5 key questions hanging over Friday's expected Eastway Tank guilty plea

Phil Bertrand was workingnearby onMerivale Road onthe day Eastway Tank, Pump and Meter Ltd. exploded with his longtime friend and formerco-worker Matt Kearney inside.

Bertrand texted Kearney that afternoonbutgot no response. Four hours later, still nothing.

"You're going to be okay, buddy," Bertrand wrote.

By 7:12 p.m., when it was known that critically injuredpatients had been taken to hospital, Bertrand startedbegging.

"Don't you go f--king dyingon me," he messaged the man heloved like abrother.

Kearney, a36-year-old service technician at Eastway, died from his injuries in hospital the next day.

Five other employees of the decades-old tanker manufacturing companydied in the blast on Jan. 13, 2022.

They were Rick Bastien, 57, Etienne Mabiala, 59, Danny Beale, 29, Kayla Ferguson, 26, and Russell McLellan, 43.

Bertrand said he once worked at Eastwayin the mid- to late 2000s but leftbecause it was "beyond cramped" and a "death trap" where "nobody ever seemed to care about proper facility standards."

Like other former Eastway employees who have spoken to CBCabout alleged safety lapses allegationsthe company has called"unfounded" Bertrand said he witnessed welding near flammable materials, as well asprevious fires.

He said the spray booth was so small that"if you had a truck in, you could only paint one side at a time."

Bertrandsaid he'd told Kearney to leave Eastway too, and dreamed of him the night of the explosion.

"Every time I'd be getting close to Matt... the fire would pull him away," Bertrand recalled.

Bertrand is one of many who willbe closely following the outcome of a scheduled legal proceeding on Friday in Courtroom 9 of the Ottawa Courthouse on Elgin Street.

Eastway and its owner Neil Greene standaccused of breaching Ontario's Occupational Health and Safety Act (OHSA) "on or about" the day of the explosion.

A months-long trialwas expected to begin last month. Instead, aguilty plea is expected in the judge-only case, as the Ministry of Labour recently told the families of the dead.

But exactly how Friday's court date will shake out remains unclear. Here are five key questions.

What more will we learn about the day of explosion?

Virtually no public accountof theblastor what led to it has emerged over the last two years.

Ontario's Office of the Fire Marshal investigated the cause and finished its investigation last fall, but said its findings would not be made public until "all charges and legal matters are settled."

There will be an agreed statement of facts filed in court on Friday, instead of weeks of testimony.

The statement may or may not delve into the inspections that turned up earlier safety concerns at Eastway involving exhaust pipe ventilation, welding safety and training, exposureto hazardous chemical substances, and workers not wearing personal protective equipment.

Reggie Ferguson, whose niece Kayla died in the explosion, told CBC he hopes to finally learn the truth about that day.

"There's so many different [stories].Everybody's saying different things," Ferguson said.

Eastway and Greene each face three identical charges, which may offer clues.

In the first charge, the ministry allegesEastway failed to ensure the process of loading and "wet testing" a truckhappened away fromignition sources. Wet testinginvolves loading a tanker with diesel or gasoline in order tocalibrate equipment within thetanker.

"You could have a guy doing a wet test on a truck and then somebody welding a truck right beside it," Bertrand said of his time at Eastway.

The second charge accuses Eastway of "splash" loading fuel into the truck.

"This method is when the driver or company opens the lid on top of the tank and just pumps product into the opening with no control, so the product just splashes all over the tank, spilling on the tank [and] creating a fire or explosion hazard," Chris Revers, who managed a tank manufacturing plant in Alberta for 16 years, previously told CBC.

The third charge alleges Eastway did not properly instruct workers on safe fuel storage or handling procedures.

Charlotte Rothgeb, who worked at Eastway on and off between 2017 and 2021, said she's grateful for the work experienceshe gained there,butaddedshe was "scolded" by colleagues for wanting to do things safely.

"They just wanted me to weld fuel-soaked and corroded aluminum," she said.

Rothgeb does not believe Greene bears sole responsibility for what happened, and said she can't imagine what he's been through, having lost a family business started by his father in 1968.

"He trusted [others]to run the shop," she said of Greene and the safety culture at Eastway.

CBC reached out to Greene and his lawyer but did not hear back by deadline. CBC has made numerous attempts to contact Greene over the past two years. The lasttime he provided a comment was within weeks of the blast to say Eastway always worked to maintain the highest safety standards.

Will the penalty include time behind bars?

This is the biggest unknown to be decided by thepresiding judge onFriday, and it depends on a number of factors.

It's unclear whether Greene, the companyor both will plead guilty nor how many of the six charges will result in convictions. The OHSA lays out different penalties for people and companies.

In the early 2022 version of the act that applies in Eastway's case, a convicted person faces a maximum fine of $100,000, up to a year in jailor bothfor each guilty count.The act does not lay out minimum penalties.

Convicted companies, meanwhile, pay up to $1.5 million per conviction.

In other words, if only Eastwayas a companypleadsguilty on Friday, there will be no jail time involved.

It's also unclear if the lawyers will make a joint submission, which means they agreeon the total penalty, or whether it will be an "open range" scenario wherelawyers will argue for a different combination of penalties.

Most OHSA cases don't go to trial and are settled via a joint submission because the other scenario leaves defendants open to harsher penalties, said Cheryl A. Edwards,a former Ministry of Labour prosecutor who's now a defence lawyer for businesses. She has no connection to the Eastway case.

Skipping a trial saves the court time and money, spares families an unpleasant deep diveand generally results in a more lenient total penalty, Edwards added.

The presiding judge might take into account aggravating factors onlyrecently codified in the latest version of the act, including whether the defendant was motivated by a desire to decreasecostsor whether they have expressed remorse.

Greene said in an earlierstatement that he was "completely [devastated]" by the "tragic explosion" and that his heart went out to the families for this "deep loss."

"Jail is extraordinarily rare in these cases," Edwards said of past convictions.

It's possible the judge will reserve the decision for later.

Will families and friends be satisfied?

Bertrand andrelatives of Rick Bastien and Kayla Fergusonhavetold CBCthey feel Greene should spend timebehind bars.

When the OHSA charges were announced one year after the explosion, Janet Ferguson, Kayla's mother,said the2022 penalties left a lot to be desired.

"There's been six that were killed and one badly injured. I don't think that's enough," said Ferguson, who died last year.

Janet's brother Reggie Ferguson Kayla's uncle said he will be at the courthouse.

"Hopefully the company never reopens," he said.

Rick Bastien's fiance Louise Martel, who has prepared a victim impact statement for Friday, has said Greene should go to jail for life.

"They're not coming back," she said of the explosion's victims. "So why should hebe out there living his life?"

Greene is expected to attend court in person.

Generally, people sentenced to jailare taken immediately into custody, but they can apply for bail pending appeal right away, Edwards said.

Will the penalty send a strong enough message to other businesses?

According to the Ottawa and District Labour Council, the Eastway explosion is the city's deadliest workplace incident since the Heron Road Workers Memorial Bridge collapsed in 1966.

Nine people died in that disaster, andin 2016, following a campaign by the labour council,the bridge was renamed to commemorate them.

Sean McKenny, the council's president, said he doesn't know Greene orwhat he's going through.

"I can imagine that his family is going through stuff.I get that," McKenny said.

But Greene was ultimately responsible for the safety of Eastwayworkers, andthe penalty meted out in the case needs to send a strong message to other companies about focusing their energies "at all times" on "proper" health and safety procedures,McKenny added.

"Their lives were certainly worth a lot more than a [$100,000] fine,"he said of the Eastway victims.

While each case is different, a sawmill in Ignace, Ont., where a worker died in 2022 was ordered to pay $500,000 last year, thehighest fine issued in an OHSA caseduring the last 12 months thattheMinistry of Labour posted on its website.

What now?

The Ottawa Police Servicecontinues its concurrent criminal investigation into the Eastway blast, a spokesperson confirmedearlier this week.

Greene has sued Eastway's insurance broker for alleged losses of more than $13 million. The brokerrecently fired back in astatement of defence. That civil case remains before the courts.

It's unclear if a discretionary coroner's inquest will ever occur into the Eastway explosion.

Inquests, whichare fact-finding processesas opposed to fault-findingones,are only mandatory under certain circumstancesincludingdeaths at construction sites. Eastway is not considered a construction site, a spokesperson for the coroner said.

Even if there is an inquest, it could be a long wait.One recently announced inquest into a death in Ottawa involves an incident that happened in 2016.

Inquests can't happenuntil "all other investigations and any legal proceedings have occurred," aspokesperson previously told CBC.

McKenny is hoping for an inquest, even though the recommendations that come out of the processare not legally binding.

Whatever happens next, Bastien's widow Lousie Martel said she's relieved there will be no OHSA trial, and is looking to Friday as a necessary step toward closure.

"It's coming to an end, andhopefullywe'll get answers and we'll be able to go forward with our life."