OHS Canada Magazine

Former Nova Scotia autobody shop owner gets heftier fine for workplace death

Original sentence failed to consider 2011 increases to fines


By Michael MacDonald

HALIFAX — A Nova Scotia Supreme Court judge has increased by $40,000 the fine imposed on a former autobody shop owner who pleaded guilty last year to three workplace safety violations that contributed to the death of a mechanic.

The court released a written decision Tuesday saying the sentence for one of the violations — a fine of $5,000 and a victim fine surcharge of $750 — was “demonstrably unfit” because the sentencing judge failed to consider how the law had been changed to allow for increased penalties.

On June 5, 2020, provincial court Judge Elizabeth Buckle handed more than $27,000 in penalties to Elie Phillip Hoyeck, owner and supervisor of Your Mechanic Auto Corner in Dartmouth, N.S., saying his admitted safety violations demonstrated a reckless disregard or deliberate indifference to safety.

Former auto shop owner fined more than $27,000 for violations in worker’s death

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The court heard that on Sept. 20, 2013, mechanic Peter Kempton was using an acetylene torch to remove straps from a gas tank on a minivan when the tank exploded in flames, causing third-degree burns to 90 per cent of his body. He died in hospital the next day.

The lower court judge said Hoyeck knew Kempton was using the torch in the confined space under the van and knew it was unsafe. She decided that Hoyeck had failed to ensure the shop’s equipment was safe and didn’t have an emergency response plan for working with hazardous materials.

At the time, Buckle said the penalties had to “bring home the gravity of the offence,” but she said they couldn’t be “crushing” because of the small size of Hoyeck’s former business and his limited finances.

The Crown appealed the sentence, arguing the judge had made errors in law that had an impact on the sentence for one of the violations.

On Friday, Nova Scotia Supreme Court Justice John Bodurtha increased one of the fines from $5,000 to $40,000 and raised a victim fine surcharge from $750 to $6,000. As well, Hoyeck was ordered to perform 100 hours of community service work instead of 25, and he must follow through on a previous order than he pay $10,000 to an education fund.

Bodurtha said the original sentence failed to consider the 2011 increases to fines in the provincial Occupational Health and Safety Act, and he made it clear that the courts should impose stiffer penalties when the legislature increases the maximum sentence for an offence.

“These successive increases in maximum sentences indicate clearly the Nova Scotia legislature’s determination that (Occupational Health and Safety Act) offences are serious offences that must attract serious penalties, and signals to the court that the penalties for OHSA offences should increase,” Bodurtha said in the ruling released Tuesday.

“I find the sentencing judge failed to give effect to the 2011 amendments by imposing a sentence that was significantly lower than the only post-2011 fatality sentence, and even lower than pre-2011 fatality and non-fatality cases. ”

He noted that the sentencing judge had imposed $15,000 in fines, which represented only three per cent of the maximum allowable fine at $500,000.

Hoyeck, who has a record for criminal and regulatory offences, has been given four years to pay the fines and donation.

In January 2019, Hoyeck was acquitted of criminal negligence causing death in a criminal prosecution under Bill C-45 — also known as the Westray law. The charge was the first in the province under that law, which was passed after 26 miners were killed when methane gas ignited in the Plymouth, N.S., coal mine in May 1992.