Judge reserves decision over Eastway Tank documents seized by police

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Some of the documents seized by police last summer as part of their criminal investigation into a deadly 2022 explosion at Eastway Tank contain solicitor-client communication and should be returned, lawyers for the company argued in court Wednesday.

The documents are among 26 boxes of evidence taken by Ottawa police in a July 2023 search of the company’s office and Eastway owner Neil Greene’s car and home as police reopened a criminal investigation into the explosion and fire that killed six Eastway workers.

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In April, Eastway and Greene pleaded guilty to three Ministry of Labour charges and were fined a total of $850,000. An initial investigation by Ottawa police found no criminal wrongdoing in the incident, but police opened a new investigation after the Ministry of Labour laid its provincial offence charges in December 2022.

In a hearing Wednesday before Superior Court Justice Julie Bergeron, lawyers for Greene and Eastway argued that the search had been unlawful and violated Greene’s constitutional rights. They also argued that some of the documents included Greene’s handwritten notes from meetings he had with lawyers about the Ministry of Labour charges.

Many of the boxes seized by police had been in Eastway offices during the explosion and were seriously water-damaged. The solicitor-client notes were in several undamaged boxes that were not involved in the fire, said Kirstin MacRae, one of the lawyers representing Greene at Wednesday’s hearing. She asked for the judge to be allowed to review the undamaged boxes and to remove that material.

The defence is also seeking to quash police attempts to seize insurance records and reports of the Ministry of Labour’s investigation.

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Because of the legal challenge, police have not examined any of the documents, which remain sealed in secure police storage. Both sides have agreed that an independent referee will review the documents in all the boxes and decide which, if any, can be used by police in their investigation. But they are haggling over details of the review and who will pay for it.

Greene has not been charged with any criminal offence.

Lawyer Vanessa Stewart, who represented Ottawa police at Wednesday’s hearing, argued that the defence request to quash the search warrants was “manifestly frivolous” and would obviously thrown out by any trial judge. She said any decision on admissibility should be left to a trial judge, if and when charges were laid and the case went to trial.

Defence lawyer Mark Ertel, who is representing Eastway and Greene, called that assertion “preposterous.”

“How can we apply to a court to have evidence excluded from a trial in a case where no charges have been laid and no trial has been set?” Ertel said. “It’s preposterous. There is no trial.”

In an agreed statement of fact entered during the trial on the Ministry of Labour charges, court heard that the explosion occurred during a “wet test” of a tank at Eastway’s Merivale Road plant on Jan. 13, 2022.

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Wet tests are used to check fuel tanks for leaks, but court heard that the diesel fuel used in the wet test that day had been contaminated by gasoline, greatly increasing the chance that fuel vapours would explode.

An investigation by Ontario’s Office of the Fire Marshal concluded that a gasoline-air vapour explosion occurred inside Eastway’s main shop, possibly triggered by mechanical spark or static electricity.

That initial explosion triggered a second, larger explosion that brought down the roof of Eastway’s building. Five workers in the plant died in the blast, and a sixth died the following day in hospital.

Bergeron reserved her decision on whether police could use the seized material in their investigation to a future date.

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