Garage owner ac­quit­ted in death of me­chanic

Man burned when mini­van caught fire

Cape Breton Post - - ATLANTIC -

A for­mer Hal­i­fax au­to­body shop owner has been ac­quit­ted of crim­i­nal neg­li­gence caus­ing the death of a me­chanic who was badly burned when a mini­van sud­denly caught fire as he was us­ing a blow­torch be­neath it.

The charge was the first in the prov­ince un­der Bill C-45 — also known as the Westray law — which was passed after 26 min­ers were killed when meth­ane gas ig­nited in the Ply­mouth, N.S., mine.

Peter Kemp­ton was work­ing un­der a 1998 Dodge Car­a­van at Your Me­chanic Auto Cor­ner in Dart­mouth in Septem­ber 2013 when it be­came en­gulfed in flames.

Kemp­ton suf­fered sec­on­dand third-de­gree burns over 90 per cent of his body and died the next day in hos­pi­tal.

His boss, shop owner Elie Phillip Hoyeck, was ac­quit­ted Fri­day in Nova Sco­tia Supreme Court after Jus­tice James Chip­man found Kemp­ton made a se­ries of choices that con­trib­uted to his own death.

Chip­man said the garage had a myr­iad of safety is­sues, but none of them led to the poor choices of Kemp­ton, a trained me­chanic.

The van was be­ing stripped be­fore be­ing scrapped, and Kemp­ton was us­ing an acety­lene torch to re­move the steel straps hold­ing the gas tank in place.

It ig­nited, with Kemp­ton un­der­neath.

“It was com­plete chaos,” said the judge, and none of the fire ex­tin­guish­ers grabbed by co­worker Joseph Spence worked.

Spence and Hoyeck, who was work­ing in the of­fice, re­moved Kemp­ton but “it was too late,” said Chip­man.

David Giles, an au­to­mo­tive re­pair in­struc­tor and ex­pert wit­ness, tes­ti­fied that he would never use a torch to re­move a gas tank, es­pe­cially in an en­closed space. He de­scribed a messy, chaotic shop and said he’d never seen a garage in that con­di­tion.

“It can be fairly stated that the site pre­sented an ac­ci­dent wait­ing to hap­pen,” said Chip­man in his rul­ing.

Chip­man also said Hoyeck’s ev­i­dence was self-serv­ing and very dis­re­spect­ful of his de­ceased for­mer em­ployee, who Hoyeck called “an id­iot.”

But the judge said Hoyeck did not di­rect Kemp­ton to use the torch, and was out of the room as he used it. Kemp­ton had other safe tools at his dis­posal and did not use them, he said.

“At the time of his death he was a 58-year-old man with many years ex­pe­ri­ence as a me­chanic. Given all of the ev­i­dence, I must find that the tragedy that be­fell him was brought on by his own neg­li­gence,” the judge said.

“In my view it was Mr. Kemp­ton’s de­ci­sion to use the acety­lene torch in such close prox­im­ity to the Car­a­van gas tank that caused the fire, his in­juries and re­sul­tant death.”

The case was heard by judge alone fol­low­ing two days of tes­ti­mony, and after a ju­ror asked why the Crown at­tor­ney had searched his pro­file on LinkedIn.

Bill C-45 was passed in March 2004, es­tab­lish­ing new le­gal du­ties for work­place health and safety and im­pos­ing tougher penal­ties for vi­o­la­tions that re­sult in in­juries or death.

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