CORPORATE CRIMINAL RESPONSIBILITY AND THE WESTRAY
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
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
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
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
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 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?
- 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.
- 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.
- 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.
- 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!
- 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.
- 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.
- 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.
- 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
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
- 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
- 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."
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
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
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.