Eastway Tank has 1st day in court over charges tied to deadly blast

The business accused of failing to keep employees safe in Ottawa's deadliest workplace incident in decades had its first court appearance on Friday.

On Jan. 13, 2022, five employees — Rick Bastien, Etienne Mabiala, Danny Beale, Kayla Ferguson and Russell McLellan — were killed at Eastway Tank, Pump and Meter on Merivale Road after a blast and fire. A sixth employee, Matt Kearney, succumbed to his injuries in hospital the next day. 

Last month, just shy of the incident's one-year anniversary, Ontario's Ministry of Labour charged Eastway Tank owner Neil Greene and the tanker-manufacturing company with three identical charges each under the province's Occupational Health and Safety Act. 

In the first charge, the Ministry of Labour alleges Eastway Tank failed to ensure the process of loading and "wet testing" a truck was carried out in an area free of potential sources of ignition. Wet testing is a common procedure that involves loading a tanker with diesel or gasoline in order to calibrate equipment within the tanker

The second charge alleges Eastway Tank failed to take "one or more" precautions, which includes ensuring the tank of the same truck "did not contain and was free of gasoline or any other flammable liquid or substance while work and/or testing capable of being a source of potential ignition was taking place on or near the truck."

An industry expert has told CBC this allegation accuses Eastway Tank of working on a "hot truck" — an allegation previously made by several former Eastway employees who spoke to CBC after the explosion.

Those employees also alleged other examples of an unsafe work environment, including improper storage of flammable chemicals and earlier fires. Greene at the time called those allegations "unfounded."

The third charge alleges Eastway did not properly instruct workers on safe fuel storage and handling procedures.

Crown opting for criminal court judge

The Eastway Tank matter was heard briefly by a justice of the peace in Ottawa provincial offences court on Friday at 9 a.m.

Lawyers Don Bayne and Kirstin Macrae are representing Greene and Eastway Tank. They appeared virtually on Friday. Greene was physically not in the courtroom. 

"We have received disclosure [from the Crown]. It's substantial," Macrae told the courtroom.

The ministry has assigned Crown prosecutors Daniel Kleiman and Daniel Guttman to the case.

Kleiman has elected to have the Eastway Tank case heard by a provincial criminal court judge.

"The ministry prosecutor has the discretion to make this decision to ask that a judge, who is legally trained, and not a justice of the peace, who ordinarily hears these cases, but is not usually legally trained, to hear the case," said Cheryl A. Edwards, a former prosecutor with the ministry who is not tied to the Eastway Tank case. 

"Sometimes this is because they believe there will be a significant delay in the provincial offences court. Sometimes it's because they plan on seeking a severe penalty, potentially a jail term, from the court, and it is generally believed that judges are more inclined to impose such severe penalties."

The case will be heard again at the Ottawa courthouse on Elgin Street on March 8. 

If convicted, Eastway Tank would face a maximum fine of $1.5 million and Greene would face a maximum fine of $100,000, jail time of up to 12 months, or both.

The act does not lay out minimum fine amounts or jail sentences. 

Soon after the ministry announced its charges, the Office of the Fire Marshal — the provincial agency focused on determining the cause, origin and circumstances of the explosion — told CBC it was waiting on test results from evidence samples as it continues to work toward a conclusion.

The Ottawa Police Service is also still conducting its own investigation to determine whether criminal charges are warranted.