Technical Corner

30-Years Since Westray and It Is Still A Predictable Path to Disaster

March 2022

A few years ago, ORFA staff were invited to Pictou County, Nova Scotia to provide industry related training. During those travels signs were viewed as remembrance to the May 9, 1992, underground methane explosion that killed all 26 miners working in the Westray coal mine. The operation had only been open for 8-months. Those who invested in the venture were aware of the history and risks of methane explosions in this area but were confident that in this modern mine, state-of-the-art technology and engineering would defeat the hazards of the volatile geology of the region. Of the 26 who lost their lives that day, only 15 remains were recovered, 11 soles remain lost in the deep today.

The Royal Canadian Mounted Police conducted a probe into the explosion. They assembled a team to enter the mine to gather evidence for criminal prosecution. On October 5, 1992, Westray Coal and four of its managers were charged with 52 non-criminal counts of operating an unsafe mine under the Nova Scotia Occupational Health and Safety Act by the Nova Scotia Department of Labour. Two of the mine's managers were charged with 26 counts of manslaughter and criminal negligence causing death. The legal process would unwind over a 5 year period with many twists and turns that finally resulted in no one being held accountable for the tragedy. [More

This lack of accountability for the loss of human life caused outcry not only from the victim’s families but also those invested in worker health and safety. The lack of accountability would result in a significant ripple effect across the country, as Justice K. Peter Richard ruled in an inquiry that everyone in authority from the owners, the management, and the Nova Scotia Inspectorate was negligent in their duty of safety and care. Justice Richard gave the final report the title of “The Westray Story: A Predictable Path to Disaster” to convey a message that the Westray tragedy was predictable and, therefore, preventable. Through lobbying by the United Steelworkers of Canada and the Westray Families Group, the “Westray Bill” was passed in Parliament with all-party support and came into effect on March 31, 2004. Bill C45 amends the Criminal Code of Canada to assign legal responsibility for workplace safety to organizations, their representatives, and anyone directing someone’s work.

The Westray Bill or Bill C-45 is federal legislation that amended the Canadian Criminal Code and became law on March 31, 2004. The Bill (introduced in 2003) established new legal duties for workplace health and safety and imposed serious penalties for violations that result in injuries or death. [More

The amendment added Section 217.1 to the Criminal Code which reads:

"217.1 Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task."

The amendment also redefined the term organization to include a broader definition of those potentially liable and added Sections 22.1 and 22.2 to the Criminal Code imposing criminal liability on organizations and its representatives for negligence (22.1) and other offences (22.2).

Section 217.1 in the Criminal Code:

  • Created rules for establishing criminal liability to organizations for the acts of their representatives.
  • Establishes a legal duty for all persons "directing the work of others" to take all reasonable steps to ensure the safety of workers and the public.
  • Sets out the factors that courts must consider when sentencing an organization.
  • Provides optional conditions of probation that a court may impose on an organization.

These provisions of the Criminal Code affect all organizations and individuals who direct the work of others, anywhere in Canada. These organizations include federal, provincial, and municipal governments, corporations, private companies, charities, and non-governmental organizations. The police and crown are responsible for investigating serious accidents and will determine whether any charges should be laid under the Canadian Criminal Code. The Criminal Code is a very different set of rules and should not be confused with "regular" occupational health and safety laws (OH&S) and how they are enforced. Depending on the jurisdiction, the Ministry (or Department) of Labour or Workers' Compensation Board (WCB) enforces OH&S laws. Across Canada each province, territory and the federal government are responsible for enforcing their own individual set of occupational health and safety laws. Each jurisdiction employs inspectors who visit workplaces to ensure companies are complying with their OH&S legislation. In the unfortunate event of a serious incident, these inspectors conduct an investigation and determine if a charge should be laid under the appropriate section(s) of the OH&S Act or Regulation. An accused individual or company may then need to appear in court where a fine or other penalty could be imposed if they are convicted. The police are not normally involved in this process.

It is common practice for both police and health and safety inspectors to both investigate a serious workplace accident. In most cases, the police and provincial authorities would work together to decide which charges should be made. While it is unlikely that two sets of charges would be made, technically speaking, charges can be laid under both the Criminal Code by the police and the Occupational Health and Safety Act or Regulations by provincial authorities. This situation has occurred in the Millennium Crane Rentals case from Sault Ste Marie, ON.

A summary of cases where individuals were charged under the Criminal Code.

  • February 2017, a worker at Rainbow Concrete in Sudbury, Ontario was driving a dump truck and was killed when an archway collapsed on top of the cab of the truck. The company was charged with twelve charges under the Ontario Occupational Health and Safety Act.
  • June 2015, an employee of Detour Gold, an open pit mine near the Ontario-Quebec border was exposed to sodium cyanide that leaked out of a reactor as a result of ongoing repairs.
  • September 2013 a mechanic was killed while removing a gas tank from a van with an acetylene torch resulted in charges under the Criminal Code with criminal negligence causing death.
  • August 2012 a professional truck driver who while speeding and distracted in a construction zone struck and killed an 18-year-old flag was charged with criminal negligence causing death and dangerous operation of a motor vehicle causing death.
  • February 2010 the owner of a crane rental company and the crane operator were charged with criminal negligence causing death after a municipal worker was killed while working in an excavation hole.
  • December 2009 four workers were killed, and one was seriously injured at a construction site when the swing stage scaffolding, they were on collapsed. The construction company and three corporate officers were charged with criminal. A total of 61 charges were laid by the Ministry of Labour. In 2016, a supervisor involved in the event was charged and convicted under the Criminal Code and was sentenced to 3.5 years in prison.
  • March 2008 a paving company was charged and convicted of criminal negligence.
  • May 2007, a service manager at an auto dealership was charged with criminal negligence after one of his employees caught on fire while using a makeshift fuel pump that had gone unrepaired and broken for several years.
  • October 2006 a train struck a maintenance vehicle, killing one worker and injuring three others. Two employees were charged with criminal negligence causing death and three counts of criminal negligence causing bodily harm.
  • June 2006 a landscape contractor was crushed to death when the backhoe his employer was driving failed to stop, pinning the employee to a wall. The investigation of the incident found that the 30-year-old backhoe had not received any regular maintenance. In September 2010, the employer was convicted of criminal negligence causing death.
  • March 2006 BC ferry sank after going off course and running aground killing two passengers. The ferry navigation officer was charged with two counts of criminal negligence causing death.
  • April 2004 near the city of Newmarket, Ontario a worker was killed after the ground around him collapsed while digging a ditch at a residential construction site. The construction site supervisor was charge under section 217.1 of the Criminal Code with one count of criminal negligence causing death.

Recreation operations have had many events where there has been many similar paths to lives lost that were predictable and avoidable – the Fernie, BC arena refrigeration plant explosion tragedy being one of the most predominate. The RCMP investigation remains an active investigation with the assumption that Bill C-45 accountability is being considered. Regrettably, many operations are on this same path today as infrastructure ages, equipment is inadequately maintained, and senior management fails to properly invest the necessary resources to ensure safe work and play environments. ORFA members can limit their liability and reduce the chances of being charged under the provisions of the Criminal Code by implementing an effective workplace health and safety program.

All supervisors need to know:

  • What their legal obligations are under occupational health and safety laws and standards
  • What hazards exist in your workplace, and
  • How to effectively reduce or eliminate them.

The ORFA remains committed to ensure that recreation professionals are informed and provided with the necessary tools to avoid these types of significant accountability. The ORFA Legal I & II courses are considered essential education for all who have a stake in recreation worker health and safety. [More

Comments and/or Questions may be directed to Terry Piche, CRFP, CIT and Technical Director, Ontario Recreation Facilities Association

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