R. v. FCA Canada Inc., 2017 ONCJ 910

CITATION: R. v. FCA Canada Inc. , 2017 ONCJ 910 DATE: January 31, 2017 Court File No. 13-5315 Ontario Court of Justice R. v. FCA Canada Inc. Heard: February 18, 25, June 17, 29, October 5, 17, 2016 Judgment: January 31, 2017 A. Amenta, Justice of the Peace Counsel: For the Crown: L. Forrestier For the Defendant: R. England Reasons for Judgment

Part I: Introduction 1 . The Defendant FCA Canada Inc., formerly Chrysler Canada Inc., (“FCA”) is in the business of manufacturing motor vehicles from its premises at 2000 Williams Parkway in Brampton (the “facility”) and elsewhere. 2 . On July 12, 2012, Heip Ho (“Ho”) an FCA employee was working at the Underbody Re-Spot Station (the “URS Station”) at the facility inspecting and repairing welds on vehicle under-bodies. [1] 3 . The URS Station is a platform 42 inches above the plant floor and is approximately 47 feet long and 26 feet wide.

The URS Station was guarded on all sides except where vehicles enter and exit the platform on a conveyor. There are no guardrails in those two areas along the 26 feet width of the platform in order to allow for vehicle travel onto and off the platform. [2] 4 . Ho fell from a

section of the platform that had no guardrail. Ho fell onto a safety mat on the floor (the “safety mat”). The safety mat then activated an alarm which shut down the conveyor. His injuries included 2 broken ribs, two fractures to his eye socket, bruising to head/brain and 2 broken front teeth, from which he has made a full recovery. [3] 5 . FCA was charged with the following: On or about the 12 th day of July, 2012, at the City of Brampton, in the Central West Region, in the Province of Ontario did commit the offence of failing, as an employer, to ensure that the measures and procedures prescribed by section 13(1)(

b) of Ontario Regulation 851/90, R.R.O. 1990, as amended (the “Regulation”), were carried out at the workplace located at 2000 Williams Parkway, Brampton, Ontario, contrary to section 25(1) (

c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ., as amended (the “Act”). Particulars The defendant failed to ensure a guardrail was in place at an open side of the Underbody Re-Spot raised floor/platform.

6 . The charge is a strict liability offence which means that the Crown must prove the actus reus beyond a reasonable doubt. The Defendant argued that s. 20 of the Regulation (safeguards in relation to vehicles) should have been the applicable provision. FCA has also relied upon the exceptions or exemptions found at s. 2 (equivalency), 13(2)(c) (no guardrails required for “pits”) of the Regulation as well as the defence of due diligence, all of which will be addressed below. 7 . Section 66(3) of the Act states, inter alia : Defence

(3) On a prosecution for a failure to comply with, (b) clause 25 (1) (b), (

c) or (d); or it shall be a defence for the accused to prove that every precaution reasonable in the circumstances was taken. [4] 8 . Section 47(3) of the Provincial Offences Act , R.S.O. 1990, c. P.33, states: Burden of proving exception, etc.

(3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information. s. 47 (3). 9 . Accordingly, the defendant has the burden of proving the s. 2 and 13(2)(

c) exceptions or exemptions as well as the due diligence defence on the balance of probabilities.

Part II: The Actus Reus – The Facts 10 . The parties filed an Agreed Statement of Facts which also includes the following: 1. Chrysler Canada Inc. (“Chrysler”) is an “employer” as that term is defined in the Occupational Health and Safety Act (“OHSA”). 2. The Chrysler facility at 2000 Williams Parkway in Brampton is a “workplace” and an “industrial establishment” as these words are defined in the OHSA (the “facility”). 3. Mr. Heip Ho was, at all material times, a “worker” as defined in the OHSA . 4. This Court has jurisdiction over this matter. 5. The facility was acquired by Chrysler in 1987. 6. There are approximately 2,700 hourly production and skilled trade workers

employed at the facility. 7. Vehicles are manufactured in the facility on an assembly line. The vehicles are moved along the assembly line on conveyor systems that, insofar as relevant to this proceeding, travel from time to time from one work station to another. At the location at issue in this proceeding, known as the URS Station, there were two conveyors transporting vehicles in a westerly direction. The conveyors are part of an assembly line. 9. The conveyors by which vehicles are transported on to and off the URS Station platform and the Weld Inspection Station platform were installed in 1996. 10.

Since installation of the URS Station platform on the assembly line Chrysler has, depending on vehicle demand, operated two to three shifts per day at the facility. During each shift one person works at the URS Station and one person works on the immediately adjacent Weld Inspection Station. 11 . Mr. Ho had worked at the URS Station for 15 years. 12 . On Thursday July 12, 2012 Mr.

Ho was working at the URS Station inspecting and repairing welds on vehicle under-bodies. (At the time of the incident, the type of work being performed and the position of this worker while performing this work on the platform was consistent with his regular work activities.) 14. There were no witnesses to the incident. (Mr. Ho recalls having been on the platform in the area of the entry point of vehicles and next recalls being on the safety mat located on the plant floor. There is no evidence as to what caused Mr. Ho to fall.)

Part III: The Actus Reus – The Law 11. The applicable provision of the Act are as follows: Duties of employers 25.

(1) An employer shall ensure that, (

c) the measures and procedures prescribed are carried out in the workplace; 12. The applicable provisions of the Regulation are as follows:

13 .

(1) Subject to subsection (2), there shall be a guardrail, (

a) around the perimeter of an uncovered opening in a floor, roof or other surface to which a worker has access; (

b) at an open side of, (

i) a raised floor, mezzanine, balcony, gallery, landing, platform, walkway, stile, ramp or other surface, or 13. The parties agreed that the widths of the URS Station had no guardrails and that it was a platform. [5] I am satisfied beyond a reasonable doubt that FCA failed to carry out measures and procedures as prescribed by the Regulation. In particular, it failed to have a guardrail at the width of the URS Station, which was a platform.

Part IV: s. 20 – Vehicles and Pedestrians 14 . FCA argues that the URS Station does not require guardrails. It relies on s. 20 of the Regulation, which reads as follows: Barriers, warning signs or other safeguards for the protection of all workers in an area shall be used where vehicle or pedestrian traffic may endanger the safety of any worker. 15 . Ronald Oriet (“Oriet”) a Project Manager for FCA’s Windsor assembly plant testified for FCA. Oriet conceded that at the URS Station, the work is conducted on vehicle frames. They cannot be driven and cannot be considered vehicles.

James Wilkinson (“Wilkinson”), a former Provincial Engineer and Senior Engineering Consultant with the Ministry also testified on behalf of FCA. He conceded that s. 20 is meant to address hazards posed to workers from moving vehicles. It does not address fall hazards. I am not satisfied that s. 20 of the Regulation applies to the work being conducted on the URS Station. 16 . In any event, even if s. 20 applied to the work being conducted on the URS Station, I do not see why the provisions contained in s. 13(2)(

c) regarding guardrails cannot be concurrently applicable.

Part V: Post-Accident Remedial Measures 17 . Both parties tendered undisputed evidence regarding the remedial measures implemented by FCA after the accident. [6] 18 . By Order dated July 16, 2012, Ministry of Labour (the “Ministry”) Inspector Chris Lynch (“Lynch”) required FCA to install guardrails along the open widths of the URS Station by July 31, 2012. In his Order, Lynch indicated that “An equivalency as stated in

section 2 of the Regulations for Industrial Establishments can be used in applying the Regulations.” 19 . In its letter of July 27, 2012, FCA indicated that guardrails could not be installed along the widths of the URS Station. It stated that “there are, by design, open spaces around the perimeter of the deck so as to allow vehicles to proceed into the URS station. Those open spaces are wide enough to permit the movement of the vehicles on to the deck.” Instead, FCA proposed other remedial measures. 20 .

In further exchanges of Field Visit Reports by Lynch and correspondence from FCA, the Ministry ultimately accepted the following compliance plan [7] (the “Compliance Plan”) which was put in place: 1. extending guardrails from the stairs that lead up to the raised platform; 2. installing delineator or “wobble” posts perpendicular with the end of the handrail extension; 3. moving inclined yellow and black warning plates (the “warning plates”) that had been attached to the open edges of the platform to

the platform surface; 4. painting the floor of an “awareness zone” adjacent to the open widths with yellow and black stripes; 5. installing one-way “swing gates” that swing inwards where the vehicles enter the URS Station but not where they exit the platform as this would cause a “pinch point” hazard; 6. the swing gates do not extend the entire opening. As a result, FCA installed “slings” to be used as temporary guardrails if a worker needs to work near the edge of the platform (for maintenance purposes, for example). Workers would be trained on how to use the sling guardrails.

Part VI: s. 2- Equivalency 21 .

Section 2 of the Regulation states: In applying this Regulation, the composition, design, size and arrangement of any material, object, device or thing may vary from the composition, design, size or arrangement prescribed in this Regulation where the factors of strength, health and safety are equal to or greater than the factors of strength, health and safety in the composition, design, size or arrangement prescribed. 22 . Richard Taggart (“Taggart”), a retired Ministry inspector with extensive experience in industrial establishments, also testified on behalf of FCA. 23 .

At the time of the accident, the only measures in place to prevent a fall from the open widths of the platform were the warning plates affixed to the open edges (the safety mats located below the edge provided additional protection but could not prevent a fall itself). 24 . If the Compliance Plan did not provide equal or greater protection as guardrails, as stated by both Oriet and Taggart, it follows that what was in place at the time of the accident, namely, the warning plates, failed to provide a design equal to or greater than guardrail in terms of safety.

Further, Oriet conceded that at the time of the accident, there was nothing to prevent workers from falling off the platform openings. 25 . FCA has failed to prove on the balance of probabilities that the measures in place at the time of the accident provided a design, size or arrangement equal to or greater than a guardrail in terms of strength, health and safety.

Part VII: s. 13(2)(c) - Was the URS Station a “Pit”? 26 .

Section 13 of the Regulation states: Subject to subsection (2), there shall be a guardrail, (

a) around the perimeter of an uncovered opening in a floor, roof or other surface to which a worker has access; (

b) at an open side of, (

i) a raised floor, mezzanine, balcony, gallery, landing, platform, walkway, stile, ramp or other surface, or (ii) a vat, bin or tank, the top of which is less than 107 centimetres above the surrounding floor, ground, platform or other surface; and (

c) around a machine, electrical installation, place or thing that is likely to endanger the safety of any worker. (2) Subsection (1) does not apply to, (

a) a loading dock; (

b) a roof to which access is required only for maintenance purposes; and (

c) a pit used for, (

i) work on an assembly line, or

(ii) maintenance of vehicles or similar equipment. 27 . Oriet claimed that the URS Station was an “inverted pit.” 28 . Both Oriet and Taggart described the evolution of the assembly line. Pits were commonly found at auto assembly plants. However, they posed particular hazards: workers could fall into them and noxious gasses could accumulate in them. As a result, the work was moved onto platforms. 29 . Taggart testified that he worked, unsuccessfully, on a committee to recommend updates to the Regulation to take these changes into account. 30 .

Taggart testified that platforms with open widths are common in the industry and that as an inspector, he had never laid charges for failing to have guardrails at these locations. 31 . By implying that Lynch’s decision to lay the current charge was unreasonable, Taggart’s testimony came close to providing opinion evidence on the “ultimate issue” before the Court. Although there is no strict rule against the admissibility of such evidence [8] , I do place little weight on it as it relates to the very root of the issues in this case. 32 . In interpreting the provisions of s. 13(2) (

c) of the Regulation, I need to give it its “natural and ordinary meaning.” [9] 33 . The Concise Oxford Dictionary [10] contains, inter alia , the following

definitions of “pit”: Natural hole in the ground; hole made in digging for mineral etc. or for industrial purposes; sunken area in workshop floor for access to underside of motor vehicles; 34 . In Re Rizzo & Rizzo Shoes Ltd., [11] the Supreme Court further clarified: Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The

Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament. 35 . The Supreme Court also relied upon s. 10 of the

Interpretation Act , R.S.O. 1980, c.219, which provided that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and

interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.” [12]

36 . Lastly, the Supreme Court stated: It is a well established principle of statutory

interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an

interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to

interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88). [13] 37 . In Sullivan on the Construction of Statutes , [14] the author writes: Jurisdiction to adopt a strained

interpretation . A strained

interpretation is one that departs from the ordinary meaning of the text to a noticeable extent, but is nonetheless considered acceptable because it paraphrases the text rather than amends it. The jurisdiction to adopt a strained

interpretation is well established. It is normally exercised to promote the purpose of legislation or avoid absurdity. 38 . Mr. England contends that his proposed strained definition of “pit” is necessary to avoid an absurdity for the following reasons: 1. It is an industry practice not to have guardrails along the ends of platforms in order to allow vehicles to enter/exit; 2. Unguarded platforms at other plants similar to the URS Station have not resulted in charges; 3.

The Regulation fails to address changes implemented throughout the industry whereby assembly lines have been moved from pits to platforms; and 4. The Compliance Plan implemented after the accident and accepted by the Ministry does not include the installation of guardrails along the open sides. 39 . Public welfare statutes such as the Act are to be interpreted liberally in order to satisfy their intended role in safeguarding a minimum level of protection for the health and safety of workers. Sharpe J.A. writing for the Court of Appeal in Ontario (Ministry of Labour) v.

Hamilton stated: [15] The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical

interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided. 40 . In Ontario Ministry of Labour v. Sheehan’s Truck Centre Inc . [16] the Court of Appeal provided further clarification on the issue of statutory

interpretation: That said, consideration of the protective purposes of the legislative scheme is not the only consideration when attempting to ascertain the scope of s. 56 of the Regulation. The Act seeks to achieve "a reasonable level of protection" (emphasis added) for workers in the workplace. For obvious reasons, neither the Act nor the Regulation mandate or seek to achieve the impossible -- entirely risk-free work environments. The modern method of statutory

interpretation requires that the words of s. 56 of the Regulation be interpreted in the entire context in which they are used and in accordance with their grammatical and ordinary sense, having regard to the purposes of the Regulation and the Act as a whole. As I will explain, it is my opinion that by failing to conduct this contextual and purposive examination of s. 56 of the Regulation, the SCAC judge fell into error. 41 . The object of the Act is found at s. 4.1(2) . It includes: 1. To promote occupational health and safety and to promote the prevention of workplace injuries and occupational diseases.

2. To promote public awareness of occupational health and safety. 3. To educate employers, workers and other persons about occupational health and safety. 4. To foster a commitment to occupational health and safety among employers, workers and others 42 . The object of s. 13(1)(

b) of the Regulation is the prevention of falls from elevated workplaces. I do not accept FCA’s argument that the “ordinary meaning” of “pit” would result in an absurdity. On the contrary, any

interpretation that would include a raised platform as a “pit” would defeat the remedial nature of the regulatory requirement and would fail to provide “a reasonable level of protection” from falling from an elevated workplace. 43 . FCA has failed to convince me on the balance of probabilities that the URS Station was a “pit” not requiring a guardrail.

Part VIII: Due Diligence 44 . The Agreed Statement of Facts also states the following: 17. No one has ever fallen off the URS Station platform prior to the incident involving Mr. Ho. 18. No safety issues or concerns have been raised by Chrysler, its staff or hired third parties with respect to the absence of guardrails at the front and tail of the URS Station in workplace inspections, audits or with the Joint Occupational Health and Safety Committee (“JHSC”). 19. At the Chrysler facility the JHSC conducts a weekly inspection of a part of the workplace.

There are ninety of these inspections a year such that the entire facility is inspected annually. In addition there are safety audits that include: (

a) SMAT Audits conducted by management and Unit Leaders/Supervisors Audits. The management audit is done monthly and the Unit Leaders do their audit weekly; (

b) Internal Audits conducted by plant internal auditors that is a continuous process; (

c) M.E. Corporate Group Audits conducted which are conducted multiple times a year; (

d) World Class Manufacturing Audits done twice a year; (

e) JSO Standard Auditing (9001 and 1401). 20. All managers and supervisors have received training in OHSA supervisory obligations including training with respect to hazard identification and there are two management and two union members working full time on ensuring OHSA compliance. 45 . Further, the warning plates and safety mats were in place at the time of the accident.

46 . Whitten J. in R. v. Stelco Inc. [17] stated: [31] A safe working environment at a minimum must trap for accidental, inadvertent and careless behaviour on the part of the employees. As Justice Harris stated in R. v. Commodore Business Machines

(1985) Nov. 15 Provincial Court (Criminal Div.); “ the scheme of the Act appears to be to protect the foolish, heedless, thoughtless employee; the wise careful or thoughtful one will protect himself or herself. ” (at p.11) Regrettably, the reality is that “ no one in any occupation can work 100% of the time without occasional carelessness ”. (ref. Collins J., R. v.

Spanway Buildings Ltd. , April 3, 1986 Provincial Court (Criminal Div.)) [33] The trial judge noted that in this particular context, “(t)he real question here is what might be anticipated by a reasonable person, did a danger exist and could it be prevented by taking reasonable steps, not whether an employee might take a foolish or thoughtless course of action, it being accepted that people will do foolish or thoughtless acts on the spur of the moment of the ongoing job at hand, or for whatever reason. We do not know exactly why Mr.

Turner chose to enter the pit area .” [34] Obviously, the basement area of the bundler packager was perceived by Stelco as a dangerous area, it had a lock out policy or protocol before entry. Signs were posted to that effect. As the trial judge had noted an internal audit prepared as a result of discussions with Ministry representatives had noted this to be a dangerous area. Specifically, the audit (Exhibit #33) contained comments noting that there were unsecured gates and that an interlock was required. [35] The trial judge was satisfied with the adequacy of the training of the employees.

However, “ in (his) opinion it would have been a simpler further step to have placed a form of preventive barrier so the worker would not, or could not enter the pit area without taking some further step than simply pushing open a gate and entering the pit area .” The trial judge too noted that there was technology available (essentially some form of interlock) which would shut the machinery down by virtue of the presence of an employee. The jurist concluded that a further step is the form of a locked/secured gate, or interlock was required.

In other words, that the measures taken were not enough or completely reasonable in the circumstances. [37] Is the finding that due diligence was not made out because there were further steps that could have been taken relative to a swing open gate, undermined by the unexpectedness of the actions of Mr. Turner? The learned trial judge had noted “(h)uman nature being what it is, wherever guards need to be put in place the Act specifies that they will be put in place. We cannot always be expected to do what is sensible and safe in our everyday world.

The purpose of the Act is, as often as not, to protect from our own shortcomings. This is a public welfare statute and becomes a question then when dealing with due diligence, what might be expected from a reasonable man to protect an employee from a dangerous situation .” These sentiments are consistent with what has been stated above with respect to the philosophy of the statute generally and the impossibility of totally trapping for the actions of the reckless or determined employee. There will always be the possibility that an employee could circumvent whatever safety device is in place.

However, the objectives of the Act can be met by making that circumvention as difficult as can be reasonably possible. The existence of an unlocked gate presents no hindrance. At the very least a locked or secured gate presents a hindrance to determined effort, a lock out mechanism completely meets such recklessness. The bottom line is that the conclusion of the trial judge that a reasonable approach was that more should have done, was not, “ a palpable or overriding error .” It was a finding that could be legitimately made in the circumstances. 47 . R. v.

Stelco Inc. [18] also addressed the issue of reasonable foreseeability. It states: Richard Randall was in charge, he made that very clear at page 111 of the transcript. He ordered the workers to make modifications. He did not personally inquire as to how those modifications were to be performed. Had he given the matter any thought, he should have realized that the workers would choose the simplest method of rectifying the problem, i.e. get off the platform onto the machine.

The location of the platform around the electric eye, the machine being only about a foot away and energized, and no guard rails being installed, should have led to the inevitable conclusion that a lock-out was necessary. This was a foreseeable consequence. All reasonable care was not taken to insure compliance with the Act and protection of the workers, regardless of their own incompetence, recklessness or stupidity. 48 . The Agreed Statement of Facts also contains the following: 17. No one has every fallen off the URS Station platform prior to the incident involving Mr. Ho. 18.

No safety issues or concerns have been raised by Chrysler, its staff or hired third parties with respect to the absence of guardrails at the front and tail of the URS Station in workplace inspections, audits or with the Joint Occupational Health and Safety Committee (“JHSC”). 19. At the Chrysler facility the JHSC conducts a weekly inspection of a part of the workplace. There are ninety of these inspections a year such that the entire facility is inspected annually. In addition there are safety audits that include: (

a) SMAT Audits conducted by management and Unit Leaders/Supervisors Audits. The management audit is done monthly and the Unit Leaders do

their audit weekly; (

b) Internal Audits conducted by plant internal auditors that is a continuous process; (

c) M.E. Corporate Group Audits conducted which are conducted multiple times a year; (

d) World Class Manufacturing Audits done twice a year; (

e) JSO Standard Auditing (9001 and 1401). 20. All managers and supervisors have received training in OHSA supervisory obligations including training with respect to hazard identification and there are two management and two union members working full time on ensuring OHSA compliance. 49 . Nevertheless, despite the foregoing measures and the warning plate, falling from the open widths of the URS Station was a reasonably foreseeable hazard. I reach this conclusion for the following reasons: 1.

The Agreed Statement of Facts states that “ at the time of the incident, the type of work being performed and the position of this worker while performing this work on the platform was consistent with his regular work activities; [19] 2. On July 16, 2012 Lynch visited the facility and inspected the URS Station. Although he did not see Ho performing his duties, he concluded that Ho worked “all over” the platform. 3. The safety mat was located below the platform opening indicating that FCA recognized the hazard; and 4.

Both Lynch and Oriet testified that at the time of the accident, there was nothing to prevent workers from falling off the platform openings. 50 . I had asked for submissions on whether or not I could consider the remedial measures implemented after the accident in assessing the due diligence defence. However, given my findings at paragraph 49 herein, it is unnecessary for me to address the issue. 51 . FCA has failed to prove on the balance of probabilities that every precaution reasonable in the circumstances was taken. 52 .

I find FCA guilty of failing, as an employer, to ensure that the measures and procedures prescribed by section 13(1)(

b) of the Regulation were carried out at the workplace, contrary to section 25(1) (

c) of the Act . Released on January 6, 2017 A. Amenta, Justice of the Peace