In the case of a tragic workplace fatality, a Nova Scotia employer was acquitted of Occupational Health and Safety ("OHS") Criminal Negligence in the province where the Westray mine disaster took place over fifteen years ago.[1] The accused owner of an auto body shop was charged with criminal negligence causing death. A mechanic employed at the auto body shop attempted to remove a vehicle's gasoline tank with an acetylene torch. A fire ensued and the worker sustained burns to ninety per cent of his body. He died the next day. At the time of the fire, the accused owner of the auto body shop was working in the office of the garage.
The court heard the testimony of eleven prosecution witnesses. It also provided lengthy reasons, even though the trial started in the Nova Scotia Supreme Court as a trial by judge and jury. The jury was discharged after one of the prosecutors, Mr. Keaveny was the subject of controversy about his use of social media to investigate prospective jurors. One juror wrote a note to the judge, stating, among other things, "I have noticed that Mr. Keaveney (sic) has searched up myself on linked-in... I just don't think it's appropriate for the Crown to search with his name attached. We should not be made aware that he was looking into our backgrounds in that manner." As a result, the Crown and defence counsel agreed that the jury should be dismissed and the trial continued with a judge alone.
The prosecution argued that although the deceased was somewhat responsible and contributorily negligent to the accident, that the owner of the auto body shop was also criminally negligent. The trial judge said: "based on all the evidence I find that Mr. Hoyek asked Mr. Kempton to remove the catalytic converter and gas tank without specifying any tools that must be used. Mr. Hoyek did not go under the Caravan and was not present when Mr. Kempton went under the vehicle. From the evidence I conclude that Mr. Kempton chose what tools to use when he went about removing the catalytic convertor and in his attempt to remove the gas tank."
The court went on to say: "there is no evidence to suggest that Mr. Hoyek knew that Mr. Kempton was going to use a torch to remove the gas tank. Indeed, a logical inference is that Mr. Kempton only opted for the torch after he encountered the strip bolt on the second strap. This was an unsafe procedure and Mr. Kempton, as a trained mechanic, should have known this. In my view, it would be unreasonable to suggest that Mr. Hoyek an untrained mechanic/shop owner, should have supervised his employee, a Red Seal mechanic."
The Court reviewed the Westray Bill limited case law, conducted a thorough analysis of the causation of the workplace fatality, and held that the evidence did not allow for the conclusion that it was the accused's instruction that caused the deceased to use the torch or even that he knew the worker was going to use the torch to remove the gas tank. Although the overall condition of the garage showed that the accused demonstrated poor housekeeping and even recklessly disregard the lives or safety of others, it was not the cause of the accident that led to the workplace fatality.
The dismissal of the charges, with difficult and emotional facts, reinforces the high standard of proof required to convict an individual of OHS Criminal Negligence. The open scrutiny of potential jurors by one of the prosecutors, without anonymizing who was viewing Linked-In social media profiles, was concerning. It resulted in a jury being dismissed and a trial being conducted by a judge alone. However, this development provided reasons for judgment that would not have been given in a jury trial. Therefore, this case adds to the jurisprudence under the Westray Bill. This is one further case to provide guidance to employers, directors and officers, and managers who are exposed to the incredibly high penalties associated with a conviction for OHS Criminal Negligence.
[1] R. v. Hoyeck, [2019] N.S.J. No. 8
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