Railways Lose Shield Against Civil Lawsuits

Canadian railways lost a historic privilege and Potentially billions of dollars yesterday when the Supreme Court of Canada ended a special rule shielding them from the full force of civil law suits.

The court found that while railways still bind a sprawling country from sea to sea, they no longer deserve special protection when their activities cause harm to citizens.

Yesterday’s case pitted Canadian Pacific Ltd. and Esquimalt & Nanaimo Railway Co. against Murray Ryan, a Victoria motorcyclist who was left with permanent knee, hip and back injuries after a 1987 accident.

The accident took place when M.R. was forced to steer across a notorious stretch of railway track down the centre of Victoria’s Store Street. M.R., 32, was thrown over the front of the vehicle when his front wheel became trapped in a portion of disused track.

“The special status enjoyed by railway companies’ under the law of negligence can no longer be justified in principle, and the time has come for that rule to be set aside,” the Supreme Court said yesterday.

The decision could easily end up costing the railways billions of dollars in repairs and renovations, Aaron Gordon, M.R. ‘s lawyer, said in an interview. He said witnesses for CP at the trial made reference to about 15,000 to 20,000 crossings — and many of them may now require safety modifications.

“It is an extraordinary decision” Mr. Gordon said. “They are going to have to examine every aspect of their operations and assess whether they are creating a danger or hazard for third parties.”

He said an important offshoot of the decision is that cities and railways have been given notice by the Supreme Court that in designing and creating thoroughfare, bicycles and motorcycles can no longer be blithely ignored.

In researching the case, Mr. Gordon said he was astonished and appalled to discover that numerous similar accidents involving bicycles and motorcycles had taken place on Store Street, dating back as far as 1926.

“We are talking about a long, long time people have been putting up with this nonsense,” Mr. Gordon said. “And the only reason was because the railways had immunity.”

“At the time of the accident, I had all my hopes and dreams wrapped up in one package,” M.R. said in an interview yesterday. “Then, it was all just sucked out of me. I don’t really have any future goals or anything to look forward to. I just hope I’ll be able to lead a comfortable life.”

M.R. said his ambitions to keep moving up the job ladder on oil-well rigs in Alberta ended abruptly. His fiancée left him and he was forced onto welfare. With his lawsuit now heading back to the BC Supreme Court, the remaining issue of the amount of damages will be argued and resolved.

The chief question facing the Supreme Court in the appeal was whether railways should be able to escape liability simply by complying with existing statutes. A judge or jury was barred from finding the companies negligent provided they adhered to these standards.

“It excused railway companies in most cases from the ordinary obligation of prudence which governs other members of society,” Mr. Justice Jack Major wrote for the Court.

“The roots of the special rule reach back to the turn of the century, when railways occupied a position of unparalleled economic and social importance to the development of Canada.”

Esquimalt and Nanaimo Railway co. built the Store Street tracks in 1907.They were later leased by Canadian Pacific Ltd. In maintaining the tracks, the railways used standards created for highway crossings. These standards permitted a gap that was easily wide enough to trap a motorcycle or bicycle tire.

In its decision yesterday, the Supreme Court restored the original trial judge’s finding that the railways were liable for negligence.