By Dirk Meissner
The Canadian Press

VICTORIA – A Vancouver lawyer who launched a class-action lawsuit after the Queen of the North ferry sank says he has the power to force silent BC Ferries crew members to talk and he intends to use it.
David Varty said Thursday two ferry crew members at the centre of the sinking mystery are scheduled to provide evidence this year at court hearings and testify next February at the upcoming civil trial.
Varty said he won't tread as lightly on either Karl Lilgert or Karen Bricker as it appeared the Transportation Safety Board did in its report released Wednesday.
Lilgert and Bricker were in charge of navigating the Queen of the North when it hit an island at full speed and sank in March 2006. Ninety-nine people aboard escaped, but passengers Shirley Rosette and Gerald Foisy died.
The TSB report said Lilgert and Bricker, who had been involved in a recently concluded romantic relationship, were engaged in a conversation at the time of the sinking. The TSB did not provide details of the conversation.
BC Ferries and the union representing ferry workers have denied rumours that Lilgert and Bricker were having sex at the time of the sinking.
Varty said the TSB did not explore the conversation issue between the two crew members deeply enough.
“For the TSB to just say they were having a personal conversation doesn't explain it,” he said.
“I think that they should have gone much further to find out how distracting that conversation was. What were the kinds of words? What were the subjects?”
Varty said investigations of airplane crashes usually involve the release of cockpit voice recorder transcripts. There is no transcript of the conversation between Lilgert and Bricker, but more details about its tone and topic would help the public understand more about the sinking, he said.
“For the public to be told, `don't worry we're not going to tell you what the conversations were, but we're just going to tell you that we've reviewed them and we know that they were personal conversations,” said Varty.
“Well, really, that is not helpful, and it creates a sense of distrust.”
Lilgert is scheduled to provide evidence at a closed court hearing May 22 and Bricker on Sept. 24.
“We will be able to ask them exactly what they were talking about,” Varty said.
If they refuse to testify, they could face contempt of court charges, he said.
The class-action suit, set for Feb. 2, 2009 in Vancouver, is against BC Ferries, Lilgert, Bricker and Capt. Colin Henthorne, on behalf of the 49 surviving passengers.
Varty said the evidence provided by Lilgert and Bricker at the pre-trial sessions in May and September cannot be made public, but transcripts of their statements will be used in the public civil trial next February.
They will also be called to testify in the public trial in February.
Varty said the case could be settled out-of-court prior to the trial date, but that doesn't necessarily mean the public won't find out about Lilgert and Bricker's information.
“If it settles before trial, there's a procedure in our class action which will require us to disclose the relevant information to the court so that the judge can approve or decide not to approve the settlement that we have reached,” Varty said.
“If the judge is going to approve the settlement reached, he or she is going to have to have all of the information that we used to reach that settlement, which will include the transcripts of Karl Lilgert and Karen Bricker's information,” he said.
Calls for a public inquiry or some form of judicial process with teeth emerged shortly after the release of the TSB report.
Lawyer Peter Ritchie, who represents Foisy's two daughters, said the federal or B.C. governments should call some form of public inquiry to find out what happened.
The RCMP continues to investigate the sinking, but there have been no charges.
The TSB report said the crew of the doomed ferry wasn't following basic safe sailing practices the night it sank in March 2006.
The board made recommendations to bump up safety for ship passengers across Canada and ensure investigators never again face the kinds of questions and uncertainty raised in the Queen of the North tragedy.
In its report, the safety board recommended installing voyage data recorders on large Canadian vessels, similar to aircraft black boxes, as well as improving crew training for emergencies and procedures for keeping track of passengers.
Inaccurate head-counts during the ferry's hasty evacuation led to initial reports that everyone had survived the sinking when in fact Foisy and Rosette apparently went down with the ship.
BC Ferries has said all of its ships will have the recorders by the end of the year.