Law Times

www.lawtimesnews.com LAW TIMES 4 COVERING ONTARIO'S LEGAL SCENE | JANUARY 28, 2019 BY JULIUS MELNITZER For Law Times IT took 12 years for Parliament to respond to Canada's worst mining disaster, the death of 26 workers following an explosion at the Westray Mine, by enshrin- ing occupation health and safety obligations in the Criminal Code in 2004. But it took another 14 years for the province in which the di- saster occurred, Nova Scotia, to launch its first prosecution un- der that legislation — the result of another explosion. On Jan. 11, in R. v. Hoyeck, that prosecution resulted in the acquittal of Elie Hoyeck, owner and supervisor of the Your Me- chanic Auto Corner in Cole Harbour, on a charge of criminal negligence causing the death of a worker who died while remov- ing a gas tank from a van. "The garage was a mess; a workplace that the judge called 'an accident waiting to happen,'" says Jeremy Warming, a partner in the Toronto office of Mathews Dinsdale & Clark LLP, a work- place law boutique. "But the judge examined the evidence dispassionately — even though it was clear that Hoyeck was also not the nicest person in the world — and found no causal connection between the ac- cused's negligent behaviour and the worker's death." Peter Kempton was a 58-year- old mechanic who worked at Hoyeck's garage. With a co-worker, he began stripping a 1998 Dodge Caravan by placing it on top of a trailer. Kempton removed the cata- lytic converter in the vehicle and was under the van using an acet- ylene torch to remove the steel straps that secured the gas tank when an explosion occurred. The severe burns Kempton suf- fered resulted in his death the next day. As the garage's owner and supervisor and, therefore, some- one who had the authority to direct Kempton, Hoyeck had a duty under s. 219 and 220 of the Criminal Code to "take rea- sonable steps to prevent bodily harm" to Kempton in the perfor- mance of his work. Unfortunately, there were myriad health and safety stan- dards in the way the van strip- ping was undertaken. Kempton did not use per- sonal protective equipment such as a helmet and gloves; he failed to raise the van in a manner that would allow him to work safely underneath; he did not use proper procedures for work- ing underneath a vehicle; and he didn't drain the gas tank and fuel lines. Otherwise, there was poor lighting in the garage, obstruc- tive hazards that could lead to falls and poor storage and housekeeping practices, includ- ing the improper storage of acet- ylene tanks. But that wasn't what actually caused the explosion: The fatal error, it turned out, was Kemp- ton's use of the torch to remove the gas tank. Expert evidence established the obvious: Using a torch near a gas tank didn't make sense. The Crown's theory was that the chaotic work environment created or tolerated by Hoyeck exposed Kempton to the risk of death or bodily harm, exacerbat- ed by the fact that Hoyeck took no measures to manage the risk inherent in the dangerous work relating to the accident. Defence counsel argued, suc- cessfully, that all this was irrel- evant. Unless the Crown could prove beyond a reasonable doubt that Hoyeck directed Kempton to use the torch or was aware that Kempton was going to use one, the prosecution could not succeed. Justice James Chipman of the Supreme Court of Nova Scotia agreed that the premises were "in a deplorable state" and not- ed that photographs of the site "speak volumes as they show an unkept, embarrassingly messy property with multiple potential hazards." But Chipman also found that although Hoyeck instructed the worker to remove the gas tank, he did not specify the tools to be used, was not present when Kempton used the torch and the Crown had not established that Hoyeck knew Kempton intend- ed to use the torch. "Whereas the overall condi- tion of Your Mechanic showed Mr. Hoyeck's [wanton] or reck- less disregard for the life or safety of other persons (and himself ), I am not persuaded beyond a rea- sonable doubt that this was the cause of the death in question," Chipman concluded. Ryan Conlin, a regulatory and employment law partner at Stringer LLP in Toronto, says Hoyeck demarcates the "stark contrast" between health and safety prosecutions and crimi- nal law. "Under provincial occupa- tional health and safety legis- lation, a conviction can arise merely because a standard has not been met, and the issue of whether the offence caused bodily injury or a fatality is a matter that goes to sentencing," he says. "That's a huge difference in the burden of proof." For many years before the 2004 amendments to the Crimi- nal Code, many legal scholars and politicians had advocated a penal approach to dangerous workplaces and corporate liabil- ity for occupational health and safety violations. The report on the Westray mine disaster, entitled "The Westray Story: a Predictable Path to Disaster," is generally considered to be the most sig- nificant impetus behind the amendments. Quite apart from establishing the offence of criminal negli- gence for workplace safety viola- tions, the amendments created a new mechanism to facilitate the conviction of corporation. Under the legislation's terms, corporate criminal activity re- sults when two conditions exist: When the conduct of any offi- cer, director, partner, employee, agent or even a contractor or of a group of representatives breach the duty to take reasonable steps to prevent bodily harm; and if a senior officer — such as a CEO, CFO, a director or other person who has an important opera- tional or policy role — shows a marked departure from the ex- pected standard of care. Initially, prosecutions were rare. "But we started seeing them with much more regularity after about seven or eight years, and their frequency is steadily in- creasing," Conlin says. With the increase in prosecu- tions came a significant uptick in consequences for offenders, culminating in the harshest sentence ever imposed in Can- ada for an individual's role in a workplace accident, a three-and- a-half-year prison term imposed in 2016 by Justice Ian MacDon- nell of the Ontario Superior Court of Justice on project man- ager Vadim Kazenelson for his role in a quadruple fatality on a Toronto construction site on Christmas Eve 2009. MacDonnell found that Kazenelson allowed five of his workers to get on a swing stage although he knew that proper fall precautions were not in place. The stage collapsed from the 13 th f loor, causing the death of four workers and severely injur- ing another. Kazenelson's employer, Me- tron Construction Corpora- tion, pleaded guilty to charges under provincial health and safety legislation and was fined $750,000. "The Criminal Code amend- ments have done their job," Warming says. "The legal risk for workplace violations is much greater than it was in 2004." LT Jeremy Warming says that amendments to the Criminal Code have increased the legal risk for workplace violations for occupational health and safety. Mechanic acquitted after fatal explosion Ontario lawyers say Nova Scotia decision is important "Under provincial occupational health and safety legislation, a conviction can arise merely because a standard has not been met . . ." Ryan Conlin NEWS THE TOP PERSONAL INJURY BOUTIQUES AND ARBITRATION CHAMBERS Complete the survey at canadianlawyermag.com/surveys VOTING IS OPEN UNTIL FEBRUARY 25 TH IT'S TIME TO RANK… Untitled-1 1 2019-01-22 2:22 PM

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