Transport Canada has concluded CP Rail failed to properly identify safety hazards in the B.C. mountains following a workplace fatality investigation into a train derailment which killed three workers, CBC News has learned.

Andy Dockrell, Dylan Paradis and Daniel Waldenberger-Bulmer were killed on Feb. 4, 2019 when their 2-kilometre long freight train, with failing brakes, ran away down a steep mountain and derailed into a creek near Field, B.C.

The regulator has given CP Rail until the end of this week to fix the problems, according to a notice dated Sept. 23 from the Ministry of Labour, stamped confidential and posted inside CP’s Calgary headquarters, which was obtained by CBC News.

 If they don’t, Transport Canada could recommend federal labour charges against the railway that carry penalties of up to $1 million and two years in jail for senior executives.

CP Rail rejects Transport Canada’s findings and told CBC News in an email the company takes “the position there has been no contravention of the Canada Labour Code.”

The families of the dead men say labour penalties against CP don’t go far enough.

Conductor Dylan Paradis, left, engineer Andrew Dockrell, centre, and trainee Daniel Waldenberger-Bulmer, right, were killed in the derailment last year. (Facebook/Niki Atherton/Instagram)

“A million, up to a million … really is a drop in the bucket for them,” said Pam Fraser, the mother of conductor Dylan Paradis.

“We really would like some accountability. All of us … want criminal accountability,” she said, arguing police should be called in.

Fraser and other relatives of the dead crew are demanding police examine potential criminal negligence after The Fifth Estate earlier this year exposed a string of failures in the crash. These included known problems with train brakes operating in subzero temperatures along one of Canada’s most challenging rail mountain passes that has seen 25 derailments and runaways in the last 25 years.

Deadline looms

Transport Canada issued a formal directive last month concluding CP Rail “failed to identify and assess the hazards associated with the job task of operating loaded trains” down the steep mountain pass through the historic Spiral Tunnels.

CP Rail was given until Oct. 23, 2020 to address its safety shortcomings. 

Pam Fraser delivers CP CEO Keith Creel a package of material urging for an RCMP investigation into potential criminal negligence over the deadly derailment. (Submitted by Pam Fraser)

However, CP insists it is cooperating with federal officials and it already does risk assessments and has specific policies and training for safe train operations in those mountains in winter conditions.

“CP is reviewing this direction and will seek clarification given employees operating on CP’s Laggan Subdivision have been fully trained on how to operate and handle the specific conditions that the Laggan Subdivision presents,” company spokesperson Jeremy Berry told CBC News in an emailed statement.  

The directive by Transport Canada marks the first formal sanction against CP Rail following the derailment.

This notice from the Government of Canada demanding CP Rail fix safety problems by the end of this week was marked as confidential and posted inside the company’s Calgary office. (Submitted to CBC News)

However, it falls far short of a criminal negligence charge, say the families, who are seeking an investigation under Canada’s “Westray Law” named after a 1992 deadly mine disaster in Nova Scotia. The law creates a duty for all employers to protect workers against foreseeable harms and safety deficiencies.

‘I want justice for my son’

Fraser last week handed CP’s CEO Keith Creel a series of letters and a report by an outside workplace fatalities specialist asking the company to call in the RCMP.

“I’ve been so traumatized,” Fraser wrote to CP’s CEO. “I am haunted by unanswered questions into the HOW, WHY & WHO IS RESPONSIBLE, of my son being killed on his train. An independent investigation by the RCMP could shed light on these. You told us we could expect answers. Your dead crew are due transparency and those they’ve left behind deserve it.”

A monument for the three dead crew members was unveiled at a memorial at CP Headquarters on Oct. 14, 2020. (Submitted by Waldenberger-Bulmer family)

Another letter was written by Dylan’s father, Les Paradis, himself a retired CP conductor with 39 years of experience. 

“This should have been treated as a crime scene from the start and I want the RCMP to investigate. My family has been shattered, I want the truth and I want justice for my son.” 

                       Read all the letters from family members to CP Rail

To date there has been no outside police investigation.

The former lead investigator at the Transportation Safety Board, an arm’s length watchdog that is also looking into the crash, told CBC he believes the RCMP should launch a criminal probe, but his bosses quickly removed him from his role after speaking out.

CP’s own police service shut down its probe one month after the crash, according to the lead constable assigned to the case. He has since quit and told CBC News he suspects a cover-up. He has since been hired by the RCMP.

But the RCMP has declined to investigate and said it has received no request to do so by CP’s police service.

WATCH | Secrecy, no answers re-traumatizing, says dead railroader’s mom:

CP memorial for dead rail workers “beautiful’ but provided no answers, says Pam Fraser, mother of conductor Dylan Paradis. 4:05

Calls for government action

The union for the three dead rail workers wrote to Canada’s Attorney-General, Ministers of Labour and Transport, and all members of parliament on Oct.  6 demanding the federal government intervene. 

“This tragedy was preventable,” wrote Lyndon Isaak, president of the Teamsters Canada Railway Conference, calling any review by CP’s own police force “hopelessly tainted.”

“We are calling upon the Government of Canada to take all steps necessary to initiate or cause to be initiated a criminal investigation by the RCMP. This is the only manner in which justice will be served and more fatalities averted.”

Transport Minister Marc Garneau’s office responded.

“In this case, the Royal Canadian Mounted Police is a police service that would have the authority, if they feel it is warranted, to investigate such criminal conduct or alleged behaviour and recommend that criminal prosecution be commenced. Please contact the RCMP for more information,” a spokesperson said in an email.

WATCH | CP derailment crash site: 

Exclusive wreck video of CP train derailment in BC Feb 2019  1:00

The RCMP said late Thursday they are still reviewing the case but declined to discuss what conclusions they’ve reached.

“We have consulted with the Transportation Safety Board and Transport Canada who have undertaken investigations into this incident in order to guide decisions moving forward.”