5 key questions hanging over Friday’s expected guilty plea in deadly Eastway Tank explosion

Phil Bertrand was working nearby on Merivale Road on the day Eastway Tank, Pump and Meter Ltd. exploded — with his longtime friend and former co-worker Matt Kearney inside.

Bertrand texted Kearney that afternoon but got no response. Four hours later, still nothing.

“You’re going to be okay, buddy,” Bertrand wrote.

By 7:12 p.m., when it was known that critically injured patients had been taken to hospital, Bertrand started begging.

“Don’t you go f–king dying on me,” he messaged the man he loved like a brother.

Kearney, a 36-year-old service technician at Eastway, died from his injuries in hospital the next day.

Five other employees of the decades-old tanker manufacturing company died in the blast on Jan. 13, 2022.

They were Rick Bastien, 57, Etienne Mabiala, 59, Danny Beale, 29, Kayla Ferguson, 26, and Russell McLellan, 43.

Bertrand said he once worked at Eastway in the mid- to late 2000s but left because it was “beyond cramped” and a “death trap” where “nobody ever seemed to care about proper facility standards.”

Like other former Eastway employees who have spoken to CBC about alleged safety lapses — allegations the company has called “unfounded” — Bertrand said he witnessed welding near flammable materials, as well as previous fires.

He said the spray booth was so small that “if you had a truck in, you could only paint one side at a time.”

Bertrand said he’d told Kearney to leave Eastway too, and dreamed of him the night of the explosion.

“Every time I’d be getting close to Matt … the fire would pull him away,” Bertrand recalled.

Bertrand is one of many who will be closely following the outcome of a scheduled legal proceeding on Friday in Courtroom 9 of the Ottawa Courthouse on Elgin Street.

Eastway and its owner Neil Greene stand accused of breaching Ontario’s Occupational Health and Safety Act (OHSA) “on or about” the day of the explosion.

A months-long trial was expected to begin last month. Instead, a guilty plea is expected in the judge-only case, as the Ministry of Labour recently told the families of the dead.

But exactly how Friday’s court date will shake out remains unclear. Here are five key questions.

What more will we learn about the day of explosion?

Virtually no public account of the blast or what led to it has emerged over the last two years.

Ontario’s Office of the Fire Marshal investigated the cause and finished its investigation last fall, but said its findings would not be made public until “all charges and legal matters are settled.”

There will be an agreed statement of facts filed in court on Friday, instead of weeks of testimony.

The statement may or may not delve into the inspections that turned up earlier safety concerns at Eastway involving exhaust pipe ventilation, welding safety and training, exposure to hazardous chemical substances, and workers not wearing personal protective equipment.

Reggie Ferguson, whose niece Kayla died in the explosion, told CBC he hopes to finally learn the truth about that day.

“There’s so many different [stories]. Everybody’s saying different things,” Ferguson said.

Eastway and Greene each face three identical charges, which may offer clues.

In the first charge, the ministry alleges Eastway failed to ensure the process of loading and “wet testing” a truck happened away from ignition sources. Wet testing involves loading a tanker with diesel or gasoline in order to calibrate equipment within the tanker.

“You could have a guy doing a wet test on a truck and then somebody welding a truck right beside it,” Bertrand said of his time at Eastway.

The second charge accuses Eastway of “splash” loading fuel into the truck.

“This method is when the driver or company opens the lid on top of the tank and just pumps product into the opening with no control, so the product just splashes all over the tank, spilling on the tank [and] creating a fire or explosion hazard,” Chris Revers, who managed a tank manufacturing plant in Alberta for 16 years, previously told CBC.

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

Charlotte Rothgeb, who worked at Eastway on and off between 2017 and 2021, said she’s grateful for the work experience she gained there, but added she was “scolded” by colleagues for wanting to do things safely.

“They just wanted me to weld fuel-soaked and corroded aluminum,” she said.

Rothgeb does not believe Greene bears sole responsibility for what happened, and said she can’t imagine what he’s been through, having lost a family business started by his father in 1968.

“He trusted [others] to run the shop,” she said of Greene and the safety culture at Eastway.

CBC reached out to Greene and his lawyer but did not hear back by deadline. CBC has made numerous attempts to contact Greene over the past two years. The last time he provided a comment was within weeks of the blast to say Eastway always worked to maintain the highest safety standards.

Will the penalty include time behind bars?

This is the biggest unknown to be decided by the presiding judge on Friday, and it depends on a number of factors.

It’s unclear whether Greene, the company or both will plead guilty — nor how many of the six charges will result in convictions. The OHSA lays out different penalties for people and companies.

In the early 2022 version of the act that applies in Eastway’s case, a convicted person faces a maximum fine of $100,000, up to a year in jail or both for each guilty count. The act does not lay out minimum penalties.

Convicted companies, meanwhile, pay up to $1.5 million per conviction.

In other words, if only Eastway as a company pleads guilty on Friday, there will be no jail time involved.

It’s also unclear if the lawyers will make a joint submission, which means they agree on the total penalty, or whether it will be an “open range” scenario where lawyers will argue for a different combination of penalties.

Most OHSA cases don’t go to trial and are settled via a joint submission because the other scenario leaves defendants open to harsher penalties, said Cheryl A. Edwards, a former Ministry of Labour prosecutor who’s now a defence lawyer for businesses. She has no connection to the Eastway case.

Skipping a trial saves the court time and money, spares families an unpleasant deep dive and generally results in a more lenient total penalty, Edwards added.

The presiding judge might take into account aggravating factors only recently codified in the latest version of the act, including whether the defendant was motivated by a desire to decreases costs or whether they have expressed remorse.

Greene said in an earlier statement that he was “completely [devastated]” by the “tragic explosion” and that his heart went out to the families for this “deep loss.”

“Jail is extraordinarily rare in these cases,” Edwards said of past convictions.

It’s possible the judge will reserve the decision for later.

Will families and friends be satisfied?

Bertrand and relatives of Rick Bastien and Kayla Ferguson have told CBC they feel Greene should spend time behind bars.

When the OHSA charges were announced one year after the explosion, Janet Ferguson, Kayla’s mother, said the 2022 penalties left a lot to be desired.

“There’s been six that were killed and one badly injured. I don’t think that’s enough,” said Ferguson, who died last year.

Janet’s brother Reggie Ferguson — Kayla’s uncle — said he will be at the courthouse.

“Hopefully the company never reopens,” he said.

Rick Bastien’s fiancée Louise Martel, who has prepared a victim impact statement for Friday, has said Greene should go to jail for life.

“They’re not coming back,” she said of the explosion’s victims. “So why should he be out there living his life?”

Greene is expected to attend court in person.

Generally, people sentenced to jail are taken immediately into custody, but they can apply for bail pending appeal right away, Edwards said.

Will the penalty send a strong enough message to other businesses?

According to the Ottawa and District Labour Council, the Eastway explosion is the city’s deadliest workplace incident since the Heron Road Workers Memorial Bridge collapsed in 1966.

Nine people died in that disaster, and in 2016, following a campaign by the labour council, the bridge was renamed to commemorate them.

Sean McKenney, the council’s president, said he doesn’t know Greene or what he’s going through.

“I can imagine that his family is going through stuff. I get that,” McKenney said.

But Greene was ultimately responsible for the safety of Eastway workers, and the penalty meted out in the case needs to send a strong message to other companies about focusing their energies “at all times” on “proper” health and safety procedures, McKenney added.

“Their lives were certainly worth a lot more than a [$100,000] fine,” he said of the Eastway victims.

While each case is different, a sawmill in Ignace, Ont., where a worker died in 2022 was ordered to pay $500,000 last year, the highest fine issued in an OHSA case during the last 12 months that the Ministry of Labour posted on its website.

What now?

The Ottawa Police Service continues its concurrent criminal investigation into the Eastway blast, a spokesperson confirmed earlier this week.

Greene has sued Eastway’s insurance broker for alleged losses of more than $13 million. The broker recently fired back in a statement of defence. That civil case remains before the courts.

It’s unclear if a discretionary coroner’s inquest will ever occur into the Eastway explosion.

Inquests, which are fact-finding processes as opposed to fault-finding ones, are only mandatory under certain circumstances including deaths at construction sites. Eastway is not considered a construction site, a spokesperson for the coroner said.

Even if there is an inquest, it could be a long wait. One recently announced inquest into a death in Ottawa involves an incident that happened in 2016.

Inquests can’t happen until “all other investigations and any legal proceedings have occurred,” a spokesperson previously told CBC.

McKenney is hoping for an inquest, even though the recommendations that come out of the process are not legally binding.

Whatever happens next, Bastien’s widow Lousie Martel said she’s relieved there will be no OHSA trial, and is looking to Friday as a necessary step toward closure.

“It’s coming to an end, and hopefully we’ll get answers and we’ll be able to go forward with our life.”