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Friday, January 30, 2009

"Ordinary People Prohibited" from accessing British Columbia courts

January 29, 2009

Statement by Peter C. Ritchie

RE: Foisy vs. BC Ferries (re: the Queen of the North)

If one of your loved ones dies because of negligent actions onboard a British Columbia Ferry, don't go looking for justice in the province of British Columbia. Unless you are wealthy, you won't be able to afford Court in B.C.

The people of B.C. will never get a chance to hear in Court why or how two people died in the B.C. Ferries disaster in March 2006. Very sadly, two lovely teenage girls from Penticton will never know what happened to their father. Our so-called justice system has let them down.

The two teenagers and their mother did not have the money to pay the exorbitant amounts required by our justice system to fund their trial. The Queen of the North trial scheduled for February 2, 2009, will not happen. Our justice system is unfair to these two girls, and people should be aware what the government has done to us all in B.C.

In all of Canada, it is only the government in B.C. that has passed rules that operate to prevent ordinary people from having access to the Courtroom. Even though ordinary people pay the taxes for the Courts (the physical building, the judges, the sheriffs, and the Court staff, etc.), the B.C. government has erected financial barriers so that non-wealthy folks are kept out of their own Courts. These barriers, in Court case against B.C. Ferries, kept two teenage girls from having their day in Court.

I repeat, there is no other province in Canada where the government impedes access to such a degree as here. In B.C. you will need a pile of money just to rent the courtroom. This unfair rent is euphemistically called "hearing fees". This trial was estimated to take something like 30 days. This rent would have cost the girls about $15,000.00. Only in B.C. do we have outrageously high jury fees. The two girls also did not have anywhere near the money to pay the government for their so-called "right" to a jury. Jury fees would have cost the girls an additional approximate $25,000.00. For starters, the girls had to come up with approximately $40,000.00 in jury and hearing fees to the government to be able to walk into the courtroom. Nowhere else in Canada is like this.

The B.C. government also demands a host of other fees. For example, when the Writ was date stamped by a clerk at the counter my clients had to pay $208.00. When they asked someone at the Courthouse to put their dead father's case on a list for a trial, that cost them another $208.00. These expenses and fees levied by the government go on and on as the litigation proceeds. If you are wondering how ordinary people pay for these excessive government fees, the answer is simple. They don't. Maybe the B.C. government expected these girls to raise money by doing more baby-sitting? Maybe they should have held a bake sale at their Penticton high school?

This case involving the sinking of a "public" ferry is one of enormous public importance. The facts of this tragedy have never been fully revealed. The facts would have come out at trial. The capacity of B.C. Ferries to ensure safe passage is of crucial importance to the travelling public. Just as importantly, these two innocent kids really deserved to find out what happened to their father. Gerald Foisy and Shirley Rosette who both died on the Queen of the North had entrusted their safe passage to B.C. Ferries just like hundreds of thousands of us do who ride the Ferries. What really happened to cause a fully equipped modern vessel to smash into an mountainous island at high speed? What really happened so all passengers were not taken safely off this sinking ship? You will now never find out. The trial cost is too much for the two girls and their mother.

Citizens deserve justice. No other province charges such fees. If the girls lived anywhere else in Canada, they would have at least a fighting chance to have their day in Court. A few comparisons. In B.C., $40,000.00. In Alberta, the trial fees would have been $800.00. In Ontario, $645.00. Only one other province charges hearing fees, Saskatchewan. In Saskatchewan, the daily hearing fees cost only $15.00 per hour, say $3,000.00 in total, not $15,000.00 like in B.C. Saskatchewan is also the only other province that charges jury fees. Those fees are difficult to assess exactly but are nothing like B.C.

To understand the B.C. government's attitude toward Court access, it really would be simpler if they put up signs on the Courthouse door, reading "Ordinary People Prohibited".

The rules in our justice system are designed so that wealthy litigants, like B.C. Ferries, have an advantage over ordinary people. In this litigation, B.C. Ferries took full advantage of the unfair laws and Court rules. Goliath is favoured over David here in B.C.

A litigant's best hope is often a jury and B.C. Ferries tried its best to get rid of the jury. When it comes to the size of Court awards in wrongful death cases, Judges are restricted by ironclad precedent of relatively small amounts. Juries are not so restricted. The input of juries in fixing amounts of awards is of critical importance to our system of justice. Juries are not bound by precedent and they have wide latitude. B.C. Ferries sent their lawyers to Court to try to persuade the Judge to rule that the case should not be heard by a jury. The girls fought back and B.C. Ferries lost that round when the Judge ruled that a jury could hear the case. Why did B.C. Ferries try to keep this case away from a jury? A jury comprised of regular folk have a lot of power. What were the facts they did not want a jury to hear? What really happened on this ship? Why the crash? Why the failed rescue?

There was a federal Transportation Safety Board inquiry. The T.S.B. report can be viewed online. The Board's inquiry methodology was deeply flawed. Their mandate was restricted because they don't look to find fault. Unlike a trial, the T.S.B. does not cross-examine those involved. But at least they got some of the fundamentals right. They found no equipment failure. They said the seas were calm. They said there was little wind, little rain, and the visibility was good despite a squall. It wasn't the sea that caused the deaths. So how in heaven's name did this ship come to perdition? If there had been a trial the girls hoped the truth would come out

B.C. Ferries surely did not want the jury hear evidence that the woman steering the boat did not know what she was doing. She was poorly trained and lacked supervision. As the T.S.B. told us, she had spoken to her supervisors about her nervousness to drive the boat that very voyage. Yet BC. Ferries still allowed her to be at the helm knowing she was poorly trained and knowing she lacked basic navigational skills. Also, the T.S.B. found B.C. Ferries had only two crew on the bridge. The T.S.B. said three people were required by law to be on the bridge at the time of the collision with Gil Island. Why did B.C. Ferries have only two people on the bridge?

The public will not learn the details of what these two people were actually doing on the bridge which caused them not to pay attention to where they were going. What were they doing for approximately 14 minutes when there were going at high speed in the wrong direction? Why did they not realize they were heading right into Gil Island? It is like a ship being driven into the shores of North Vancouver. Gil Island is a mountain rising out of the sea. The facts are astounding.

B.C. Ferries' problems were not limited to just what went on on the bridge. The T.S.B. investigation found that: "B.C. Ferries was in the process of developing evacuation plans/procedures for its vessels; a detailed plan for the Queen of the North, however, had not been completed. Documentation available to the crew did not provide sufficient detailed information about passenger-control duties during abandonment." Go ahead and Google the T.S.B. report. See page 46. Imagine a public ferry with no proper evacuation plan. It is astounding.

The T.S.B. also criticized B.C. Ferries for other critical shortcomings. For example, the trial evidence would have reflected the T.S.B. conclusion that watertight doors were not closed. Worse, a B.C. Ferries vice president actually told the Provincial Public Accounts Committee in 1998 that they were sailing with these watertight doors closed. Google the Public Accounts Committee in Hasard 1998, p. 794. After a federal ruling was made the vice-president told the committee, "We've had our ruling. We are now sailing with the doors closed, as required by regulation." The jury would have heard that this was untrue. Doors were regularly left open on the Queen of the North. One of the first announcements the passengers heard after the ship crashed was to close the watertight doors. There is an obvious reason for having watertight doors closed on a ship like this. The T.S.B. said, "The potential to slow down or stem the progressive flooding was not realized." The announcement was too late. The water rushed in fast. Debris got in the way of one door, and it could not be closed. How would you expect a jury to react to the fact that regular practice was for the Queen of the North to sail with these doors open despite repeated attempts by Transport Canada and the T.S.B. to point out the dangers of open watertight doors? As there will be no trial, we cannot know how the jury would have reacted. If B.C. Ferries had kept all of the watertight doors shut, how much would the speed of the flooding would have slowed? How much more time to search for passengers?

There is much more. The alarm bells were so poorly positioned that some passengers could not hear them. That means, that alarm bells could not be heard in some of the sleeping cabins. This is shocking. How are passengers supposed to be notified that a crisis is occurring?

The fact that the Queen of the North had no proper evacuation plan is profound. The safety of passengers is put in peril. With no detailed evacuation plan, what is supposed to happen? For example, how is the search for passengers supposed to occur? How would a jury react if they found that search procedures were pathetically negligent?

If a disaster happens, an organized evacuation is absolutely essential. Passenger cabins have to be checked and fast. What is a passenger to do if the cabin door is jammed? The jury would have heard all about it. For example, once a cabin was searched a crew member was supposed to write a large "X" on the door in chalk. The chalk mark signifies the cabin has been searched. On the Queen of the North they could not find chalk. Who was supposed to search it? Was the door jammed? The girls will never get to hear whether their father's cabin was even searched at all. The evidence would have been that there were several areas of the ship which were not searched.

No doubt some individual few crew members acted bravely, but B.C. Ferries surely did not want a jury to hear how poor the rescue process was. The T.S.B. determined that the ship took about 1 hour 20 minutes to sink. The jury would have heard that the training of the crew was so bad that B.C. Ferries had no effective system in place to verify the number of passengers that got off the sinking ship.

As the crew all sat in the lifeboats sitting on the quiet calm sea that night, they could not get the number straight. An incorrect count is disastrous. An incorrect count means that B.C. Ferries could not determine whether there were passengers left onboard. There were only 59 passengers. The crew of 42 all got off safely. The crew all sat in their lifeboats watching the ship until it eventually sunk. Two innocent souls were left onboard. The crew only had to count up to 59. The next morning it was announced by the press that all passengers had been evacuated safely from the vessel. It is by God's grace that there were only 59. This ship had a capacity for 650 passengers.

The jury would have heard from passengers the details about the confusion during the evacuation. The jury would have had a chance to consider that in light of the fact that there was no proper and detailed evacuation plan the evacuation is bound to be confused, if not utterly panic stricken.

A trial is by far a better way of getting at the truth than the T.S.B. inquiry. The T.S.B. is hamstrung in its ability to get at the truth, but at a trial witnesses are put up on a witness stand in front of everyone. Then, most importantly, witnesses are subject to being cross-examined. This is the best way ever devised to get at the truth. The T.S.B. did not have this advantage. There would have been a lot of cross-examination in this trial. Certainly, there would have been cross-examination about the relationship between the man and the woman who were driving the ship at the time of the collision with Gil Island. It was no secret that they had a personal relationship. This is referred to in the T.S.B. report. They concluded during the crucial 14 minutes the two on the bridge were having a "personal conversation", whatever that means. What is not clear to the public or to the two girls is how this personal relationship figured into this disaster.

The T.S.B. inquiry uncovered evidence of illegal drug use by B.C. Ferries crew. Had there been a trial, evidence would have been led about the use of illegal drugs by crew members between shifts. And, very significantly, what was done or not done about it by B.C. Ferries. The T.S.B. said, "not all senior crew members consistently took action to ensure the company's no-tolerance policy was strictly adhered to". With no trial, beyond this, the public and the girls are completely left in the dark.

As I stated above, B.C. Courts are not for regular folks but only for the wealthy. Just to get into the Court the hearing fees and jury fees would have cost the girls about $40,000.00, but the two teenagers and their mother faced even more financial obstacles. In order to prove the case, the two girls would have to have brought witnesses to Court.

The witnesses who knew what happened that night are B.C. Ferries employees or former employees. In advance of the trial, the two girls notified B.C. Ferries that they required fourteen crew members from the Queen of the North to testify. Many of these witnesses do not live within walking distance of the Vancouver Courthouse. A number are up in the Prince Rupert area. The two girls have very little money so they asked B.C. Ferries to pay to bring the crew to Court. B.C. Ferries refused, leaving the girls to pay in full the cost of the bringing these witnesses to trial. This means that the girls would have to pay all of the costs for airfare, cab fares, hotel rooms, and breakfast, lunch and dinner for all the crew members. This is another example of how our justice system makes it so difficult for individuals to sue large corporations. The teenagers would have to come up with, say another $15,000.00 to $20,000.00.

There is more. Traditionally, people probably associate a high degree of honour to naval officers, especially to a Captain. One would expect that a Captain of a ship like the Queen of the North would be honourable. A common perception is that, even if he does not go down with his ship, the Captain would want to be forthcoming about this incident, if for no other reason, to prevent similar future shipping disasters. The girls needed the Captain to testify at the trial. He lives in Calgary so the girls asked the captain's lawyer in Vancouver to accept a Subpoena to save them the cost of having to hire an Alberta lawyer to go to Court in Alberta and obtain an out-of-province Subpoena. This honourable Captain told his lawyer in Vancouver not to accept service. This means he insisted the girls shoulder the cost of getting an Alberta lawyer to get a Subpoena from an Alberta Court. He would also require travel expenses. So much for naval honour.

There is more. In order to prove their case, the girls needed a senior operations official from B.C. Ferries. During the lead up to trial, B.C. Ferries produced for examination their representation as is required by the Court rules. This witness was an important witness in the girls' case. He is supposed to know how ships are meant to be safe. When the girls asked for him to be produced at trial, about five weeks prior to the trial, B.C. Ferries told the girls that this witness would be out of the country at the time of the trial. He would not be available to come to Court. B.C. Ferries suggested that his evidence be obtained prior to the trial on a videotape. The expense of obtaining this videotape evidence in this case would have to be borne by the two teenagers.

The girls faced additional obstacles because of the law itself. Our laws operate in an unfair manner. Because of B.C. laws, the survivors of a parent's wrongful death are usually not entitled to large awards of damages. In B.C. death cases a claimant is not entitled to any damages for sorrow, pain or grief. Our laws relating to wrongful deaths have been in need of reform for years. It is impossible in B.C. to get even a nickel for the deepest grief however caused. The historical reasons why a child cannot be compensated for grief arising from the wrongful death of a parent have been examined and changed elsewhere in Canada, but not in B.C. Typically, a survivor of a wrongful death can only recover small amounts for such things as loss of financial contribution and things like that.

B.C. Ferries also had other law to its benefit. The law does not allow any reasonable chance for these children to seek damages to punish the wrongdoer. Remember no one has been charged criminally in this case. In wrongful death cases, a jury cannot punish stupidity, gross negligence, or wanton neglect by awarding punitive damages. In B.C. even if a family member is murdered, the survivor cannot get punitive damages against the wrongdoer. Even if the jury had wanted to hammer B.C. Ferries with punitive damages in this case, the law would not permit them to do so. You really have to ask yourself, what kind of justice system do we have where our law prevents punitive damages from being imposed when there has been a conduct which is so wrong and which results in the loss of human lives: Why is it that you can try to get punitive damages if some product you purchase is defective, or if your insurance company treats you unfairly, but not if your father loses his life at sea where another is clearly at fault? This law is wrong and unfair.

It has been a very sad and frustrating experience to see two young teenagers through this process. I have been a lawyer for a long time, but I cannot justify to them why the Court system is so unfair. I cannot justify to them why our justice system demands $40,000.00 in hearing and jury fees as a requirement for them to have a trial, and find out why their father died. I cannot explain to them why Courts say their father's life is so valueless that their grief cannot be compensated. I cannot explain to them why our laws would not allow a jury to award punitive damages against a wrongdoer.

Our justice system favours the large institutions. Powerful and wealthy organizations like insurance companies, governments, and multi-million dollar corporations can access Courts anytime they want. These two girls cannot. These two lovely girls loved their father. They were innocent to think we have Courts for people like them. I cannot justify to them why we do not.

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