It was a couple of hours past midnight when Mike Piché walked through the portal to the Westray coal mine. His hard hat didn’t have a head lamp, so it was by flashlight that Piché scanned the surroundings, the sight of cigarette butts, the five-gallon pail lined with a plastic bag and fitted on top with a toilet seat, the coal dust that drifted shin high.

“It’s like stepping in talc,” Piché says of moving through the abundance of black dust that coated the tunnel that April morning, the dust that would explode weeks later, turning the Westray mine into a mortuary for 26 miners, and a permanent sepulchre for 11 of those men.

Piché had been leading an organizing drive for the United Steelworkers that spring 25 years ago. The accounts of production pressures and lax and even nonexistent safety standards at the Nova Scotia mine were legion. He remembers the meeting he had at Roy Feltmate’s place the evening of May 8. A few of the miners were there, an inside committee had been formed and the union was well on its way to certification with signed cards from 45 per cent of the miners. Feltmate promised to swing by Piché’s room at the Heather Hotel the next day with a few of the other guys. But at 5:18 the morning of May 9 the mine blew apart. Roy Feltmate was never seen again.

The cascading misery from Westray seemed never to end, and it’s worth a pause as the quarter-century anniversary approaches to think very hard about that. The inquiry into the tragedy led by Supreme Court Justice K. Peter Richard was definitive in laying the catastrophe’s root causes, from failures in the mine approval process, to the promotion of workers with little coal mining experience, to a “grossly inadequate ventilation system” to deal with the methane gas for which the Foord coal seam was famous. Basic safety measures were ignored. Stonedusting, “a critical and standard practice that renders coal dust non-explosive,” wrote Richard, “was carried out sporadically by volunteers on overtime following their 12-hour shifts.”

In the fateful moment, a spark was struck, perhaps during the rock cutting by a beast of a machine known as the continuous miner. The spark ignited the inadequately ventilated methane gas, “much the same way that the spark from the flint of a cigarette lighter will ignite the gas emitted from the lighter reservoir,” Richard wrote. The methane explosion fed a coal dust explosion, “causing death and devastation in a matter of a few seconds.” The photos of mangled machinery accompanying Richard’s report draws one word from Mike Piché: “Apocalyptic.”

The economic imperative of production consistently outweighed the safety of the workers in each and every measure and for this, Richard concluded, management, from Curragh Resources chief executive officer Clifford Frame on down, bore responsibility. “Westray management failed in this primary responsibility,” Richard wrote, “and the significance of that failure cannot be mitigated or diluted simply because others were derelict in their responsibility.”

Yet not one individual was successfully prosecuted.

“It’s an absolute travesty that not a single person paid for that crime, not a single person went to jail,” says Ken Neumann, the Steelworkers national director. “What’s so horrific is that so many people got away with the negligence that transpired. And that’s the reality today.”

In 2004 a major victory was scored. After years of lobbying by the Steelworkers and others Bill C-45, federal legislation known as the Westray Bill, was passed. A key component of that legislation attaches criminal liability to corporations and their representatives. Under the bill, the maximum penalty for the conviction of an individual found criminally negligent in the death of a worker is life in prison. The maximum penalty for criminally negligent injury to a worker is 10 years in prison. The maximum fine that can be levelled against a corporation? Unlimited.

Yet the Steelworkers haven’t taken a breath, arguing the obvious — that the law has been ineffectively applied. “Since the Westray law, over 10,000 workers have lost their lives,” says Neumann. “We have had a total of 11 prosecutions, and only one person has gone to jail, and that’s under appeal.”

He’s referring to the Toronto scaffolding collapse on Christmas Eve, 2009, that claimed the lives of four men. Six workers stepped onto a swing stage platform outside a Kipling Ave. high rise that afternoon to do balcony repairs on the building. The platform was equipped with two lifelines. One worker was tethered when the brackets failed and the scaffolding let loose on the 13th floor. One other worker survived the fall.

Project manager Vadim Kazenelson was found guilty on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. He was sentenced to three and a half years. Kazenelson is appealing his sentence. The company doing the work, Metron Construction, was initially fined $200,000. In that case the Crown, which had been seeking a fine of $1 million, appealed, and a three judge panel raised the fine to $750,000.

Too often, says Neumann, the Crown fails to lay criminal charges in cases of worker fatality and too often large corporations skate with nothing more than a fine. “In many cases it’s just been brushed to the side. Let’s get productivity up and running and, yeah, I’ll pay my fine. That’s got to come to an end. It’s just got to come to an end.”

Changing course demands education specific to the Westray amendments and co-ordination between regulators, police and Crown attorneys. Some provinces have taken positive steps. In 2014 Nova Scotia appointed a special prosecutor for workplace safety investigations. Last week, Alberta’s labour minister announced a Westray memorandum of understanding that sets shared protocols between police, the ministry of labour and health and safety in investigating workplace incidents.

In a statement on the National Day of Mourning Prime Minister Justin Trudeau reiterated the federal government’s commitment “to working to ensure the Westray law is applied effectively, and negligent employers are held responsible.” Training labour inspectors and law enforcement officials in the provisions of the law has been promised, and the sharing of best investigative practices across jurisdictions.

“Where’s the meat on the bones?” Neumann asks. “Where are the resources? Where’s the training?”

On Tuesday he will be in Stellarton. The fatherless children of the Westray miners are now grown. Some must have children of their own by now. There will be quiet moments of contemplation.

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Justice Peter Richard was given the investigative powers to determine whether the killing catastrophe was preventable. His answer was quietly eloquent: “Of course it was.”

jenwells@thestar.ca

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