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CP threatened lawsuit against safety watchdog after investigator spoke out about deadly crash

The lead safety investigator for a deadly derailment in the mountains of B.C. was pulled off the case after Canadian Pacific Railway threatened to sue him and his bosses for suggesting the RCMP should look into potential criminal negligence by the railway, CBC News has learned.

Transportation Safety Board faces questions about its powers, independence in case of deadly B.C. derailment

A runaway train derailment near Field, B.C., on Feb. 4, 2019, killed three Canadian Pacific Railway crew members. (Anis Heydari/CBC)

The lead safety investigator for a deadly derailment in the mountains of eastern B.C. was pulled off the case after Canadian Pacific Railway threatened to sue him and his bosses for suggesting the RCMP should look into potential criminal negligence by the railway, CBC News has learned.

Don Crawford, a senior investigator with the Transportation Safety Board (TSB), says he came to suspect major safety failures by CP had led to the runaway crash of Train 301 near Field, B.C., on Feb. 4, 2019, that killed three crew members — Dylan Paradis, Andrew Dockrell and Daniel Waldenberger-Bulmer.

Based on his findings, he went to his bosses in late 2019 asking to call in the RCMP to investigate.

When supervisors refused to alert police, Crawford went public, telling CBC News in early 2020: "There is enough to suspect there's negligence here and it needs to be investigated by the proper authority."

CP lawyers immediately began phoning and emailing the TSB, and by the next morning, had sent an official warning of potential legal action, according to internal documents obtained by CBC News under access to information.

WATCH | CBC's The Fifth Estate documentary on deadly 2019 crash:

Runaway Train: Investigating a CP Rail crash

3 years ago
Duration 22:10
Through exclusive interviews with an eye witness, a former CP rail police investigator, and the families of crew members who were killed, The Fifth Estate has pieced together the final moments and some of the investigation into a runaway train last winter.

TSB appears to have been 'bullied and intimidated': Author

The TSB responded by removing Crawford from the case, issuing a statement distancing itself from its own investigator, and then privately apologizing to the railway.

"It seems like they were bullied and intimidated by CP," said author Bruce Campbell, who reviewed the 168 pages of emails and letters. He wrote extensively about the TSB in his book, The Lac-Mégantic Rail Disaster: Public Betrayal, Justice Denied.

"They came down like a ton of bricks," he said. "It once again reveals how broken the system is and how it needs to be restructured."

While the TSB says it acted independently of CP's threats, the case has prompted calls for whistleblower protection for TSB investigators and stronger powers for Canada's lead agency responsible for probing all major safety disasters on rail, in the air and at sea.

The Transportation Safety Board of Canada removed Don Crawford as lead investigator in the probe of the crash after he told CBC News: 'There is enough to suspect there's negligence here and it needs to be investigated by the proper authority.' (Facebook)

CP demanded retractions, threatened lawsuit

Within minutes of CBC publishing its story at 5:50 p.m. ET on Jan. 27, 2020, with the lead TSB crash investigator saying he believed the RCMP should step in, CP lawyers began phoning and peppering the TSB with more than a dozen increasingly demanding emails.

"We need this retracted before it gets circulated widely and harms our company's reputation," wrote CP's chief legal counsel, Jeff Ellis.

"Working on it," responded TSB's general counsel, Patrizia Huot. "We will have a statement out in less than an hour."

Emails criss-crossed into the night. The TSB issued a statement at 9:10 p.m. ET, saying the agency "does not share the view of the lead safety investigator," and making clear that the "TSB does not attribute blame or determine civil or criminal liability."

CP wasn't satisfied.

The next morning, CP's outside legal counsel sent a "Defamatory Statement Notice" via email to both the CBC and the TSB. In the letter to the TSB, CP alleged the lead crash investigator had "prejudged" the case, and said TSB officials needed to "get control" of their employee.

"If the TSB and Mr. Crawford do not immediately retract Mr. Crawford's statements, CP Rail will have no alternative but to commence proceedings against the TSB," wrote CP's lawyer, whose name was redacted.

"Please confirm that Mr. Crawford will be removed from this investigation."

Emails between lawyers for CP and the TSB on Jan. 27 and 28, 2020, show the railway threatened legal action and demanded the lead investigator of the crash be removed after he suggested RCMP should look into potential criminal negligence, according to documents obtained by CBC News through access to information. (CBC News via access to information request)

TSB 'very sorry'

By the afternoon, the TSB had pulled Crawford off the case, and its chair, Kathy Fox, apologized in an email to a CP official whose name is redacted in the documents.

"I'm very sorry for the furor caused by statements from our (former) lead investigator on the Field investigation file. This is not how we conduct our business," Fox wrote. 

CP didn't sue the safety watchdog or the CBC.

The CBC recently asked both CP and the TSB about the controversy.

CP refused to answer any questions, citing the ongoing investigation into the crash.

In an email to CP, Transportation Safety Board chair Kathy Fox apologized to the railway and confirmed lead investigator Don Crawford had been removed from the case. (Adrian Wyld/The Canadian Press)

The TSB issued a lengthy statement that said the emails from CP were "not unusual," and rejected any suggestion the safety agency had bowed to pressure.

"After the article was published, the TSB acted promptly in issuing a statement in order to avoid any allegations of bias against either the lead investigator or the TSB, which would have risked compromising the integrity of the ongoing investigation."

Ian Naish, a former TSB director of rail investigations, said he is not surprised the agency pulled Crawford from the file.

"It's not good practice to say that to the press, because it could compromise the investigation," he said.

But Naish said he is surprised the TSB didn't heed Crawford's request to call in the RCMP.

"I would like to know the reasons why the board didn't want to pursue it. I mean, if he had evidence, he had evidence."

CP believes it's 'untouchable': Families' lawyer 

The TSB says its role prohibits it from calling in police. To do so, it says, could be prejudicial or be seen as implying criminal wrongdoing, which is outside its mandate.   

The families of the three men killed in the B.C. crash are furious and say they believe the TSB is failing to fully investigate the crash and that it caved to pressure from industry.

"CP Rail told the TSB to jump. Instead of simply asking, 'How high?' the TSB did three somersaults and apologized for not doing them fast enough," said lawyer Tavengwa Runyowa, who is representing two of the families in a negligence lawsuit against CP.

Trainee Daniel Waldenberger-Bulmer, left, engineer Andrew Dockrell, centre, and conductor Dylan Paradis, right, were killed in the derailment. (Facebook, Heather Dockrell, Instagram)

The families are also petitioning Parliament to make it clear TSB should call in police if it suspects negligence, and to ensure stronger whistleblower protection for TSB investigators.

"That CP Rail could brazenly threaten a regulator to prevent a criminal probe into three deaths at CP Rail is stunning," said Runyowa. "It shows that CP Rail believes it is untouchable."

He said there's nothing in TSB's mandate that prohibits the agency from picking up the phone to contact police.

In December, following a series of CBC News stories and a complaint filed by Pam Fraser, whose son, Dylan Paradis, was killed in the crash, the RCMP launched a major crimes investigation into the derailment and CP's actions that followed.

That police probe is ongoing.

The TSB's safety findings in the crash are expected to be released later this year.