A Nova Scotia Supreme Court justice has more than doubled the fine imposed on a former Dartmouth-area garage owner in the death of an employee, calling the original sentence "demonstrably unfit."
The Crown filed an appeal of the $27,250 fine handed to Elie Hoyeck last summer, nearly seven years after the death of Peter Kempton in a fire.
In a new decision, Justice John P. Bodurtha of the Nova Scotia Supreme Court agreed with the Crown that the fine was not proportional to the severity of the case.
"I find this is a demonstrably unfit sentence for an offender whose 'reckless disregard or deliberate indifference to legislative safety measures' resulted in the death of his employee," Bodurtha wrote in his decision dated May 21.
Bodurtha issued a fine of $67,500, including victim surcharges, and 100 hours of community service.
Gas tank ignited
The incident happened in September 2013 when Kempton, a mechanic, was using an acetylene torch to work on the gas tank of a minivan at Your Auto Mechanic Corner in Westphal.
Kempton was lying under the van, which was on a low trailer. The tank ignited with Kempton trapped underneath.
Hoyeck and another employee pulled Kempton out, but he died of severe burns the next day.
Hoyeck admitted the incident was his fault and pleaded guilty to three counts under Nova Scotia's Occupational Health and Safety Act in September 2019.
The Crown had originally asked for a fine of between $60,000 and $70,000, while Hoyeck's lawyer suggested a fine of $6,000.
In addition to the $27,250 fine imposed last year, the sentencing judge also ordered Hoyeck to spend 25 hours making a garage safety video.
Crown lawyer Alex Keaveny said the new fine is "a significant sentence."
"We think that it is entirely appropriate given Mr. Hoyeck's blameworthiness in all of this," he said.
"Hopefully large sentences like this will impress upon people like Mr. Hoyeck that it's not worth taking the risk with their employees' lives."
Errors in sentencing decision
Bodurtha found several errors in Judge Elizabeth Buckle's sentencing decision.
He wrote that Buckle failed to consider that the Nova Scotia legislature had doubled the maximum penalties for workplace deaths to $500,000, and relied too much on earlier sentences.
He also ruled Buckle did not properly weigh Hoyeck's blameworthiness in causing the accident, and took too much account of his difficult financial circumstances rather than the seriousness of the offence.
Bodurtha is giving Hoyeck four years to pay his fines, "in consideration of Hoyeck's financial circumstances and the current COVID-19 pandemic," he wrote.
Hoyeck must give update in 9 months
Hoyeck must complete his community service safety video within the year.
He will appear before the judge in nine months to give a status update on how his sentence is progressing.
Hoyeck's lawyer was not immediately available for comment.
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