In A Flash

Garage Owner Not Guilty of Criminal Negligence in First Nova Scotia Prosecution Under Westray Amendments

On Friday, January 11, 2019, in R v Hoyeck, 2019 NSSC 7, the Nova Scotia Supreme Court ruled that the owner of a garage was not guilty of criminal negligence causing the death of a worker who died while attempting to remove a gas tank from a  van.  This was the first prosecution in Nova Scotia under provisions of the Criminal Code, introduced in 2004, in response to the deaths of 26 miners following an explosion at the Westray Mine.

Elie Phillip Hoyeck, owner and supervisor of Your Mechanic Auto Corner, located in Cole Harbour, Nova Scotia, was charged with criminal negligence causing death under s. 220(b) of the Criminal Code for failing to take reasonable steps to prevent bodily harm arising from the removal of the gas tank that he undertook to direct or had the authority to direct.

On September 20, 2013, the deceased worker, a 58 year old Red Seal mechanic, began to strip a 1998 Dodge Caravan with another worker. The van was placed on top of a trailer and the two began stripping the vehicle.

The deceased worker removed the catalytic converter and was under the van using an acetylene torch to remove the steel straps that attached the gas tank. This resulted in an explosion. The deceased worker suffered severe burns to ninety percent of his body and died the next day.

Sections 219 and 220 of the Criminal Code provide that “everyone is criminally negligent who in doing anything, or in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons” and “every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable… to imprisonment for life.”

As the owner and supervisor of the garage, Mr. Hoyeck was someone who undertook, or had the authority, to direct the deceased worker in stripping the van. As such, he had a legal duty, under s. 217.1 of the Criminal Code, one of the 2004 amendments, to “take reasonable steps to prevent bodily harm” to the worker in the performance of the work.

At trial, the evidence revealed that there were a number health and safety issues in how the van was stripped.  The shortcomings, which were contrary to safety and industry standards, included the failure to utilize proper PPE; the failure to properly raise the van to safely work underneath it; the failure to employ proper procedures for working underneath the van; the failure to drain gas tank and fuel lines; poor lighting; tripping hazards; poor storage and housekeeping practices on site; and the improper storage of acetylene tanks.

The principal safety shortfall was the use of the torch to remove the gas tank.  An expert witness testified that the deceased worker appeared to have initially used proper tools to remove some of the bolts attaching the straps to the van but went on to use a torch to remove a bolt and the gas tank ignited.  The evidence was clear that in no scenario would it make sense to use a torch near a gas tank.

In arguing that Mr. Hoyeck was guilty of criminal negligence causing death, the Crown submitted that the work environment exposed the deceased worker and others to serious risk of bodily harm or death and that he directed the two workers to engage in dangerous and risky work, took no steps to manage the serious risks inherent in the work, and ignored patently dangerous conditions and practices that he saw occurring.

The defence argued that as chaotic as the work environment may have been, even if the conditions themselves were negligent or contrary to legal requirements, those matters were irrelevant if they did not cause the worker’s death.  The defence argued that the Crown had not proven, beyond a reasonable doubt, that Mr. Hoyeck directed the deceased worker to use the torch or was aware that a torch would be used to remove the gas tank.

Ultimately, Justice Chipman found that Mr. Hoyeck directed the workers to remove the gas tank without specifying the tools to be used, that he was not present when the worker used the torch, and there was no evidence that he knew the worker was going to use the torch to remove the gas tank. Furthermore, the judge concluded that, although the condition of the workplace showed the employer’s wanton or reckless disregard for the lives or safety of others and himself, this did not cause the worker’s death. The worker died as a result of his decision to use the acetylene torch to remove the gas tank – something the court noted a trained mechanic should know better than to do.

The Hoyeck decision confirms that negligence does not become criminal unless it causes death or bodily harm.  There is no offence of simple criminal negligence.  The decision also confirms that the Crown’s burden, to establish that the criminal negligence caused the death or bodily harm beyond a reasonable doubt, is a high standard that will be dispassionately applied.  Indeed, in this case, the court found that the “deplorable” state of the workplace, described as “an accident waiting to happen”, could not be causally connected to the death.  The issue of whether any alleged negligence caused the death or bodily harm will be determined on the specific circumstances of each case.  However, in this particular matter, it the worker being a trained mechanic performing a common task, the absence of an instruction to use the torch, and Mr. Hoyeck’s ignorance regarding the use of the torch were significant factors in determining that his behaviour did not cause the death.

The analysis may have been quite different in a prosecution under an occupational health and safety statute because, in those cases, death or injury are, generally, not something the Crown has to prove were caused by the violation.  The violation itself is an offence whether anyone is injured or not.  That said, if the violation can be causally linked to a death or injury, a convicted defendant would be subject to a much more significant penalty.

We understand that Mr. Hoyeck was also charged under the Nova Scotia Occupational Health and Safety Act (“OHSA”) but do not know if those charges remain before the court, awaiting the outcome of the criminal trial, and, if so, if they could still be prosecuted.  If the allegations in the criminal negligence and the occupational health and safety cases are substantially the same, it may be a violation of Mr. Hoyeck’s rights under the Canadian Charter of Rights and Freedoms to pursue the OHSA charges.

The Crown has 30 days to appeal the acquittal on the criminal negligence charge.  It is unclear whether the decision will be appealed.  If the case is appealed we will continue to follow the matter and provide further updates as developments warrant.

If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.

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