aid and pain medication. EMS replied that the TFES had ordered them not to enter the derailment site until the hazmat team had conducted a site assessment. At 2000 CDT, the pilot of the surveyors’ helicopter flew back to the derailment site to pick up the co-owner and the surveyors, then return to Ponton to deliver an RCMP vehicle key and pick up blankets and heating pads. The two RCMP officers remained at the site with the injured crewmembers.

The surveyors’ helicopter made one last trip to the site to deliver the blankets and heating pads. At 2030 CDT, the surveyors’ helicopter departed the accident site just before darkness. The helicopter was not equipped to be flown after dark. At 2050 CDT, the TFES arrived at Ponton, and the TFES captain, who is fully trained on incident command structure, assumed command of the response. This was the first time the TFES had encountered a train accident of the scale, and TFES personnel expected a larger railway response.

Because HBR personnel, who were travelling a greater distance, had not yet arrived, TFES established incident command and the staging area in a gravel pit near the Provincial Trunk Highway # 6 grade crossing. At 2120 CDT, an HBR supervisor and superintendent arrived at Manitoba Provincial Trunk Highway, #6 grade crossing and went to the staging area. None of the responding railway personnel have (sic) been formally trained on emergency response or incident command. This was the first time that HBR personnel had to respond to an accident of this scale.

At the site, the HBR officers worked in support of the TFES and RCMP. By 2145 CDT, all TFES personnel and equipment had reached Ponton, including the Thompson Fire Chief, who assumed command of the response. Additional emergency services responded from Snow Lake (EMS) and Wabowden (RCMP, Fire and EMS). At 2146 CDT, The TFES & EMS response groups made a first attempt to access the derailment site to perform a site assessment and begin rescue activities. This attempt included: • Two all terrain vehicles ATVs,

• A rescue Boggin, • Two qualified hazmat technicians, • Two fire fighter / paramedics wearing full turnout gear, and • Various equipment, including gas monitoring/sampling meters, lighting, tools, medical equipment, and self-contained breathing apparatus for all responders. Travel to the derailment site along the rail bed was difficult for the ATVs. At 2155 CDT, after travelling about two kilometers, both ATVs got flat tires. The decision was made to use the hi-rail vehicles to travel the 15 km from Provincial Trunk Highway #6 grade crossing at Ponton into the derailment site.

At 2200 CDT, an HBR track foreman in a truck equipped with a hi-rail arrived at the Ponton staging area with a rail saw and hydraulic tools. The foreman was instructed to put the truck on the rails and to pick up the TFES members who were with their ATVs. However, as the foreman had not been told the location of the accident site, he inadvertently travelled northward toward Wabowden, instead of southward.

After travelling several miles without encountering the ATVs, the foreman turned the hi-rail vehicle, proceeded back to the staging area, and continued south until he located the TFES and EMS responders and transported them to the site. This confusion regarding the direction of travel and the flat tires on the ATVs delayed the arrival of the first group of TFES and EMS emergency responders on site by about an hour and a half. At 2346 CDT, the first group of responders reached the site and conducted an initial site assessment.

At 2347 CDT, after determining that no LPG had been released and that the site was safe, the response team began attending to the injured crewmembers. At 0012 CDT on September 16, a second group of responders arrived on site by hi-rail with more lighting and hydraulic extraction equipment. Extracting the injured crewmembers proved extremely difficult. The emergency response teams initially focussed on rescuing and extricating the locomotive engineer, but after a short time shifted their attention to the conductor.

At 0053 CDT, despite emergency responders best efforts to extract the conductor; he died of his injuries while they were attending to him. The families of the train crewmembers were first informed of the accident about 0100 CDT. They were not informed of the accident when it occurred, nor were they provided with timely, accurate information, including the status of the crewmembers as the response unfolded. Following the death of the conductor, extraction efforts continued as the emergency responders attempted to free the locomotive engineer from the locomotive cab.

At 0230 CDT, the locomotive engineer was extracted and transported by hi-rail to the staging area about 15 km away where a helicopter was waiting.

At 0330 CDT, the helicopter departed for Thompson General Hospital with the locomotive engineer in critical condition. [ 6 ] In addition to this review of the facts surrounding the accident and emergency response arising from its investigation, the TSB reviewed numerous other related issues including: • The characteristics of LPG in the event of a release; • National standards for the competence of responders to hazardous materials incidents; • Decision making and emergency response in hazard materials incidents; • HBR’s emergency response plan; • Site examination of the derailed cars and track; • Weather conditions during the preceding spring and summer; • A brief history of HBR and its track ownership and capital investment; • Information respecting the subdivision; • Track information; • Drainage in the area of the derailment; • Beaver control in the area of the track; • HBR’s track and culvert inspections; • A review of pertinent areas of regulatory oversight through various federal regulations and agencies; • Transport Canada’s regulatory activities involving HBR since July 2016; • Previous occurrences involving collapse of track subgrade; • Previous investigations involving “dark territory” where emergency response were affected by delays in notifying the rail traffic controller.

[ 7 ] In addition, the TSB made a number of findings as to cause and contributing factors concerning the derailment and flawed response, additional findings as to risk respecting the derailment and emergency response, and “other findings” related to the incident. [ 8 ] The TSB also documented action taken by Transport Canada and HBR in response to the accident and its investigation.

The Chief Medical Examiner’s Direction to Hold an Inquest [ 9 ] At the time the CME directed the Chief Judge of the Provincial Court of Manitoba to call an Inquest into this matter the report of the TSB was available and known to the CME.

In fact, in his letter of February 14, 2020 he makes specific reference to the TSB’s investigation as follows, “The Transportation Safety Board has concluded its investigation of the incident, with multiple recommendations outlined and acted upon by the involved railway.” [ 10 ] The CME then goes on to say: Thus I feel the scope of this inquest should encompass the Provincial response to this incident. Mr. Anderson’s death was preventable.

Therefore in accordance with s. 19(1) and s. 19(2) of the Fatality Inquiries Act, I direct that an inquest be held into the death of Kevin Anderson for the following reasons: 1) To determine the circumstances relating to Mr. Anderson’s death; 2) To review the coordination of a multi-agency response to a serious incident in a remote setting; 3) To examine policies and protocols used by police, paramedics, and other first responders regarding operation in a potentially dangerous setting; and, 4) To determine what if, if anything, can be done to prevent similar deaths from occurring in the future.

The Position of the Parties Position of the family of Kevin Anderson [the Family], the Teamsters Canadian Rail Conference, [TCRC], and Northern Regional Health Authority [NRHA] [ 11 ] These parties take the position that the scope of the Inquest should include the circumstances surrounding the derailment that resulted in the injuries that took the life of Mr. Anderson. In support of this position, the Family and TCRC rely upon section. 33(1)(

e) of the Fatality Inquiries Act : s. 33(1) After completion of an inquest, the presiding provincial judge must provide the minister with a written report that sets out his or her findings respecting the following: (

a) the identity of the deceased; (

b) the date, time and place of death; (

c) the cause of death; (

d) the manner of death; (

e) the circumstances in which the death occurred . [Emphasis added]. [ 12 ] Both TCRC and the Family argue that the derailment was a direct cause of Mr. Anderson’s death. In support of this position, the Family refers to the autopsy report in which the derailment is cited as an underlying cause of death. They also argue that “but for” the derailment, Mr. Anderson’s life would not have been lost. By definition they say the Inquest Judge’s written report must include findings respecting the derailment of the freight train that Mr.

Anderson was a conductor of on September 15, 2018, as the derailment is a crucial circumstance in which the death occurred. They assert the inclusion of the word “must” in section 33(1) leaves the Court no discretion to exclude from its inquiry and findings the cause of the derailment. [ 13 ] Both parties argue that subsections 19 (1), (2) and (3) of the FIA do not authorize the Chief Medical Examiner to set the scope of the Inquest.

In support of this proposition the Family and TCRC refer to the decision of Associate Chief Judge Krahn in Re Craig McDougall , 2016 MBPC 28 [ McDougall ] respecting the scope of that Inquest where my colleague observed at paragraph 8: “ It is noteworthy that the Fatality Inquiries Act does not contain a specific provision which empowers the Chief Medical Examiner to set the scope of the inquest or provide direction as to what matters ought to be considered in the inquest and yet as noted, this practice has developed. I agree with Mr.

Shefman that the fact that the Chief Medical Examiner has in certain cases delineated certain areas of inquiry for an inquest demonstrates that the definition of material circumstances of a death can involve the context of the death which is larger than just when, where and by what means the death occurred.” [ 14 ] Furthermore, they say the Chief Medical Examiner, in purporting to set the scope of the Inquest by way of his letter dated February 14, 2020 to the Chief Judge, made a mistake of law in suggesting that the Inquest Judge could not inquire into the operations of the federal departments or agencies and that as a result any direction in the letter with respect to the scope of the inquest should be given little weight.

See Inquest Report into the Death of Glenn Fiddler, ( 12 September 2005), Winnipeg (Man Prov. Ct). [ 15 ] Inquest Counsel, HBR, and OmniTRAX take the position that judicial economy and proportionality are appropriate and

important factors for the Court to consider in determining whether the scope of the inquiry is to include the causes of the derailment. [ 16 ] The NRHA and the TCRC joined with the Family in objecting to this position. They argue that in addition to the mandatory wording of the legislation, the public’s right to know the causes of the derailment are crucial to a complete and fair inquiry.

They point to precedent which they say requires the Court to check the public imagination by answering questions respecting the derailment which remain unanswered. [ 17 ] When asked by the Court what questions remain unanswered about the derailment after the publication of the report of the Transportation Safety Board and the report of Transport Canada, Counsel for the TCRC indicated that questions remain unanswered respecting why the deficiencies noted in the findings portion of the TSB’s report occurred. [ 18 ] Additionally, the Family and TCRC maintain that prior investigations are not relevant and do not alleviate the Court’s responsibility to investigate all circumstances surrounding Mr.

Anderson’s death. [ 19 ] Manitoba’s regulation, pursuant to the Provincial Railway Act , of five short line railways in the province, in the view of the Family and the TCRC, further buttresses their argument that the Court must inquire into and make findings and, if needed, recommendations regarding regulations governing rail lines in the province.

They concede that only one of the provincially regulated lines operates in territory similar to the Hudson Bay Railway line which is the subject of the TSB and Transport Canada reports. [ 20 ] They maintain federal jurisdiction over the Hudson Bay Railway does not foreclose the Inquest Judge’s ability to investigate the derailment as it involves the province’s jurisdiction over the administration of justice.

Position of HBR, OmniTRAX, and Inquest Counsel: [ 21 ] These parties maintain that the provisions of the FIA require the Court to adhere to the recommendations of the CME as to the scope of the Inquest. [ 22 ] They maintain a contextual

interpretation of subsections 19 (1) to (4) of the FIA requires the Court to recognize that the CME in essence sets the scope of the Inquest in his letter directing that the inquest be held and a provincial judge be appointed to conduct the inquest. They maintain s. 19 (3) of the FIA makes it clear that the CME can decline to hold an Inquest were the circumstances in which death occurred are already known.

They assert that this provision allows the CME to limit the scope of the Inquest by logical extension, where certain of the circumstances of the death are already known. [ 23 ] Further, they maintain expanding the scope of the inquiry to include causes of the derailment would result in a “roving inquiry” that would encroach on a core federal jurisdiction. [ 24 ] As to the Family, TCRC, and NRHA’s contention that there are unanswered questions regarding the derailment, they maintain the TSB and Transport Canada reports have answered any unexplained questions and, in doing so, fulfilled their functions under federal legislation to conduct such investigations and make findings with the assistance of expertise not readily available to the Court.

Their position is that the TSB report and the Transport Canada report address the causes of the derailment, are available to the public and have fulfilled what would otherwise have been the Court’s responsibility to check the public’s imagination with respect to causes of the train derailment. [ 25 ] They further assert that an inquiry into the causes of the derailment is unnecessary because the existence of provincially regulated short line railways ignores the fact that the Hudson Bay Railway was and is federally regulated and the province incorporates federal regulations to govern the provincial short lines operations.

An inquiry into this will not result in recommendations that can change federal regulations. [ 26 ] Judicial economy and proportionality, they say, also require the scope not include the derailment. Inquest counsel maintains that the inclusion of the causes of the derailment would require additional potential interested parties to be notified, standing applications would have to be considered from any of those parties, and additional witnesses subpoenaed to give testimony.

The six weeks already set for this Inquest would be insufficient and completion of the Inquest and the eventual report with its potential recommendations would be significantly delayed. [ 27 ] OmniTRAX, in particular, argues that the CME, by implication, recognized the derailment was not a proximate cause of death, hence, his direction that this Inquest consider the response to the accident as opposed to the causes of the derailment.

In support of this argument, they suggest an analogy to an individual who was injured because of a car accident who was then taken to hospital in a condition where he was expected to survive. In the hospital the patient was not promptly treated and over the course of several hours, because of lack of medical attention, he passed away. They contend that this is akin to the situation at hand and no Inquest would be called to consider what caused the car accident but rather would be called to determine why the deceased did not get the medical treatment he required in a timely manner.

Position of The Attorney General of Canada (RCMP and Transport Canada) and the Office of the Fire Commissioner of Manitoba: [ 28 ] In essence, the position of these parties is the scope of the Inquest suggested by the CME does not bind the Court. Their position is the power to determine the scope of an Inquest rests with the Inquest judge.

Both parties, however, emphasize the importance of the Court recognizing the importance of avoiding an inquiry into areas of core federal jurisdiction such as the regulation of federal rail lines. [ 29 ] Both parties also take the position that the TSB report and the report of Transport Canada have explained the causes of the derailment. The Fatality Inquiries Act

[ 30 ] The Chief Medical Examiner along with Medical Examiners and investigators working under his or her direction have significant powers to conduct investigations into deaths of Manitobans which occur in certain circumstances.

Section 9 of the FIA sets out those circumstances: Investigation after inquiry 9(1) Where, after an inquiry, a medical examiner or investigator determines that a death warrants an investigation, an investigation shall be commenced immediately by, (

a) where a medical examiner made the inquiry, the medical examiner; (

b) where an investigator made the inquiry, the medical examiner who is directed by the chief medical examiner to conduct the investigation; unless the chief medical examiner otherwise directs under subsection (5). Mandatory investigation 9(2) In the case of a death that might be the result of an accident, suicide, homicide or other unnatural cause, an investigation is warranted and must be commenced in accordance with clause (1)(

a) or (b). Investigator to assist medical examiner 9(3) With respect to an investigation commenced under clause (1) (b), the investigator who conducted the inquiry shall, unless the chief medical examiner otherwise directs, assist the medical examiner in the investigation and continue with the investigation under the direction of the medical examiner. [ 31 ] The medical examiner then provides a report pursuant to the FIA : Investigation report 14(1) When a medical examiner has completed an investigation into a death, he or she must provide the chief medical examiner with a written report that includes the following: (

a) the medical examiner's determination of the cause and manner of death; (

b) identification of the documents on which the report relies; (

c) a recommendation as to whether an inquest into the death is advisable, including the reasons for the recommendation. [ 32 ] The work of these individuals sets the groundwork for any Inquest that may be called as a result of these inquiries and investigations. In this case considerable investigation and accumulation of information preceded the CME’s decision to call an Inquest. The Court has received a copy of the CME’s file. It contains, the autopsy report, correspondence from the Mr.

Anderson’s mother, statements from persons who attended the scene of the derailment, a draft copy of the TSB report, amongst other material. The CME would have relied on the investigation in his decision to call an inquest and in framing his suggestions as to the scope of the Inquest. [ 33 ] The factors governing the CME’s decision to call an Inquest are contained in

section 19 of the FIA : Decision to hold inquest 19(1) Following a review of the investigation report of a death, the chief medical examiner must determine if an inquest into the death should be held. Considerations 19(2) The chief medical examiner may determine that an inquest should be held if he or she is of the opinion that (

a) an inquest is necessary to determine the cause or manner of death or the exact circumstances in which the death occurred; or (

b) an inquest may enable the presiding provincial judge to recommend changes to provincial laws or the programs, policies and practices of the provincial government or of public agencies or institutions to prevent deaths in similar circumstances. Discretion if other review being conducted 19(3) The chief medical examiner may determine that an inquest should not be held if (

a) the cause and manner of death and the circumstances in which a death occurred are already known; and (

b) a review into the death has been or will be conducted under another Act that will result in recommendations to prevent deaths in similar circumstances. CME may make recommendations 19(4) The chief medical examiner may determine that an inquest into a death should not be held if (

a) the cause and manner of death and the circumstances in which the death occurred are already known; and

(

b) he or she has made recommendations to the minister and any other person he or she considers appropriate on measures to prevent deaths in similar circumstances. [ 34 ]

Section 19 of the FIA gives considerable powers to the Chief Medical Examiner to call or decline to call an Inquest where another review into the death has been conducted and the cause and manner of the death are already known and a review of the death has been conducted under another Act that will result in recommendations to prevent similar deaths in the future (see section 19 (3)). [ 35 ] Section 26(1) of the FIA sets out the purpose of an Inquest , “An inquest is a non-adversarial proceeding held for the sole purpose of establishing the facts necessary to enable the presiding provincial judge to prepare a report into the death under

section 33.” [ 36 ]

Section 26.2 (3) enables the presiding judge at an Inquest to make orders and directions appropriate for the fair and expeditious determination of the issues at the Inquest. It is noteworthy that the legislation recognizes the importance of not only a fair but expeditious hearing. [ 37 ] Section 33(1) sets out the findings that an Inquest Judge must include in their report to the Minister.

Section 33(1.1) restricts the jurisdiction of the Inquest Judge in their recommendations contained in the Inquest report: “…The report under subsection (1) may contain recommendations on changes to provincial laws or the programs, policies and practices of the provincial government or of public agencies or institutions to prevent deaths in similar circumstances.” Issues [ 38 ] What are the respective roles of the Inquest Judge and the CME in setting the scope of an Inquest? [ 39 ] Is the derailment a circumstance in which the death of Mr.

Anderson occurred which must be further investigated by this Inquest to make the required findings under section 33(1) of the FIA ? Analysis What are the respective roles of the Inquest Judge and the CME in setting the scope of an Inquest? [ 40 ] In Awasis Agency of Northern Manitoba v.

Allen 2013 MBQB 47 [ Awasis ] , Chief Justice Joyal at para. 28 set out the foundational considerations any court must have in regard to when determining the scope of an Inquest: “ It is the terms of reference of the Chief Medical Examiner’s directing letter and the statutorily prescribed duties that provide the Provincial Court judge the framework for his or her report and any recommendations contained therein.” [ 41 ] The tension between the terms of reference of the CME’s directing letter and the statutory duties I must fulfill, especially with regard to findings I must include in my report pursuant to section 33(1) of the FIA , lay at the heart of this hearing. [ 42 ] It has been suggested to this Court that the CME sets the scope of an Inquest, and specifically this Inquest.

I do not accept this

interpretation of the relevant provisions of the FIA . As ACJ Krahn observed in McDougall , (see paragraph [13] above), there is no specific provision in the FIA which empowers the CME to set the scope of the Inquest. If the legislature had intended the CME to have such powers it surely would have clearly set out such powers. Indeed, once an Inquest is called, the CME has no power to suspend or cancel the Inquest, that power lies with the appointed Inquest Judge (section 26.1(1) or by operation of law section 26(2)).

Further, the Inquest Judge may limit the examination of witnesses (section 28(2)) and, crucially, “make such orders and directions as he or she considers appropriate for the fair and expeditious determination of the issues at the inquest.” (section 26.2(3)). [ 43 ] Precedent and practice along with the framework of the FIA make it clear the Court should show due deference to the CME’s suggestions as to the scope of the Inquest.

In Awasis , Chief Justice Joyal dealt with an objection taken by the applicant to inquiries made by the presiding Inquest Judge on the basis that the breadth of the inquiries exceeded the scope of the Inquest set out by the CME in his directing letter and that the judge’s questioning of a particular witness created a perception of bias.

In addressing the scope issue the Chief Justice set out the CME’s reasons for calling the Inquest at paragraph 8: Therefore, in accordance with s. 19(1) and s. 19(2) of The Fatality Inquiries Act , I direct that an inquest be held into the death of Jaylene Redhead for the following reasons: …. 1) to determine the circumstances relating to Jaylene’s death; 2) to examine the function and operation of “safe houses” with regard to ( but not limited to ) the following factors: (

a) staff/client ratio; (

b) supervision; and (

c) criteria used to determine which child/children can be reunited with their parent/parents (who, most often, are in need of services themselves) and when ; and 3) to determine what, if anything, can be done to prevent similar death from occurring in the future . [ 44 ] At paragraphs 53 and 54 he analyzed the effect of the CME’s reasons for calling the Inquest in respect to the proper scope of the Inquest: [53 ] It is not hard to imagine in the context of the circumstances of Jaylene Sanderson-Redhead’s death, how the efficacy and operation of safe houses might have to be evaluated, mindful of how such safe houses operate and function with or without the meaningful

collaboration of involved Child and Family Services Agencies. By definition, Awasis’ role as an “interested” agency granted standing at this Inquest suggests, at least in this case, an apparent and potential connection.

Notwithstanding Awasis’ position respecting what should be the narrow and specific focus of this Inquest, in my view, given the circumstances surrounding the death of Jaylene Sanderson-Redhead, any judicial focus that would attempt to formulate recommendations without the benefit of at least probing the manner in which such safe houses do or are meant to interact with Child and Family Services Agencies, would be one that is unduly myopic and indifferent to the duties of an inquest judge as set out in the Act . [54] In disagreeing with Awasis’ position respecting the scope of this Inquest, I also note the plain wording of the direction given by the Chief Medical Examiner in his letter of October 25, 2011.

In reference to the requested examination of the function and operation of safe houses with reference to certain factors, the Chief Medical Examiner stipulates in parentheses that such an examination was not to be limited to those enumerated factors . Moreover, insofar as there were factors enumerated, one of those factors listed at 2(

c) requires the Inquest Judge to examine the “criteria used to determine which child/children can be reunited with their parent/parents (who, most often, are in need of services themselves) and when”.

It is not unreasonable to suggest that that reference point provides, in terms of scope, a margin of maneuver to the Inquest Judge that would seem to directly contradict the narrow focus suggested by Awasis. [Emphasis added]. [ 45 ] In McDougall ACJ Krahn observed, at para. 11, that in providing his recommendation as to the scope of the Inquest the CME did not have the benefit of considering evidence that was available to her: [11] The Chief Medical Examiner does not have the benefit of the complete police investigations that occurred following this death. Ms.

Carswell confirmed during submissions that the medical examiner receives some police summaries. He does not have the benefit of representations from interested parties or specifically in this case the affidavit evidence of Dr. Elizabeth Comack.

Since the Fatality Inquiries Act is not explicit about the Chief Medical Examiner’s authority to set the scope of the inquest and because in some cases the scope of the inquest has been pointed in a certain direction by the Chief Medical Examiner’s directing letter does not limit my explicit jurisdiction in s. 33(1) to set the scope of the inquest based on the material circumstances of Mr. McDougall’s death. [ 46 ] I conclude the Inquest judge sets the final scope of the Inquest with due regard to the directions of the CME and, ultimately, in accordance with their duties as set out in the FIA .

Is the derailment a circumstance in which the death of Mr. Anderson occurred which must be further investigated by this Inquest to make the required findings under s. 33(1) of the FIA? [ 47 ] In both McDougall and Awasis there was “a margin of maneuver” for the Inquest judge to deviate from the directing letter of the CME. Does that margin of maneuver exist in this case? [ 48 ] The Family, TCRC and NRHA say yes and moreover the requirement, in section 33(1) of the FIA , to present findings in the Inquest Report respecting the circumstances in which the death of Mr.

Anderson occurred requires an inquiry into how the derailment occurred. [ 49 ] There seems little doubt that the derailment was part of the circumstances in which the death of Mr. Anderson occurred. There are three issues I must consider. The first is whether it was a proximate cause of death. Second, are there any unanswered question this Inquest could consider to shed light on the circumstances additional to information in the reports of the TSB and Transport Canada.

Third, is expanding the scope of the Inquest in this fashion consistent with the Inquest judge’s duty to make orders to effect a fair and expeditious determination of the issues. [ 50 ] The facts surrounding the rescue effort and the timeliness of medical attention or lack thereof, to the injured persons are set out in the background facts at the beginning of this decision. The lengthy recitation of facts from the TSB report is important to put the derailment in context when considering its materiality and proximity to Mr. Anderson’s death. The heartbreaking fact is that Mr.

Anderson’s injuries, had there been appropriate medical intervention, were probably survivable in the opinion of the CME. [ 51 ] All parties agree the primary focus of this Inquest should be the apparently flawed response to the derailment and the delay in giving medical attention to Mr. Anderson and his co-worker Mr. Rushton. Although the derailment was certainly a circumstance of the death of Mr.

Anderson the considerable body of facts available to the Court suggest it was not the proximate cause. [ 52 ] Section 33(1) does not require the Inquest judge inquire into all circumstances respecting a death only that it must present findings. Can the Court present findings to the Minister absent an independent investigation? In this case an exhaustive investigation respecting the causes of the derailment was conducted by the TSB and by Transport Canada. The TSB report, which is available to the public online, makes numerous findings as to the causes of the derailment.

A draft copy of the TSB report was, I am advised, made available to most of the interested parties in this proceeding, for their comment, before it was finalized and released to the public. [ 53 ] The written submissions of the Family, TCRC and NRHA make reference to unanswered questions respecting the cause of the derailment, yet no examples of unanswered questions were identified.

During oral submissions however, counsel for TCRC cited three findings, found at page 38 of the TSB report, which point to unanswered questions: Findings as to causes and contributing factors: 3) Although the requisite track inspections were conducted and culverts were cleared, the Hudson Bay Railway track inspectors did not fully understand the danger associated with the uneven ponding of water against the grade; … 5) The reduction of Hudson Bay Railways beaver control program left the track infrastructure vulnerable to a washout event, in a situation when a beaver dam is breached… Other findings:

1) Although Hudson Bay Railway engineering personnel had identified that the wood box culverts at Mile 99.59 had deterioratedand needed to be replaced, culvert replacement alone was not a specific regulatory requirement and the accident occurred before thework was undertaken. [54] TCRC counsel contends the questions left unanswered, and which this Inquest should probe, is why the deficiencies, identifiedin these findings, were allowed to occur. [55] These findings by the TSB identify deficiencies which the province would have no jurisdiction to remedy.

Moreover, there isno part of these programs for example, track inspection, beaver dam control, or culvert replacement that intersect with provincialjurisdiction, such as the rescue response after the derailment clearly does.

The only possible exception is the provincially regulated shortline railways of which the Hudson Bay Railway is not an example. [56] Additionally, the TSB report, at page 40, outlines action that was taken as a result of the accident and the TSB’s findings toremedy the deficiencies identified in these specific findings: Following the occurrence, HBR inspected all of the culverts on all its subdivisions. HBR also reinstated its beaver control program,including additional new equipment, personnel, inspection protocols, and training to all track foremen on their track inspectionguidelines.

In addition, HBR hired a specialist in bridges, structures and culverts for all planned inspections. This specialist will attend all 3rd party engineering inspections. [57] Although these remedial actions set out in the TSB may not answer the question of why the deficiencies occurred in the firstplace, they do address the issue of ensuring they do not happen in the future. This Inquest would have no greater power, and arguablyless, to recommend changes concerning this.

Further, finding out why deficiencies happened, with no power to recommend change toensure preventable death in the future, would only result in findings whose only purpose may be to assist in assessing culpability ofcertain parties, which is not the purpose of an Inquest. [58] Lastly, does expanding the scope of the Inquest beyond that suggested in the CME’s directing letter comport with my duty tomake orders for the “fair and expeditious determination of the issues”? The duty to make such Orders is found in the FIA in closeproximity to the subsection setting out the purpose of an Inquest.

The balancing of fairness and timeliness of the proceedings is in linewith the fundamental purpose of the Inquest. Although an Inquest should be thorough it should not be unduly prolix, no legitimate publicinterest would be served. Indeed the provision of the FIA setting out the purpose of an Inquest and the Inquest Judge’s duty to make anOrder for a fair and expeditious determination of the issues were added to the legislation in 2017 after the Supreme Court’s decision inHryniak v. Mauldin, 2014 SCC 7 .

There is little doubt the legislators sought to introduce the concept of proportionality andjudicial economy into the legislation. [59] I accept the representation of Inquest Counsel that conducting an inquiry, beyond that already conducted by the TSB and byTransport Canada, into the derailment will require a new notice for a standing hearing, and if additional interested parties respond to sucha notice a new standing hearing.

I also accept Inquest counsel’s assertion that additional witnesses would be required that wouldappreciably extend the six week time frame for the hearing already scheduled to begin in December of 2021 and extend into February of2022. [60] In reaching this conclusion I have reviewed the media bulletin of September 23rd, 2020 which includes the following passage: Under The Fatality Inquiries Act, an inquest has been called by the chief medical examiner who has directed that inquest be held into thedeath of (Mr.) Anderson for the following reasons: • To determine the circumstances relating to (Mr.)Anderson’s death; • To review the coordination of the multi-agency response to a serious incident in a remote setting; • To examine policies and protocols used by police, paramedics and other first responders regarding operation in a potentiallydangerous setting; and • To determine what, if anything, can be done to prevent similar deaths from occurring in the future. [61] Clearly, no specific reference to the cause of the derailment is included in the Notice as a reason for the calling of the Inquest. [62] In coming to my decision respecting the scope of this Inquest, I am mindful of the legitimate wishes of Mr.

Anderson’s familyto explore all the circumstances that surrounded their loved one’s death, but I am likewise mindful that the time for this Inquest must beused wisely to investigate circumstances surrounding his death which remain truly unanswered and where recommendations formeaningful change can be made that will prevent such a tragedy in the future. [63] In weighing the arguments of counsel, I conclude that I am able to incorporate into my eventual findings a treatment of thecircumstances of the derailment which incorporate the investigation of the TSB and of Transport Canada to satisfy the requirement ofsection 33(1) of the FIA.

I see no persuasive evidence that material unanswered questions about the derailment remain outstanding. [64] I am persuaded that my duty to provide findings to the Minister and make orders that are fair and expeditious in pursuit of adetermination of the issues in this Inquest require that this Inquest remain limited to the recommended areas of inquiry set out in theCME’s letter with the clarification that the response of all federal agencies or federally regulated actors such as HBR and the RCMPduring the rescue effort, in conjunction with the provincial actors, will be a subject of inquiry.

Likewise, the safety practices andprotocols of HBR and the safety and communications equipment on-board the freight train, in the view of this Court, intersect with andwould have affected the response of various provincial agencies and will be the subject of evidence heard at this Inquest. Anyrecommendations arising from the Inquest will not include recommendations respecting Federal departments, agencies or federallyregulated actors.

“Original Signed” Malcolm McDonald, ACJ