OC Transpo bus driver fired over 'reckless' drive through rail crossing wins reprieve

An OC Transpo driver fired after he drove past a lowered, flashing gate at a Carlsbad Springs rail crossing in 2015 has won the right to stay on at the transit service, provided the job doesn't involve driving.

OC Transpo had quietly fired the seven-year driver over the incident, which happened two years after the tragic crash between one of its buses and a train that killed six people and injured dozens of others.

But CBC News only learned of it because of a written decision an arbitrator made in Toronto on Nov. 10, 2016, after hearing the driver's grievance.

The incident happened on an early morning in October, two years after the fatal crash between an OC Transpo double-decker bus and a Via Rail train at a crossing on the other side of the city.

This driver was plying Route No. 232 near Carlsbad Springs at around 6:30 a.m. (the route would be renumbered 222 in the fall of 2016). Some 25 to 30 people were on board the double-decker bus as he got close to a rail crossing near Piperville and Boundary roads.

According to the arbitrator M.G. Mitchnick, and the letter of termination transcribed in his decision, the rail crossing's warning lights were flashing and the guard rails were down.

But vehicles in both directions were pulling into the incoming lane and crossing the tracks anyway.

Driver 'coaxed' to cross tracks by 'passenger X'

The decision details how a woman got on at the stop before the tracks and told the driver the signals hadn't been working properly in weeks and needed to be fixed. 

The arbitrator relates what happened next:

"The same passenger, still standing next to him complaining about the crossing signals and urging him to proceed, stated that the next train wasn't due until 6:39.

"Although it would have been pre-dawn at this point in October, the grievor said there was good visibility (and headlights are on at that hour as well), and that he could see clearly down both directions of the track for a distance of maybe five to six miles. After looking both ways to ensure it was clear, and flashing an oncoming car to warn him that the bus was going to proceed first, he accelerated and continued his bus through the crossing."

Driver disobeyed protocol

The protocols OC Transpo drivers are to follow are clear, the report said. The driver was supposed to pull over, call the control centre and be advised whether the gates were truly malfunctioning.

Instead, GPS showed his bus never slowed to less than six kilometres per hour. The driver tried calling the control centre, but getting no answer, crossed the tracks.

The document tells how the driver was panicked as soon as he did so.

The man was the sole bread-winner for a family of five children and also took care of his mother, the arbitrator related.

He had fled Lebanon during its war in the early 1980s and had worked as a dishwasher and taxi driver. Getting his OC Transpo job was "the happiest day of his life," the arbitrator noted.

His route that day included turning the bus around and travelling back across the same rail crossing a few minutes later. This time he stopped ahead of the crossing, the arbitrator wrote, "and a few seconds later a VIA train did in fact go through."

OC Transpo fires driver, grateful second tragedy avoided

OC Transpo learned what the driver had done as soon as the control centre called the driver back, the report said.

After meeting with his union and managers, OC Transpo eventually sent him a termination letter, parts of which are included in the arbitrator's report.

"As an operator for OC Transpo you are fully aware of the potentially deadly consequences of such reckless and unnecessary actions, to you and to the passengers we have entrusted to you," the letter read.

"Such a flagrant violation of safety cannot be condoned or excused."

The arbitrator heard from one manager who said he'd lost confidence in the driver and also from Troy Charter, director of operations, who had taken part in the Transportation Safety Board's investigation of that crash and reviewed the decision to fire the driver.

"Were there to be another tragic accident of this type, Mr. Charter observed, and it was found that the city continued to employ drivers guilty of an act such as the grievor's, the fall-out would be tremendous," wrote the arbitrator.

Driver's current position not released by city

In the end, after reviewing many other similar cases, the arbitrator decided the driver should face a lesser penalty.

The driver had already been suspended without pay for a year. He was not considered a problem employee.

The arbitrator ordered OC Transpo to take the driver back on in a lesser role, such as as a garage attendant or storekeeper.

When CBC News asked what job, if any, the driver had taken with OC Transpo after the November decision, the city would not comment for privacy reasons, but said it was following the arbitration decision.

"As was noted in the award, the arbitrator agreed with the city that the operator's error in judgment in this instance was an egregious one that, in the circumstances, left the city with little choice but to terminate his employment," wrote deputy city solicitor David White in a statement.

"In that regard, the city appreciates that the arbitrator made clear that the city 'could not be faulted for its decision … to terminate the grievor's services as a bus driver.'"

And it appears this episode ends here.

The City of Ottawa has reviewed the decision, says White, and has not sought judicial review of the arbitrator's award.

The driver's union, ATU Local 279, could not be reached for comment.