CORPORATE CRIMINAL RESPONSIBILITY AND THE WESTRAY MINE DISASTER

Background Notes

Westray Campaign Update


General Background to the Inquiry

Westray was an underground coal mine in Stellarton, near New Glasgow, Pictou County, Nova Scotia that blew up on May 9, 1992 killing all 26 people working in the mine instantaneously.

Westray was a corporation wholly owned by Curragh Resources, a company controlled by Clifford Frame and based in Ontario. The development of the mine in Stellarton received considerable political support from the provincial and federal government despite the opposition of technical experts and despite the history of mining fatalities in the area. Local historian James Cameron estimates that 576 deaths occurred between 1866 and 1972 in mining in Pictou County and that 625-650 died "from colliery misadventures in Pictou County" since the industry's debut in the early 1800s. The Federal MP was Brian Mulroney, later Prime Minister of Canada and the Provincial MLA was Donald Cameron, then Minister of Industry and subsequently Premier of the province.

A public inquiry into whether the explosion was preventable was established by Order in Council, and Mr Justice Richard of the Nova Scotia Supreme Court was appointed as Commissioner on May 15, 1992.

The Commission began public hearings formally on May 9, 1995 after the Supreme Court of Canada dismissed an application from the Westray managers to quash the Inquiry. Westray upper management tried to stop the inquiry through legal challenges, but the USWA took the case to the Supreme Court of Canada which ruled that there was no conflict between the Inquiry and the criminal charges against Phillips and Parry.


Public hearings covered 76 days of testimony concluding on July 11, 1996. In addition seized thousands of records from company and government . Final submissions were made on July 22, 1996. The most senior Westray management refused to take part in the inquiry. Clifford Frame, president and CEO of Curragh Resources, who Judge Richard said was unquestionably calling all the shots, and Marvin Pelley, vice president of Curragh and president of Westray, based in Ontario, used ever legal avenue available to stymie Inquiry attempts to subpoena them to give evidence. Gerald Phillips, the Westray mine manager, and Roger Parry, the underground manager, simply refused to take part and left Nova Scotia despite facing criminal charges. Phillips was subsequently hired by other Canadian mining companies operating in Latin America and Parry is said to be driving a bus somewhere in Alberta.


Content of the Report

The report systematically condemned mine management, politicians, and government regulators for what happened at Westray. From the very beginning of the process, Westray failed to comply with regulations and government regulators refuse to enforce the law. This began with the initial licencing of the mine and the mine plan and extended to include the ongoing operation of the mine, the training of the miners, and the handling of health and safety complaints. The report made clear that government inspectors and officials responsible for insuring compliance with the regulations knew or ought to know about the systematic violations that were occurring. Mines inspectors went underground, saw the conditions and heard the complaints...and did nothing. In one case, the inspector reported an injured miner to Westray management when he complained about how he was treated.

Leading politicians who supported the opening of the mine while not having any direct knowledge of what was going on, went out of their way to make sure that nothing interfered with Westray management and refused to do anything about the concerns that they did hear about. The Federal government who guaranteed the loans which Westray needed to open and the Banks who financed Westray delegated their responsibilities to insure the mine was operated safely to the same consultants that Westray was using.

Judge Richard made it very clear that the miners themselves were not responsible for what happened as every attempt to complain and to change conditions were ignored by management, by regulators, and by government. Every attempt was threatened with termination and by E.I. rules which penalize workers who quit their job. When the miners tried to organize to protect themselves, their efforts were defeated by management interference and a toothless Nova Scotia labour relations system..

The Report of the Inquiry, entitled " The Westray Story - A Predictable Path to Disaster," was released in November, 1997. The report is in two volumes encompassing 750 pages with a separate Executive Summary and Appendices. The Report made 85 separate findings of fact with respect to operation of the mine, its management, workers, and the role of the regulator and politicians. In addition, the Report makes 74 recommendations covering behaviour of management, safety standards, the provincial Department of Labour, provincial politicians, and the Federal Government.


What caused the Westray explosion?

A spark, caused by the spinning head of a continuous mining machine probably set off the methane gas which lead to the coal dust explosion, but deregulation - the government's systematic refusal to take steps to enforce the law and insure compliance by Westray management - played as great a role as the single minded obsession of management to produce coal for profit at any cost.


The Aftermath

The mine has not reopened since the explosion. Westray Inc went bankrupt, as did its principle, Curragh Resources, shortly thereafter.

The families of those who died in the explosion received workers' compensation benefits according to the law. Their attempts to achieve justice have been thwarted by the court's refusal to allow them to sue those who were responsible, and by the decision of the Nova Scotia government to withdraw criminal charges against Westray managers, Phillips and Parry, for their activities at Westray. Every May 9, family members and friends meet at the Westray Memorial located on surface at the site of the explosion to remember their dead.

Those miners who were not at work on the evening of May 9, 1992 have been waiting for the compensation due to them. Nova Scotia law requires the payment of a minimum period of wages in lieu of notice when a company closes. Some of the miners have gone on to other work; some have not. Many have suffered subsequent psychological problems as a result of their experiences at Westray; some have been so disabled that they too have been on workers' compensation.


What has been done about the recommendations of the Westray Inquiry?

  1. The Nova Scotia government hired a consultant, Ian Plummer, a former Inspector of Mines of Ontario, to review the activities of the Ministry of Labour. Plummer's report was released with no substantive recommendations to improve health and safety of workers in the province. Instead, he hides behind bureaucratic reorganization of the department without any consideration of the lack of effectiveness in protecting workers' lives. Ian Plummer, as a mines inspector, sat on the panel of industry experts which awarded Westray the mining industry's J.T. Ryan Award for Safety as the safest coal mine in Canada in 1991, 11 days prior to the explosion that killed 26 men.
  1. After a Canada wide lobbying campaign by Steelworker Union local unions, the Canadian Institute for Mining and Metallurgy for the first time in its history rescinded the 1991 J.T.Ryan Award given to Westray. Evidence at the Inquiry established clearly that management had lied about their conditions and nothing had been done to investigate the claims, including the recommendation by the then chef Mines Inspector in Nova Scotia, Claude White.
  1. All political parties in Nova Scotia stated in November 1997 after the report was released that the surviving Westray miners should receive the pay in lieu of notice to which they are entitled under labour standards legislation because the explosion that closed by the mine would have been prevented if management had complied with regulations. The explosion was not an "act of God" as had been claimed by Westray management. Despite these assurances, however, the Steelworkers' Union has had to repeatedly pressure the Minister and Premier to carry out the promises they made. Finally, on November 11, 1998, we have been advised by the Ministry of Labour that cheques have been sent out. Once again, government failed the miners, and only the support of their union enabled them to enforce their rights.
  1. On June 30, 1998, the Nova Scotia government withdrew criminal charges against Westray managers, Phillips and Parry, saying that there was insufficient evidence to convict them of crimes in the Westray explosion. This was after a previous trial had been aborted because of prosecutorial incompetence and which had been appealed to the SCC in order to bring these Westray managers back to trial.

    In September, 1998, the Steelworkers' Union became aware that Gerald Phillips had been working in Honduras for a Canadian mining company, Greenstone. In fact, he had been working in a number of Latin American countries for this company while on bail for criminal charges arising out of Westray. It has now come to light that Phillips is wanted in Honduras for the attempted murder of a worker who he severely injured while operating a bulldozer, trying to clear out a village for mining development. Phillips left the country and the employment of Greenstone, and went to work for Crystallex, another Canadian mining company, in Uruguay. When management of Crystallex was asked why they hired Phillips knowing about his history at Westray and the charges ain Honduras, the reply was, " There is such a thing as honour among thieves...you know, we're all mining, we all know the difficulties we have...This thing could happen to any of us,"[Globe and Mail, Oct 25, 98] It is clear that neither Gerald Phillips or the mining industry has learned nothing from the Westray disaster except they can get away with anything, here and abroad!

  1. On August 4, 1998 Alexa McDonough, leader of the Federal NDP, announced an intention to bring a resolution before the House of Commons calling upon the Federal government to amend the criminal code to include the crime of "corporate killing." She was supported by Lawrence McBrearty, National Director of the USWA, and by Ken Teesdale and Allen Martin of the Westray Families Group.
  1. The Westray Families Group and The NS Federation of Labour have begun a campaign to lobby the NS government to reinstate the charges against Phillips and Parry.
  1. The USWA has begun a lobby to encourage union activists and other sympathetic parties to write members of Parliament on a non-partisan basis to support Alexa McDonough's Resolution and to call for a private members bill to make the needed amendments to the Criminal Code.
  1. By letter dated November 5, 1998, the Deputy Minister of Justice of Nova Scotia wrote to the Federal Deputy Minister of Justice supporting the Steelworker's campaign to amend the Criminal Code and adopted the language for such an amendment proposed by our union in its submissions to The Westray Inquiry.

What is Corporate Criminal Responsibility?

The recommendation to the Federal government to consider amendments of the Criminal Code is found on page 601 of the Inquiry in a section entitled, "The Corporate Criminal?" Mr Justice Richard was responding to a submission from the Steelworkers Union, representing the surviving miners of Westray. The Union submission (see Appendix 1) urged three initiatives:

  • a new criminal offence "that would impose criminal liability on directors or other responsible corporate agents for failing to insure that their corporation maintained an appropriate standard of occupational health and safety in the workplace.
  • a criminal offence of "corporate killing."
  • additional provisions to provincial "Occupational Health and Safety Act" to broaden liability of directors and officers.


In response, Mr Justice Richard stated " In the context of Westray, they deserve consideration. Only two Curragh (Westray) executives, Colin Benner and Graham Clow, voluntarily appeared at the Inquiry hearings. Their testimony was significant. Other involved Westray executives such as Clifford Frame, Marvin Pelley, and Gerald Phillips have so far not given a public accounting for the stewardship of Westray. In my view, this lack of accountability indicates a weakness in our system. That weakness should not be permitted to persist." [emphasis added]

Recommendation 73 reads,

The Government of Canada, through the Department of Justice, should institute a study of the accountability of corporate executives and directors for the wrongful or negligent acts of the corporations and should introduce in the Parliament of Canada such amendments to legislation as are necessary to ensure that corporate executives and directors are held accountable for workplace safety.


On the afternoon of June 30, just prior to Canada Day, the crown prosecutors withdrew criminal charges against Westray managers Gerald Phillip and Roger Parry, stating, " Based upon the evidence available to the Crown, the prosecution service concluded that there is no reasonable chance that a conviction would result."

Legal Background

The Criminal Code contains no sections which define or describe corporate responsibility for the acts of its senior managers which affect the physical integrity or mental health of their employees.

Throughout the Inquiry Report, the Commissioner used expressions such as wilful blindness to describe the behaviour of some senior Westray managers towards their responsibilities. Had those actions been directly or immediately related to the spark which set off the explosion, there is no question that those people could be held criminally responsible for killing 26 persons. Because, however, the actions were indirect and indifferent to what may happen, there are questions about liability and accountability.

In either case, people knew what could happen, or were "wilfully blind" to the consequences.

Australia and Great Britain have or are taking steps to address this problem in the law.

The Australia Criminal Code Act, 1995, allows corporations to be held liable for criminal conduct if it can be proved that the practices or "culture" of the company encouraged or at least did not prohibit the alleged offence."

The British Law Reform Commission, in 1996, recommended to Parliament the creation of an offence of "corporate killing" where the behaviour of the corporation falls below that which would be expected of a corporation in the circumstances. The offence would be directed toward the failure of corporate management to maintain a safe system for the planning and execution of work. Recently, steps were taken in Britain to ensure police investigate the circumstances of all workplace fatalities.

The Criminal Code of Canada sets the most basic social responsibilities across Canada. There are code provisions which address violence to persons such as assault, murder, sexual assault, etc. In addition, the code also regulates property, commercial and financial behaviour under provisions such as fraud, unlawful use of credit cards, theft and possession of stolen goods.

Conclusion

The Steelworkers Union, representing the employees of Westray that survived as well as 185,000 working people across Canada, is committed to insuring the highest levels of protection of safety, health and the environment. The Union raised the need for corporate criminal responsibility at the Westray Inquiry and is now conducting a campaign across Canada to get appropriate changes to the Criminal Code and to provincial occupational health and safety legislation.

Our Union will continue to raise concerns about Westray in public and private forums where issues of health and safety are discussed across Canada, and lobby for amendments to legislation.