Westray was a watershed for worker safety. Then why do so many still die on the job?
Law that came out of 1992 disaster aimed at making it easier to criminally prosecute employers
After the 25th anniversary of the Westray disaster was marked on May 9, Allen Martin figured he wouldn't be needed for any more interviews about the mine explosion that killed his brother Glenn and 25 other coal miners.
He was wrong. He's still talking to reporters, making speeches and writing articles — all with the goal of promoting safe workplaces — even though they rip open old wounds from a painful and preventable tragedy.
"The older you get, the harder it is, I can tell you that," Martin says from his home in Riverton, N.S. "You get tired of the same old, the same old."
At 65, despite feelings of helplessness and frustration, he continues his fight to improve worker safety in Canada. And with good reason.
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Since 2010, an average of about 350 workers have been killed on the job each year in Canada. That's nearly one fatality per day.
A cross-country survey by CBC News reveals that only five employers have served time behind bars in fatality-related incidents — with terms ranging from 15 to 120 days. All were convictions under the Occupational Health and Safety Act.
And in Nova Scotia, where the 1992 Westray disaster lingers in the minds of many, fines against those convicted of breaking workplace safety laws are among the lowest in the country, CBC News has found.
All of which is leading the families of some victims of workplace accidents to press for more enforcement and criminal prosecutions.
The statistic — a workplace death a day — should outrage everyone, and compel a culture of workplace safety, Martin says. And yet, he says, very little has changed.
"I don't know what you have to do to make people care."
In the Westray tragedy, criminal prosecutions were not successful. Charges of manslaughter and criminal negligence against two mine managers were dropped because the Crown didn't feel the evidence supported a conviction.
A later inquiry by Justice Peter Richard recommended the creation of a new law. What became known as the Westray Bill came into effect in 2004 and amended the Criminal Code of Canada to make it easier to charge employers and companies with criminal negligence in serious injury or death cases.
It seemed like a watershed.
Ever since it came into effect, Martin has been calling for education and training to ensure the law is used by police and prosecutors.
But in the last 13 years, prosecutions under the Westray law have been rare. According to University of Ottawa criminologist Steve Bittle, who has researched this topic, there have only been four true Westray convictions.
"Dashed hopes, again. Westray's full of them," Martin says.
This April, on the national day of mourning for workers killed on the job, the federal ministers of labour and justice pledged action on the Westray law. They said their departments would work with the Canadian Labour Congress, employers, and provinces and territories to ensure the possibility of a Westray prosecution "is not overlooked."
Matt Pascuzzo, press secretary for federal Labour Minister Patty Hajdu, says work is underway on a joint plan to train law enforcement and health and safety officers, and to develop tools they and prosecutors can use in the field.
The government is also working to spread the word about the Westray provisions and share best practices for investigating and prosecuting cases.
Those kinds of initiatives are what Shannon Kempton believes are crucial. Her father, Peter, a mechanic, died in an explosion at a Dartmouth, N.S., auto yard in 2013.
In the months after his death, she looked up every scrap of information she could find about the Westray law.
Convinced this might be a Westray case, she began lobbying the provincial Department of Labour "to put it on their radar" and hand over files to police. She also spoke publicly about her fight.
"I think my perseverance made sure that the RCMP took a look at the file," she says. "Because they decided to look, the RCMP were able to find the evidence they needed to lay that charge."
Kempton's employer, Elie Hoyeck, was charged in 2015 with criminal negligence causing death, the first Westray law charge ever laid in Nova Scotia. The case is heading to a jury trial in June in Nova Scotia Supreme Court.
Alex Keaveny will prosecute the case. In 2014, he was hired as Nova Scotia's first Crown attorney dedicated to workplace incidents.
He won't talk about the criminal charge laid against Hoyeck because it's before the courts.
But he says the Westray law is rarely applied because the legal threshold to prove criminal negligence is high, even in cases where a worker is killed. Negligence is easier to establish under the lesser burden of occupational health and safety regulations.
Work is underway in Nova Scotia to improve enforcement and prosecution of the Westray law. In January 2016, the Labour Department held an educational symposium for police officers and occupational health and safety workers.
Among the speakers were police detectives and sergeants whose work helped secure a Westray criminal conviction in the Metron case in Toronto involving four construction workers who fell to their deaths.
The department also says memorandums of understanding to co-operate on files were signed between the province and agencies including RCMP, Halifax Regional Police and Cape Breton Regional Police.
Kempton says the Westray provisions making workplace negligence a crime are key. The problem with occupational health and safety charges is that they lack "the substance it needs to be effective, to make an employer think," she says.
Occupational health and safety charges tend to result in fines and rarely in jail sentences, she says. Under Nova Scotia's Occupational Health and Safety Act, the maximum fine for a first offence is $250,000, and $500,000 for a second offence or for a fatality.
A CBC News analysis of data provided by Nova Scotia's Labour Department shows the median total fine since 2011 for occupational health and safety violations involving a fatality was $70,000. It's among the lowest in the country.
Only Nova Scotia and three other provinces have handed down jail terms for these types of incidents. The Nova Scotia employers were jailed in separate roofing-related incidents — and one was fatal.
'They have the right to work safely'
Kempton believes a lot is at stake in the current criminal case involving her father's employer — and not just for her family.
"If there's a conviction, it'll send a strong message to employees that they have the right to work safely, and I think that's important," she says.
She says she feels an obligation to see this through.
"For those [Westray] families there's nothing they can do, but at least for our family at least something's been done, and the Westray Bill is being enforced."
Martin says he's grateful to Kempton for keeping up the fight. For him, every incident is an echo of what happened 25 years ago.
"They're not on the same scale, but when somebody is injured or made sick or killed, in my mind it's a Westray," he says.
With files from Jacques Marcoux and Kristin Annable