The company accused of failing to protect employees in Ottawa’s deadliest workplace incident in decades made its first court appearance on Friday.
On January 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 an explosion and fire. A sixth employee, Matt Kearney, succumbed to his injuries in hospital the next day.
Last month, just before the one-year anniversary of the incident, the Ontario Department of Labor filed charges against Eastway Tank owner Neil Greene and the tanker manufacturer, each with three identical charges under the province’s Occupational Health and Safety Act.
In the first indictment, the Department of Labor alleges that Eastway Tank failed to ensure that the process of loading and “wet testing” a truck was conducted in an area free of potential ignition sources. Wet testing is a common procedure where a tanker is loaded with diesel or gasoline to calibrate the equipment in the tanker
The second indictment alleges Eastway Tank failed to take “one or more” precautionary measures, including ensuring that the same truck’s tank “contained no gasoline or other flammable liquid or substance and was free of gasoline or other flammable liquid or substance while the Work and/or testing could be carried out on or near the truck if there was a potential ignition source.”
An industry expert has told CBC that this allegation accuses Eastway Tank of working on a “hot truck” — a claim previously made by several former Eastway employees who spoke to CBC after the blast.
These employees also cited other examples of unsafe work environments, including improper storage of flammable chemicals and previous fires. Greene called those allegations “unfounded” at the time.
The third charge alleges Eastway failed to properly educate workers on safe fuel storage and handling.
Crown chooses criminal court judges
The Eastway-Tank affair was heard briefly by a justice of the peace in the Ottawa Provincial Criminal Court at 9 a.m. Friday
Attorneys Don Bayne and Kirstin Macrae are representing Greene and Eastway Tank. They performed virtually on Friday. Greene was not physically in the courtroom.
“We have received an explanation [from the Crown]. It’s significant,” Macrae said in court.
The Department 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.
“It is within the discretion of the Department’s prosecutor to make this decision to require a judge who is legally trained and not a justice of the peace who normally hears these cases but who is not usually legally trained to hear the case,” he said he Cheryl A. Edwards, a former Department Attorney unrelated to the Eastway Tank case.
“Sometimes this is because they believe there will be a significant delay at the provincial criminal court. Sometimes it is because they intend to ask the court for a severe sentence, possibly imprisonment, and it is widely believed that judges are more inclined to impose such harsh sentences.”
The case will be retried on March 8 at the Ottawa Courthouse on Elgin Street.
If convicted, Eastway Tank faces a maximum fine of $1.5 million and Greene faces a maximum fine of $100,000, up to 12 months in prison, or both.
The law does not provide for minimum sentences or prison terms.
Shortly after the ministry announced its indictment, the Office of the Fire Marshal — the provincial agency focused on determining the cause, origin and circumstances of the blast — told CBC it was awaiting test results from evidence samples while keep working towards a degree .
The Ottawa Police Service also conducts its own investigation to determine if a criminal charge is warranted.
