1. By 8:30 that morning, Curragh had retained Tom Reid, a Bay Street public relations consultant, to direct their efforts. See Cameron, S. & Mitrovica, A., ”Burying Westray” Saturday Night (May 1994) 54 at 56Google Scholar. Shaun Cornish, a Westray miner who participated in the rescue effort, described the company's efforts at news management in his The Westray Tragedy (Halifax: Fernwood, 1993) at 48: “I have never seen so much snow in May. The media was snowed, and so was everyone else. The company controlled every bit of information given out to the public and the families.”

2. These causes are explored in Glasbeek, H. & Tucker, E., Death by Consensus: The Westray Story Working Paper No. 3 (Toronto: Centre for Research in Work and · Society, York University, 1992)Google Scholar; published in a slightly modified form in (1993) New Solutions 14 (further citations to New Solutions). For a more detailed account of events, see Jobb, D., Calculated Risk (Halifax: Nimbus, 1994)Google Scholar.

3. R. v. Curragh Inc. (1993), 124 N.S.R.(2d) 59 (Prov. Ct.) and (1994), 125 N.S.R.(2d) 185 (Prov. Ct.). Already, there is a cloud of legal uncertainty hanging over the trial because the presiding judge took the unusual step of calling the director of prosecutions to complain about the performance of the lead prosecutor. The judge refused to declare a mistrial and the Supreme Court quashed the application of the Crown for leave to appeal on the ground that the court had no jurisdiction to hear an appeal at this stage of the hearing. The court expressed no view of the application's merits. R. v. Curragh, [1995] S.C.C.A. No. 138 (QL). Another motion to stay the proceedings has been brought, based on an allegation that the prosecution is withholding evidence. “Westray Trial Hits New Snag” [Halifax] Daily News (11 May 1995)Google Scholar.

4. Canadian Occupational Health and Safety News (8 February & 24 May 1993). The possibility of benefit levels decreasing is a real one as a “reform” bill was recently passed by the Nova Scotia legislature. Benefit levels are to be calculated on after tax rather than gross income and survivor pensions are terminated at age 65. Workers' Compensation Act, S.N.S. 1994–1995, c.10.

5. “Westray Probe Clears Two Mine Inspectors” Toronto Star (22 April 1993) A13Google Scholar.

6. Coopers, & Lybrand, , “Review of the Management Practices of the Nova Scotia Department of Labour: Final Report” (2 April 1993)Google Scholar.

7. Nova Scotia, Occupational Health and Safety Advisory Council, Taking Responsibility (Halifax: Nova Scotia Occupational Health and Safety Advisory Council, 1995)Google Scholar.

8. Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] S.C.M. No.36 (QL), rev'g (sub nom. Phillips et al. v. Richards J.) 116 N.S.R.(2d) 30 (S.C.T.D.). Argument was heard by the Supreme Court of Canada in May 1994. No decision has been issued at the time of writing.

9. The legal proceedings include R. v. Curragh Inc., [1994] O.J. Nos. 1116, 1183 and 1452 (QL). Curragh has a $5 million trust fund which might be tapped for damages. See Jobb, supra note 2 at 273.

10. Quoted in Curran, D. J., Dead Laws for Dead Men (Pittsburgh: University of Pittsburgh Press, 1993) at 49–50Google Scholar.

11. Comish, supra note 1 at 48, refers to Benner as “the pretty boy they had brought in from Toronto … He did an excellent job of making the public feel sorry for the poor company …”.

12. Canadian Press (11 May 1992). The public relations strategy followed by Benner was devised by Tom Reid, Curragh's public relations consultant. The first “key message” he recommended was: “This is a terrible human tragedy that could not be foreseen.” Cited in Cameron & Mitrovica, supra note 1 at 56.

13. These are the words of Mr. Whymper, superintending inspector of the Southern counties of England, which were reprinted by Ontario factory inspector Barber in his Annual Report for 1888. See Tucker, E., Administering Danger in the Workplace (Toronto: University of Toronto Press, 1990) at 160Google Scholar.

14. D. MacLeod, “Colliers, Colliery Safety and Workplace Control: The Nova Scotia Experience, 1873–1910” in Canadian Historical Association, Historical Papers (1983), 233Google Scholar; Coal Trade Bulletin cited in Graebner, W., Coal-Mining Safety in the Progressive Period: the Political Economy of Reform (Lexington: University Press of Kentucky, 1976) at 25Google Scholar.

15. It has been suggested by Ryan, J. H., Coal in Our Blood (Halifax: Formac, 1992)Google Scholar, that the inexperience of the Westray miners made them less aware of the special hazards of the Foord coal seam and that this may have contributed to the disaster. “Author Cites Miners' Inexperience in Westray Disaster” Toronto Star (30 November 1992) A13Google Scholar. She did not, however, allege that the workers themselves created the danger.

16. For an insightful discussion of causal primacy issues, see Wright, E. O. et al. , Reconstructing Marxism (London: Verso, 1992) at 129–75Google Scholar.

17. The somewhat paradoxical definition of accidents is captured by Figlio, K., “What is an Accident” in Weindling, P., ed., The Social History of Occupational Health (London: Croon Helm, 1985) 180 at 180Google Scholar. “It is an unforeseen event which is also expected … The number and the kinds of accidents show regularities, but the moment of any one accident remains unknown, although it is often retrospectively ‘predictable’.”

18. Hart, H. L. A. & Honoré, T., Causation in the Law, 2d ed. (Oxford: Clarendon, 1985)CrossRefGoogle Scholar. On the history of “objective causation” in law, see Horwitz, M. J., The Transformation of American Law, 1870–1960 (New York: Oxford University Press, 1992) at 54–63Google Scholar.

19. This section draws heavily on Glasbeek & Tucker, supra note 2. Since we published that account, two books have appeared which support our analysis. See Cornish, supra note 1 and Jobb, supra note 2.

20. Cassels, J., The Uncertain Promise of Law (Toronto: University of Toronto Press, 1993)Google Scholar c. 2.

21. For example, the development of the Grande Cache coal mines in Alberta in the 1960s required the construction of a new town, transport and railway facilities, and power and gas installations. This was done at public expense. When the mine faltered and employment and revenue levels dropped, a royal commission was appointed by the province. It found that the province had agreed to participate in the venture “without any realistic or independent investigation of its economic feasibility.” Alberta, Grande Cache Commission, Final Report (Edmonton, 1973) at 114Google Scholar. The examples could be multiplied.

22. For an overview, see Brodie, J., The Political Economy of Canadian Regionalism (Toronto: Harcourt, Brace Jovanovich, 1990)Google Scholar.

23. For example, see Drache, D. & Gertler, M. S., eds., The New Era of Global Competition (Montreal: McGill-Queen's University Press, 1991)Google Scholar; Campbell, B., Moving in the Wrong Direction: Globalization, the North American Free Trade Agreement and Sustainable Development (Ottawa: Canadian Centre for Policy Alternatives, 1993)Google Scholar. It has been suggested that Nova Scotia's earlier experience of dependency may prefigure Canada's future. See Earle, M. & McKay, I., “Introduction: Industrial Legality in Nova Scotia” in Earle, M. & McKay, I., eds., Workers and the State in Twentieth Century Nova Scotia (Fredericton: Acadiensis Press, 1989) 9 at 17Google Scholar. By way of illustration, at the annual convention of the Prospectors and Developers' Association of Canada held in Toronto in March 1994, Robert Smith, president of the American Barrick Resources Corporation, complained that government regulations and taxes in Canada have contributed to “a climate of hostility” and is causing mining companies to direct their exploration dollars to other countries. Anne McLennan, the federal Natural Resources Minister, reassured the conventioneers that the government is committed to having a viable and competitive mining industry in Canada and proudly pointed to the 1994 budget which introduced new tax write-offs for mining companies and promised to examine the investment climate and the regulatory restraints imposed on the industry. Haliechuk, R., “Mine Renounces ‘Climate Hostility’ Driving Industry Out” Toronto Star (8 March 1994) D2Google Scholar.

24. On the history of disasters, see Cameron, J. M., Pictonian Colliers (Halifax: Nova Scotia Museum, 1974)Google Scholar and Ryan, supra note 15.

25. Gilpin, E., Coal Mining in Nova Scotia (Montreal: John Lovell, 1888) at 35Google Scholar.

26. Carrington, J. et al. , eds., Risk Taking in Canadian Mining (Toronto: Pitt, 1979) at 11Google Scholar. Frank Miller, then Treasurer of Ontario, in his preface to the volume, asserts (at 6) that there has been “an over-reaction against risk taking.” A foreword by E. G. Thompson, at 7, then the President of the Association, calls for an acknowledgement of the “debt of gratitude” owed to “our risk-takers.” There is no suggestion that this extends to working miners.

27. In this context, it is telling that the only time health and safety risks were highlighted as significant by the private Westray mine developers was in a memo Clifford Frame wrote, dated 9 November 1988, defending the proposed deal when it was criticized by some Ottawa bureaucrats as being too favourable to Curragh. “A lot can go wrong in the development of this mine,” he warned and then proceeded to list the potential problems including unforeseen geological faults, poor roof and floor conditions, excess methane, unskilled and inexperienced workers and underground fires. Cited in Jobb, supra note 2 at 158–59.

28. Canada Centre for Mineral and Energy Technology, Westray Coal Incorporated Pictou County Coal Project: Technical Review [n.d.] at 8 [emphasis added].

29. On the warnings, see Jobb, supra note 2 at 121–22, 141, 157–61, 168–70, 176, 181; Glasbeek & Tucker, supra note 2 at 17.

30. Statistics Canada data presented in Acres International Limited, Westray Coal Mine Initial Environmental Evaluation:: Final Report, January 1990 (Ottawa: Industry, Science and Technology Canada, 1990) at 4–18, 4–26Google Scholar.

31. Only Alberta had a lower union density. Statistics Canada, Annual Reports under the Corporations and Labour Union Reporting Act (Ottawa: Statistics Canada, 1989–1990)Google Scholar.

32. Tucker, Administering Danger in the Workplace, supra note 13 at 137–76.

33. For differing assessments of the general effectiveness of health and safety committees, see C. Tuohy & M. Simard, The Impact of Joint Health and Safety Committees in Ontario and Quebec; Tucker, E., “And Defeat Goes On: An Assessment of Third Wave Health and Safety Regulation” in Pearce, F. & Snider, L., eds., Corporate Crime: Contemporary Debates (Toronto: University of Toronto Press, 1995)Google Scholar [forthcoming]. Both studies recognize, however, that committee effectiveness will vary from workplace to workplace.

34. MacLeod, supra note 14 at 232–41; McKay, I., “The Realm of Uncertainty: The Experience of Work in the Cumberland Coal Mines, 1873–1927” (1986) 16 Acadiensis 3 at 43–53Google Scholar. Miners in British Columbia obtained the legal right to inspect in 1877.

35. Data was compiled from Nova Scotia, Department of Labour, Annual Reports (1985–1986 to 1991–1992) and from letter from Jim LeBlanc, Director, Occupational Health/Safety Training, Nova Scotia Department of Labour to Eric Tucker (19 August 1992). There are some discrepancies in the data. For evidence of enforcement deficits in other jurisdictions, see Brown, R., “Theory and Practice of Regulatory Enforcement: Occupational Health and Safety Regulation in British Columbia” (1994) 16 Law & Policy 63CrossRefGoogle Scholar.

36. Comish, supra note 1; Glasbeek & Tucker, supra note 2 at 22–23; Jobb, supra note 2 at c. 2 and c. 11.

37. Jobb, ibid. at c. 11.

38. Nova Scotia, House of Assembly, Debates and Proceedings (10 July 1991)Google Scholar.

39. For example, Comish, supra note 1 at 22 states: “From what I have heard and seen so far of the Labour Department … I truly believe the mine inspectors' hands were tied and their mouths were tightly gagged by some political power.” Also see Jobb, supra note 2 at 23–24, 206 and 210–12 for additional expressions of concern.

40. Quoted in Robb, N., “The History of Westray” (July/August 1993)Google Scholar Occupational Health and Safety Canada 43. Also see Jobb, supra note 2 at 205.

41. Comish, supra note 1 at 13, states: “Mining has come a long way over the years, but this place was like stepping back in time. The ‘my way or the highway” attitude was alive and well at Westray.” Also see Jobb, ibid.

42. The overwhelming majority of work refusals occur in unionized workplaces. For example, in Ontario in 1991, 79% of all work refusals occurred in unionized premises (Data provided by the Ontario Ministry of Labour, 22 October 1992). Moreover, the question of when a work refusal is legally justified is not altogether clear. For example, when some of Curragh's unionized employees at the Faro mine refused to work because there had been an “unusual” number of sulphur dioxide fume-producing fires in its ore mill, the arbitrator upheld the disciplinary sanctions imposed on them, in part because their work was not sufficiently unsafe at the time that they walked out. Curragh Resources Inc. v. U.S.W.A., Local 1051 (1990), 5 C.O.H.S.C. 81.

43. Comish, supra note 1 at 27, writes: “I still can't figure out why I didn't quit a dozen times.”

44. Ibid. at 28.

45. Generally, see Willis, P., Learning to Labor (New York: Columbia University Press, 1981)Google Scholar and Ackerlof, G. A. & Dickens, W. T., “The Economic Consequences of Cognitive Dissonance” (1982) 72 American Economic Review 307Google Scholar. On Nova Scotia coal miners, see McKay, supra note 34 at 52–57.

46. Bale, A., “America's First Compensation Crisis: Conflict over the Value and Meaning of Workplace Injuries under the Employers' Liability System” in Rosner, D. & Markowitz, G., eds., Dying for Work (Bloomington: Indiana University Press, 1989) 34Google Scholar, argues that American entrepreneurs supported the creation of a workers' compensation system to bar workers from challenging the moral legitimacy of capital through the fault system.

47. Although Nova Scotia law allows for “merit rating,” no scheme has been established. In any event, there is little evidence that these incentives induce employers to improve significantly their health and safety performance. See Lanoie, P., “Government Intervention in Occupational Safety: Lessons from the American and Canadian Experience” (1992) 18 Can. Pub. Pol. 62 at 66–67Google Scholar.

48. For example, Bale, A., “The American Compensation Phenomenon” (1990) 20 International Journal of Health Services 253CrossRefGoogle ScholarPubMed and West, L., “The Employer's Intentional Tort: Should it Be Recognized in Canadian Jurisdictions?” (1990) 13 Dalhousie L.J. 594Google Scholar.

49. See Ontario Law Reform Commission, Report on Exemplary Damages (Toronto, 1991) at 22–24Google Scholar and Waddams, S. M., The Law of Damages, 2d ed. (Toronto: Canada Law Book, 1991) para.3.510–3.700.Google Scholar

50. Workers' Compensation Act, R.S.N.S. 1989, c. 508Google Scholar. Actions against out-of-province manufacturers of equipment used in the mine are not barred.

51. The courts created a legal presumption that workers voluntarily assumed the risk of injury from hazards present in the workplace, including the negligence of co-workers. Contributory negligence on the part of the victim also constituted a full bar to recovery. Tucker, E., “The Law of Employers' Liability in Ontario, 1861–1900: The Search for a Theory” (1984) 22 Osgoode Hall L. J. 216Google Scholar.

52. (1902), 32 S.C.R. 427.

53. This is the argument of Bale, supra note 46.

54. Indeed, some settlements require the plaintiff's lawyers not to disclose damaging evidence that had been gathered and not to take further cases. For examples, see Cherniak, M., The Hawk's Nest Incident (New Haven: Yale University Press, 1986) at 65–66, 72–73Google Scholar; Brodeur, P., Outrageous Misconduct (New York: Pantheon, 1985) at 91–92Google Scholar.

55. Admittedly, there is nothing inherently “anti-capitalist” in this, but workers' compensation was an early step toward the creation of social insurance and a welfare state.

56. For a thoughtful discussion on this point, see McCann, M. W. & Silverstein, H., “Social Movements and the American State: Legal Mobilization as a Strategy for Democratization” in Albo, G. et al. , eds., A Different Kind of State? Popular Power and Democratic Administration (Toronto: Oxford University Press, 1993) 131Google Scholar.

57. On the rising cost, see Bale, supra note 46 at 38–41 and Risk, R. C. B., “‘This Nuisance of Litigation’: The Origins of Workers' Compensation in Ontario” in Flaherty, D., ed., Essays in the History of Canadian Law, vol. 1 (Toronto: University of Toronto Press, 1983) 418 at 435Google Scholar. On the incentive effects of the shift to workers' compensation, see Brody, D., Steelworkers in America (New York: Harper, 1960) at 167–68Google Scholar and Graebner, supra note 14. Also see Dewees, D. & Trebilcock, M., “The Efficacy of the Tort System and its Alternatives: A Review of Empirical Evidence” (1992) 30 Osgoode Hall L.J. 57Google Scholar. They conclude (at 131) that workers' compensation has had stronger deterrent effects than tort liability. Ofcourse, the relative cost of employer liability and workers' compensation systems depends on how each are structured. It may be that, in the United States, employers have been more successful at holding down benefit levels and limiting recognition of claims in workers' compensation systems than their Canadian counterparts, and that American courts have been more generous to injured workers than Canadian courts. The treatment of silicosis-related diseases by American workers' compensation boards and courts in the 1930s is suggestive, but neither American courts nor compensation systems were very generous. See Rosner, D. & Markowitz, G., Deadly Dust (Princeton: Princeton University Press, 1991) at 78–86 and 91–96Google Scholar; Cherniak, supra note 54 at 52–73.

58. See Hansmann, H. & Kraakman, R., “Toward Unlimited Shareholder Liability for Corporate Torts” (1991) 100 Yale Law Journal 1879 at 1885CrossRefGoogle Scholar and Roe, M. J., “Corporate Strategic Reaction to Mass Tort” (1986) 72 Virginia Law Review 1CrossRefGoogle Scholar. For a more extended critique of tort litigation from which I have drawn freely, see Glasbeek, H. J., “Outrage Is Not Enough” (1987) 7 Windsor Y.B. Access Just. 209Google Scholar.

59. For example, City of Kamloops v. Nielsen (1984), 10 D.L.R. (4th) 641 (S.C.C.) [thereinafter City of Kamloops]. In some jurisdictions, occupational health and safety officials are given statutory immunity from negligence actions in respect of the good faith execution of their duties. This immunity would also extend to the crown. For example, in Ontario see Occupational Health and Safety Act, R.S.O. 1990, c. O. 1, s. 65Google Scholar. There is no equivalent provision in Nova Scotia.

60. For an overview, see Woodall, K. M., “Private Law Liability of Public Authorities for Negligent Inspection and Regulation” (1992) 37 McGill L.J. 83Google Scholar.

61. In City of Kamloops, supra note 59, the failure to enforce a stop-work order issued by a building inspector was found to constitute negligence.

62. For example, in the two most recent Supreme Court of Canda decisions in this area, Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420 and Swinamerv. Nova Scotia (A.G.), [1994] 1 S.C.R. 445, the plaintiffs lost because the court found that policy, not operational negligence, was the subject of the complaint.

63. Supra note 5.

64. Glasbeek, H. J., “A Role for Criminal Sanctions in Occupational Health and Safety” in New Developments in Employment Law: Meredith Memorial Lectures (Montreal: Yvon Blais, 1989) 125Google Scholar.

65. Slapper, G., “Corporate Manslaughter: An Examination of the Determinants of Prosecutorial Policy” (1993) 2 Social and Legal Studies 423 at 436–41CrossRefGoogle Scholar and Snider, L., “Feminism, Punishment and the Potential of Empowerment” (1994) 9:1C.J.L.S. 75 at 78–85CrossRefGoogle Scholar.

66. For a summary and references to other sources, see Tucker, Administering Danger in the Workplace, supra note 13 at 66–75.

67. Canada, House of Commons, Debates (21 May 1888) at 883 (David Mills)Google Scholar.

68. For example, see R. v. Baker, [1929] S.C.R. 354, affg. (1928), 63 O.L.R. 275 (C.A.) which quashed the conviction of a hoistman employed by Inco Ltd. for criminal negligence. Nearly 60 years later, another Inco worker was charged with criminal negligence. He was acquitted at trial. See R. v. Kuhle (1990), 3 C.O.H.S.C. 53 (Ont. Prov. Ct.) and Lowe, M., “Wanton and Reckless Disregard? The Case of Joseph Kuhle” (1988) 10:6At the Centre 14Google Scholar.

69. For an egregious instance of government failing to lay charges even after a coroner's jury found employer negligence in the death of 21 coal miners in 1910, see Bercuson, D. J., “Tragedy at Bellevue: Anatomy of a Mine Disaster” (1978) 3 Labour/Le Travailleur 221CrossRefGoogle ScholarPubMed. For the unsuccesful prosecutions, see: R. v. Great Western Laundry Co. (1900), 13 Man. R. 66 (K.B.) (held that an indictment does not lie against a corporation for manslaughter since it could not be punished; this position was doubted by the Supreme Court of Canada in Union Colliery Co. v. R. (1900), 31 S.C.R. 81); Rex v. Canadian A His-Chambers Ltd. (1923), 54 O.L.R. 38 (C.A.) (conviction quashed on the basis that no evidence upon which conviction could be sustained); R. v. Canadian Liquid Air Ltd. (1973), 20 C.R.N.S. 208 (B.C.S.C) (at close of prosecution's case, jury directed to bring in a verdict of not guilty on charge of criminal negligence); R. v. International Paper Co. (1979), 50 C.C.C. (2d) 231 (Que. C.A.) (manslaughter conviction overturned on grounds that the prosecution failed to prove wanton or reckless disregard for the safety of others); R. v. Noranda Mines Ltd. (January 1983), (Ont. Prov. Ct.) [unreported] referred to in Lowe, ibid. (criminal negligence causing death charge dismissed for lack of evidence of wanton and reckless disregard); R. v. Syncrude Canada Ltd. (1983), 48 A.R. 368 (Q.B.) (acquitted because no reckless disregard for safety of workers; Québec (A.G.) v. Belmoral Mines Ltée, [1989] 1 S.C.R. 422 (case arose out of a cave-in at a mine in Val D'Or, Québec that killed eight miners). At trial, held six years after the event, the corporation was acquitted. On appeal, a new trial was ordered and the Supreme Court of Canada upheld that decision. Despite this, charges were dropped in 1990 because the company had agreed to pay $25,000 compensation to each victim's family and because the prosecutor could see no useful purpose in pursuing the case ten years after the event.) McKenna, B. & Poirier, P., “Charges Dropped Against Mining Firm” The [Toronto] Globe & Mail (2 February 1990) A1Google Scholar. The only successful prosecution was brought against Brazeau Collieries. An explosion at its Nordegg mine on 31 October 1941 killed 29 workers. As in Westray, the defendants brought a motion to quash the charge because it lacked particulars. The motion was dismissed. See Rex v. Brazeau Collieries Ltd. (1942), 3 W.W.R. 570. A conviction was obtained for criminal negligence based on evidence indicating frequent occurrences of high levels of methane gas in the mine before the explosion. Despite complaints by the miners and their union, precautions had not been taken. Chief Justice Ives explained that he did not impose a substantial penalty because of the close and friendly association between mine officials, pit bosses, fire bosses and miners. “Outside of the mine conditions, the company … acted in the interests of the men”. “Nasdegg Mine is Fined $5,000”, Calgary Herald, (18 (?) January 1943)Google Scholar. I am indebted to Dean Jobb for bringing this conviction to my attention.

70. Ideology also influences the conduct of police investigations. Bergman, D., Deaths at Work: Accidents or Corporate Crime? (London: WEA, 1991) at 12–18Google Scholar. At Westray, for instance, the police failed to take timely steps to obtain search warrants and secure evidence, presumably because they assumed, initially, that no crime was committed. See Cameron & Mitrovica, supra note 1 at 59–60.

71. A second set of charges was laid, and their validity was upheld when challenged. Supra note 3.

72. R. v. Curragh Inc. (1994), 126 N.S.R.(2d) 159 (S. Ct.); “Westray Judge Agrees to Strike ‘Edited’ Safety Report, Testimony” [Halifax] Daily News (25 April 1995)Google Scholar; and “Westray Trial Hits New Snag”, supra note 3.

73. This is not the place to elaborate upon these difficulties. The literature is vast. For a good beginning, see Wells, C., Corporations and Criminal Responsibility (Oxford: Clarendon Press, 1993)Google Scholar and Glasbeek, H. J., “Why Corporate Deviance is Not Treated as a Crime: The Need to Make Profits a Dirty Word” (1984) 22 Osgoode Hall L.J. 394Google Scholar.

74. This last point is made particularly well by Johnstone, R., “The Legal Construction of Occupational Health and Safety Offences in Victoria: 1983–1991” in Johnstone, R., ed., Occupational Health & Safety Prosecutions in Australia, Occasional Monograph Series No. 1, (Melbourne: Centre for Employment and Labour Relations Law, 1994) 78Google Scholar.

75. The criminal law has been used most successfully in the United States. Bixby, M., “Workplace Homicide: Trends, Issues and Policy” (1991) 70 Oregon Law Review 333Google Scholar. There was also a recent conviction of an employer for manslaughter in Australia. R. v. Denbo Pty Ltd., (14 June 1994) (Sup. Ct. of Victoria) [unreported] See Johnstone, ibid.

76. I have not considered the role of prosecutions for regulatory offences even though this is the most common way that employers are legally sanctioned in Canada. There is a debate over the relative merit of regulatory and criminal prosecutions. There is less stigma associated with conviction for a regulatory offence. The advantages of regulatory prosecutions are that there are likely to be more of them and a greater percentage will succeed. See K. Webb, “Controlling Corporate Misconduct through Regulatory Offences: The Canadian Legal Experience” in Pearce & Snider, eds., supra note 33 [forthcoming]; Carson, K. & Johnstone, R., “The Dupes of Hazard: Occupational Health and Safety and the Victorian Sanctions Debate” (1990) 26 Australia-New Zealand Journal of Sociology 126CrossRefGoogle Scholar.

77. In one of the first inquiries into an industrial-type disaster in Canada, commissioners found that the Great Western Railway had put its trains into operation, over the objection of its chief engineer, before the track was adequately secured and proper systems of management in place. The major recommendation, however, was that workers should be made criminally responsible for breaches of the railway's operating procedures. Despite this and numerous other inquiries into railway hazards, employment on the railways remained one of the most dangerous occupations in Canada. See Craven, P., “The Meaning of Misadventure: The Baptiste Creek Railway Disaster of 1854 and its Aftermath” in Hall, R. et al. , eds., Patterns of the Past (Toronto: Dundurn Press, 1988) 108Google Scholar.

78. Alberta, Report of the Commission appointed for the Investigation and Enquiry into the Cause and Effect of the Hillcrest Mine Disaster in Alberta, Department of Public Works, Mines Branch, Annual Report, 1914, (Edmonton: J. W. Jeffrey, Government Printer, 1915) at 161–69Google Scholar; Alberta, Report of an inquiry into the cause of the explosion the 9th day of December, 1935 in a coal mine known as the “Imperial Mine” operated by the Lethbridge Collieries Limited, (Calgary: [s.n.], 1936)Google Scholar; Scotia, Nova, Report of the Royal Commission Appointed to Inquire into the Explosion and Fire in the No. 4 Mine at Springhill, N.S. on the 1st Day of November, 1956 (Halifax: Queen's Printer, 1957)Google Scholar; Nova Scotia, Report of the Royal Commission Appointed to Inquire into he Upheaval or Fall or other Disturbance sometimes referred to as a Bump in No. 2 Mine at Springhill, in the County of Cumberland operated by Cumberland Railway and Coal Company, on the 23rd of October, 1958, (Halifax: Province of Nova Scotia, 1959)Google Scholar; Alberta, Coal Mine Safety Board of Inquiry, Final Report, vol. 1, (Edmonton: Workers' Health, Safety and Compensation, 1981)Google Scholar (Commissioner: H. G. Stephenson). For a discussion of the underlying causes of the 1958 “bump” and the failure of the inquiry to consider them, see McKay, I., “Springhill 1958” (1983–1984) 4:2New Maritimes 4Google Scholar. For a discussion of the Stephenson inquiry and particularly of its failure to censure local mine officials, including Gerald Phillips who was underground manager in the year leading up to the cave–in at the Reiff Terrace mine, see Jobb, supra note 2 at 113–15.

79. Canada, Royal Commission on the Ocean Ranger Marine Disaster, Report Two: Safety Offshore Eastern Canada (Ottawa: Ministry of Supply and Services, 1985) at 15Google Scholar.

80. Ibid. at 14.

81. Carson, W. G., “Learning from Experience” (1985) 8:4At the Centre 7 at 9Google Scholar.

82. Canada, Commission of Inquiry: Hinton Train Collision (Ottawa: Ministry of Supply and Services, 1986)Google Scholar [hereinafter Hinton Commission].

83. A number of other inquiries during this period operated from the same premise. These included the Ham Commission and the Burkett Inquiry, both of which promoted the creation and development of an internal responsibility system for regulating health and safety in which workers would have a consultative role. Ontario, Report of the Royal Commission on the Health and Safety of Workers in Mines (Toronto: Ministry of the Attorney General, 1976)Google Scholar (Commissioner: James M. Ham); Canada, Towards Safe Production: The Report of The Joint Federal-Provincial Inquiry of Commission into Safety in Mines and Mining Plants in Ontario (Toronto: Joint Federal-Provincial Inquiry Commission into Safety in Mines and Mining Plants in Ontario, 1981)Google Scholar (Commissioner: Kevin M. Burkett).

84. Alberta, Report of an Enquiry into a Disaster whereby twenty-nine men lost their lives on October 31, 1941, in a coal mine known as Number 3 Mine, owned & operated by Brazeau Collieries Limited, at Nordegg, Alberta (Edmonton: [s.n.], 1941) at 21Google Scholar.

85. Canada, Report of Commission of Inquiry, Explosion in No. 26 Colliery Glace Bay, Nova Scotia on February 24, 1979 (Ottawa: 1979)Google Scholar, (Commissioner: R. H. Elfstrom) at ix–x [hereinafter Elfstrom Report].

86. Ibid. at 32.

87. Ibid. at xi, xiii, 17–18, 36–38.

88. Salter, L., “The Two Contradictions in Public Inquiries” in Ross, A. P. et al. , eds., Commissions of Inquiry (Toronto: Carswell, 1990) 174Google Scholar. For more positive assessments of the radical potential of royal commissions, see Jenson, J., “Commissioning Ideas: Representation and Royal Commissions” in Phillips, S. D., ed., How Ottawa Spends 1994–95: Making Change (Ottawa: Carleton University Press, 1994) 39Google Scholar; Bradford, N., “Ideas, Institutions and Innovation: Economic Policy in Canada and Sweden” in Brooks, S. & Gagnon, A.-G., eds., The Political Influence of Ideas (Westport: Praeger, 1994) 83Google Scholar.

89. Hinton Commission, supra note 82 at 91–92 and Elfstrom Report, supra note 85 at xii.

90. On the Alberta and British Columbia governments' lack of responsiveness to recommendations of coroners' inquiries and special commissions in respect of coal mine disasters early this century, see Green, J. A., Calculated Risks: Worker, Owner and Government Attitudes Towards Safety in the Crow's Nest Pass Mines, 1900–1915 (M.A. Thesis, University of Calgary, 1990)Google Scholar [unpublished] at 186–89.

91. Curran, supra note 10 at 104–08.

92. The history of this health and safety movement has yet to be written. For a beginning, see H. Sequin & A. King, “Some Reflections on the Health and Safety struggles of Northern Ontario Miners” (paper presented to the New Solutions Conference, 9 September 1994) [unpublished] and Walker, B., “Government Regulation of Health Hazards in the Ontario Uranium Mining Industry, 1955–1976” in Bray, M. & Thompson, A., eds., At the End of the Shift (Toronto: Dundurn Press, 1992) 130Google Scholar.

93. Zeluck, B., “Organizing for Our Lives” (1994) 9:1 [new series] Against the Current 6 at 9Google Scholar.

94. For some interesting observations on tactics for joining legal and mobilization strategies, see McCann & Silverstein, supra note 56 at 140–42.