The real test is whether Eastway Tank will face criminal charges, observers say

The latest:

• Eastway Tank and its owner each face three charges under provincial workplace safety laws.
• No criminal charges have been filed so far.
• Families of dead employees are reacting to the provincial charges with mixed emotions. 
• A coroner's inquest may occur, but only after legal processes conclude. 
• The explosion's one-year anniversary comes Friday. 

Ottawa's main labour body says it's paying "very close attention" to whether local police file their own charges against Eastway Tank, Pump & Meter after Ontario's Ministry of Labour laid provincial workplace safety charges against the company last week.

On Jan. 13, 2022, five employees of Eastway Tank — Kayla Ferguson, Rick Bastien, Etienne Mabiala, Danny Beale, and Russell McLellan — died at the tanker manufacturer's site on Merivale Road after a blast and fire.

A sixth employee, Matt Kearney, died in hospital the next day.

"If there are criminal negligence charges filed, it's the kind of thing we believe is a deterrent. Employers pay a whole lot more attention," said Sean McKenny, president of the Ottawa & District Labour Council, which represents over 90 union locals in the Ottawa Valley.

Eastway Tank and its owner, Neil Greene, each face three charges under Ontario's Occupational Health and Safety Act (OHSA), including allegedly not taking reasonable precautions to protect workers and not providing proper instructions to employees on safe fuel storage and handling procedures.

The allegations have not been proven in court.

Greene has not responded to multiple requests for comment since Friday. He is first due in provincial offences court on Feb. 17.

Police still reviewing evidence

In addition to the ministry, the explosion has also been investigated by the Office of the Fire Marshal, the Office of the Chief Coroner and the Ottawa Police Service. 

No criminal charges have been filed against anyone at Eastway Tank as of Saturday and the police investigation "into the events that led to this tragedy" continues, a police spokesperson said via email.

"The Ottawa Police Service has been collaborating with and closely monitoring the investigations by the Ministry of Labour and the [fire marshal's office]," according to the email.

"We are reviewing all information and evidence gathered."

Criminal negligence tough to prove, lawyer says

Cheryl A. Edwards is a former Ministry of Labour prosecutor who now defends businesses.

Unlike the ministry, which had one year to complete its investigation and lay charges, the police service is under no such deadline. Still, police are usually the first agency to announce charges if they're deemed warranted, she said. 

"It would be quite unusual for [police] just to lie in wait for a long time and let the [provincial] case proceed, or any fire code case proceed, and then come along in the rear and add a Criminal Code charge," she said. 

That being said, there's "a very high bar" to proving intent when prosecuting charges of criminal negligence, making such convictions rare, Edwards said.

In the Eastway Tank case, it's too early still to say there will be no Criminal Code charges, she added. 

"The more time that passes, however, the more unlikely this will be."

A test of the Westray law

Under the Criminal Code, the maximum prison term for someone convicted of criminal negligence causing death is life behind bars. 

While the maximum a company can be fined if convicted under the OHSA is $1.5 million, Edwards said the highest fine ever actually handed out was $1.3 million. That went to the owners of the Lockerby mine in Sudbury, Ont., where two workers died in 2014, though the company was defunct by the time it was fined. 

As the owner of Eastway Tank, Greene could face a maximum OHSA fine of $100,000, a year of jail time, or both. 

McKenny said criminal charges would send a stronger message, pointing to concerns about the safety culture at Eastway Tank prior to last year's explosion.

"[Company directors] can end up in jail for a number of years," McKenny said. "That's the kind of charge that will cause employers to pay more attention in the future."

Both McKenny and Steven Bittle, an associate criminology professor at the University of Ottawa, said what happens next in the Eastway Tank case will be an important test of the so-called Westray law.

That federal legislation was enacted in 2004 after a methane explosion ripped through the Westray coal mine in Nova Scotia in 1992, killing 26 miners. The law is intended to hold companies and individuals criminally responsible for workplace deaths.

While the OHSA charges against Eastway Tank are a significant development that indicate authorities are taking what happened seriously, the questions raised about the company's safety record prior to the explosion invite further scrutiny, Bittle said. 

"People start naturally asking questions: 'Well, if there's a pattern here and there's evidence that maybe there's negligence involved, why is the Westray law not being used?'" he said.

"Many of those who have observed the Westray law over the years keep waiting for it to be applied in appropriate circumstances. And it just hasn't. The question keeps arising, 'If not this case, then when?'"

"We're certainly paying very close attention to what the police turn up," echoed McKenny. 

Son of dead worker says he went to police

Josh Bastien was one of the former Eastway Tank employees who spoke to CBC about an allegedly unsafe work environment at the company, one ex-empoyees said included previous fires, improper storage of flammable chemicals and welding near tankers that still contained fuel or flammable residue.

His father Rick was one of the six employees who died nearly one year ago.    

Soon after the explosion, Bastien went directly to Ottawa police to give a statement.

"I knew right away in my heart that my dad needed me to," he said, adding he has not since been questioned by either the Ministry of Labour or the Office of the Fire Marshal.

Coroner's inquest could come later

Some of the OHSA allegations against Eastway Tank are quite specific, including a charge that the company failed to take one or more reasonable precautions.

That potentially includes ensuring the tank of a truck "was free of gasoline or any other flammable liquid or substance while work and/or testing capable of being a source of ignition was taking place" nearby. 

But exactly what caused the explosion that had firefighters toiling in frigid conditions for hours remains unclear.

The Ministry of Labour won't release information about its investigation until after any prosecution is completed, according to its website. 

The Eastway Tank explosion could also be the subject of a discretionary coroner's inquest, a fact-finding process that would delve deeply into the circumstances leading to the deaths in sessions open to the public. 

But such an inquest would take place "after all other investigations and any legal proceedings have occurred," a spokesperson for the Office of the Chief Coroner said.