N.S. man fined more than $27K for workplace safety charges after mechanic's death

A provincial court judge has fined Elie Hoyeck $27,250.

Hoyeck is a former auto repair shop owner in Westphal, N.S., who pleaded guilty to workplace safety charges following the death of a mechanic more than six years ago.

In February, the Crown proposed a $70,000 fine while the defence recommended $6,000.

"The penalty I impose has to cause some pain in order to bring home the gravity of the offence," Judge Elizabeth Buckle said. "But it must not be crushing. What would be a minor penalty to a large, lucrative business would be oppressive to an individual or a small business."

Crown prosecutor Alex Keaveny said he was "very happy" with most of the judge's findings, but didn't agree with the amount of the fine.

"The idea that a business person that runs a garage would find a fine larger than $27,000 to be 'oppressive' is really a hard one to wrap your head around," he said.

Hoyeck was investigated following the death of mechanic Peter Kempton in September 2013.

Kempton suffered fatal burns while attempting to use an acetylene torch to remove a gas tank from a derelict minivan at Your Auto Mechanic Corner, a repair shop owned by Hoyeck that has since closed.

Hoyeck pleaded guilty to three violations of Nova Scotia's Occupational Health and Safety Act in September 2019.

He admitted to failing to ensure the safety of his workers, operating an uncertified car lift with its safety mechanisms disabled and failing to have an emergency response plan in place for working with hazardous materials.

Buckle said Hoyeck's conduct was not the direct or immediate cause of Kempton's death, but the safety violations showed Hoyeck had a "reckless disregard" or "deliberate indifference" to safety.

"I think that was obvious from even just the photographs, and by all accounts that's how this garage was run," Keaveny said. "So we were very happy that she had found that, and found that he was very morally blameworthy."

This case is a reminder that employers can't assume that employees, no matter how experienced, will always make safe choices in the workplace, Buckle said.

But they're more likely to, she said, if they're reminded through regular training, and if their employer demonstrates "attention to safety."

"The situation here, in my view, is exactly the opposite," she said.

The decision came down in Halifax provincial court on Friday. Only Buckle and the court clerk were present, while Hoyeck and both lawyers participated by video link.

The judge acknowledged the circumstances were "unusual."

"We were very grateful the court was able to make that happen, because it allowed the family, Mr. Kempton's daughters, to watch the proceedings when they might otherwise have felt unsafe to do so," Keaveny said.

Buckle heard submissions on sentencing in February and reserved her decision until late March, but it was adjourned until June due to the COVID-19 pandemic.

While the Crown had argued the impact of the guilty plea was lessened by being offered late, Buckle said the lateness is "not at all uncommon" because Hoyeck was dealing with a criminal case related to the same incident.

"I accept [his plea] as a true indication of responsibility and remorse," Buckle said.

In January 2019, Hoyeck was acquitted of criminal negligence causing death in a prosecution under the so-called Westray Law, a Criminal Code amendment meant to make it easier to hold employers accountable for deaths or injuries in the workplace.

As part of his sentencing, Hoyeck must also co-operate with the Department of Labour to create a safety video to be dedicated in Kempton's memory.

Of the $27,250 that Hoyeck is ordered to pay, $10,000 will be a donation to Threads of Life, an organization that supports families of people who have suffered workplace fatalities or injuries.

Another $2,250 is a victim fine surcharge, which goes to fund programs to support victims and their families with court costs.

Buckle will release a written decision next week.