Criminal probe into workplace explosion that killed 6 stalled amid battle over search warrants

A criminal investigation into the explosion that killed six employees of Eastway Tank, Pump and Meter in 2022 is stalled more than two years later, as lawyers for the company's owner fight Ottawa police in court over the validity of search warrants investigators executed last summer and fall, CBC News has learned.

The firm representing company owner Neil Greene alleges police seized documents for which they had no proper warrant, including some that are protected by solicitor-client privilege, Mark Ertel told CBC in June.

Ertel also alleges police are the real reason for the delay because investigators waited until a year and a half after the explosion to obtain the warrants.

Police argue in court documents that they had no reason to believe a crime may have occurred until after the Ministry of Labour laid charges a year after the explosion, and that Greene's move to quash the warrants is frivolous, wasting time and interfering with the investigation.

The contents of the search warrants, and the information filed with the court to obtain each one, have been obtained by CBC but are subject to a publication ban.

CBC had to seek a Superior Court order on Wednesday clarifying the scope of that publication ban, in order to be able to report on the very existence of the warrants.

On Jan. 13, 2022, Eastway employees Rick Bastien, Etienne Mabiala, Danny Beale, Kayla Ferguson and Russell McLellan died in a blast that destroyed the decades-old Eastway Tank business on Merivale Road.

A sixth employee, Matt Kearney, succumbed to his injuries in hospital the next day. A seventh person survived but suffered severe injuries.

Criminal probe began after ministry laid charges 

Ottawa police initially took the lead on the investigation, according to their court filings.

But then Ontario's Ministry of Labour took over with police providing support, "as there were no grounds at the time to believe that there was any criminal offence that had occurred."

In January 2023, the ministry laid charges against Greene and Eastway.

It was then that a criminal investigation began, "as there was some evidence to suggest a criminal offence may have occurred prior to the fire based on the conclusions drawn in the [ministry's] report," Ottawa police court filings state.

The community and the victims' families have an interest in closure and justice, whether that results in charges or not.- Ottawa police court filings

In April, Greene and the company pleaded guilty to provincial offences for breaching Ontario's Occupational Health and Safety Act, and were ordered to pay a total of $850,000 in fines and fees.

The corporate portion of the fine is the highest ever issued against a company of Eastway's size in the history of the act, and the fine against Greene is among the highest ever for an individual charged under it, the Crown told court in April.

Greene is not facing any criminal charges at the present time.

'Our investigation is really stalled'

The battle over data and documents seized by police in the criminal investigation has been unfolding in Superior Court since November.

That month, Ottawa police asked a judge for a forensic computer examiner to weed out any legally privileged information from data and documents seized from Greene and Eastway in July 2023, police court filings state.

Greene and Ottawa police Supt. Heather Lachine signed an agreement to conduct the work.

Back in Superior Court in early June, Ottawa police prosecutor Vanessa Stewart told another judge the work it had been done as of early May. But nearly a month later, police still didn't have anything to examine, she said.

"The community and the victims' families have an interest in closure and justice, whether that results in charges or not," documents filed at the courthouse by Ottawa police read.

"Our investigation is really stalled from that perspective," Stewart told the judge in court. "The police need that [material] in order to continue."

'This is their fault,' Greene's lawyer retorts

Greene's lawyers, meanwhile, have brought an application to Superior Court to revoke the Ontario Court-ordered search warrants outright.

The application by Greene's lawyers Ertel and Kirstin Macrae includes a prohibition to stop police from looking at any obtained material until after their application to quash the search warrants is dealt with.

Ertel told CBC that Ottawa police, not Greene, is the reason for the investigation's delay. If officers had sought and executed warrants right after the explosion, they wouldn't have ended up obtaining material protected by solicitor-client privilege, he said.

"This is their fault," Ertel said. "Obviously Eastway is very concerned about the amount of time that's gone by, for families and also for Eastway … and the reason has nothing to do with Eastway."

Police declined to comment on the allegations, saying their investigation is ongoing.

Despite multiple requests with court services and Greene's lawyers, a CBC reporter has been unable to obtain a copy of filings made by Greene's counsel in their bid to quash the warrants.

Police file application to dismiss

Stewart told the judge in May that police want the matter handled "urgently" because the stalled investigation is a "large issue."

To that end, she's asked the court to toss the application to quash the warrants, and to compel lawyers to hand over documents and data not subject to solicitor-client privilege.

Police are also asking for an independent referee to oversee the agreement to excise privileged documents. "Attempting to negotiate the agreement between parties is not working and pre-charge delay is accruing," their court filings state.

Once all the material is reviewed by investigators, they can make a decision about whether the investigation should continue or end, police filings add.

Superior Court Justice Kevin Phillips decided it would be best to schedule a closed-door proceeding before a different judge who isn't in conflict with the case to determine how to proceed. Phillips told court he happens to be a friend of Greene.

A hearing on whether to toss Greene's application to quash the search warrants has been scheduled for later this month.