On May 21, 2021, the Supreme Court of Nova Scotia more than doubled the previous fine of an employer found guilty of charges under the NS Occupational Health and Safety Act following a workplace fatality, from $27,250 to $67,500.
As we reported in our January 2019 article: Garage Owner Not Guilty of Criminal Negligence in First Nova Scotia Prosecution under Westray Amendments, the employer, Elie Hoyeck, a garage owner, was charged and subsequently acquitted of criminal negligence causing death following the 2013 death of a worker who was attempting to remove a vehicle’s gas tank using an acetylene torch. The employer was found not guilty of criminal negligence causing death because although the condition of the workplace showed the employer’s blatant disregard for safety, his actions did not cause the worker’s death. It was determined that the worker died as a result of his decision to use an acetylene torch to remove the gas tank.
Although acquitted of the criminal charge, the employer was guilty of violations of the Nova Scotia Occupational Health and Safety Act. These violations included failing to take every precaution that is reasonable in the circumstances by failing to provide and maintain equipment, machines, materials or things that are properly equipped with safety devices; failing to take every reasonable precaution so that workers are not exposed to health or safety hazards; and failing to ensure that a written emergency procedure is developed for use of hazardous substances.
In 2020 the sentencing judge found that the quantity, variety and scope of the failures by Hoyeck reflected an employer who demonstrated a “reckless disregard or deliberate indifference to legislative safety measures” and had a high degree of responsibility for these failures, as he was the owner and employer, with the most authority and ability to control the work environment. The employer was ordered to pay a total penalty of $27,250 which consisted of a $15,000 fine, victim fine surcharge of $2,250, and a $10,000 donation to the Minister of Labour and Advanced Education’s Education Fund earmarked to a charity supporting families after workplace fatalities. The employer was also ordered to cooperate with the Department of Labour to create a safety video.
The Crown appealed the sentence on one of the counts (a $5,000 fine plus $10,000 donation) on the grounds that the sentencing judge made several errors in law such as: (a) failing to consider a legislative increase in penalties for OHS fatalities in 2011 and that courts should impose higher penalties following such increase; (b) relying on sentences in non-fatality cases; (c) failing to give sufficient weight to Hoyeck’s blameworthiness; (d) over emphasizing the impact of financial circumstances on the quantum of damages; and (e) the sentence itself was demonstrably unfit.
In R v Hoyeck, 2021 NSSC 178, Justice Bodurtha of the Supreme Court of Nova Scotia agreed that the 2011 increase in fines clearly signalled the Nova Scotia Legislature’s determination that OHS offences must attract serious penalties and that the sentencing judge failed to give effect to that intention. He went on to find that the sentencing judge failed to consider the principle that Courts should generally impose higher sentences than sentences imposed in cases that preceded the increased penalties. This finding is in contrast to a 2019 OHS sentencing decision from Saskatchewan which rejected the notion that all sentences following a legislative increase to penalty amounts should increase (R v Carrier Forest Products Ltd., 2019 SKQB 84).
The judge reviewed the cases relied upon by the sentencing judge, finding that of the cases involving fatalities, only one post-dated the 2011 penalty increase and several of the cases involved offenders with lower blameworthiness. Ultimately, it was concluded that the sentencing judge erred by relying on these cases in determining the appropriate sentence, and also failed to give sufficient weight to the employer’s blameworthiness.
Bodurtha, J. also found that too much emphasis had been placed on the employer’s financial circumstances operating a small business that had ceased operations as a result of the media attention related to the fatality.
The judge agreed with the Crown that the $5,000 fine and the $10,000 donation – representing only 3% of the statutory maximum fine of $500,000 – was inadequate and demonstrably unfit for an offender who the sentencing judge found had a “reckless disregard or deliberate indifference to legislative safety measures” resulting in a fatality. He further concluded that the sentencing principles of deterrence and retribution were not reflected in the sentence imposed by the sentencing judge and made clear that sentences should not be akin to a “mere licensing fee” for illegal activity. The appeal was allowed, the sentence for the count in question set aside and replaced with a penalty of a $40,000 fine and a $10,000 donation for an increased global penalty of $67,500.
Although penalty amounts have been on the rise across the country and creative sentencing is more frequently utilized, this case signals to employers and workplace parties alike that occupational health and safety violations will be taken seriously and can have significant consequences for employer, even in provinces like Nova Scotia, where penalties have traditionally been lower than in other jurisdictions.
If you have any questions regarding this development or any other workplace law issues, please do not hesitate to contact a Mathews Dinsdale lawyer.