2021 MBPC 37, 2021 MBPC 37

Citation: 2021 MBPC 37 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 the Inquest Evidentiary Ruling of Associate Chief Judge Malcolm McDonald Issued this 17 th day of June, 2021 M. McDonald, ACJ Background [ 1 ] This matter was heard on June 9 th , 2021.

Submissions were made by counsel representing seven of the ten parties granted standing for this Inquest, as well as counsel for the Transportation Safety Board (TSB), on the issue of the admissibility of all or portions of the TSB’s report #R18W0237, (the Report), into the derailment that occurred on September 15 th , 2018 near Ponton, Manitoba that took the life of Kevin Anderson.

TSB provided a redacted version of its final report to the Court that it maintained complied with the exclusionary provisions of the Canadian Transportation Accident Investigation and Safety Board Act S.C. 1989, c. 3 , (the CTAISB Act ). [ 2 ] Prior to the hearing counsel representing the family of the Kevin Anderson, (the family), and the Teamster’s Canada Rail Conference, (Teamsters), came to an agreement on a joint submission respecting redactions from the TSB’s report.

OmniTRAX, a prior operator of the rail line on which the accident occurred, withdrew three of its proposed redactions to the TSB’s redacted report, but maintained it objections to the inclusion of five other passages in the TSB’s redacted report. [ 3 ] In essence, the dispute as to admissibility of the redacted TSB report comes down to the objections of OmniTRAX to these five passages in the report. I will review the applicable law respecting the conduct of an Inquest and the admissibility of the contents of the TSB report in this proceeding and make my ruling regarding the objections raised by OmniTRAX.

The Law [ 4 ] The Fatality Inquiries Act CCSM, c. F52 governs the conduct of Inquest proceedings in this Province. An Inquest is non- adversarial in nature and its sole purpose is to get to the facts necessary to allow the Inquest Judge to prepare their report (see s. 26.2(1)).

Purpose of inquest 26.2(1) An inquest is a non-adversarial proceeding held for the sole purpose of establishing the facts necessary to enable thepresiding provincial judge to prepare a report into the death under

section 33. [5] The content of the Judge’s eventual report and the nature of their recommendations is proscribed by s. 33 of the Act: 33(1) After completion of an inquest, the presiding provincial judge must provide the minister with a written report that sets out his orher 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 is mine) Recommendations in inquest report 33(1.1) The report under subsection (1) may contain recommendations on changes to provincial laws or the programs, policies andpractices of the provincial government or of public agencies or institutions to prevent deaths in similar circumstances. [6] It is settled law that the recommendations of an Inquest Judge can only be made with respect to matters over which theProvincial Government has authority.

Recommendations respecting Federal legislation, agencies, institutions and programs are notwithin the purview of an Inquest Judge. Despite this, it may be important for the Inquest Judge to understand the full narrative of eventsleading to the death of Mr. Anderson in order to fully understand the circumstances of his passing, to properly frame their findings andrecommendations, and to identify problems or deficiencies in Federal departments or agencies without recommendation (see Inquest intothe death of Glenn Fiddler

(2005) Lerner PJ at para. 301 and 302). [7] Where provincial responsibilities intersect with federal jurisdiction the court may make recommendations that the provinceinitiate talks with the appropriate departments or agencies of the federal government to effect changes that impact on the provincefulfilling its responsibilities (see Inquest into the death of Brian McPherson

(2016) McDonald PJ at para. 123). [8] The Act also contains guidance on the rules of evidence to be applied in the context of an Inquest. Inquest not a civil or criminal proceeding 26.2(2) An inquest is not subject to the same rules of procedure and evidence that apply in civil or criminal proceedings.

Orders and directions 26.2(3) The presiding provincial judge may make such orders and directions as he or she considers appropriate for the fair andexpeditious determination of the issues at the inquest. [9] The relaxed rules respecting procedure and evidence reflect the purpose of the Inquest as a non- adversarial fact findingexercise. The Inquest is to be fair and expeditious. It is clear that the legislature intended proceedings such as these not to become boggeddown in arguments over what constitutes admissible and inadmissible evidence so long as the result is fundamentally fair to the partiesinvolved.

The Manitoba Court of Appeal in Hudson Bay Mining and Smelting v. Cummings 2006 MBCA 98 (Hudson Bay)made this abundantly clear, at paragraph 41, Justice Steele reviewed coroner and inquest legislation across the country and concluded: “In most regimes, the goal of receiving all of the relevant information supersedes almost all other concerns. The only evidence that will

generally not be receivable by the coroner or judge is evidence to which privilege attaches and evidence which is statutorily prohibitedfrom being received” (emphasis is mine) [10] In this case counsel for the Transportation Safety Board (TSB) has taken the position from the outset that the provisions of thes. 32 and s. 33 of the CTAISB Act erect a statutory regime which restricts the use that can be made of the TSB report in legalproceedings: Appearance of investigator 32 Except for proceedings before and investigations by a coroner, an investigator is not competent or compellable to appear as awitness in any proceedings unless the court or other person or body before whom the proceedings are conducted so orders for specialcause. 1989, c. 3, s. 32 1998, c. 20, s. 20 Opinions inadmissible 33 An opinion of a member or an investigator is not admissible in evidence in any legal, disciplinary or other proceedings. 1989, c. 3, s. 33 1998, c. 20, s. 20 [11] All counsel accept, as a result, that statements of opinion contained in the report or through the evidence of TSB investigatorsare not admissible because of the statutory prohibition contained in s. 33 of the CTAISB.

It is also accepted, however, that TSBinvestigators are competent and compellable witnesses at an Inquest hearing as an Inquest in Manitoba equates to a Coroner’s hearing inother Canadian Provinces (see Hudson Bay para. 42). [12] Central to determining what passages of the TSB report are inadmissible is a clear understanding of what constitutes “opinion”.The definition is provided in the case of R v. Ilina 2003 MBCA where Justice Beard, quoting from R v.

Collins 2001 24124 (ONCA), stated: “In the law of evidence, an opinion means an “inference from observed fact” … As stated in Abbey, as a general rule, witnesses testifyonly as to observed facts and it is then up to the trier of fact to draw inferences from those facts.” [13] In this proceeding it is generally accepted by the parties, and is the position of this Inquest court, that “facts” include not onlymatters observed by the TSB investigator but facts collected by the investigator in the course of the investigation of the derailment andits aftermath.

Issues in Dispute and Position of the Parties [14] The issues in dispute are: (

a) Does the TSB’s redacted version of its report included alleged statements of fact that in fact veerinto statements of opinion?; (

b) Does the TSB’s redacted version of its report contain

interpretations of fact that should be classified asinadmissible opinion? (

c) Even if the disputed passages are statements of fact should they be admitted where those facts areindependently available? [15] The disputed passages are found at pages 16 and 26 of the TSB report. They are as follows:

a) From page 16 paragraph 2:

“In 2014, with traffic volumes declining and sale of the line being contemplated, HBR, under OmniTRAX, began to reduce investment in maintenance staff and capital projects”

b) At paragraph 4: “HBR did not undertake repairs to fix the flood damaged line due to the significant costs. And because the line was for sale, much of the other infrastructure maintenance was also being deferred.”

c) At paragraph 5: “With a reduced engineering force, the track infrastructure began to deteriorate”

d) Then at page 22 paragraph 1: “This program [beaver dam control program] was used extensively before the railway was acquired by OmniTRAX in 1997.”

e) At paragraph 5: “During the summer of 2018, the railway’s engineering personnel was primarily focused on ensuring proper drainage along the right of way and on performing any maintenance required to keep the line open.” [ 16 ] OmniTRAX argues that each of these passages goes beyond statements of fact and infers certain conclusions from either observed facts or the fruits of the investigation done by TSB personnel. In the alternative, if they are statement of facts these passage veer impermissibly into

interpretations of the collected facts. In addition, they argue the “facts” contained in the impugned passages are better gleaned from independent sources that are readily identifiable. [ 17 ] In response, counsel for the Teamsters Union argues the disputed passages should be found to be admissible.

Firstly, they argue the law is clear that an inquest judge should allow all relevant evidence to be considered, here no assertion of statutory privilege is made by the author of the report, the TSB, and the author of the report is in a superior position, absent clear evidence to the contrary, to assess whether the passage constitutes opinion or fact.

The investigator who gathered the facts that form the basis of the report and who is the primary author will be available to be examined as to whether the passages at issue are statements of fact or inferences drawn from facts. [ 18 ] Counsel for the Anderson family concurs with the submissions of the counsel for the Teamsters. Ruling on Admissibility [ 19 ] In making my ruling on the admissibility I wish to be clear that when in doubt I will error on the side of admitting relevant evidence.

I am of the view that four of the five impugned passages are likely statements of fact, I pause only with respect to the passage from page 16 paragraph 5.

Of course, when the investigator is called to give evidence and is examined on the source for the statements in the other four passages made in the report my finding may change. [ 20 ] In each of the other four passages it could well be that information was gleaned from witnesses or documents that were reviewed that resulted in these observations but the observation that, “With a reduced engineering force, the track infrastructure began to deteriorate” , seems to be an inference the investigator drew from facts he observed or gleaned in the course of his investigation.

If it was an observation directly gleaned from a witness it would be repeating and adopting the opinion of that witness. It is difficult to see any other explanation.

[ 21 ] Of course it is not my place to comment on how common sense such an opinion this may be. It may well be an opinion any one would come to after reviewing even the redacted TSB report, but for the purpose of this proceeding it is not admissible. [ 22 ] I conclude that the June 8th, 2021 version of the redacted TSB report, minus the passage stating, “With a reduced engineering force, the track infrastructure began to deteriorate” at page 16 paragraph 5, is admissible subject to additional arguments being received from counsel concerning relevance of all or portions of the report after the court rules on the scope of this Inquest. “Original signed” M. McDonald, ACJ