Decision of the Week – Employer Charged With Workplace Fatality

This week’s decision comes from Nova Scotia. I found there were two very interesting facets to it that warranted bringing to the attention of members in Manitoba.

R. v. Hoyeck, 2019 NSSC 7 concerns an employer who was charged with failing to take reasonable steps to prevent bodily harm to an employee. The trial began before a judge and jury, but after two days, the jury was dismissed. After jury selection, one of the jurors sent a note to the judge about investigation into his LinkedIn account by the Crown (para. 3). As noted in this article by Norm Keith at Fasken:

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. 

Nova Scotia Employer Acquitted in Westray Bill Prosecution

The benefit of this development is there is now additional case law on the subject of the responsibility of an employer in the death of an employee. There is a very high standard of proof required to convict an employer of Occupational Health and Safety criminal negligence. In this instance, the employee was a licensed Red Seal Mechanic and more qualified in his work than the owner. Although Chipman, J. was critical of the employer in his workplace practices:

…
Based on all of the evidence it is impossible for me to conclude beyond a reasonable doubt that Mr. Hoyeck did anything or omitted to do anything (that was his duty to do or not do) such that he is guilty of criminal negligence causing death.  …

R. v. Hoyeck, para. 94