R v Hoyeck, 2020 NSPC 24

PROVINCIAL COURT OF NOVA SCOTIA Citation: R v Hoyeck , 2020 NSPC 24 Date: 20200605 Docket: 2907603 2907609 2907621 Registry: Halifax Between: HER MAJESTY THE QUEEN v. ELIE PHILLIP HOYECK Judge: The Honourable Judge Elizabeth Buckle, Heard: September 3, 2019; February 20, 2020 in Halifax, Nova Scotia Oral Decision: June 5, 2020 in Halifax, Nova Scotia Charge: Sections 13(1)(b) & 74(1)(a), 13(1)(f) & 74(1)(

a) of the OHSA and 41 of the OSGR & 74(1)(

a) of the OHSA Counsel: Alex Keaveny, for the Crown Trevor McGuigan, for the Defence By the Court: Introduction [ 1 ] Peter Dwight Kempton was a mechanic. He worked for Elie Hoyeck at “Your Mechanic Auto Corner”, a small auto service and repair shop. On September 20, 2013, Mr. Kempton was using an acetylene torch to remove a gas tank from a vehicle when it caught fire, causing Mr. Kempton to sustain severe burns. He died the next day. [ 2 ] Mr. Hoyeck was charged with offences under the Nova Scotia Occupational Health and Safety Act, S.N.S. 1996, c. 7 , ( OHSA ), and Occupational Safety General Regulations , N.S.

Reg. 44/99 , as amended, N.S. Reg . 53/2013, ( OSGR ), and has pleaded guilty to three of those offences. Through those pleas, he has admitted that on September 20, 2013, as an employer, he: • Count 2 - Failed 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, contrary to ss. 13(1)(b) & 74(1)(

a) of the OHSA ; • Count 5 - Failed to take every precaution that is reasonable in the circumstances by failing to conduct his undertakings so that employees are not exposed to health or safety hazards, contrary to ss. 13(1)(f) & 74(1)(

a) of the OHSA ; and, • Count 11 - Failed to ensure that a written emergency procedure is developed for use in the event of escape of a hazardous substance in circumstances where a hazardous substance is used in such quantities where a spill could affect health or safety, contrary to s. 41 of the OSGR & 74(1)(

a) of the OHSA . [ 3 ] I now have to determine a fit and proper sentence for Mr. Hoyeck. Legislation [ 4 ] Mr. Hoyeck has admitted contravening s. 13(1)(b) & (

f) of the OHSA and s. 41(

b) of the OSGR : s. 13(1): Every employer shall take every precaution that is reasonable in the circumstances to:

(

b) provide and maintain equipment, machines, material or things that are properly equipped with safety devices; and, (

f) conduct the employer’s undertaking so that employees are not exposed to health or safety hazards as a result of the undertaking. s. 41: Where a hazardous substance is used in a workplace in such quantities that a spill could affect the health or safety of a person, an employer shall ensure that (

b) a written emergency procedure that includes the use of emergency equipment, if necessary, is established for use in the event of escape of a hazardous substance [ 5 ] The available penalties are set out in ss. 74 and 75 of the OHSA and include a fine and/or period of custody not exceeding two years. Where “the offence resulted in a fatality”, the maximum fine is $500,000 ( OHSA, s. 74 (1B)). Otherwise, the maximum fine is $250,000 ( OHSA , s. 74 (1A)).

In addition to a fine or other punishment, the court may also, “having regard to the nature of the offence and the circumstances surrounding its commission”, make an order that engages more creative, restorative, sentencing options, including: requiring the offender to participate in public education; requiring the offender to make a payment to the Minister to fund occupational health and safety initiatives such as public education; and, requiring the offender to perform community service work ( OHSA , s. 75(1) ).

Position of the Parties [ 6 ] The Crown seeks a global financial penalty of between $60,000 and $70,000, to be made up of fines and donations to a fund to provide education, along with a creative sentencing order that would require Mr. Hoyeck to participate in education. In doing so, the Crown argues that Mr. Hoyeck’s level of moral blameworthiness is in the highest possible range, that the offences led to Mr.

Kempton’s death, and that there are many aggravating factors and no mitigating factors other than the guilty pleas. [ 7 ] The Defence seeks a global financial penalty of approximately $6,000 and is not opposed to creative sentencing options. In doing so, the Defence disputes the Crown’s characterization of Mr. Hoyeck’s moral blameworthiness, disputes that the violations caused or contributed to Mr. Kempton’s death and argues that the quantum of fine has to reflect the reality of Mr. Hoyeck’s current financial circumstances.

Circumstances of the Offences [ 8 ] An Agreed Statement of Facts was read into the record. [ 9 ] Elie Hoyeck was the owner and supervisor of “Your Mechanic Auto Corner”, an auto body shop that provided auto service and repair. Prior to the incident, the business was preparing to move to a new location. [ 10 ] Mr. Kempton had been a red seal mechanic, although at the time of his death, that certification had lapsed. On September 20, 2013, he and another employee of the shop put a van onto a trailer. Mr. Hoyeck then moved it to an area near the garage bays. Mr. Hoyeck went into the shop and Mr.

Kempton and the other employee began to strip the van so it could be scrapped. Mr. Kempton was working under the van which was on the trailer and the other employee was removing tires and other parts. Mr. Kempton used an acetylene torch to remove the van’s catalytic converter. While the two men were working on the van, Mr. Hoyeck came out to speak with them so saw that the men were working on the van while it was on the trailer. Mr. Hoyeck went into the garage. Mr. Kempton then used the acetylene torch to remove a strap that attached the gas tank to the van. The tank ignited with Mr.

Kempton trapped under the vehicle. The other employee yelled for help, Mr. Hoyeck responded and he and the other employee were able to remove Mr. Kempton from under the van. [ 11 ] Unfortunately, Mr. Kempton had sustained severe burns to a significant part of his body. The next day he died of his injuries. [ 12 ] Mr. Hoyeck has admitted specific facts that support his guilty pleas to the three counts. In support of his plea to Count 2, failure to provide and maintain safety equipment contrary to s. 13(1) (

b) of the OHSA , he admits that “Your Mechanic Auto Corner”: • Only had one hoist which was being used for another vehicle at the time of this incident, did not have its safety latch cables attached and was not inspected; • Generally, was in “deplorable condition” on the day of the incident, had a “myriad of safety issues”, and “presented an accident waiting to happen”; and, • Also, had a number of specific issues: the yard contained several fire, fall and trip hazards; the van placement created a stability hazard; the yard was very congested such that it would be difficult to get in or out in an emergency; the condition of the garage was “absolutely unacceptable” and was a marked contrast to “good housekeeping” principles which would require a clean, neat and organized space; lighting in the garage was very limited; and, there were numerous trip, slip, fire and electrical hazards in the garage. [ 13 ] In support of his plea to Count 5, failure to conduct the business so that employees are not exposed to health or safety hazards, contrary to s. 13(1) (

f) of the OHSA , he admits that “Your Mechanic Auto Corner”: • Did not have safety policies or procedures and no requirement to conduct hazard assessments; • Did not have written job descriptions or breakdown of usual tasks for Mr. Kempton or the other employee present on September 20, 2013; • Did not have written safe work procedures in effect; • Did not have a written hazard assessment for the task Mr. Kempton undertook on September 20, 2013;

• Did not provide any training to employees or ensure its employees had proper safety training; and, • Failed to comply with numerous requirements of the Canadian Standards Association’s standard for “Safety in Welding, Cutting and Allied Processes”. [ 14 ] He further admits that: • There was no safe way to work on the van while it was on the trailer, that it should not have been worked on while its wheels were being removed and the placement of the van in this case made it prone to shifting and collapse; • The way the van was raised was not in accordance with industry practices or the Provincial curriculum – it was precarious, the area was poorly lit and difficult to access, and, there was oil under the vehicle and on the frame which can be flammable; • He knew Mr.

Kempton would use the acetylene torch to remove the van’s catalytic converter and knew that the torch should not have been used under the trailer as the lighting was poor, there was no escape route and the space was far too confined; and, • The optimal way to work on a salvage vehicle was to use a hoist and, failing that, the vehicle could be jacked on a concrete pad with safety stands under it.

In either case, a work hazard assessment should be done first. [ 15 ] In support of his plea to Count 11, failure to have a written emergency procedure to respond to potential escape of a hazardous substance, contrary to s. 41(

b) of the Regulations, he admits that acetylene and oxygen are defined in the Regulation as hazardous substances and “Your Mechanic Auto Corner”: • Had numerous acetylene and oxygen tanks in use in and around the garage and yard; and, • Had no written procedures regarding hazardous substances. [ 16 ] As a result of Mr. Kempton’s death, Mr. Hoyeck was also charged with “criminal negligence causing death”. He was tried in the Nova Scotia Supreme Court and, on January 11, 2019, was found not guilty because the Crown had not proved beyond a reasonable doubt that he had done, or omitted to do anything, that caused Mr.

Kempton’s death ( R. v. Hoyeck, 2019 NSSC 7 ). Victim Impact Statements [ 17 ] Mr. Kempton’s two adult daughters, Shannon Kempton and Carinna Ladouceur, submitted victim impact statements. They also read them during the sentencing hearing. It is impossible to imagine how hard that was for them and they showed great strength and grace in being able to do so. [ 18 ] Mr. Kempton was 59 when he died seven years ago. Their descriptions of their father, especially the stories, made him a presence in the hearing. They both described him as their hero and protector.

Family was clearly extremely important to him and he worked hard his whole life to provide for them. He spent time with his daughters. He involved them in outdoor activities, taught them to hunt, watched sports with them, and gave them necessary skills to be independent women. [ 19 ] His death has had both tangible and intangible impacts. Shannon described how his death has caused stress and anxiety that led to the loss of her job. [ 20 ] The less tangible, psychological and emotional, impacts are just as real and will last longer. Both of Mr.

Kempton’s daughters have been tortured by the manner of his death, haunted by thoughts about the pain and fear he experienced in his last moments. Both have been impacted by having the responsibility of deciding to remove life prolonging measures which allowed him to die. Both regret all the things he has missed and the things they will miss having him there for. Things like seeing Shannon graduate from university, weddings, births, hunting trips, Christmas, the opportunity for Carinna’s son to do things with his grandfather. Both are heartbroken and will live with that forever. Mr.

Hoyeck’s Circumstances [ 21 ] Information about Mr. Hoyeck’s background and circumstances were provided by Crown and Defence. [ 22 ] The Crown provided information about Mr. Hoyeck’s criminal and regulatory record. He has previously pleaded guilty or been found guilty of the following criminal offences: • 2005 (offence date, 2003) – aggravated assault, contrary to s. 268(1) of the Criminal Code, R.S.C., 1985, c. C-46 , for which he was sentenced to an 18-month conditional sentence and 2 years’ probation; • 1997 – possession of property obtained by crime, contrary to s. 354(1)(

a) of the CC for which he was sentenced to pay a fine of $100; • 1993 – careless use of a firearm, contrary to s. 86(1)(

b) of the CC for which he was granted a conditional discharge. [ 23 ] Between 1994 and 2019, he also pleaded guilty or was found guilty of 47

summary offences, most under the Motor Vehicle Act, R.S.N.S., c. 293. [ 24 ] As of February 19, 2020, he personally owed fines totaling $1,871.9 with the oldest due date being 1995.

[25] Mr. Hoyeck had also been the Director and sole officer of a business, “Dartmouth Auto Auction Ltd.”. In 2014 and 2015, thatbusiness pleaded guilty or was found guilty of 6

summary offences, most under the Motor Vehicle Act, but in 2014, the business wassentenced to pay a fine of $608.70 for failing to comply with an order or direction, thereby committing an offence contrary to s. 74(1)(b)(

i) of the OHSA. [26] As of February 19, 2020, the business owed fines totaling $3,246.92. [27] Some information about Mr. Hoyeck’s background and current circumstances was provided through his counsel. He is 46years old and has four children. Prior to September 2013, he had been operating the garage for about 18 years with no OHSAconvictions, warnings or compliance orders connected to that business. [28] The business was a small business with two employees and is no longer operating. Mr.

Hoyeck still has a business in the areaof automotive repair and sales but no longer has any employees. [29] There has been significant media attention through the years since the incident. I am advised that this has had a negativeimpact on Mr. Hoyeck and his business. [30] During submissions, I asked counsel for information concerning Mr. Hoyeck’s current financial circumstances. Defencecounsel advised that in 2018, Mr. Hoyeck netted less than $30,000. The Crown disputed that this represented a complete financialpicture and submitted that Mr.

Hoyeck had assets, a number of vehicles, which he was advertising for sale. This was not admitted byDefence. In accordance with s. 724(3), both Crown and Defence were offered an opportunity to call evidence to prove the facts theyrelied on to the requisite standard. Both declined, so I have essentially no information about Mr. Hoyeck’s current financial ability otherthan what I can infer from the undisputed information. Mr. Hoyeck’s Comments [31] Pursuant to s. 726, at the conclusion of the sentencing hearing, Mr. Hoyeck was given the opportunity to speak. He said heand Mr.

Kempton had worked together every day for 15 years and he had lost a friend when Mr. Kempton died. He said he misses himevery day. He said he burned his hands pulling Mr. Kempton from the fire but was too late to save him. Sentencing Principles [32] The Crown and Defence agree on the general principles of sentencing that apply in occupational health and safety cases. Those principles are articulated and summarized in: Regina v. Cotton Felts Ltd., (ON CA), [1982] O.J. No. 178; R. v.General Scrap Iron and Metals Ltd., 2003 ABQB 22; R. v. Meridian Construction Inc. &. London, 2005 NSPC 40; R. v.

Nova ScotiaPower, Inc., 2008 NSPC 72; and, R. v. R.D. Longard Services Ltd., 2015 NSPC 35). [33] In N.S. Power and R. D. Longard Services Ltd., Derrick, P.C.J. (as she then was) described the legal framework andgoverning principles for sentencing OHSA violations: 27 The legal framework for this sentencing has been constructed by the purpose and principles of sentencing found in sections 718-718.2of the Criminal Code (which apply here by operation of the

Summary Proceedings Act, S.N.S. 1989, c. 450 as amended) and theoccupational health and safety cases applying these norms. Norman A. Keith's treatise, "Canadian Health and Safety Law: AComprehensive Guide to Statutes, Policies and Case Law" (Canada Law Book: 2008) references principles of sentencing foroccupational health and safety violations that reflect those found in sections 718 -718.2 of the Criminal Code: There are three primary objectives of sentencing for a violation of the applicable health and safety legislation.

First, there is thedeterrence aspect of the sentencing process, both specific to the convicted party and generally for the community. Secondly, there is theretribution aspect of the sentencing process, indicating the moral wrong and the need to reinforce the value or standard that was violated.Thirdly, there is the rehabilitation-reform aspect of the sentencing process for the convicted party to be assisted in not repeating theoffence. 28 In Regina v. Cotton Felts Ltd., (ON CA), [1982] O.J.

No. 178, the Ontario Court of Appeal held that: The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of theeconomic activity in issue, the extent of the actual and potential harm to the public, and the maximum penalty prescribed by statute.Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence ... Without being harsh,the fine must be substantial enough to warn others that the offence will not be tolerated.

It must not appear to be a mere licence fee forillegal activity. (paragraphs 19 & 22) 29 The Cotton Felts decision accorded deterrence in the occupational health and safety context a broad meaning encompassing anemphasis on community denunciation and stigmatization of

an act with the result being a moral or educative effect that conditions theattitude of the public. In approving this model of deterrence taken from R. v. Roussy, [1977] O.J. No. 1208 (Ont.

C.A.), Blair, J.A. inCotton Felts held that deterrence with an educative dimension is "particularly applicable to public welfare offences where it is essentialfor the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect thephysical, economic and social welfare of the public." (paragraph 23) 30 A sentence for an occupational health and safety infraction must communicate a message that emphasizes the essential responsibilityof ensuring "corporate good conduct and [enhancing] the well being of the public." (R. v.

General Scrap Iron and Metals Ltd., 2003ABQB 22 , [2003] A.J. No. 13 (Alta. Q.B.) paragraphs 28-30) Watson, J. in General Scrap Iron concluded that sentencingcorporations for regulatory offences should be approached with the following in mind: (1) the conduct, circumstances and consequences of the offence;

(2) the terms and aims of the relevant legislation; (3) the participation, character and attitude of the corporation offender. ( General Scrap Iron, paragraph 35 ) 31 Watson, J. articulated an analytical framework constructed around these considerations, noting that aggravating and mitigating factors must be factored into the sentencing of the corporate offender. (General Scrap Iron, supra, paragraph 49) This framework is detailed in R. v. Meridian Construction Inc. , [2005] N.S.J. No. 379 , a decision of the Honourable Judge Alan Tufts of this Court.

In Meridian , Judge Tufts makes several noteworthy observations about sentencing in the occupational health and safety context: ... the fundamental purpose of sentencing is the protection of the public and a respect for the law ... The workplace is an inherently dangerous environment ... Workers have little power or leverage individually to control safety measures which are necessary to protect them and minimize their risk of injury. They can only collectively bargain or rely on the legislative scheme such as the Occupational Health and Safety Act to protect them.

The Occupational Health and Safety Act has as its principle purpose ... the protection of workers.

The foundation of the Act is the internal responsibility system ... which is based on the principle that workplace safety is a shared responsibility ... ( paragraph 13 ) 32 In Meridian , Judge Tufts also noted that workplace safety risks can readily go undetected in a context that is "largely self-policing." (paragraph 15) Sentencing of a corporate offender in an occupational health and safety case is an exercise in balancing a number of factors to achieve a disposition that helps protect workers through deterrence and emphasizes respect for workplace safety and the legislative scheme that embodies this objective. [ 34 ] To determine a fit an proper sentence for Mr.

Hoyeck, I have to apply this legal framework with reference to the general sentencing principles of proportionality, parity and restraint. Proportionality [ 35 ] A fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1).

Proportionality as a principle of sentencing requires that a sentence be severe enough to condemn the offender’s conduct and hold him responsible for that conduct and the harm caused, but not be more severe than what is just and appropriate given the seriousness of the offences and his moral blameworthiness ( R. v. Nasogaluak , 2010 SCC 6 , at para. 42 ). [ 36 ] Mr. Hoyeck has pleaded guilty to three broad occupational health and safety offences. As was said by Tufts, P.C.J. in Meridian, supra, workplaces are dangerous and workplace safety legislation is often the only protection a worker has (paragraph 13).

As a result, violations of occupational safety legislation are serious offences. [ 37 ] The three offences Mr. Hoyeck has pleaded guilty to capture categories of behaviour. Within those categories, he has admitted numerous individual failures, both general and specific. The admitted offences relate to a specific date. I accept that the inspection that revealed the safety violations captures a moment in time. I also accept that the inspection was conducted shortly before the business was to move to a new location.

As a result, some of what was observed may not have been a fair reflection of how the shop and yard were generally kept.

In my view this might explain the congestion in the yard, and the generally poor housekeeping in the shop. [ 38 ] However, the impending move would not explain other safety problems: the safety issues related to the hoist; the stability hazard created by the specific placement of the van; the poor lighting in the shop; the absence of safety policies and procedures; the lack of requirement to conduct hazard assessments; the absence of written job descriptions, safe work procedures, or hazard assessments; the absence of training for employees; the failure to comply with safe practices for welding; Mr.

Hoyeck’s failure to stop Mr. Kempton from working on the van in its unsafe position; Mr. Hoyeck’s failure to stop Mr. Kempton from using the acetylene torch under the van when he knew it was unsafe to do so; and, his failure to have written procedures regarding the hazardous substances on the property. Mr. Hoyeck’s failure to stop Mr. Kempton from working under the van with a torch while it was on the trailer may have been a momentary failure or reflect a single incident of poor judgement.

However, many of the other failings were not. [ 39 ] In my view, the quantity, variety, and scope of failures in this case reflect an employer who, to borrow a phrase used by Tax, P.C.J. in another case, demonstrated a “reckless disregard or deliberate indifference to legislative safety measures” (R. v. Eagles, 2010 NSPC 18 , para. 47 ). [ 40 ] Mr. Hoyeck’s responsibility for these failures is high.

As Judge Tufts said in Meridian, supra, at paragraph 13: The foundation of the Act is the internal responsibility system, … which is based on the principle that workplace safety is a shared responsibility and the primary responsibility is the function of each party's authority and ability to control the workplace. [ 41 ] Mr. Kempton and the other employee of the shop no doubt made decisions in the course of their employment. However, as the owner and employer, Mr.

Hoyeck had the most authority, the greatest ability to control the work environment and, as a result, the greater responsibility for the safety of that environment. [ 42 ] In order to determine the degree of Mr. Hoyeck’s moral blameworthiness and hold him accountable for the consequences of his conduct, it is necessary for me to assess the relationship between the admitted safety violations and Mr. Kempton’s death. Mr. Hoyeck has admitted responsibility for violating numerous safety standards and he must be held accountable for that. However, he can only be held accountable for Mr.

Kempton’s death if that death was a consequence of his conduct. [ 43 ] The Crown argues that Mr. Hoyeck’s direct participation in the unsafe work that preceded Mr. Kempton’s death, his failure as an employer to train Mr. Kempton, his failure to supervise the safety of the specific operation and his general failure as an employer to ensure and maintain a safe work environment, led to the fatality. The Crown acknowledges that Mr.

Kempton made the decision to use the acetylene torch to remove the gas tank, but argues that his decision cannot be separated from the general culture in the workplace or the sequence of events that preceded it. As such, Mr. Kempton’s decision and his death were the result, directly or indirectly, of Mr.

Hoyeck’s conduct and failures. [44] The defence argues that the issue of causation was decided against the Crown in the criminal trial. The Defence furtherargues that the evidence before me does not establish a culture of indifference in the workplace, does not establish a link between thegeneral failures that Mr. Hoyeck has admitted and Mr. Kempton’s decision to use the acetylene torch, and does not prove that Mr.Hoyeck played any part, directly or indirectly, in Mr.

Kempton’s decision which caused his death. [45] The burden to prove causation, like any aggravating factor in a sentencing proceeding, is on the Crown and must be provenbeyond a reasonable doubt. Determining what the test for causation is in the regulatory sentencing context is more challenging. [46] Crown and Defence have provided cases that specifically address this issue (NS Power, supra,; Ontario (Minister of Labour)v. Cousins Packaging Inc., 2006 ONCJ 268; and, R. v.

O’Regan Chevrolet Cadillac Ltd., 2010 NSPC 68) and I have reviewed others thateither deal with it explicitly or touch upon it in the context of assessing penalty (R. v. North American Food Produce Byers [sic]Ltd.,¸2006 ONCJ 137; Eagles, supra,; Longard Services Ltd., supra,; R. v. The Royal Canadian Mounted Police, 2018 NBPC 1; and, R.v. New Glasgow (Town), 2008 NSPC 15). [47] In a legal setting, causation has two aspects: factual causation; and, legal causation.

Where there is a death, the inquiry intofactual causation asks how the victim came to his or her death, in a medical, mechanical, or physical sense, and whether the accusedcontributed to that result (R. v. Nette, 2001 SCC 78, at para. 44). That inquiry will not generally be impacted by the type of proceeding. The inquiry into legal causation asks whether the accused should be held legally responsible for that death (Nette, at para. 45). Itnarrows the circumstances where factual causation has been proven to those which are sufficiently connected to a harm to warrant legalresponsibility.

It is "based on concepts of moral responsibility and is not a mechanical or mathematical exercise" (Nette, at para. 83; R. v.Maybin, 2012 SCC 24, at para. 16). As a result, the concept of legal causation may be impacted by the type of proceeding; it can varydepending on the legal provision being interpreted and the legal context of the analysis (Nette, at para. 45). [48] Mr. Hoyeck was acquitted in the criminal trial because the applicable legal test for causation was not met. The test in thatcontext, where guilt or innocence of a criminal offence was at stake, was whether Mr.

Hoyeck’s actions or his inaction where he had aduty to act was a significant contributing cause of Mr. Kempton’s death. The Court concluded that the Crown had not met that test to thecriminal standard of proof beyond a reasonable doubt. [49] That does not necessarily determine causation in the present context, a regulatory sentencing hearing. [50] In assessing factual causation, the test is generally a “but for” test – “but for” the conduct of the accused, would the resulthave happened? (Nette, at para. 45; and, Maybin, at para. 4).

It is not limited to the direct and immediate cause, nor is it limited to themost significant cause (Maybin, at para. 20). There may be a number of contributing causes, but if the conduct of the accusedcontributed in a non-trivial way, factual causation is established. [51] In the present case, I have to ask, “but for” Mr. Hoyeck’s failures, would Mr. Kempton have died? Mr. Kempton made thedecision to work on the van with it on the trailer and made the decision to use the acetylene torch to remove the gas tank. Mr.

Hoyeckdid not direct him to do that and did not know that he would use the torch to remove the gas tank. So Mr. Hoyeck’s conduct was not thedirect or immediate cause of his death. However, in my view, the safety violations played a role in Mr. Kempton’s death. Mr. Hoyeckknew that Mr. Kempton was using the acetylene torch in the confined space under the van and knew that was unsafe. He had the duty,as an employer, to ensure that Mr. Kempton was not exposed to health or safety hazards, he had the authority to stop him and he didn’t. That failure contributed to Mr.

Kempton’s death in more than a trivial way. [52] In my view, the test for legal causation in the regulatory sentencing context is not the same as in the criminal trial context.

Specifically, it does not require that the conduct be a significant or substantial cause in order for the fatality to be considered in theproportionality analysis. [53] In that view, I am supported by other decisions that have examined sentencing in general but also in the specific regulatorycontext. [54] For example, judges are routinely required to situate an offender’s moral blameworthiness on a spectrum of culpability andare entitled to apportion responsibility for the harm occasioned by criminal conduct (Nette, para 49).

The very nature of the sentencingexercise, which has been described as a “delicate art” (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 91) requirescourts to weigh responsibility. [55] In at least one regulatory sentencing case, the court explicitly rejected the criminal trial standard for causation (R. v. NorthAmerican Food Produce Byers [sic] Ltd.,¸, supra, at paras. 41 - 60). In others, it has been implicitly rejected (eg. Ontario v. CousinsPackaging Inc., supra, at paras. 22 – 38; R. v. R.D. Longard Services Ltd., supra, at paras. 27 – 36).

The predominant view appears to bethat consideration of responsibility for consequences in the sentencing context is more nuanced than in the trial context. The Crownmust still prove beyond a reasonable doubt that the safety violation contributed in some way to the death. However, where it is proventhat the violations played a role, the sentencing court can consider the strengths or weaknesses in the chain of causation in deciding theextent to which that factor increases the penalty. [56] In Ontario v. Cousins Packaging, the

summary conviction appeal court implicitly accepted that the standard for causationin the regulatory sentencing allowed for apportionment of responsibility between actors and a sentence could be increased where anoffender’s conduct contributed to or played a role in the death. Similarly, in Longard Services Ltd., Derrick, P.C.J. (as she then was) saidthat the degree of connection between the offence and the death will vary depending on the case and noted that the closer the connection,the higher the penalty (para. 27).

In some cases, the offending conduct will be the clear, exclusive and direct cause of the death. Inothers, the relationship will be indirect or contributory rather than exclusive. [57] In assessing the case before me, I have found that many of the admitted violations had no specific relationship to either Mr.Kempton’s decision to use the torch or his resulting death. The van was in an unsafe and unstable position, but Mr. Kempton did not die

because it fell. The garage and yard had many trip, fall and safety hazards and was congested, but Mr. Kempton’s escape was not impeded by any of those. The hoist had safety issues, but those played no role in Mr. Kempton’s death. [ 58 ] Others do have an indirect relationship to Mr. Kempton’s death. In my view, Mr. Hoyeck’s failure to provide or ensure training and his general lack of respect for safety in the workplace played a role in Mr. Kempton’s decision to use the torch in a dangerous situation. Further, Mr. Hoyeck’s failure to intervene when he saw Mr.

Kempton working in a dangerous manner, played a role in its continuation and his death. [ 59 ] So in assessing proportionality, I will take into account that Mr. Hoyeck’s conduct played a role in Mr. Kempton’s death. That is not to suggest that a sentence can be proportionate to the loss of a life. No penalty, much less a financial one, could ever make up for the loss of Mr. Kempton’s life or measure its value. As Campbell, P.C.J. (as he then was) said in R. v. New Glasgow (Town) , supra , “It could be properly said of an amount, that it does not come close to being enough.

It does not measure the grief of a family and of a community . . . “ (at para. 53). [ 60 ] In addition to actual hazards, occupational safety legislation also tries to protect workers from potential hazards. Many of the admitted failures that played no role in Mr. Kempton’s death were a potential hazard to him and the other employee of the business. Aggravating and Mitigating Factors [ 61 ]

Section 718.2 requires that I consider the aggravating and mitigating factors relating to the offence and the offender. Many of these have already informed the proportionality analysis. [ 62 ] The Crown acknowledges that the guilty pleas are mitigating, but argues that the impact is lessened because they were not offered at an early opportunity. Some of the delay is explained. Mr. Hoyeck was not charged with these offences for approximately two years after Mr. Kempton’s death. He was also charged with criminal negligence causing death, a serious criminal offence.

As is not at all uncommon or improper, he adjourned this proceeding until that matter was concluded. He did not receive a verdict in that case until January of 2019. In May of 2019, he entered not guilty pleas and the trial was scheduled for September. On the first day of trial, he pleaded guilty to three of the 12 charges he was facing. That appears to have been a negotiated result and I have no information to suggest that result was available when the trial dates were set. In these circumstances, the value of Mr.

Hoyeck’s guilty plea is not degraded because of the delay. [ 63 ] An aggravating factor that is present in some cases is that the safety violations were financially motivated. I have no evidence that the circumstances that directly led to Mr. Kempton’s death were motivated by cost-cutting. I can infer, however, that some of the safety violations would have involved some cost savings.

The reality is that there is a cost, in time or money, associated with providing a safe work environment and businesses that don’t provide training, don’t obtain or produce written protocols and assessment and don’t provide and maintain safety equipment, save money. [ 64 ] The aggravating and mitigating factors I have considered are as follows: Aggravating Factors • the number of offences and the number and variety of safety issues that constitute the offences; • my conclusion that the violations played a role in Mr.

Kempton’s death; and, • the overall seriousness of the safety issues and the very real risk that many of them could have caused injury or death. Mitigating factors • Mr. Hoyeck has pleaded guilty which I accept as an indication of acceptance of responsibility and remorse. [ 65 ] I have also taken into account that Mr. Hoyeck has a limited previous record for occupational safety offences, despite having been in business for 18 years. However, he does have a previous record for criminal and regulatory offences which may be relevant to specific deterrence. Parity / Range of Sentences [ 66 ]

Section 718.2 also requires that I consider the principle of parity. Within reason, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Decisions rendered in other similar cases are useful and help me assess proportionality but they are not determinative ( R. v. Lacasse, 2015 SCC 64 ; and, R. v. Friesen, 2020 SCC 9 ). Each sentence has to reflect the unique circumstances of that offence and that offender ( R. v. LaCasse, ; and, R. v.

Chase, 2019 NSCA 36 , at para. 41 ). [ 67 ] The Crown and Defence have each provided me with cases to support their respective positions. The cases they’ve provided on quantum of penalty reflect their respective perspectives on whether the violations caused Mr. Kempton’s death. It is clear from those cases that whether and to what extent the violations contributed to a death is a significant factor in determining the quantum of the fine. ( Longard Inc. , supra , at paras. 23 – 26; New Glasgow (Town) , supra , at para. 41 ; R. v. The Royal Canadian Mounted Police , supra , at paras. 26, 34 & 38 ). ( see: R. v.

O’Regan Chevrolet Cadillac Ltd. , supra , at para. 14 ). [ 68 ] I have reviewed all of the cases provided by the Crown and Defence and others. I will refer here to only a few that are particularly relevant to the circumstances of this case. The Crown relies on R. v. Oickle (unreported, NSPC, October 20, 2015); R. v. R.D. Longard Services Ltd., supra ; and, R. v. Busk, Truss Worthy Framing and Renovations, 2012 NSPC 17 ). The Defence distinguishes these cases and relies on R. v. Eagles , supra, and R. v. Cousins Packaging, supra .

[ 69 ] In Oickle, the employer, a sea urchin diving business, pleaded guilty to three offences occurring on two different dates. The court imposed a total financial penalty of $56,000 (fines, donations and funds for presentations). The admitted facts relating to the first offence reveal numerous safety violations and resulted in the death of a diver. Mr. Oickle was issued a written stop-work order and reminded numerous times that it continued to be in effect. Despite that, he re-hired divers and continued his operation.

The second and third offences occurred about 8 months later and involved failing to comply with the stop-work order and failing to provide information, instruction, training and supervision to employees. Mr. Oickle had no previous OHSA convictions but did have convictions for other regulatory offences. He had pleaded guilty and expressed some remorse and regret. The court concluded that Mr. Oickle “was simply flagrantly disregarding the rules and regulations”, the violations were not technical, Mr. Oickle simply ignored the regulations and “that played a significant role in the death of the individual” (p. 20).

It was also aggravating that after the first offence and the death, Mr. Oickle continued to participate in the same employment in violation of the stop work order and continued to flagrantly disregard the safety regulations (p. 21). As such, his moral responsibility was high. [ 70 ] In R.D. Longard Services Ltd. , the company was found guilty of two safety offences. The court imposed a fine of $35,000 and a requirement that the company make a series of presentations totalling 150 hours. The worker, an electrician, died when he worked on an energized system.

He was an experienced and careful electrician and the company had taken some safety-related steps, including some training. The court found no direct connection between the safety violations and his death. Rather, the absence of formalized safety policies and practices created unsafe conditions for the victim and other employees. The court could not say that the death would have been prevented if the safety provisions had been complied with, but the odds would have been reduced (paras. 27 – 31). The company was small and no longer in business at the time of the sentencing so had limited ability to pay.

It had no prior OHSA convictions and was in the process of developing a safety program for the company. The court was not persuaded that the company was “indifferent about worker safety”. [ 71 ] In R. v. Busk /Truss Worthy Framing and Renovation , the employer pleaded guilty to failing to ensure a worker wore a proper fall arrest system. He was sentenced to pay a total financial penalty of $25,000 (fine and donation to the Minister’s Educational Trust Fund) as well as to perform 200 hours of volunteer services with Habitat for Humanity. A worker was killed when he fell from a roof.

The court did not find a “reckless disregard or deliberate indifference to legislative safety measures”. The employer had a previous OHSA conviction resulting from a worker being injured in a fall and, at the time of sentencing, had not completed the training component of the previous sentencing order. The employer was remorseful and appeared to have a genuine desire to improve workplace safety. The company was small, having few employees, and Mr. Busk had limited income. [ 72 ] In N. S. Power , the company pleaded guilty to one safety violation for failing to ensure proper fall protection equipment.

The court imposed a total financial penalty of $43,750 (fine, victim fine surcharge and payment for public awareness sessions). It was not proven that the violation caused the death. However, it caused a real hazard with the potential to cause serious injury or death. The employer was a large company with only one dated previous conviction for an OHSA offence. The employer took significant steps after the death to improve safety and was able to show that it was committed to a safe workplace. [ 73 ] In R. v. Eagles , Mr.

Eagles, a foreman and employee, was found guilty of two contraventions of the Fall Protection and Scaffolding Regulations, NS Reg 2/96 . The court ordered that he donate $2,000 to the Public Education Trust Fund and make 18 presentations of approximately one hour each. A worker had died after a fall. Mr. Eagles was negligent in his inspection of the work area, failed to supervise the work to ensure that there were guardrails or other fall protection. The court concluded that Mr. Eagles had failed in his duty to supervise but that the actions of others had contributed to the death.

The court did not find a reckless disregard or deliberate indifference to the legislative safety measures and took into account that the victim’s own actions contributed to his fall and reduced Mr. Eagles’ moral blameworthiness. [ 74 ] In O’Regan Chevrolet Cadillac Ltd. , the corporate accused pleaded guilty to OHSA offences involving failure to provide safety training and failure to have adequate safety procedures. The court imposed a global financial penalty of $38,750 (fine, victim fine surcharge and donation) and the company was directed to present a session on workplace safety.

A worker died as a result of an explosion with unknown cause. The court found no causal connection between the offences and the fatality and distinguished it from cases where the offences caused the death. The company was relatively large with 90 employees and annual profits of more than a million dollars. Prior to sentence, the company had taken steps to improve its safety system and to commemorate the employee who had died, both of which were paid for by the company. [ 75 ] No two cases are ever identical.

The case before me shares some but not all of the aggravating and mitigating factors identified in these cases. My task is to determine where it fits within the range identified in these and other cases. Restraint [ 76 ] Finally, s. 718.2 requires me to consider restraint. This principle requires that a sentence be a measured response to crime. In this case, that means that a fine should not be more than what is required to meet the objectives of sentencing ( Meridian, supra, para. 22).

Conclusion [ 77 ] This case is another reminder that employers cannot simply assume that employees, even experienced employees who are fully certified in their field, will always make safe choices in the workplace. In my view, the likelihood that they will increases if they are reminded through regular training and if their employer sets an example by demonstrating attention to safety in the workplace. The situation here was exactly the opposite. The admitted safety violations demonstrate that Mr.

Hoyeck had a reckless disregard or deliberate indifference to safety, some of the violations were clearly ongoing issues and not momentary lapses or single incidents. The safety violations were serious. Some played a role in Mr. Kempton’s death and many posed a significant potential hazard. [ 78 ] The primary objectives in sentencing Mr. Hoyeck are general deterrence and denunciation. The sentence should send a message to other employers about the importance of safety. However, it also has to reflect the principles of proportionality and restraint and seem fair when compared to other similar cases.

[ 79 ] Mr. Hoyeck has pleaded guilty and so has accepted responsibility for the offences and has expressed sadness for the loss of Mr. Kempton with whom he had a long working relationship. I accept that he has suffered due to the extensive media attention surrounding Mr. Kempton’s death. He has one previous OHSA conviction but does have previous convictions for regulatory and criminal offences. While I have found that the offences played a role in Mr.

Kempton’s death, I have not found that it was a significant or direct cause of the death. [ 80 ] The penalty has to cause some pain to in order to bring home the gravity of the offence but must not be crushing. What would be a minor penalty to a large, lucrative business, would be oppressive to an individual or small business. I have limited information about Mr. Hoyeck’s financial circumstances. I know the business was a small operation that has since gone out of business. I know Mr.

Hoyeck is in business again but has no employees and that he has outstanding fines. [ 81 ] Taking into account all the principles and factors, I have decided that a global financial penalty of $27,250.00 is appropriate. Given my sense of Mr. Hoyeck’s financial ability, that amount will be difficult for him to pay but not oppressive, given time.

In my view, it also reflects the principles of sentencing and, given the aggravating and mitigating factors, is within the range of sentences imposed in similar cases. [ 82 ] The financial penalty will be made up of a fine of $15,000, plus victim fine surcharge of $2, 250.00 and donation to the Minister’s Education Fund of $10,000 to be earmarked for the Threads of Life Organization. I will also order that he co-operate with the Department of Labour to create a safety video. I have not been provided any information to assist me in setting the parameters of that co- operation.

The length and specific topics to be covered can be developed between the Department of Labour and Mr. Hoyeck, but should include the facts of this case, the reminder that even a certified and experienced mechanic can make a mistake so can benefit from regular training and proper supervision, and practical tips for how small auto-repair shops can comply with safety requirements. Creating a video requires much more time than is reflected on the screen. The length of the video will be decided by the Department of Labour and Mr.

Hoyeck will be required to donate at least 25 hours to the project. [ 83 ] With the permission of Mr. Kempton’s family, I would ask that the video be dedicated to the memory of Peter Dwight Kempton. [ 84 ] Mr. Hoyeck is given three years to pay the fine and donation and has one year to complete the video. He is required to appear back before me for a status report in nine months. I retain jurisdiction over this matter such that if there any disputes about my Order, the matter can be brought back before me. Elizabeth Buckle, JPC.