Ontario (Ministry of Labour) v. Magna Seating Inc ., 2015 ONCJ 7

Citation: Ontario (Ministry of Labour) v. Magna Seating Inc ., 2015 ONCJ 7 IN THE MATTER OF the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 and the Industrial Establishments Regulation, R.R.O. 1990, Reg. 851 . Between Her Majesty The Queen In Right Of Ontario (Ministry of Labour) Prosecutor and Magna Seating Inc. operating as Mississauga Seating Systems Defendant Ontario Court of Justice Mississauga, Ontario Quon J.P. Reasons for Judgment Trial Heard: Sept. 25, and 26; October 2, and 3, 2014. Judgment rendered: January 9, 2015. Charges : (1) failing as an employer to ensure that the measures and procedures prescribed by s. 45(

b) of O. Reg. 851/90 were carried out at a workplace, contrary to s. 25(1) (

c) of the O.H.S.A , in particular: the defendant had failed to ensure material, articles or things were transported, placed or stored so that the material, articles or things would not tip, collapse or fall, which then resulted in a worker being struck by a seat at a work station on line #1. (2) failing as an employer to ensure that the measures and procedures prescribed by s. 26 of O. Reg. 851/90 were carried out at a workplace, contrary to s. 25(1) (

c) of the O.H.S.A , in particular: the defendant failed to ensure a machine was shielded or guarded so that the product or material being processed would not endanger the safety of any worker, which then resulted in a worker being struck by a seat at a work station on line #1.

Counsel: K. Ballweg, counsel, and T. Tanentzap, student-at-law, for the Ministry of Labour. C. Little and G. Ryans, counsel for Magna Seating Inc. o/a Mississauga Seating Systems. Cases Considered or Referred To: Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75 , [2013] O.J. No. 520 (O.C.A.), per MacPherson, Armstrong and Blair JJ.A. Deemar v. College of Veterinarians of Ontario (2008), 2008 ONCA 600 , 298 D.L.R. (4th) 305 (O.C.A.), per Lang, Juriansz andMacFarland JJ.A. Graat v. R. (1982), (SCC), 31 C.R. (3d) 289 (S.C.C.). Ontario (Ministry of Labour) v. Dana Canada Corp., [2008] O.J.

No. 5005 (O.C.J.), per Harris J. Ontario (Ministry of Labour) v. Hamilton (City) (2002), (ON CA), 58 O.R. (3d) 37 (O.C.A.), per Weiler, Sharpe andSimmons JJ.A. R. v. Blair, [1993] O.J. No. 1477 (Ont. Ct. (Prov. Div.)), per Harris J. R. v. Canada Brick Ltd., [2005] O.J. No. 2978 (S.C.J.O.), per Hill J. R. v. Cancoil Thermal Corp., (ON CA), [1986] O.J. No. 290 (O.C.A.), per Martin, Lacourciere and Goodman JJ.A. R. v. Cancoil Thermal Corp. (1988), 1 C.O.H.S.C. 169 (Ont. Prov. Ct.), per Megginson J. R. v. Dofasco Inc., 2007 ONCA 769 , [2007] O.J. No. 4339 (O.C.A.), per Winkler C.J.O., Simmons and MacFarland JJ.A.

R. v. Gonder (1981), (YK TC), 62 C.C.C. (2d) 326 (Y.T.C.). R. v. Kidd Creek Mines Ltd., [1989] O.J. No. 3333 (Ont. Prov. Ct. (Crim. Div.), Caldbick J. R. v. London Excavators & Trucking Ltd., (ON CA), [1998] O.J. No. 6437, 125 C.C.C. (3d) 83, 40 O.R. (3d) 32(O.C.A.) per McKinlay, Catzman and Rosenberg JJ.A. R. v. Modern Niagara Toronto Inc., [2003] O.J. No. 3332 (O.C.J.), per Quon J.P.

R. v. Mohan, (SCC), [1994] S.C.J. No. 36 (S.C.C.). R. v. Prince Metal Products Ltd., [2011] O.J. No. 6450 (O.C.J.), per Hoffman J. R. v. Rio Algom Ltd. (1988), (ON CA), 66 O.R. (2d) 674, 46 C.C.C. (3d) 242 (O.C.A.) per Howland C.J.O, Goodmanand Grange JJ.A. R. v. Sault Ste. Marie (1978), (SCC), 85 D.L.R. (3d) 161, 40 C.C.C. (2d) 353 (S.C.C.). R. v. Sault Ste. Marie (City) Public Utilities Commission, [1989] O.J. No. 2622, 3 C.O.H.S.C. 1 (Ont. Prov. Ct. (Crim. Div.)), per GrecoJ. R. v. Seeley & Arnill Aggregates Ltd., [1993] O.J. No. 443 (Ont. Ct. (Gen. Div.)) per Logan J. R. v. Strabag Inc., [2013] O.J.

No. 6032 (O.C.J.), per Wilkie J. R. v. Stelco Inc., (ON SC), [2006] O.J. No. 3332 (S.C.J.O), per Whitten J. R. v. Stelco Incorporated (1989), 1 C.O.H.S.C. 76 (Ont. Prov. Div.), Bennett J. R. v. National Wrecking Co., [2005] O.J. No. 3538 (O.C.J.), per Keast J. National Steel Car Limited v. U.S.W.A., Local 7135, 2010 CarswellOnt 5615 (O.L.R.B.), per Vice-Chair McKellar R. v. Timminco Ltd. (2001), (ON CA), 54 O.R. (3d) 21, [2001] O.J. No. 1443 (O.C.A.) per Osborne A.C.J.O.,Charron and Feldman JJ.A. R. v. Wyssen (1992), 10 O.R. (3d) 195 (O.C.A.) per Dubin C.J.O., Finlayson, and Blair JJ.A.

Statutes, Regulations and Rules Cited: Occupational Health and Safety Act, R.S.O. 1990, c. O.1, ss. 1(1), 9(33), and 25(1)(c). Industrial Establishments Regulation (O.H.S.A.), R.R.O. 1990, Reg. 851, ss. 26, and 45(b). Legislation Act, 2006, c. 21, Sched. F, ss. 64, and 67. Authorities or Reference Material Referred to or Considered:

Allen, R.E., ed., The Concise Oxford Dictionary of Current English, eight edition (New York: Oxford University Press, 1990), “fall” at pp. 420-421; “machine” at p. 711, and “place” at p. 720 . Archibald, T., Jull, K., and Roach, K. Regulatory And Corporate Liability: From Due Diligence To Risk Management (Aurora, Ontario: Canada Law Book Inc., 2007). Paciocco, D.M. and L. Stuesser, L., The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011). Strantz, N.J., "Beyond R. v. Sault Ste. Marie : The creation and expansion of strict liability and the `due diligence' defence", (1992) 30 Alta. L.

Rev. (No. 4) 1233. Exhibits Entered: Exhibit "1" - copy of the Business Names Report, produced December 12, 2012, at 14:34:30, that indicates Mississauga Seating Systems is registered as a style name for Magna Seating Inc. (Ontario corporation number 1653871), and indicating B.I.N as 170028757, mailing and business address as 337 Magna Drive, Aurora, Ontario, Canada L4G 7K1, and with a registration date of January 8, 2007 and expiry date of January 6, 2017, and also indicating the corporation’s status as active and the jurisdiction is Ontario (2 pages).

Exhibit " 2 " - copy of the Corporate Profile Report produced October 24 , 2012, at 17:15:43, for Magna Seating Inc. , indicating an Ontario corporation number of 1653871, and indicating an amalgamation date of April 3, 2005, for two corporations named 893898 Ontario Inc. and Intier Automotive Inc., with the corporate name of Magna Seating Inc. for that amalgamated corporation becoming effective on June 30, 2008 (8 pages).

Exhibit "3" - copy of “Field Visit Report” dated June 14, 2012, prepared by Inspector Shela Mirza, in respect to the premises of Magna Seating Inc. o/a Mississauga Seating Systems located at 400 Courtneypark Drive East, Mississauga, Ontario, and indicating that copies provided to Stacey Kapparis, HR Manager, and Michael Kerr, dayshift H+S rep. (2 pages).

Exhibit "4" - copy of Safety Alert document issued for work centre 1630 by Adrian Byrne of Magna Seating (Mississauga Seating Systems) on June 12, 2012, and effective until December 12, 2012, indicating source of issue was workplace injury and also showing a photograph of containment worker holding seat in upright position with both hands, and instructions for immediate containment; and with attached certificate under s. 67(1) of O.H.S.A. signed by Inspector Shela Mirza on September 17, 2014 (2 pages).

Exhibit "5" - copy of two photographs taken by Inspector Shela Mirza on June 14, 2012, of workstation 1630 on assembly line #1, at the plant of Magna Seating Inc. o/a Mississauga Seating Systems, located at 400 Courtneypark Drive East, Mississauga, Ontario (2 pages): Photo A – photograph of “L” shaped device, which has been described as a “stopper guard” at workstation 1630 on assembly line #1 that had been added after the accident of June 11, 2012.

Photo B – photograph of a car seat in the upright position and showing the “L” shaped device, which has been described as a “stopper guard”, at workstation 1630 on assembly line #1. Exhibit "6" - photocopy of Inspector Shela Mirza’s notes made in respect to her visit on June 14, 2012, to the plant of Magna Seating Inc. o/a Mississauga Seating Systems, located at 400 Courtneypark Drive East, Mississauga, Ontario, and her investigation of the June 11, 2012, accident in which a worker had been struck by automobile seat at workstation 1630 on Assembly line #1 (12 pages).

Exhibit "7" - copy of the minutes of the monthly meetings of the Joint Health and Safety Committee of the plant in Mississauga operated by Magna Seating Inc. o/a Mississauga Seating Systems, for March 28, 2012, April 26, 2012, and June 5, 2012 (pages numbered 91 to 109); and with attached certificate under s. 67(1) of O.H.S.A. signed by Inspector Shela Mirza on September 17, 2014

(19 pages). Exhibit "8" - copy of “Magna Seating Incident Investigation Report” in respect to the incident of February 7, 2012, reported at 11:00 p.m. to Janjeev Joshi, in which Lily Conway with the assistance of worker safety representative Ramakant Pete completed page 1, and signed and dated February 7, 2012, by Lily Conway; a supervisor completed pages 2 to 4; and with attached certificate under s. 67(1) of O.H.S.A. signed by Inspector Shela Mirza on September 17, 2014 (5 pages).

Exhibit "9" - copy of “Magna Seating Health and Safety MOL Critical Injury Notification Report” in respect to the accident occurring at 8:00 p.m. on June 11, 2012, involving Sapna Sharma, prepared and dated on June 12, 2012, by Stacey Kapparis, HR Manager and by Ramakant Pete, worker certified member; and with attached certificate under s. 67(1) of O.H.S.A. signed by Inspector Shela Mirza on September 17, 2014 (3 pages).

Exhibit "10" - copy of Sapna Sharma’s out-of-court statement taken and typed out by Inspector Shela Mirza on July 6, 2012, at Tim Horton’s coffee shop at Mavis Road and Central Parkway in Mississauga, which was signed and dated July 6, 2012, by Sapna Sharma after Sapna Sharma had reviewed the typed statement, and which is contained in Tab 2 of Defence Document Book (3 pages).

Exhibit "11" - copy of Lily Conway’s out-of-court statement taken and typed out by Inspector Shela Mirza on July 12, 2012, at Lily Conway’s residence, and signed and dated July 12, 2012, by Lily Conway after Lily Conway had reviewed the typed statement, and which is contained in Tab 3 of Defence Document Book (5 pages).

Exhibit "12" - copy of the minutes of the monthly meetings of the Joint Health and Safety Committee for the Magna Seating Inc. plant in Mississauga, numbered pages 110 to 198 for the meeting dates of July 26, 2011; August 29, 2011; September 27, 2011; October 25, 2011; November 29, 2011; December 20, 2011; January 31, 2012; and February 28, 2012, and which is contained in Tab 4 of Defence Document Book (89 pages).

Exhibit "13" - copy of the document entitled “Agreement Regarding Expert Evidence” that was made between the Crown and Magna Seating’s defence counsel about John Ford being qualified as an expert witness in “the areas of occupational health and safety work practices, policies, procedures, and procedures with regard to guarding, accident prevention, machine hazards, safety procedures, safety devices and industrial accident prevention investigation.

In addition, the agreement indicates that the Crown and Magna Seating’s defence counsel that the Crown would consent to John Ford’s Expert Report being tendered into evidence, although it would not be relied upon as an opinion on the legal

interpretation and application of the relevant provisions of the Occupational Health and Safety Act and its Regulations (1 page). Exhibit "14" - copy of expert witness John Ford’s resume, which is contained in Tab 5 of Defence Document Book (9 pages). Exhibit "15" - copy of expert witness John Ford’s report dated August 13, 2014, with a document attached as Appendix B purporting that 1,975,756 automotive seat kits had been sold by Magna Seating between November 2006 and June 11, 2012, which is also purported to be a document prepared by Tim Servier, controller, on July 24, 2014; and with a document attached as Appendix C, which is entitled “U38X Requirements

Summary” in respect to the federal requirements for seat systems, and which is contained in Tab 6 of Defence Document Book (25 pages). …………………………………………………… Exhibit "A" - copy of “Prosecution Report” dated September 25, 2012, that was prepared by Inspector Shela Mirza with her conclusions from her investigation of the incident of June 11, 2012, and with her recommendations (entered for the purpose behind the report’s creation, but not entered for its truth) (9 pages). 1. INTRODUCTION

[ 1 ] One million, nine-hundred seventy-five thousand, seven hundred and fifty-six (1,975,756) automotive seats were built on an assembly line. Nearly two million seats had been built. One seat falls on February 7, 2012, striking a worker and cutting her upper lip. There remains one million, nine-hundred seventy-five thousand, seven hundred and fifty-five (1,975,755) automotive seats built without falling and injuring a worker. Then another seat falls on June 11, 2012, striking a worker’s chest, and in which she is rushed to the hospital by ambulance.

Ergo, out of nearly two million seats built at the Magna Seating plant between November 2006 and June 11, 2012, there were just two documented occasions in which a seat fell during its manufacturing process at a particular workstation that had struck and caused a minor injury to a worker. [ 2 ] The two incidents in which workers were struck by a partly manufactured automotive seat had both fallen forward from an upright position, which is not unlike when someone releases the lever on a seat in an automobile and the seat falls forward due to the tension of the seat’s springs.

The force of the seat falling or coming forward is estimated at 60 newtons or less than 15 pounds-feet per second squared. Moreover, the two seats that fell forward and struck a worker had also both occurred at workstation 1630 on assembly line #1, while the seat was being worked on and assembled by a worker. The seats that had come forward had also struck two different workers who are named Lily Conway and Sapna Sharma. These two incidents had also occurred at a workplace, which is the Magna Seating plant located at 400 Courtneypark Drive East, in the City of Mississauga.

For the February 7, 2012, incident, the automotive seat had come forward and struck Lily Conway’s upper lip; while for the June 11, 2012, incident the seat had come forward and struck Sapna Sharma’s upper chest. Lily Conway was not taken to the hospital, but Sapna Sharma was taken to the Trillium Hospital by ambulance.

Lily Conway only required a Band-Aid, a few minutes away from workstation 1630, and did not miss any days of work; while Sapna Sharma received a soft tissue injury, but was released from hospital two hours later with a prescription for Tylenol 3 or Advil for pain management, if required, as well as being advised to see her family doctor.

However, Sharma had only missed one day of work, so that she could see her family doctor the next day. [ 3 ] The plant where the two specific seat-falling incidents had occurred is a world-class manufacturing and assembly plant operated by Magna Seating Inc., under the style name of Mississauga Seating Systems (“Magna Seating”). The February 7, 2012, incident did not trigger a Ministry of Labour investigation. However, it was later investigated as part of the June 11, 2012, incident, which did lead to charges being laid against Magna Seating for that June 11 th incident. [ 4 ] By a

Part III information that was sworn on December 20, 2012, Magna Seating Inc. was charged with contravening two sections of the Industrial Establishments Regulation , R.R.O. 1990, Reg. 851 (“O. Reg. 851/90”), enacted under the Occupational Health and Safety Act , R.S.O. 1990, c. O.1 (“ O.H.S.A. ”), namely: Magna Seating Inc., operating as Mississauga Seating Systems 337 Magna Drive, Aurora, Ontario, L4G 7K1, on or about 11 th day of June, 2012, at the City of Mississauga, in the Central West Region, in the Province of Ontario did commit the offence of (1) failing, as an employer, to ensure that the measures and procedures prescribed by s. 45(

b) of Ont. Reg. 851/90, as amended, were carried out at a workplace located at 400 Courtneypark Drive East, Mississauga, Ontario, contrary to s. 25(1) (

c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 as amended. Particulars: The defendant failed to ensure material, articles or things were transported, placed or stored so that the material, articles or things would not tip, collapse or fall. A worker was struck by a seat at a work station on line #1.

(2) AND FURTHER THAT, Magna Seating Inc., operating as Mississauga Seating Systems, on or about 11 th day of June, 2012, in the City of Mississauga, 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 s. 26 of Ont. Reg. 851/90, as amended, were carried out at a workplace located at 400 Courtneypark Drive East, Mississauga, Ontario, contrary to s. 25(1) (

c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 as amended. Particulars: The defendant failed to ensure a machine was shielded or guarded so that the product or material being processed will not endanger the safety of any worker. A worker was struck by a seat at a work station on line #1.

[ 5 ] For these two charges laid respectively under ss. 26 and 45(

b) of O. Reg. 851/90, Magna Seating contends that the Crown has failed to prove beyond a reasonable doubt that the two regulations apply specifically to the circumstances or facts adduced in the trial, and therefore, it submits that the Crown has not proven the actus reus of the two offences beyond a reasonable doubt. [ 6 ] In respect to the first charge, Magna Seating argues that s. 45(

b) does not apply to the situation in which only one seat or product is being worked on at a workstation, but is meant to apply to situations where piles or stacks of material, articles, or things, such as a pile of lumber are being transported, placed or stored in a manner where they could tip, collapse or fall.

In other words, Magna Seating contends that working on one singular object secured on a pallet does not accord with the traditional material handling situations envisioned by s. 45(b), where there is normally a collection of material, articles or things that are being transported, or placed, or stored on a pile which could tip, collapse, or fall.

Moreover, Magna Seating contends that the specific automotive seat that had struck Sapna Sharma had already been disengaged from the conveyor system that had transported the seat to workstation 1630, and been in a stationary position at that station to allow for work to be done to it, and was therefore no longer being transported.

Nor for that matter, had it had been placed or stored along with many other like items as required under s. 45(b), but had been only one item that was actually being processed by a worker. [ 7 ] And, for the second charge, Magna Seating contends that s. 26 only refers to the requirement to guard or shield a machine where the product or material is actually being processed by a machine where debris from the manufacturing process, or where moving parts of the machine doing the processing, could endanger the safety of any worker.

To that requirement, Magna Seating argues that no machine was being used to process the automotive seat at workstation 1630; rather, the seat was being processed or assembled by a worker using a torque gun and human muscle.

And, although the conveyor system used to transport the automotive seats being assembled and processed on assembly line #1 is functionally a machine, Magna Seating disputes the Crown’s contention that it was being used at station 1630 to process the automotive seat, but instead submits the conveyor system only happened to be situated nearby the worker when the seat was being processed at station 1630, and was not a machine that was being actually used to process product or material at that station, for the purposes of s. 26.

Furthermore, Magna Seating contends that since the automotive seat had already been disengaged from the conveyor system prior to the seat being worked on by Sapna Sharma at station 1630, then the conveyor system was no longer involved in any meaningful way in the processing of the automotive seat. In addition, Magna Seating submits that the only moving parts of the conveyor system in the area of station 1630, which could endanger the safety of a worker, had already been guarded.

Therefore, Magna Seating contends the conveyor system was not a machine that still needed to be guarded or shielded in order to prevent the seat from falling forward and striking Sapna Sharma on June 11, 2012. [ 8 ] However, the Crown disagrees with Magna Seating’s arguments and submits that they have proven that Magna Seating did commit the actus reus of those two offences beyond a reasonable doubt. In respect to the s. 45(

b) charge in count #1, the Crown submits that the automotive seat was the “material, products, or things” that had been “transported” by a conveyor system and then “placed” by Sapna Sharma in the upright position, where it had subsequently “fallen” and struck her on June 11, 2012, while she had been working on it. These facts, submits the Crown, make up the necessary elements of the offence that need to be proven for s. 45(b).

And, for count #2, in respect to the requirement under s. 26 to guard a machine that could endanger the safety of a worker, the Crown submits that even though the automotive seat had been stationary when it was being worked on by Sapna Sharma at workstation 1630, the seat being processed had been still attached in some form to the conveyor system at station 1630, in order that it still could be transported to different workstations on the assembly line.

As such, the Crown argues that the conveyor system is a machine that is being used in the assembly and manufacture of the automotive seats for the entire assembly line, and since a worker had been injured at station 1630 because the conveyor system had not been guarded or shielded at that station, so as to prevent the seat from falling forward and striking Sapna Sharma, then the essential elements of the offence set out in s. 26 have been proven beyond a reasonable doubt. [ 9 ] And, if it is determined that the Crown has proven that Magna Seating has committed the actus reus of both of the two charges beyond a reasonable doubt, then Magna Seating argues that it has still met its burden of proving on a balance of probabilities that it has taken all reasonable steps in the circumstances to prevent the June 11, 2012, accident from occurring.

Especially, since it contends that the actual cause of the seat falling forward and striking Sapna Sharma had been due to the combination of the design change made to the seat and the misalignment of the seat on the pallet before it arrived at workstation 1630, which had ultimately made Sharma to mistakenly believe that the seat had been locked in the upright position when she had pushed the seat upright. Moreover, Magna Seating submits that this combination of factors, which had led to Sharma not fully locking the seat in an upright position, had not been reasonably foreseeable.

It had also been coincidentally the first full run ever of manufacturing that particular seat with the new design change on assembly line #1 on June 11, 2012. [ 10 ] In addition, Magna Seating submits that the safety issue related to a seat falling and striking Lily Conway on February 7, 2012, at station 1630, was still being investigated by the plant’s Joint Health and Safety Committee in the normal course, but since they had determined that the seat falling forward on that day had been likely caused by Lily Conway not pushing the seat all the way back to engage the locking mechanisms of the seat, and since they had considered that the probability of recurrence and the severity of any potential injury from a seat falling and striking a worker was minimal, they did not classify the safety concern at station 1630 as one of high priority that needed immediate attention.

Moreover, Magna Seating submits that the Joint Health and Safety Committee had assigned the afternoon supervisor of the Maintenance Department to investigate the feasibility and method of guarding the area of station 1630, and that this investigation had been still ongoing when the June 11, 2012, accident to Sapna Sharma had occurred.

[ 11 ] Moreover, Magna Seating submits that after one of its engineers had investigated and recreated the June 11, 2012, accident, the engineer had discovered that both of the locking mechanisms in the seat had not been fully engaged when Sapna Sharma had pushed the seat back to the upright position, due to the combination of two factors: the new design for the Ford Edge seat being manufactured and assembled on assembly line #1 and the alignment of the seat on the pallet becoming askew before it arrived at station 1630.

The new seat design had involved installing only one spring in the seat and on only one side of the seat, which had changed the original design where two springs had been installed in the seat, one on each side of the seat. And, for the second factor, it had been discovered that the partly-built seats while being assembled and transported on the pallets had become askew before it arrived at station 1630. That is, one side of the seat was sitting more in front on the pallet than the other side of the seat had been sitting on the pallet.

Moreover, the side of the seat that was sitting more in front on the pallet was the side that was not fitted with a spring.

This misalignment of the seat on the pallet was the result of the vibrations and from the work being done on the seats prior to the seat arriving at station 1630. [ 12 ] Magna Seating also contends that it was not reasonably foreseeable in the circumstances that Sapna Sharma would have failed to fully engage the lock mechanism on the side of the seat fitted with the spring, even though Sharma had assumed that she had pushed the seat fully back to engage both locking mechanisms, but because the side of the seat that was not fitted with a spring had been sitting more forward on the pallet, then that particular side when pushed upright would feel as if the entire seat, or create an impression that the entire seat, had been pushed all the way back. [ 13 ] Moreover, Magna Seating submits that to fix the misalignment of the seat on the pallet, shims were welded onto the 42 pallets used to secure and transport seats on assembly line #1, to ensure that the side of the seat that had been fitted with the spring in the new design would be sitting more forward on the pallet than the other side of the seat without the spring, so that when a worker pushed the seat upright, the locking mechanism on the side with the spring would be fully engaged or locked first to prevent the seat from falling forward. [ 14 ] In addition, Magna Seating contends that the “stopper guard” device that had been installed by Magna Seating’s maintenance department on June 12, 2012, to prevent the seat from falling forward and striking a worker at station 1630 was redundant, since there was already a measure in place that had been sufficient to prevent the seats from falling forward.

That measure, as contended by Magna Seating, had simply entailed the workers properly pushing the seat all the way back to engage the locking mechanisms of the seat.

And, as had been explained, this measure would be sufficient because the locking systems in automobile seats are designed to meet a minimum safety standard in order to prevent seats used in automobiles from coming forward in collisions or while they are being driven over bumpy road surfaces. [ 15 ] Accordingly, Magna Seating submits that it has established the defence of due diligence on a balance of probabilities, and as such, acquittals should be entered on both charges. [ 16 ] The Crown, on the other hand, disputes Magna Seating’s contention that it has made out the defence of due diligence, and argues that Magna Seating had not taken all reasonable steps in the circumstances to prevent the accident of June 11, 2012, from occurring.

Especially, as Magna Seating had been well aware of the potential of a seat falling forward at workstation 1630 and striking a worker since at least March 21, 2012, which is the date when Stacey Kapparis, the Human Resources Manager and the co-chair and management representative on the Joint Health and Safety Committee, had first become aware of Lily Conway being struck on February 7, 2012, by an automotive seat that had fallen forward at workstation 1630.

In addition, the Crown contends that despite Magna Seating being aware of the safety issue concerning a seat falling forward and striking a worker at that station, it did nothing to prevent the seat from falling and striking a worker again at station 1630 on June 11, 2012.

The Crown also submits that Magna Seating had also failed during the period from the date of the first incident of February 7th to the date of the second incident of June 11th to provide additional training to workers working at station 1630, such as training and instructing them to wait for two seconds to elapse after they had pushed the seat upright to ensure that the seat would not fall forward before continuing to work on the seat, or to install a guard or protective device at that station to prevent the seat from falling forward and striking a worker.

Especially, considering that Magna Seating had been able to almost immediately design, fabricate, and install a “stopper guard” device to prevent a seat from falling forward at station 1630 on June 12, 2012, one day after Sapna Sharma had been struck by a falling seat.

In short, the Crown contends that Magna Seating did not do all that it could reasonably do in the circumstances during the period of February 7, 2012, to June 11, 2012, to prevent the seat from falling forward and striking Sapna Sharma at station 1630. [ 17 ] In addition, the trial of the two charges was held over four days: September 25 and 26, and October 2, and 3 of 2014. After closing submissions, judgment was reserved and adjourned to January 9, 2015. These, therefore, are the written reasons for judgment: 2. BACKGROUND

(

a) seven witnesses testified in the trial [ 18 ] There were seven witnesses that testified in the trial. Three were for the Crown and four were for the defence. [ 19 ] For the Crown, their three witnesses were:

(1) Shela Mirza, the M.O.L. inspector;

(2) Sapna Sharma, the worker struck by a seat on June 11, 2012; and

(3) Lily Conway, the worker struck by a seat on February 7, 2012. [ 20 ] For the defence, their four witnesses were:

(1) Murdaza Abdulali, the production supervisor for the afternoon shift for assembly line #1;

(2) Kyle Heathcote, manufacturing engineer for Magna Seating at the Mississauga plant;

(3) Stacey Kapparis, the Human Resources manager and the co-chair and the management representative on the Joint Health and Safety Committee; and

(4) John Ford, expert witness in the area of occupational health and safety work practices, policies, procedures, and procedures with regard to guarding, accident prevention, machine hazards, safety procedures, safety devices and industrial accident prevention investigation . (

b) the corporate defendant is Magna Seating Inc. [ 21 ] The corporate defendant is an Ontario corporation named Magna Seating Inc., which operates the assembly and manufacturing plant in Mississauga under the style name of Mississauga Seating Systems. Magna Seating Inc. is one of the manufacturing divisions of Magna International Inc., which is a global automotive supplier with 317 manufacturing operations and 83 product development, engineering and sales centres in 29 countries.

Furthermore, Magna International Inc. employs over 130,000 people worldwide. [ 22 ] The corporate address of Magna Seating Inc. is 337 Magna Drive, Aurora, Ontario. Magna Seating Inc. is a corporation that had resulted from the amalgamation of two corporations that came into effect on April 3, 2005, and is still an active corporation in Ontario. (

c) the manufacturing and assembly plant in Mississauga [ 23 ] The Magna Seating plant where the two workers were struck by a seat falling forward is located at 400 Courtneypark Drive East, in the City of Mississauga. It has been described as a large automotive manufacturing plant covering 25,000 square feet. It has also been described as being the size of a football field that contains five assembly lines that manufacture and assemble automotive seats for different automobiles and for different companies. It also operates 24 hours a day with two shifts.

The afternoon shift runs from 5:30 p.m. to 4:00 a.m. while the morning or day shift runs from 6:30 a.m. to 5:00 p.m. Both the incidents of February 7, 2012, and June 11, 2012, in which an automotive seat had fallen forward and struck a worker while the worker was working on the seat had occurred at the same workstation and on the same assembly line, which was at workstation 1630 on assembly line #1.

Both incidents had also occurred during the afternoon shift. [ 24 ] For assembly line #1, there are 26 different workstations. [ 25 ] In 2012, when the seats struck the two workers at workstation 1630, there were approximately 400 workers working at the Mississauga assembly plant. Now, there are about 425 workers at that plant. [ 26 ] For assembly line #1, automotive seats that are being manufactured are processed and assembled while they sit on pallets or carriages, which are transported and moved along from workstation to workstation on a chain-driven conveyor system.

The conveyor system continually moves, but each pallet is stopped and disengaged automatically from the moving conveyor system at workstation 1630, to allow a worker to perform their tasks assembling the seat at that station, and then it is re-engaged to the conveyor system by the worker to allow the conveyor system to transport the pallet carrying the seat to the next workstation. [ 27 ] There are also robotic machines at some workstations being used in the assembly lines in the manufacturing and assembly of the automotive seats.

However, station 1630 on assembly line #1 did not involve the use of a robotic machine. The work being done by a worker at station 1630 in the assembly of the seat involved only manual tasks and the use of a torque gun by the worker.

[ 28 ] In addition, there are notices or signage posted at workstation 1630 that describe the tasks that have to be done by a worker at that station. However, before a worker starts to work at station 1630 for the first time, a supervisor shows or trains the new worker how to perform the tasks at station 1630 and also informs the worker about the potential hazards at that station.

More important, the worker is also informed about the importance and necessity of pushing the seatback portion of the seat all the way back to the upright position to engage the two locking mechanisms in the seat, in order to hold the seat from falling forward while the worker completes their remaining tasks to the seat at that station. [ 29 ] Workers also rotate to different stations throughout their shift. In 2012, a worker was required to work at station 1630 for a duration of two hours before they rotated to a different job in the assembly plant.

A worker was also required to process or work on about 100 seats during those two hours at that station. The required tasks to be completed at that station for each seat would normally take 50 to 60 seconds for a worker to complete. However, a worker’s rotation at station 1630 has been now lessened to only one hour. (

d) the tasks required to be done to an automotive seat at workstation 1630 [ 30 ] There are principally five major tasks required to be done by a worker at workstation 1630 in assembling a particular portion of the automotive seat. Before the worker has to perform any of the required tasks at that station, a partially-assembled seat arrives at station 1630 on a pallet or carriage brought on a chain-driven conveyor system. The seat then automatically disengages from the conveyor system so a worker can perform the required tasks on the seat.

However, the conveyor system keeps running for assembly line #1 while the pallet is separated away from the moving conveyor system. The seat also arrives on the pallet in the folded down position and is still sitting above the moving conveyor system when it is disengaged from the conveyor system.

Only the top part of the automotive seat, which is referred to as a “seatback”, is partially assembled and present on the steel frame of the automotive seat that is sitting on the pallet, while the bottom part of the seat has not yet been added to the steel frame of the seat. [ 31 ] Once the pallet is disengaged from the conveyor system for assembly line #1, the worker for their first task is required to pick up a headrest from a container of headrests that is located behind the worker. The worker then pushes the headrest into the top part of the seatback while it is still lying flat.

Then, for the second task, the worker next grabs a seatbelt cover or bezel from the container holding these covers or bezels and then attaches it to the seat’s frame. For the third task, the worker is then required to push the top part of the seat (or seatback) up and backward to the full upright position, so that the seatback becomes fully locked by the two locking mechanisms located at both sides of the seat located near the seat’s pivot point.

For the fourth task, the worker is then required to reach for the torque gun that is situated above the worker, which is being held in that position by a balancer, and then use it to secure or install the seatbelt buckle into the middle of the seatback. [ 32 ] For the fifth task, the worker has to wait for a particular light on a computer monitor at station 1630 to turn green, so that the worker can then press a button to re-engage the pallet carrying the automotive seat to the conveyor system, so that the seat can be transported or moved to the next workstation. [ 33 ] Finally, as these five tasks to be performed by the worker at workstation 1630 normally would take about 50 to 60 seconds to complete, then a worker would have worked on approximately 100 seats during their two-hour rotation at station 1630. (

e) a design change had been made to the composition of the actual seat that had struck Sapna Sharma on June 11, 2012 [ 34 ] The model of the automotive seat that had actually fallen forward and struck Sapna Sharma while she had been working on it at workstation 1630 on June 11, 2012, had just undergone a design change for cost-saving purposes. That particular model of the 60% seat that had actually struck Sharma was being manufactured for the Ford Motor Company for their Edge model automobile. The seat’s original design had required the seat being fitted with two springs, one on each side of the seat.

The new design, however, changed the construction of the seat from two springs to only being fitted with one spring that would be located on only one side of the seat, which was by the door side of the seat. However, the design change for the new seat did not alter the number of locking mechanisms that would be installed in the seat. There would still be two locking mechanisms installed in the seat, one on each side of the seat by the pivot point of the seat.

Moreover, the size or tension of the one spring that would be installed in the newly-designed seat would still have the same or equivalent tension or force that the two springs would have had in the original design of the seat. [ 35 ] In addition, Magna Seating did two trial runs in manufacturing the new seat with the one-spring design on assembly line #1, before the actual full run of manufacturing and assembling the new one-spring seat for the Ford Edge model automobile would begin on June 11, 2012.

For those two trial runs, 30 of the total of 780 seats had been manufactured and assembled on assembly line #1 in November of 2011, while the remaining 750 seats were made in April of 2012. Moreover, there was no evidence that any seat had fallen forward unexpectedly at workstation 1630 and strike a worker during those two trial runs in which 780 seats were manufactured or

assembled. [ 36 ] Coincidentally, the first full run ever of the new seat with the one-spring design on assembly line #1 had also occurred on June 11, 2012, when Sapna Sharma was struck by the seat falling forward at workstation 1630. (

f) the seat falling incident of June 11, 2012, regarding worker Sapna Sharma [ 37 ] Sapna Sharma had been working on a 60% automotive seat for the Ford Edge motor vehicle at station 1630 on the afternoon shift of Monday, June 11, 2012. The afternoon shift is from 5:30 p.m. to 4:00 a.m. The seat being manufactured on assembly line #1 at that time consisted of two separate seats on a pallet. A 60% seat is a term that is used to refer to a rear double seat that would be eventually used in an automobile.

On the pallet that arrived at station 1630, there was a driver’s seat and a folded-down seat referred to as a 60% seat for a Ford Edge, which is a SUV-type motor vehicle. Moreover, after Sharma had pushed the seatback for the 60% seat upright, she had erroneously believed the seat had been pushed all the way back and locked by the seat’s locking mechanisms, so when she had reached for the torque gun to complete the next task, the seat had come forward, and the headrest of the seat had struck Sharma on her upper chest. Sharma then screamed, said she could not breathe, and then found herself lying on the floor.

Other workers then came to her aid. Sharma was then taken by ambulance to the Trillium hospital where an x-ray was taken. Sharma remained at the hospital for two hours and had been released from the hospital that night and prescribed Tylenol 3 or Advil, if she required the medication for pain.

She was also told to visit her family doctor, which she had done the next day. [ 38 ] Fortunately, Sharma only received a minor injury, which the doctor at the hospital had noted was only a soft tissue injury. [ 39 ] In addition, when the seat had fallen forward, Sharma had been struck by the cushioned part of the headrest on the automotive seat. [ 40 ] Sharma had also been advised to take a week off from work. However, Sharma only missed one day of work, so that she could attend and see her family doctor on June 12, 2012.

When Sharma returned to work, she was also given modified duties and did not have to work at station 1630. In addition, Sharma had been on modified duties for several weeks. [ 41 ] Furthermore, on the date of the June 11, 2012, accident, Sharma had been employed at the Mississauga plant for nine years. Sharma also said that she had started working there on August 18, 2003. When she began her employment at the plant, she said she had been given workplace health and safety training and ongoing training, but she also said she was not fully trained.

Moreover, she said she had worked at station 1630 for a number of years and that she had been shown how to do the tasks required to be done at that station.

In addition, she said she has done the tasks at station 1630 thousands of times and that she has been trained about pushing the seat all the way back so that it locks, and that she is able to hear the click of the locking mechanism, and that she does not have to wear earphones at that station, and that she is also aware that if she did not push the seat all the way back then the seat could fall down. [ 42 ] However, Sharma also said seats would fall down all the time at that station, no matter how far she had push the seat back, and that sometimes when the seat is pushed back it would not lock.

She further said that sometimes the seat would come down, even if she had pushed hard and the seat had appeared locked. [ 43 ] Sharma also said that she would have no time to wait before she would grab the torque gun, and that the seat falling down had happened many times when she had been grabbing the torque gun. [ 44 ] Presently, Sharma said she works on the day shift and no longer works on the afternoon shift. Sharma also testified that the seat falling forward after the seat had been pushed upright had happened regularly, and that she had seen it happened to other workers as well.

However, Sharma said that she had never complained to her supervisor about it happening before, nor did she raise the issue to anyone about the seat falling forward after the seat had been pushed upright. [ 45 ] In addition, after the seat had fallen forward and struck Sharma, a safety notice or alert was then issued on June 12, 2012, with a photograph of the temporary measure to be utilized at station 1630 in order to prevent the seat from falling forward after the seat had been raised to the upright position from the folded-down position.

In addition, on that afternoon shift of June 11, 2012, a temporary measure had been immediately initiated that involved stationing an extra worker at station 1630 to hold the seat manually with both hands after it was raised upright, in order to prevent the seat from falling forward while another worker continued working on the seat.

This temporary measure had been only intended to be used until a permanent solution could be found. (

g) the installation of a “stopper guard” at workstation 1630 on June 12, 2012, to prevent a seat from falling forward and striking a worker [ 46 ] After Sapna Sharma had been struck by a seat falling forward at workstation 1630 at approximately 8:00 p.m. on the afternoon shift of June 11, 2012, the afternoon maintenance staff had been able to design, fabricate, and install a device that is referred to as a “stopper guard” at station 1630.

The stopper guard was attached to the frame of the conveyor system on June 12, 2012, so that it would prevent the seat from falling forward after a worker had pushed the seat to the upright position, in case the locking mechanisms on the seat had not been engaged by the worker at station 1630.

The device was made out of metal and resembles an upside down “L” shaped device with a hinged metal part at the top of the device that would allow the seat to be pushed upright through the hinged part, but not allowed to fall forward past or back through that hinged part, if the seat had failed to be fully locked in the upright position when it had been pushed back by the worker at station 1630.

The “stopper guard” device is shown on the photographs marked as Ex. 5A and Ex. 5B. [ 47 ] It is also noteworthy that the afternoon maintenance staff had been able to design, fabricate, and install this protective device at station 1630 on June 12, 2012, which is within 24 hours of Sapna Sharma being struck by a seat at that station on June 11, 2012. (

h) determination of the root cause of the seat falling forward and striking Sapna Sharma on June 11, 2012 [ 48 ] The actual seat that had struck Sapna Sharma on June 11, 2012, was quarantined and tested by Magna Seating’s manufacturing engineer Kyle Heathcote.

Heathcote said he had been able to replicate the circumstances of the seat falling forward on June 11, 2012, as well as being able to discover the root cause of why the seat had fallen forward unexpectedly and struck Sharma at station 1630. [ 49 ] Heathcote said that one of the reasons for why the seat had fallen forward unexpectedly and hit Sharma at workstation 1630 had been due to the new design to the Ford Edge seat that was being manufactured and assembled on assembly line #1 on June 11, 2012.

He further explained that the Ford Edge seat’s original design had called for two springs being placed on each side of the seat near the pivot point of the seat. However, as a cost-savings initiative by the Ford Motor Company, Heathcote said the Company had redesigned the Edge seat so that only one-spring would be placed in the seat.

He also said the original two springs were of medium tension, but that the new design where only one spring was going to be fitted into the seat, would still have the same equivalent tension as the two springs together would have had, so that the newly-designed seat with one spring would fall forward with the same force as the seat did when two springs had been used. [ 50 ] However, Heathcote said the Ford Motor Company did not change the number of locking mechanisms installed in the newly- designed seat Ford Edge seat and had kept the same two locking mechanisms that were located on each side of the seat, by the pivot point of the seat. [ 51 ] Furthermore, Heathcote said that because the tension of the spring in the one-spring seat would have the same tension as the two springs did in the original design, then the same amount force would still be required to push the new seat upright as had been required for the old seat.

In addition, he said that the force of the seat falling forward once the lever on the new seat was raised to release the seat from the locking mechanisms would be still have the same force of two springs making the seat fall forward in the old design. [ 52 ] Heathcote also said that in respect to the new one-spring seat, he would refer to the side of the seat with the spring as the strong side, while the side of the seat without the spring, he would refer to as the weak side. [ 53 ] In addition, Heathcote said that in his testing he had noticed that the locking mechanism on the strong side was not being engaged when the seat was being pushed upright, if the seat was not properly pushed all the way back to the locking position.

He also said that the new design had increased the potential for a worker to not properly push the seat all the way back to engage the locking mechanisms. [ 54 ] Moreover, he said he had discovered during his testing that the weak side of the seat, which did not have a spring, was sitting more forward on the pallet then the strong side of the seat. He then said he noticed that the seat was sitting askew on the pallet when it arrived at station 1630. And, because the weak side had been sitting more forward on the pallet than the strong side, he discovered that

when the seat was pushed back to the upright position, one could mistakenly assume that the seat had been locked, since the weak side of the seat would have less tension in opposition to the seat being pushed back and be more in front than the strong side of the seat, so that the seat would feel as if it had been pushed sufficiently back enough to engage the seat’s locking mechanisms and would tend to make one believe that the seat had been locked when in fact it was not.

Moreover, he said that because the strong side of the seat would not be pushed back as far as the weak side would have been, since the strong side of the seat had been sitting more back on the pallet, then the locking mechanism on the strong side was not being engaged. [ 55 ] Ergo, Heathcote’s discovery of the misalignment of the seat on the pallet in which the weak side was sitting more in front of the strong side on the pallet could cause the locking mechanism on the side of the seat without the spring to be engaged first before the locking mechanism on the side of the seat with the spring would engage, when the seat was pushed back, and that the locking mechanism on the strong side of the seat may not be fully engaged when the seat was pushed back because the strong side of the seat had been sitting further back on the pallet.

And, because the locking mechanism of the strong side was not fully engaged then the seat could fall forward even though the locking mechanism on the weak side had been engaged. [ 56 ] In addition, Heathcote said that the misalignment of the seat on the pallet had been caused by the vibrations and the work being done on the seat at other stations on assembly line #1, before the pallet arrived at station 1630. [ 57 ] Although Heathcote’s explanation mostly resolves the issue of why the seat had fallen forward and why the seat had not fully locked when Sapna Sharma had thought she had pushed the seat all the way back to engage both of the locking mechanisms in the seat, there still remains one aspect of Heathcote’s explanation that is puzzling. [ 58 ] That question concerns why the locking mechanism on the weak side did not prevent the seat from falling forward, if it had been actually engaged when Sapna Sharma pushed the seat upright.

When that query was put to him, Heathcote had replied that the locking mechanism had needed the tension of a spring to fully engage, and because there was no longer a spring on the weak side of the newly designed seat, then the locking mechanism would not be fully operational or effectively engaged. [ 59 ] In other words, if the weak side of the seat was sitting more in front on the pallet than the strong side of the seat, so that when the seat was pushed back towards the upright position sufficiently to at least engage the locking mechanism on the weak side first, then the locking mechanism on that weak side should have prevented the seat from falling forward based on Heathcote’s explanation that the locking mechanisms of automobile seats are designed to meet a minimum safety standard, so that the seat would not fall forward in a collision or when being driven over a bumpy road.

Otherwise, the newly-designed one spring seat, especially where the strong side locking mechanism is not engaged, could cause a potential safety hazard for passengers in Ford Edge motor vehicles where the seat could easily fall forward in a collision and when driven over bumpy roads. [ 60 ] Unless of course, the locking mechanism on the weak seat had not been engaged, due to Sapna Sharma failing to push the seat back far enough to even engage the locking mechanism on the weak side. [ 61 ] Then, in order to remedy the seat becoming misaligned while sitting on the pallet, Heathcote said that shims had been welded onto the pallets, in order that the strong side or the side of the seat with the spring would now sit more in front on the pallet than the weak side of the seat would sit on the pallet.

As such, when a worker pushes the seat upright at station 1630, Heathcote said the locking mechanism on the strong side would have to engage first before the weak side locking mechanism would engage, so that the worker would no longer erroneously believe that the seat was fully locked, due to the weak side of the seat being more in front. [ 62 ] Heathcote also indicated that shims had been welded onto all 42 pallets that they use in the plant to assemble the seats on. [ 63 ] In addition, Heathcote opines that Sapna Sharma had not pushed the seat back far enough to engage the locking mechanisms on the seat, or the seat would not have fallen forward unexpectedly.

Moreover, the locking mechanisms installed in an automobile seat have been designed to a specific standard, so that a seat would not easily fall forward or become unlocked in a collision or while being driven on a bumpy road surface.

Furthermore, he also said that if the locking mechanisms of the seat had been fully engaged then the seat could not have fallen forward from the vibrations of the torque gun. [ 64 ] And, most importantly, If the locking mechanisms had been engaged and were faulty in design or manufacturing, then there would be recorded incidents of the seat unexpectedly falling forward in collisions or while being driven or bumpy road surfaces, and potentially a recall of the Ford Edge motor vehicles to fix the defective locking mechanisms of the seat.

(

i) the seat falling incident of February 7, 2012, regarding worker Lily Conway [ 65 ] An automotive seat being worked on at workstation 1630 on assembly line #1 had also fallen forward and struck another worker, who had been working on the seat. This incident had occurred during the afternoon shift at approximately 11:00 p.m. on February 7, 2012, to a worker named Lily Conway.

After Conway had pushed to the seat upright position, she had believed the seat was locked in the full upright and locked position, but as she reached for the torque gun, the seat came down and hit her on her upper lip area, causing her upper lip to bleed. Conway did not even realize that her upper lip area had been bleeding until her supervisor had noticed the blood on her upper lip. Conway was then replaced on the assembly line so that she could get a Band-Aid for the cut.

After getting a Band-Aid for the cut, Conway then returned to workstation 1630 and did not have to take any time off from work. [ 66 ] In her testimony, Conway had said that she believes the locking mechanisms for the seat she had pushed back had been engaged, and that it was the vibration from the torque gun that had caused the seat to unexpectedly fall forward, even though the seat’s locking mechanism had been engaged. [ 67 ] However, from the Magna Seating Incident Investigation Report (Ex. 8), the Magna Seating supervisor had concluded that the seat had fallen due to worker inattention, and that Conway had not pushed the seat properly all the way back so that the locking mechanisms had been engaged. [ 68 ] Magna Seating also pointed out that the seat could not have fallen forward if the locking mechanisms in the seat had been fully engaged because the locking mechanisms had been designed to meet a minimum safety standard, so that when the seats are used in an automobile they would not easily come forward in a collision or when the automobile is driven over a bumpy road. (

j) other incidents of a seat falling forward at workstation 1630 [ 69 ] Both Sapna Sharma and Lily Conway testified that seats routinely fell forward at workstation 1630 after being pushed upright, but neither worker had raised or notified their supervisor, management, the Joint Health and Safety Committee, or the worker representative on the Joint Health and Safety Committee about the seats falling forward and striking a worker at station 1630 after they had been pushed upright by the worker.

Therefore, the only recorded incidents of a seat falling forward at station 1630 were the incidents involving Lily Conway on February 7, 2012, and Sapna Sharma on June 11, 2012. [ 70 ] On the other hand, because the seat falling forward did not involve significant force, then a seat falling forward and striking a worker at station 1630 would not have resulted in any serious injury, if any at all.

Such minor incidents that did not involve any injuries could be the reason why a worker may not have reported those seat falling incidents to anyone. [ 71 ] In addition, from the document attached as Appendix B in John Ford’s expert witness report, marked as Ex. 15 (at p. 155 of Tab 6 of Defence Document Book) it indicates there were 1,975,756 automotive seat kits sold by Magna Seating between November 2006 and June 11, 2012.

The defence further submits that the document, which had been purportedly prepared by Tim Servier, controller, on July 24, 2014, is also an indication of the large number of automotive seats that had been assembled and manufactured at the Mississauga seating plant between November 2006 and June 11, 2012, which further implies that there had been only two occurrences resulting in very minor injuries from a seat falling forward and striking a worker at station 1630, out of the nearly two million seats built at the Mississauga seating plant.

It also supports Magna Seating’s submission that a seat falling forward and striking a worker would be a rare occurrence and that the potential for serious injury would be low. (

k) the Joint Health and Safety Committee’s action and investigation of the safety issue in respect to the February 7, 2012, incident at workstation 1630 on Assembly Line #1 [ 72 ] Stacey Kapparis, the Human Resources Manager for Magna Seating, only personally became aware of the February 7, 2012 incident in which Lily Conway had been struck by a seat falling forward at workstation 1630 on March 21, 2012, as a result of the Workers Safety Insurance Board’s letter to the Human Resources Department of Magna Seating inquiring about why a Form 7 document

had not been filed in respect to the injury incident of February 7 to Lily Conway.

However, Kapparis said that the Incident Investigation Report was supposed to have been sent to the Human Resources Department, but Kapparis only found out about the February 7 incident from the Workers Safety Insurance Board from their letter inquiring about the whereabouts of the Form 7 document that had to be filed with them. [ 73 ] In addition, Stacey Kapparis is the certified management member sitting on the Joint Health and Safety Committee, as well as the co-chair of that committee. [ 74 ] Kapparis also testified that there are on average six to 12 pages of minutes for each meeting of the Joint Health and Safety Committee, as well as six to 10 new action items for each monthly meeting, and approximately 20 or more past actions on the agenda for each meeting.

She also said that there would be a discussion of the recommended action in respect to an item, which could include a recommendation for further investigation and the committee assigning the best person, based on their job title and expertise, to investigate and find the best solution for a listed item, and to make a recommendation, and to also set a target date for the assigned person to report back to them with the recommended solution to an item. [ 75 ] The Incident Investigation Report in respect to the Lily Conway incident of February 7, 2012 (Ex. 8), indicated that the cause of the seat falling forward and striking Lilly Conway had been due to worker inattention and included the recommendation to guard the area in order to prevent the seat from falling forward.

However, Kapparis testified that the recommendation of guarding was only indicated in the Incident Investigation Report and would not necessarily be the actual or formal recommended solution to address or remedy the safety issue decided by the Joint Health and Safety Committee. [ 76 ] The safety issue concerning the February 7 incident at station 1630 was first put on the agenda for discussion before the Joint Health and Safety Committee on March 28, 2014, (see Ex. 7, which are the minutes of the meeting at pp. 15 to 20 in Tab 4 of Defence Document Book).

The Joint Health and Safety Committee for the Magna Seating plant in Mississauga meets once a month, which is just more than meeting once every three months that is statutorily required under s. 9(33) of the O.H.S.A. As indicated in the minutes for the March 28, 2012, meeting, the February 7 incident was on the agenda as a new item. In that meeting, the safety issue of the seat falling forward at workstation 1630 had been discussed and recorded as item #2 on page 2, under the heading “New Action Items”.

Item #2 also indicated that the issue had been identified by Ramakant Pete, a worker member of the afternoon shift on the Joint Health and Safety Committee, where it had been described as “seat hitting operator in the head”. The recommended action by the committee that had been recorded in the minutes had been “guarding”, but no one had been assigned to investigate the guarding recommendation, nor had a target date been set. However, Kapparis said she had also recalled that they had discussed having the Engineering Department involved.

Kapparis also testified that it would not be unusual for someone not to be assigned to investigate the item further for a recommendation when an item first appears on the agenda at the Joint Health and Safety Committee meeting. She also said she had recalled the discussion at that meeting had been about the importance of the seat being pushed all the way back to the locked position and the importance of the worker needing to push the seat back, and that the seat had not been properly pushed back into the locked position.

She also said that no one raised or discussed the possibility that the seat had come forward after it had been in the fully locked or in a partially-locked position. Furthermore, the minutes for March 28, 2012, indicate that the item was not considered to be a high priority to the Joint Health and Safety Committee, since the possibility of recurrence had been considered low, and that the seriousness of any potential injury caused by the falling seat was also low. [ 77 ] The Joint Health and Safety Committee next met on April 26, 2012, for their next monthly meeting.

Stacey Kapparis, the certified management member was not present at the meeting. The minutes of that meeting, at pp. 21 to 26 of Ex. 7, indicate that at that meeting, past action item #1, which is in respect to guarding station 1630, had been assigned to Phil Cureton, the afternoon Superintendent or Supervisor for the Maintenance Department. Kapparis said that Phil Cureton would then be required to go out and investigate whether station 1630 could be feasibly guarded, and on how to do it, if such guarding was feasible.

Although Kapparis did not attend the April 26 meeting, she opined that Cureton had been assigned the item related to the guarding issue of station 1630 because of his job responsibility and that his department would be able to fabricate and install any guarding that would be needed. [ 78 ] However, for their next monthly meeting for May of 2012, it had not been held in the month of May, but had been actually held on June 5, 2012. There was also an additional meeting held later in June of 2012, as the monthly meeting for the month of June.

Kapparis attended the June 5th meeting, but Phil Cureton, who had been assigned the task on April 26, 2012, of investigating the feasibility of the guarding of the area of station 1630, did not attend the meeting held on June 5th. There is also no indication in the minutes of why Cureton did not attend the June 5 th meeting or what the progress or status had been for his investigation into the feasibility of installing guarding for station 1630.

The minutes also indicate that the item in respect to station 1630 was still open on June 5, 2012. [ 79 ] Ergo, from the first meeting of March 28, 2012, of the Joint Health and Safety Committee when the guarding of 1630 was first listed as a new action item on the agenda, until June 11, 2012, the day Sapna Sharma was struck by a seat at station 1630, there is no indication that Magna Seating or the Joint Health and Safety Committee had did anything in preventing the seat from falling and striking a worker on June 11, 2012, except for assigning Phil Cureton to investigate the safety issue at station 1630 and to investigate whether

guarding at station 1630 was feasible. [80] Moreover, from March 28, 2012, when the issue at workstation 1630 first appeared on the agenda of the Joint Health and SafetyCommittee’s monthly meeting, to June 11, 2012, when Sharma was struck by the falling seat at station 1630, a period of over two and ahalf months had elapsed. On the other hand, from February 7, 2012, when Lily Conway had been struck by a falling seat at station 1630,to June 11, 2012, when Sharma was struck, a period of just over four months had elapsed.

And, it is these relatively lengthy periodsbetween the two accidents occurring at station 1630 that the Crown relies on, in contending that Magna Seating had not been dulydiligent, nor had it taken all reasonable steps for the circumstances to prevent the seat from falling forward and striking Sapna Sharma onJune 11, 2012. Especially, considering that Magna Seating’s maintenance department had designed, fabricated, and installed a “stopperguard” device at station 1630, one day after Sharma had been struck by a seat. (

l) health and safety training given to workers at the Mississauga Seating plant [81] Stacey Kapparis, the Human Resources Manager, testified that workers are annually given training on health and safety,evacuation of the plant, and on WHMIS.

In addition, she said that when workers are first hired by Magna Seating they are given anemployee orientation and health and safety training, as well as training on personal protection equipment; the identification of hazards atthe Mississauga plant; information about the right to refuse to do unsafe acts; what the duties of the employer, employees and supervisorsare at the workplace; and how to report an accident and who to tell about an unsafe situation; and about obtaining first aid if theemployee is injured. [82] Furthermore, Kapparis said there are weekly safety meetings and monthly Joint Health and Safety Committee meetings at theMississauga plant. [83] Moreover, Kapparis said there is general training given to a new employee after orientation where they go to a specificworkstation and receive specific workstation training, and shown about potential hazards and the use of protective equipment.

She alsosaid that Magna Seating records the health and safety training that is given to each worker. (

m) treatment of expert witness John Ford’s testimony and his written report [84] As part of their defence, Magna Seating proffered John Ford as an expert witness in “the areas of occupational health and safetywork practices, policies, procedures, and procedures with regard to guarding, accident prevention, machine hazards, safety procedures,safety devices and industrial accident prevention investigation. Prior to the trial, the Crown had by written agreement accepted JohnFord as an expert witness and had agreed that his report would be tendered into evidence, although it would not be relied upon as anopinion on the legal

interpretation and application of the relevant provisions of the Occupational Health and Safety Act and itsRegulations. [85] However, in their closing arguments, the Crown was concerned that John Ford had not been testifying in an objective manner inthe trial, and that he had failed to interview Lily Conway, Sapna Sharma, or any of the afternoon supervisors for assembly line #1 inrespect to station 1630, before he prepared his report.

Therefore, the Crown submits that John Ford’s testimony and report should carryvery little weight. [86] In respect to expert witness testimony, a court has discretion on how to utilize the evidence from an expert witness. In R. v.Mohan, (SCC), [1994] S.C.J. No. 36, at para. 17, the Supreme Court of Canada held that the admission of expertevidence would depend on four criteria: Admission of expert evidence depends on the application of the following criteria: (

a) relevance; (

b) necessity in assisting the trier of fact; (

c) the absence of any exclusionary rule;

(

d) a properly qualified expert. [87] Moreover, at p. 190 of their textbook, The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011), Paciocco andStuesser commented that expert evidence would be necessary where ordinary people are unlikely to form a correct judgment about asubject-matter without the assistance of an expert.

However, they noted that even if the four Mohan criteria for admissibility have beenmet, the trial judge must still decide whether the expert evidence is sufficiently beneficial to the trial process to warrant its admission,despite the potential harm to the trial process that may flow from the admission of that expert evidence [emphasis is mine below]: Expert opinion evidence is presumptively inadmissible.

It can be admitted only if the party calling it satisfies the following fourpreconditions to admissibility, on the balance of probabilities: • the expert evidence must be “necessary” in the sense that the expert deals with a subject-matter that ordinary people are unlikely toform a correct judgment about without assistance; • the expert evidence must be logically relevant to a material issue; • the witness must be qualified to offer the opinion in the sense that the expert possesses special knowledge and experience going beyondthat of the trier of fact in the matters testified to; and • the proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert opinion rule (“the absence of anexclusionary rule”) Even if these four preconditions are met, the trial judge, as the “gatekeeper,” must decide whether the expert evidence is sufficientlybeneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission ofthe expert evidence. [88] However, the “ultimate issue rule” no longer applies in regards to receiving expert opinion evidence: Graat v.

R. (1982), (SCC), 31 C.R. (3d) 289 (S.C.C.).

Also, at pp. 185-186 in their textbook (6th ed.), Paciocco and Stuesser emphasized thatsimilar to lay opinion evidence, the “ultimate issue rule” no longer applies to expert opinion evidence as a rule of general application[emphasis is mine below]: It was once said that “an opinion [whether lay or expert] can never be received when it touches the very issue before the [court].” Theconcern was that to allow a witness to express her “verdict” on the very issue that the trier of fact had to decide would be “usurping thefunctions of the jury.” Put more simply, there was fear that the trier of fact might be influenced unduly by the opinion, accepting ituncritically regardless of the actual evidence in the case.

There is no longer an “ultimate issue” rule that absolutely bars qualifiedwitnesses from offering opinions on the ultimate issues in a case. The ultimate issue rule was put to rest for lay witnesses in Graat v. R. There the accused attempted to use the ultimate issue rule to oppose the admission of lay opinions about his impairment. He argued thatimpairment was the very issue before the court and that to let witnesses say that his ability to drive was impaired might cause the judgesimply to accept their judgment, rather than deciding the case on the evidence.

Dickson J. criticized the ultimate issue rule and said thatso long as the opinions were not superfluous, they were properly heard. He remarked that witnesses cannot “usurp” the role of the trierof fact because the trier is free to accept all, or part, or none of their testimony. It is the trier of fact who renders the verdict, not thewitnesses.

Even though the fear of undue influence is more compelling where the opinion witness is an “expert,” it has since been resolved that theultimate issue rule is also gone for expert witnesses; there is no rule of general application preventing expert witnesses from offeringopinions on the ultimate issues in a case. As will be seen later in this chapter, however, the fact that an expert is about to testify on one ofthe ultimate issues in the case will sometimes be a factor to consider in determining whether the testimony will be admitted. Although theultimate issue rule itself is gone, two of its cousins survive.

The first of those rules provides that a witness cannot offer an opinion on apure question of domestic law. The second has come to be known as the rule against oath-helping. [89] On the other hand, the law still recognizes that neither a lay or an expert witness may provide an opinion on a pure question of law.

But, as Paciocco and Stuesser indicated at p. 186 of their textbook (6th ed.), in the case where the witness’s opinion is not on a purequestion of law and requires nothing more than a conclusion of fact to resolve, then the witness is permitted to state their opinion on theultimate issue to be decided [emphasis is mine below]: No witness, expert or otherwise, can provide an opinion on a pure question of domestic law. The rule is easy to state and to understand

— evidence is to be about questions of fact, not law. The law is for lawyers to argue, not witnesses to offer. It was therefore an error for atrial judge to permit a taxpayer to call a family law lawyer to explain that a clause in a separation agreement was legally enforceable, itwas an error for the trial judge to allow an expert witness to interpret the word “appreciates” in

section 16 of the Criminal Code,pertaining to the mental disorder defence, and it was wrong for an expert to offer an opinion on whether the accused was “guilty.” Occasionally, however, a legal standard does not have its own technical definition and requires nothing more than a conclusion of fact toresolve.

For example, the concept of impairment in the offence of impaired driving refers to nothing more than the fact of impairment.Because it holds the same legal meaning as the term would have for laypersons, it is not a pure question of law and there is no problemin allowing witnesses to state opinions on that ultimate issue. [90] Moreover, in Deemar v.

College of Veterinarians of Ontario (2008), 2008 ONCA 600 , 298 D.L.R. (4th) 305, at para. 21,the Court of Appeal for Ontario held that the party tendering the proposed expert witness must satisfy the trier that he or she possessesnot only the necessary expertise, but the requisite independence as well: It is up to the trier of fact to qualify a proposed expert witness. The party tendering the proposed expert witness must satisfy the trier thathe or she possesses not only the necessary expertise, but the requisite independence as well.

For example, the trier may refuse to qualifya person of unquestioned expertise who is closely related to the tendering party. [91] Also, in their textbook (6th ed.), at p. 200, Paciocco and Stuesser noted that the more conventional view is simply to treatindications of partiality as matters of weight and not admissibility [emphasis is mine below]: An expert who assumes an advocacy role is not performing the role of an expert witness. Still, the more conventional view is simply totreat indications of partiality as matters of weight, not admissibility.

It is also becoming increasingly common internationally for courtsto create protocols requiring experts to assert, before testifying, that they understand their role is to assist the court and to present theirevidence impartially.

It may be that measures such as these, rather than disqualification, will continue to be used to control partiality,but exclusion is a viable option and the qualification requirement is a fitting place to enforce impartiality and independence standards. [92] In short, the most important factor that should not be overlooked when dealing with expert opinion evidence is that the court stillhas the final say on legal conclusions and the finding of facts, as well as making the determination on how much weight to place on thatexpert witness’s testimony, including any opinions that they may give. [93] Ergo, despite the Crown’s agreement to accept John Ford as an expert witness for this proceeding, the Crown’s contention thatJohn Ford’s testimony is not objective and should carry little weight is nonetheless an apt submission, since Ford had failed to interviewLily Conway, Sapna Sharma, other workers working at workstation 1630 in the afternoon shift, or any of the afternoon supervisors forassembly line #1, to prepare a full and objective report.

Hence, since Ford had only interviewed Magna Seating management aboutworkstation 1630, then Ford would not have obtained the worker’s perspective or any of their safety concerns with working at station1630, consi

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