Queen of the North Sinking 

The coastal ferry system on the British Columbia coast is a vital lifeline for west coast communities and a delightful experience for visitors.  One long route is the trip between Prince Rupert and the northern end of Vancouver Island. 

One ferry took its last trip on this route on an overnight voyage.  It was the car ferry Queen of the North.  It sank in Wright Sound after sailing one third of the way.  It had been travelling south through a narrow passage between the mainland and Pitt Island.  The narrow passage was 100 kilometers long and for most of the way was between 500 meters and 1 kilometer wide.  The narrow passage meant that the bridge crew had to pay close attention to navigation for hours on end to keep the vessel away from the shore. 

Once the ship reached Wright Sound there was relief.  There was open water 4 kilometers wide for the ship to follow on its course.  However, there was one important navigation point to follow.  The centre of the main channel of open water veered slightly to the left.  It was necessary to turn the ship slightly to the left. 

The ship entered Wright Sound at 17 knots, nearly full speed.  It continued at that speed without turning for 14 minutes until it hit Gil Island.  The impact was so severe that water rushed quickly into the hull.  The ship sank in 1 hour and 19 minutes. 

After the collision the passengers were called on deck.  The impact affected the frame of at least one cabin door.  The door would not open after repeated pulling on the handle.  Finally with both feet on the wall and pulling, the terrified passenger got the door open.  The ship began to list to one side.  One passenger on deck prepared to climb up the side of the ship in the event that the ship began to roll. 

It was 12:30 in the morning as the passengers and crew assembled on deck in a fine mist.  It was 7 degrees.    Many were not dressed for the cold.  The passengers got into rafts and a lifeboat.  They floated on the water in the darkness as the Queen of the North rose on end, and then, with trapped air exploding its windows outward, sank beneath the water.  A small fleet of power boats arrived from the nearest village of Hartley Bay.  The villagers brought the passengers and crew to their village. 

Two passengers were never found and were presumed dead.  A great number of the passengers experienced psychological injury with lasting symptoms of fear of water.  Many showed symptoms of Post-Traumatic Stress Disorder.  They were easily angered.  There were broken relationships and an attempted suicide.

I had been at work on some class action cases with James Hanson, a lawyer in Surrey.  The plight of the passengers on the Queen of the North looked like something that could be dealt with by way of a class action.  It would spare the passengers the cost of each of them hiring lawyers to claim against BC Ferries.  We represented a passenger and her husband who were moving to Vancouver Island.  All their possessions were on board the ship. 

The case involved both Canadian and international law.  A treaty that Canada had signed called the Athens Convention governed liability and limited the damages that could be paid. 

Our case was certified as a class action.  At judgment Mr. Justice Joyce found that to receive compensation, the psychological injury suffered by the passengers had to rise to the level of a recognizable psychological illness. 

This was a disappointment.  Many of the passengers had several symptoms of PTSD.  But to receive an actual diagnosis of PTSD, it was necessary to have all four of the symptoms listed in the Diagnostic and Statistical Manual of Mental Disorders.  James Hanson and I had flown many of the passengers to Vancouver for treatment and had paid for their expenses and psychiatric assessment. 

The judge reviewed the cases of a number of the passengers to provide the lawyers with guidance for assessing the rest.  He awarded damages. Some passengers got nothing.  The other amounts ranged from $500, to $7,500.  One got $12,000.

A continuing question throughout the case was about what the crew were doing on the bridge during the 14 minutes that the ship sailed straight towards Gil Island.  Fourth officer Karl Lilgert was in command.  He was assisted by Quartermaster Karen Briker.  Both were married but it was known, and they admitted, that they had been having an affair.  Rumours swirled that they had used the open water after leaving the long narrow passageway for a romantic activity. 

The ship was on autopilot.  They were certainly not paying attention to where the ship was going.  Both said that the affair had ended.  However, there were suspicious circumstances.  The departure of another crew member had left Karl Lilgert and Karen Briker alone on the bridge.  Karl Lilgert and Karen Briker were seen together after the sinking. No solid evidence ever came to light to substantiate the rumours. 

I cross examined Karl Lilgert in the class action case.  It was interesting to hear what he said about the position of the ship and the events on board.  I cannot reveal his evidence.

In a separate legal proceeding, Karl Lilgert was charged and convicted with criminal negligence causing death.  He was sentenced to four years in prison.  At the sentencing hearing Madam Justice Stromberg-Stein stated that Mr. Lilgert testified and lied.  She said:

“Whatever occupied Mr. Lilgert’s attention on the bridge that night, it was not the navigation of the vessel.  I do not need to speculate what Mr. Lilgert was doing on the bridge that night.  I know what he was not doing.  He was not doing his job.  He was not navigating a passenger ferry with 101 persons aboard who had entrusted their lives and safety to him.”

Fresh Evidence in the Court of Appeal

My case involved a client who was employed to produce computer software for use in designing roofs.  The specific application was for the large flat roofs of warehouses and industrial plants.  The problem to be solved was that rainwater would collect on the flat roofs.  The weight of the water caused the roofs to sag, creating bigger pools of water.  The increased weight over the long term adversely affected the integrity of the roof.  The software in question allowed the design of multiple, lightweight, low-level pyramids all over the roof.  It was a complicated design process that only a computer could do.  With the addition of the pyramids, the water would flow off the roof.

When my client was dismissed from his employment, he had a claim for wrongful dismissal.  That was complicated when his employer’s companies went bankrupt and his employer went personally bankrupt.  All of the assets of his business were transferred to a trustee in bankruptcy.  My client negotiated with the trustee to purchase the roof design software.  My client now had his own business.  Unfortunately, the previous employer had kept a copy of the software.  He started operating the same business through a company owned by his wife. 

I commenced a legal claim on behalf of my client against the company operating the roof design business.  That company immediately went to court and obtained an injunction against my client to stop him from contacting clients in his business using the roofing software.  It claimed that it was the rightful owner of the software and my client had no rights to it.  I then went to court and showed the bankruptcy, the transfer to the trustee and the purchase from the trustee.  The court removed the injunction and imposed an injunction in favour of my client against the company of the bankrupt’s wife.  It could not use the software. 

Unfortunately, that was not the end of the matter.  There were 21 court appearances as the parties battled it out to control the use of the software.  The defendant moved the software to the United States and continued business there.  The matter was at the Court of Appeal at one point.  The company of the bankrupt’s wife applied for leave to appeal the injunction.  An appeal is not automatic from an order pronounced leading up to trial.  Those orders are called interlocutory orders.  It was necessary to ask permission to appeal an interlocutory order.  The company of the bankrupt’s wife applied to introduce new evidence at the application for leave to appeal.  New evidence is also called fresh evidence. 

The application was heard by Mr. Justice Hinds.  He listened to the application and then asked both lawyers to go away and to research a particular point.  It was three months until we reappeared before Mr. Justice Hinds. 

Following a decision of the Supreme Court of Canada, applications for the introduction of fresh evidence on the hearing of an appeal had been adjourned to the date set for the hearing of the appeal. That gave the panel hearing the appeal, rather than a chambers judge in advance, the task of deciding whether or not the fresh evidence should be admitted. 

The question asked by Mr. Justice Hinds was whether a Court of Appeal justice, sitting in chambers before the date of the appeal, could consider fresh evidence when determining whether to grant or refuse an application for leave to appeal an interlocutory order made by a judge of the Supreme Court.  There was little authority on the point.

After listening to both counsel on the point, Mr. Justice Hinds decided that he could consider the fresh evidence.  This was not a decision to admit the fresh evidence, only to consider it.  After considering the fresh evidence and all of the circumstances, the judge declined to grant leave to appeal. 

There are 16 references to the case in subsequent court proceedings. Gudaitis v. Abacus

Psychological Injury in Aviation Accidents   

My client and her husband were on their way to Cancun, Mexico on an Air Transat flight from Vancouver.  They had purchased a package vacation which included hotel, transfers and the flight to the holiday destination.  They were looking forward to an active vacation including visiting ruins and going parasailing.  They had been to the same resort before.  They decided to return. 

The couple was seated in the last row of the Air Transat aircraft.  Behind them was a corridor.  At the other end of the corridor the flight attendants stored the food carts that are wheeled though the cabin. 

Unfortunately, one of the flight attendants had forgotten to attach one of the food carts prior to landing.  The landing was a hard and fast one.  When the plane touched down the brakes were applied heavily.  The food cart hurtled forward, rolled down the corridor gathering speed and struck the back of my client’s seat.  This produced a whiplash injury that was severe.  There was permanent physical injury.  Medical evidence presented at trial showed that my client suffered injury to the paraspinal muscles of her cervical spine and upper back.  This injury caused irritation of the lower nerves of the brachial plexus. 

The injury ruined the vacation for both of them.  My client wore a neck brace.  She took medication.  She lay in her room or by the pool.  She was in pain.  The doctor told her not to go to the beach.  She could only do short walks. 

In addition to the physical injury there was psychological injury.  My client was diagnosed with major depression, chronic pain disorder and PTSD.

The trial took eleven days.  Mr. Justice Funt’s decision awarded damages for psychological injury for the first time in Canadian history in a case that was governed by the Montreal Convention.  This convention provides for automatic compensation for the passenger when there is an accident on an international flight, but it limits the amount that will be paid for that injury.  From the inception of this international treaty and its predecessor, all payments had been for bodily injury only.  However, starting in the United States, injured passengers began to recover for a psychological injury when that injury was the result of a bodily injury.  Mr. Justice Funt found that this principle applied in this case.

In addition, Mr. Justice Funt awarded damages for the spoiled holiday, something that had never been awarded before under the Montreal Convention.  My client received a refund of the cost of the vacation for herself and her husband and an additional amount, not quantified, as solace for the pain and suffering experienced during the spoiled holiday. 

Cases governed by the Montreal Convention are examined around the world and cited in cases dealing with similar issues.  The decision of Mr. Justice Funt was cited by the United States Court of Appeals for the 6th Circuit in the Etihad case.  Wettlaufer v. Air Transat

Missing Banknotes

When a lawsuit was filed against a Canadian airline, my task was to determine defences.  The facts started with a Canadian bank sending Bank of Greece bank notes by air in a package from Vancouver to the Bank of Greece in Athens.  The package did not arrive.  The loss of the banknotes was unexplained. 

The Bank of Greece claimed against the airline.  The insurers for the airline honoured the insurance policy and paid for the lost money to the Bank of Greece.

Sometime later, some former employees of the airline in Montreal were found to have been buying chalets and snowmobiles.  The RCMP investigated.  They found that the package of money had been taken off the aircraft in Montreal.  There was a criminal prosecution and some of the money was recovered. 

The RCMP sent the recovered money to the Bank of Greece.  The Bank of Greece did not know what to do with it.  The bank had already been reimbursed for the loss.  It sent the money to the insurers.  When the insurers found out about the theft of the money, they claimed against the airline.  They said that they should not have paid the airline for the loss.  Theft was a loss outside the protection of the insurance policy.  It was gross misconduct.  The insurers commenced a lawsuit in British Columbia Supreme Court to recover the money from the airline. 

With defences developed and filed in Supreme Court, negotiation eventually settled the case.