Westray disaster changed attitudes to workplace safety, prosecutor says

A Nova Scotia prosecutor who specializes in workplace safety cases says it’s hard to gauge the success of a law inspired by the Westray mine disaster in the 18 years since it came into effect.

Alex Keaveny said the ‘real lessons’ of the deadly blast go far beyond Bill C-45, a Criminal Code amendment known as the Westray Act that makes it easier to charge employers and businesses for criminal negligence in cases of serious injury or death.

“The reality is that corporate attitudes, enforcement by regulators, public attitudes and worker attitudes have changed,” Keaveny said. “And I don’t think in small part of the effects of Westray.”

Unions critical of the law

Criminal negligence charges have been laid under the Westray Act in about 23 incidents involving serious injury and death to workers since 2004 in Canada, according to a brief posted online by United Steelworkers, the largest private sector union in North America.

There have been no convictions under the law in Nova Scotia and only nine convictions nationally, the union said.

Danny Cavanagh, president of the Nova Scotia Federation of Labour, said he doesn’t believe the bill is working as intended, citing the low number of lawsuits.

Senior Crown Attorney Alex Keaveny says Westray’s legacy goes far beyond Bill C-45 and the Criminal Code. (Steve Lawrence/CBC)

But Keaveny, who was hired in 2014 as the province’s first dedicated workplace incident crown, said the test for criminal negligence is complex, rigorous and therefore difficult to meet successfully.

He said a low number of lawsuits can be explained by the fact that workplaces have stricter and more attentive occupational health and safety committees. This leads to a generally safer work environment, less risk-taking and fewer incidents that rise to the level of criminal negligence, he said.

“It should come as no surprise to anyone that the more attention we pay to security, the fewer of these failures will occur, and the fewer lawsuits there will be,” Keaveny said.

First Nova Scotian charged

In 2019, the first Nova Scotian charged under the Westray Act was found not guilty of criminal negligence causing death for the fire that claimed the life of an auto repair company employee.

Elie Hoyeck was charged after a van fire in September 2013 at his auto shop in Cole Harbour, Nova Scotia killed mechanic Peter Kempton.

Peter Kempton was a licensed mechanic with Your Mechanic Auto Corner in Dartmouth when he died in September 2013. (Radio Canada)

Keaveny sued the case.

“Ultimately, evidence of what actually happened could not satisfy the court beyond a reasonable doubt as to what the defendant did,” Keaveny said. “It’s not a unique issue. There was the issue of evidence.”

Hoyeck later pleaded guilty to three counts under the province’s Occupational Health and Safety Act and was ultimately fined $67,500.

In its online submission, United Steelworkers said there are a number of reasons the law is “grossly underused”, including a lack of education and training by police and prosecutors.

“The consequences and criminal significance of serious injuries and fatalities on the job have not entered the consciousness of police, Crown prosecutors and provincial health and safety regulators,” wrote the union.

“There is a widespread belief that serious injuries and fatalities on the job fall under provincial regulations and not criminal penalties. The evolution of thinking about the need to prosecute impaired driving offenses and domestic violence demonstrates an important parallel.

Call to designated unit

Five Nova Scotians died of acute trauma at work last year, according to data released by the Workers’ Compensation Board and the provincial Department of Labour. This was down from 18 acute deaths in 2020.

The Association of Workers’ Compensation Boards of Canada said there were 925 recorded workplace fatalities nationally in 2019. Data for 2020 is still being collected.

Marty Warren, national director of the United Steelworkers, said there would be more convictions if the police force created a designated unit specializing in the investigation of workplace injuries and fatalities.

It’s an idea Keaveny said he would generally support.

“The more dedicated people can be and the more knowledge they can acquire, the more effective they can be as investigators,” he said.