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

Before: 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 and MacFarland JJ.A.

• Graat v. R. (1982), 1982 CanLII 33 (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), 2002 CanLII 16893 (ON CA), 58 O.R. (3d) 37 (O.C.A.), per Weiler, Sharpe and Simmons 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., 1986 CanLII 154 (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), 1981 CanLII 3207 (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., 1998 CanLII 3479 (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, 1994 CanLII 80 (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), 1988 CanLII 4702 (ON CA), 66 O.R. (2d) 674, 46 C.C.C. (3d) 242 (O.C.A.) per Howland C.J.O, Goodman and Grange JJ.A.

• R. v. Sault Ste. Marie (1978), 1978 CanLII 11 (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 Greco J.

• 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., 2006 CanLII 28110 (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), 2001 CanLII 3494 (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, eighth 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

1One 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.

2The 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.

3The 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 11th incident.

4By 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 11th 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 11th 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.

5For 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.

6In 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.

7And, 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.

8However, 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.

9And, 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.

10In 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.

11Moreover, 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.

12Magna 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.

13Moreover, 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.

14In 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.

15Accordingly, 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.

16The 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.

17In 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

18There were seven witnesses that testified in the trial. Three were for the Crown and four were for the defence.

19For 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.

20For 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.

21The 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.

22The 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

23The 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.

24For assembly line #1, there are 26 different workstations.

25In 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.

26For 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.

27There 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.

28In 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.

29Workers 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

30There 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.

31Once 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.

32For 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.

33Finally, 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

34The 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.

35In 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.

36Coincidentally, 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

37Sapna 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.

38Fortunately, Sharma only received a minor injury, which the doctor at the hospital had noted was only a soft tissue injury.

39In addition, when the seat had fallen forward, Sharma had been struck by the cushioned part of the headrest on the automotive seat.

40Sharma 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.

41Furthermore, 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.

42However, 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.

43Sharma 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.

44Presently, 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.

45In 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

46After 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.

47It 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

48The 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.

49Heathcote 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.

50However, 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.

51Furthermore, 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.

52Heathcote 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.

53In 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.

54Moreover, 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.

55Ergo, 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.

56In 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.

57Although 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.

58That 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.

59In 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.

60Unless 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.

61Then, 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.

62Heathcote also indicated that shims had been welded onto all 42 pallets that they use in the plant to assemble the seats on.

63In 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.

64And, 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

65An 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.

66In 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.

67However, 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.

68Magna 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

69Both 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.

70On 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.

71In 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

72Stacey 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.

73In 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.

74Kapparis 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.

75The 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.

76The 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.

77The 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.

78However, 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.

79Ergo, 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.

80Moreover, from March 28, 2012, when the issue at workstation 1630 first appeared on the agenda of the Joint Health and Safety Committee's monthly meeting, to June 11, 2012, when Sharma was struck by the falling seat at station 1630, a period of over two and a half 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 periods between the two accidents occurring at station 1630 that the Crown relies on, in contending that Magna Seating had not been duly diligent, nor had it taken all reasonable steps for the circumstances to prevent the seat from falling forward and striking Sapna Sharma on June 11, 2012. Especially, considering that Magna Seating's maintenance department had designed, fabricated, and installed a "stopper guard" 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

81Stacey 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 an employee orientation and health and safety training, as well as training on personal protection equipment; the identification of hazards at the Mississauga plant; information about the right to refuse to do unsafe acts; what the duties of the employer, employees and supervisors are at the workplace; and how to report an accident and who to tell about an unsafe situation; and about obtaining first aid if the employee is injured.

82Furthermore, Kapparis said there are weekly safety meetings and monthly Joint Health and Safety Committee meetings at the Mississauga plant.

83Moreover, Kapparis said there is general training given to a new employee after orientation where they go to a specific workstation and receive specific workstation training, and shown about potential hazards and the use of protective equipment. She also said 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

84As part of their defence, Magna Seating proffered John Ford 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." Prior to the trial, the Crown had by written agreement accepted John Ford as an expert witness and had agreed that his report would be 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.

85However, in their closing arguments, the Crown was concerned that John Ford had not been testifying in an objective manner in the trial, and that he had failed to interview Lily Conway, Sapna Sharma, or any of the afternoon supervisors for assembly line #1 in respect to station 1630, before he prepared his report. Therefore, the Crown submits that John Ford's testimony and report should carry very little weight.

86In respect to expert witness testimony, a court has discretion on how to utilize the evidence from an expert witness. In R. v. Mohan, 1994 CanLII 80 (SCC), [1994] S.C.J. No. 36, at para. 17, the Supreme Court of Canada held that the admission of expert evidence 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.

87Moreover, at p. 190 of their textbook, The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011), Paciocco and Stuesser commented that expert evidence would be necessary where ordinary people are unlikely to form a correct judgment about a subject-matter without the assistance of an expert. However, they noted that even if the four Mohan criteria for admissibility have been met, 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:

Expert opinion evidence is presumptively inadmissible. It can be admitted only if the party calling it satisfies the following four preconditions 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 to form 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 beyond that 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 an exclusionary rule")

Even if these four preconditions are met, the trial judge, as the "gatekeeper," must 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 the expert evidence.

88However, the "ultimate issue rule" no longer applies in regards to receiving expert opinion evidence: Graat v. R. (1982), 1982 CanLII 33 (SCC), 31 C.R. (3d) 289 (S.C.C.). Also, at pp. 185-186 in their textbook (6th ed.), Paciocco and Stuesser emphasized that similar to lay opinion evidence, the "ultimate issue rule" no longer applies to expert opinion evidence as a rule of general application:

It was once said that "an opinion [whether lay or expert] can never be received when it touches the very issue before the [court]." The concern 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 the functions of the jury." Put more simply, there was fear that the trier of fact might be influenced unduly by the opinion, accepting it uncritically regardless of the actual evidence in the case. There is no longer an "ultimate issue" rule that absolutely bars qualified witnesses 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 that impairment was the very issue before the court and that to let witnesses say that his ability to drive was impaired might cause the judge simply to accept their judgment, rather than deciding the case on the evidence. Dickson J. criticized the ultimate issue rule and said that so long as the opinions were not superfluous, they were properly heard. He remarked that witnesses cannot "usurp" the role of the trier of 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 the witnesses.

Even though the fear of undue influence is more compelling where the opinion witness is an "expert," it has since been resolved that the ultimate issue rule is also gone for expert witnesses; there is no rule of general application preventing expert witnesses from offering opinions 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 of the ultimate issues in the case will sometimes be a factor to consider in determining whether the testimony will be admitted. Although the ultimate issue rule itself is gone, two of its cousins survive. The first of those rules provides that a witness cannot offer an opinion on a pure question of domestic law. The second has come to be known as the rule against oath-helping.

89On 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 pure question of law and requires nothing more than a conclusion of fact to resolve, then the witness is permitted to state their opinion on the ultimate issue to be decided:

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 a trial judge to permit a taxpayer to call a family law lawyer to explain that a clause in a separation agreement was legally enforceable, it was 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 to resolve. 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 problem in allowing witnesses to state opinions on that ultimate issue.

90Moreover, 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 possesses not 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 that he or she possesses not only the necessary expertise, but the requisite independence as well. For example, the trier may refuse to qualify a person of unquestioned expertise who is closely related to the tendering party.

91Also, in their textbook (6th ed.), at p. 200, Paciocco and Stuesser noted that the more conventional view is simply to treat indications of partiality as matters of weight and not admissibility:

An expert who assumes an advocacy role is not performing the role of an expert witness. Still, the more conventional view is simply to treat indications of partiality as matters of weight, not admissibility. It is also becoming increasingly common internationally for courts to create protocols requiring experts to assert, before testifying, that they understand their role is to assist the court and to present their evidence 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.

92In short, the most important factor that should not be overlooked when dealing with expert opinion evidence is that the court still has the final say on legal conclusions and the finding of facts, as well as making the determination on how much weight to place on that expert witness's testimony, including any opinions that they may give.

93Ergo, despite the Crown's agreement to accept John Ford as an expert witness for this proceeding, the Crown's contention that John Ford's testimony is not objective and should carry little weight is nonetheless an apt submission, since Ford had failed to interview Lily Conway, Sapna Sharma, other workers working at workstation 1630 in the afternoon shift, or any of the afternoon supervisors for assembly line #1, to prepare a full and objective report. Hence, since Ford had only interviewed Magna Seating management about workstation 1630, then Ford would not have obtained the worker's perspective or any of their safety concerns with working at station 1630, considering that Lily Conway and Sapna Sharma had testified that automotive seats being worked on at station 1630 fell regularly after the seat had been pushed to the upright position by a worker. As such, John Ford's testimony at the trial did not resemble objective testimony, nor would the conclusions or opinions in his written report be based on a properly prepared and objective investigation, since he had only obtained the view of the management of Magna Seating and not of the workers who had actually worked at station 1630 in the afternoon shift, and who performed the tasks at that station thousands of times and on thousands of seats. Those workers would have provided a valuable insight into the operation and the performance of the tasks at station 1630, and perhaps a different perspective on why the seats would fall after they had been pushed back into the upright position, and their perspective on whether there had been enough time to perform those required tasks at station 1630, and on whether the workers had received sufficient training to perform the tasks at station 1630. Accordingly, John Ford's opinion, as an expert witness, and his written report will not carry very much weight in the determination of whether Magna Seating has made out the defence of due diligence.

3. ISSUES

94The following are issues that have arisen in the trial and need to be resolved:

(a) Does ss. 26 and 45(b) apply to the circumstances and facts that have been proven in the present case?

(b) Was a machine involved in the production of the seat at workstation 1630?

(c) Is the conveyor system that moves the automotive seat from workstation to workstation on assembly line #1 a machine for the purposes of s. 26 of O. Reg. 851/90?

(d) Is the automotive seat being processed at workstation 1630, encompassed by the phrase "material, articles, or things" and that it had been "placed" by the worker in the upright position, for the purposes of s. 45(b) of O. Reg. 851/90?

(e) If the Crown has proven that Magna Seating has committed the actus reus of the two offences respectively set out in ss. 26 and 45(b) beyond a reasonable doubt, has Magna Seating met its burden of proving the defence of due diligence on a balance of probabilities in order to be acquitted of the two charges?

4. ANALYSIS

95Magna Seating has been charged with contravening the measures and procedures prescribed by s. 26 and s. 45(b) of the Industrial Establishments Regulation, R.R.O. 1990, Reg. 851, which if proven beyond a reasonable doubt would be offences under s. 25(1)(c) of the O.H.S.A.

96Section 25(1)(c) of the O.H.S.A. provides that:

25(1) An employer shall ensure that,

(d) the measures and procedures prescribed are carried out in the workplace

97Moreover, the measures and procedures prescribed under s. 26 of O. Reg. 851/90 that an employer has to carry out are:

26. A machine shall be shielded or guarded so that the product, material being processed or waste stock will not endanger the safety of any worker.

98And, for the measures and procedures prescribed under s. 45(b) of O. Reg. 851/90 that an employer has to carry out are:

Material Handling

45. Material, articles or things,

(a) required to be lifted, carried or moved, shall be lifted, carried or moved in such a way and with such precautions and safeguards, including protective clothing, guards or other precautions as will ensure that the lifting, carrying or moving of the material, articles or things does not endanger the safety of any worker;

(b) shall be transported, placed or stored so that the material, articles or things,

(i) will not tip, collapse or fall, and

(ii) can be removed or withdrawn without endangering the safety of any worker; and

(c) to be removed from a storage area, pile or rack, shall be removed in a manner that will not endanger the safety of any worker.

99Furthermore, as the two offences set out in ss. 26 and 45(b) are strict liability offences, then in determining whether Magna Seating is guilty of committing the two charges beyond a reasonable doubt, a two stage analysis is required. For the first stage, the Crown has the onus to prove that Magna Seating committed the actus reus of the offences set out in s. 26 and s. 45(b) respectively beyond a reasonable doubt. If the Crown meets its legal burden, then to avoid being convicted of committing the two offences the onus shifts to Magna Seating to prove on a balance of probabilities that it had taken all reasonable steps for the circumstances to avoid the particular event or that it had reasonably believed in a mistaken set of facts, if true, would render their act or omission innocent: R. v. Sault Ste. Marie (1978), 1978 CanLII 11 (SCC), 40 C.C.C. (2d) 353 (S.C.C.).

(A) Has the Crown Proven Beyond a Reasonable Doubt that Magna Seating Committed the Actus Reus of the Offence contained in s. 26 Of O. Reg. 851/90

100In respect to count #2, Magna Seating contends that the Crown has failed to prove that it has committed the actus reus of the offence set out in s. 26 of O. Reg. 851/90 beyond a reasonable doubt, since they have failed to prove that s. 26 applies to the particular circumstances of the present case. In particular, Magna Seating contends the Crown has failed to prove beyond a reasonable doubt that a machine had been used at workstation 1630 to produce or process the automotive seat when Sapna Sharma was hit by the seat falling forward, and that the only processing required to be done on the seat at that station was from the manual tasks from a worker using human power and a torque gun.

101Furthermore, Magna Seating submits that even though a public welfare statutes or legislation is to be given a broad interpretation to accord with its purpose, the interpretation should not be limitless so as create absurd interpretations: Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75, [2013] O.J. No. 520 (O.C.A.).

102Section 26 of O. Reg. 851/90 specifically states:

26. A machine shall be shielded or guarded so that the product, material being processed or waste stock will not endanger the safety of any worker.

103The prosecution in reply argues that the machine at workstation 1630 is the conveyor system that brought the pallet containing the seat to station 1630, since the pallet although disengaged from the conveyor system and no longer being transported by the conveyor system when it was being working on by Sharma, the pallet was still attached to the frame of the conveyor system. As such, the seat being worked on was still attached to a machine and this machine still needed to be guarded so that Sharma would not have been injured during the processing of the seat at station 1630.

(i) Is the conveyor system a machine for the purposes of s. 26?

104In Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75, [2013] O.J. No. 520, the Court of Appeal for Ontario, at paras. 24 to 27, and 29, held that interpreting legislation broadly to accord with the purpose of the legislation does not on the other hand call for a limitless interpretation of their provisions, which could extend the reach of the legislation far beyond what was intended by the legislature:

Public welfare legislation is often drafted in very broad, general terms, precisely because it is remedial and designed to promote public safety and to prevent harm in a wide variety of circumstances. For that reason, such legislation is to be interpreted liberally in a manner that will give effect to its broad purpose and objective: R. v. Timminco Ltd. (2001), 2001 CanLII 3494 (ON CA), 54 O.R. (3d) 21 (C.A.), at para. 22.

In Ontario (Ministry of Labour) v. Hamilton (City) (2002), 2002 CanLII 16893 (ON CA), 58 O.R. (3d) 37 (C.A.), at para. 16, Sharpe J.A. reinforced that notion:

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 purpose 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.

This generous approach to the interpretation of public welfare statutes does not call for a limitless interpretation of their provisions, however.

One of the problems with what is otherwise an understandable approach to the interpretation of public welfare legislation is that broad language, taken at face value, can sometimes lead to the adoption of overly broad definitions. This can extend the reach of the legislation far beyond what was intended by the legislature and afford the regulating ministry a greatly expanded mandate far beyond what is needed to give effect to the purposes of the legislation.

In these circumstances, the principle of statutory interpretation affirming that broad language may be given a restrictive interpretation in order to avoid absurdity may come into play: Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 S.C.R. 1031, at pp. 1081-82; and Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, 1996 CanLII 149 (SCC), [1996] 3 S.C.R. 727, at para. 109, per Iacobucci J.

105Moreover, interpreting a statutory provision for a precise meaning does not simply require looking at the plain meaning of each individual word within the statutory provision in isolation. As the Supreme Court held in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at pp. 40-41, courts should use the modern principled approach instead of the plain meaning approach, when they are required to interpret or construe the meaning of a particular statutory provision, which requires that 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 the legislators who enacted the statutory provision:

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.

106Furthermore, s. 64 of the Legislation Act, 2006, c. 21, Sched. F, a statute that governs the interpretation of statutes and regulations enacted by the Ontario Legislature, states that a fair, large, and liberal interpretation of Ontario statutes should be made to best ensure the attainment of the object of a statute:

Rule of liberal interpretation

64 (1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

Same

(2) Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act.

107Moreover, the Supreme Court of Canada in R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, [2002] S.C.J. No. 76, at para. 77 of [2002] S.C.J. No. 76, reaffirmed that the proper approach in seeking the legislative intent of a statutory provision is by reading the words in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute:

The approach to statutory interpretation can be easily stated: one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute (Interpretation Act, R.S.C. 1985, c. I-21, s. 12; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688; E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).

108Similarly, the "ejusdem generis" rule for determining the grammatical meaning of a phrase or clause provides that ambiguous phrases or clauses derive their meanings from the specific context in which they appear.

109Furthermore, in her textbook, Statutory Interpretation (Toronto, Ontario: Irwin Law Inc., 1997), at pp. 54, 134, and 137, Professor Ruth Sullivan emphasized that interpreters of legislative text must identify and take into account the purpose of legislation and by analyzing the words to be interpreted in context, and that modern legislation is also written in a form that lends itself to purposive analysis:

The meaning of a legislative text is determined by analysing the words to be interpreted in context. Words are analysed in their immediate context by focusing on the specific provision in which the words appear and attempting to understand the reasons why the legislature has chosen this combination of words, this structure, this punctuation, and so on. Words are also analysed in larger contexts by comparing the wording of the provision to be interpreted with the wording of provisions elsewhere in the same or other Acts and by considering the role of the provision in the scheme to which it belongs.

To achieve a sound interpretation of a legislative text, interpreters must identify and take into account the purpose of legislation. This includes the purpose of the provision to be interpreted as well as larger units - parts, divisions, and the Act as a whole. Once identified, the purpose is relied on to help establish the meaning of the text. It is used as a standard against which proposed interpretations are tested: an interpretation that promotes the purpose is preferred over one that does not, while interpretations that would tend to defeat the purpose are avoided.

Purposive analysis has become a staple of modern interpretation. It is used not only where the language of a text is found to be ambiguous but in every case and at every stage of interpretation. This reliance is justified by the interaction between language and purpose that is present in all communication, including legislation. The listener or reader infers the purpose from what is being said and at the same time understands what is being said in light of the purpose.

A strong emphasis on purpose is also justified by a number of legal considerations. First, a purposive approach has been mandated by the legislature. There is a provision in every Canadian Interpretation Act directing interpreters to give to every enactment "such fair, large and liberal construction and interpretation as best ensures the attainment of its objects." Second, much modern legislation is written in a form that lends itself to purposive analysis. Modern provisions tend to be drafted in general terms and many confer broad powers or discretion on officials. For courts to discern the proper scope of such provisions, they must know their purpose. A third factor is the Canadian Charter of Rights and Freedoms, which came into force in 1982. In its earliest Charter decisions the Supreme Court of Canada emphasized the need for purposive analysis both to give definite meaning to the broad language and complex ideas found in the Charter and to test whether legislation found to violate its provisions might be justified under section 1. In working with the Charter, Canadian courts have become accustomed to the techniques of purposive analysis.

Most often the purpose of legislation is established simply by reading the words of the text. More precisely, the purpose is inferred by reading the text in the context of the interpreter's common sense as well as his or her individual knowledge, values, and beliefs. Interpreters rely on this contextual material, first, to surmise what effects are likely to result from the operation of the legislation and, second, to conclude which possible effects are desirable. The desirable effects are presumed to be the intended goals of the legislation.

110Ergo, unlike a drill, a press, a brake, a lathe, or other similar machines, that are used directly to produce a product or process material, the chain-driven conveyor system that carries automotive seats on a pallet from station to station is not directly being used to process or produce the automotive seat at workstation 1630. Moreover, the processing of the automotive seat at station 1630 only required certain manual tasks to be performed by a worker on the seat with the assistance of a torque gun.

111In addition, the conveyor system does not create work waste that could injure a worker at station 1630. And, although the conveyor system keeps moving after the pallet carrying the seat is automatically disengaged from the conveyor system and stopped so the worker can complete their tasks in processing the seat at station 1630, that particular moving part or parts on the conveyor system are already guarded so that workers' clothing or a worker's body would not be entangled in the moving conveyor system.

112Furthermore, simply because Magna Seating maintenance personnel chose to attach the "stopper guard" on June 12, 2012, to the conveyor system frame or that the pallet is sitting on the conveyor system frame, but unattached from the moving conveyor system, does not mean that the conveyor system was being used as a machine to physically process the automotive seat. Simply put, the moving part of the conveyor system or some other part of the conveyor system was not being used to drill, bend, shape, cut, press, or manipulate the automotive seat, but had only been sitting below the pallet that was holding the seat, and where the pallet holding the seat was attached to only the frame of the conveyor system. Accordingly, the conveyor system is not a machine that had to be guarded or shielded for the purposes of s. 26 in regards to the particular tasks being performed by Sapna Sharma on an automotive seat at workstation 1630 on June 11, 2012.

113In addition, for the purposes of s. 26, interpreting or concluding that the conveyor system, which is used to transport or move pallets holding the automotive seat being assembled on assembly line #1 from workstation to workstation, is a machine for the particular processing activity and tasks performed by a worker at station 1630, would extend the reach of the legislation far beyond what was intended by the legislature, and also lead to an absurd result.

114Ergo, the Crown has failed to prove that Magna Seating had committed the actus reus of the offence set out in s. 26 of O. Reg. 851/90 beyond a reasonable doubt. As such, count #2 will be dismissed.

(B) Has the Crown Proven Beyond a Reasonable Doubt that Magna Seating Committed the Actus Reus of the Offence contained in s. 45(b) Of O. Reg. 851/90

115In respect to count #1, Magna Seating contends that the Crown has failed to prove that it has committed the actus reus of the offence set out in s. 45(b) of O. Reg. 851/90 beyond a reasonable doubt, since s. 45(b) is meant to only encompass "material, articles or things" being "transported, placed, or stored", so that these items would not tip, collapse or fall. In other words, Magna Seating argues that the tasks being performed on one automotive seat by Sharma while it was sitting on a pallet and being stationary at workstation 1630, had not been in relation to the seat being still transported, nor that it had been placed or stored with numerous items of the same sort, such as when a stack of steel bars are placed or stored as a pile that could easily tip, collapse or fall. Therefore, Magna Seating submits that the Crown has failed to prove the required elements of the offence set out in s. 45(b) beyond a reasonable doubt.

116In particular, s. 45(b) of O. Reg. 851/90 states:

Material Handling

45. Material, articles or things,

(b) shall be transported, placed or stored so that the material, articles or things,

(i) will not tip, collapse or fall, and

(ii) can be removed or withdrawn without endangering the safety of any worker; and

117In response, the prosecution submits that Sapna Sharma's act of pushing the seat to the upright position when the seat subsequently fell forward and struck Sapna Sharma, are the required elements under s. 45(b) that needed to be proven. Specifically, the seat is the material, article, or thing that had been or was being placed by Sharma in the upright position where it could have tipped, collapsed, or fallen.

(i) Was the seat in question a "material, article or thing" that had been "placed" by the worker at station 1630, so that it would not "tip, collapse or fall" for the purposes of s. 45(b) of O. Reg. 851/90?

118Magna Seating, in arguing that s. 45(b) does not apply to the particular circumstances proven in the case at bar, contends that s. 45(b) only refers to situations where there is more than one thing or item that is being transported, placed, or stored, such as a pile or stack of lumber, that could easily tip, collapse, or fall, if the pieces of lumber are not piled or stacked properly, but not to a situation in which only one automotive seat sitting on a pallet is being worked on by a worker.

119However, under s. 67 of the Legislation Act, 2006, c. 21, Sched. F, words in the plural are to be interpreted to include the singular for that plural word:

Number

67. Words in the singular include the plural and words in the plural include the singular.

120As a result, the plural words in s. 45(b) include the singular and when the particular provision is broadly interpreted to accord with the purpose of the legislation, which is to guarantee a minimum level of protection for the health and safety of workers, then the provision should not be narrowly interpreted so that it would only apply to a situation where there has to be many items or things being transported, placed or stored, such as a pile of lumber. Moreover, the purpose of s. 45(b) is to prevent any material, article, or thing being handled in a workplace, especially when being transported, placed, or stored from tipping, collapsing, or falling, by taking protective measures or using proper and sufficient containment or fastening. For example, this provision would also include preventing or ensuring that one large and inherently dangerous or unsafe object, while being transported, or after it had been placed or stored would not tip, collapse or fall and injure a worker, by properly securing, containing or fastening that object.

121Therefore, s. 45(b) would encompass the task performed by Sapna Sharma at workstation 1630 where she had been required to push the seat back to the full upright position in order to lock the seat. If the seat was not properly locked or secured by the seat's locking mechanism when the seat was pushed upright by Sharma, then the seat could still fall forward due to the force from the tension of the spring in the seat and strike Sharma. In addition, Sharma's act of pushing the seat to the required full upright position before she could perform her next task on the seat satisfies the act or element of "placing a thing" under s. 45(b).

122Accordingly, since Magna Seating failed to prevent the seat from falling forward and striking Sapna Sharma after the seat had been placed in the upright position by Sharma at workstation 1630 on June 11, 2012, the Crown has met its burden in proving that Magna Seating had committed the actus reus of the offence set out in s. 45(b) of O. Reg. 851/90 beyond a reasonable doubt.

(C) The Defence Of Due Diligence

123For their due diligence defence, Magna Seating submits that Sapna Sharma was a competent worker and had been properly trained on the tasks that were required to be completed on the automotive seat at workstation 1630; that she knew what the tasks were and had performed the tasks at that station thousands of times; and that she was well aware that the seat had to be pushed fully to the upright position so that the seat's two locking mechanisms would be engaged and that if the locking mechanisms were not engaged then the seat could fall forward.

124Also, as part of their due diligence defence, Magna Seating submits that there had been a measure in place at station 1630 that would have prevented the accident form occurring on June 11, 2012, which had been for a worker to push the seat fully upright to engage the locking mechanisms of the seat. Once they were engaged properly, Magna Seating contends that this would have been sufficient to prevent the seat from falling forward. However, a measure that relies solely on a worker to fulfill their duty to work safely and prudently, or to complete a task as instructed is not, in some circumstances, evidence of due diligence, as the measures invoked by Magna Seating must also protect the incompetent, lazy, or negligent worker.

125In addition, Magna Seating contends that the Joint Health and Safety Committee's manner and effort in dealing with the February 7, 2012, seat falling forward incident at workstation 1630 was reasonable, considering that they meet once a month even though statutorily, such a Committee, is only required to meet once every three months, and that they still have to deal with 10 to 20 health and safety issues at their meetings every month.

126Magna Seating also submits that it should not be held to the same standard of care in respect to every safety issue that may arise at their Mississauga plant, since some issues are more serious and have a higher priority than others do. It further submits that the issue involving station 1630 was not a high priority for the Joint Health and Safety Committee because the possibility of recurrence and the potential of grave injury to a worker were considered by them to be very low. And, although guarding being installed at station 1630 had also been of low priority to the Committee, the matter was still being addressed by them in the normal fashion, and that the afternoon shift supervisor of the Maintenance Department had been assigned on April 26, 2012, to investigate and report back to them about the feasibility of guarding being installed at that workstation.

127The Crown, on the other hand, relies on the February 7, 2012, incident involving Lily Conway being struck by a seat falling forward at workstation 1630 and causing her upper lip to bleed, as evidence that Magna Seating had been well aware of the problem of a seat falling forward at workstation 1630 that could strike and injure a worker for a significant amount of time, before Sapna Sharma had been struck by a seat on June 11, 2012, at the same workstation. In addition, the Crown contends that Magna Seating had not moved quickly enough to devise a measure to prevent the seat from falling forward at the workstation and striking a worker, since a little over four months had elapsed since Lily Conway had received the bleeding upper lip from a falling seat, and considering that the afternoon Maintenance Department at the Mississauga plant had been able to design, manufacture, and install a "stopper guard" device to prevent a seat from falling forward at workstation 1630 within one day of the seat actually falling forward and striking Sapna Sharma.

128Moreover, the Crown submits there is no evidence that after the Lily Conway accident had occurred the workers at station 1630 were given additional training by Magna Seating on what to do to ensure the seat had been fully locked before continuing their tasks at station 1630. For example, Magna Seating could have instructed the workers about using such possible measures as waiting for several seconds, or shaking or moving the seat back and forth for several seconds to ensure that the seat had been fully locked after it had been pushed to the upright position, before continuing with their tasks.

129On the other hand, Magna Seating contends that the "stopper guard" device installed on June 12, 2012, was only a temporary measure, as well as being a redundant measure, since the two locking mechanisms in the seat when properly engaged would have been sufficient to prevent the seat from falling forward, considering that the two locking mechanisms had been designed to meet a specific safety standard for use in automobiles, so that they would prevent seats from falling forward in collisions, or while being driven on road surfaces with bumps, or when heavy cargo had been carried behind the seats which may then move forward during a sudden deceleration of the automobile.

130Moreover, Magna Seating submits that Kyle Heathcote, a manufacturing engineer employed by Magna Seating, had been able to identify the root cause for why the seat had fallen forward on June 11, 2012, and struck Sapna Sharma. Heathcote had concluded that it had been based on a combination of two factors. First, the alignment of the seat on the pallet became askewed from vibrations and work being done on the seat before it arrived at station 1630, and second, there had been a design change made to the Ford Edge seat from two springs to only one spring, which was being manufactured and assembled for its first ever full run on assembly line #1 on June 11, 2012. For the misalignment factor, one side of the newly-designed Ford Edge seat was sitting more in front on the pallet than the other side. The side of the newly-designed seat that had been more in front was the side without a spring. As such, after the seat had been pushed back by the worker to the upright position, Sapna Sharma had erroneously believed that she had pushed the seat back far enough to engage the locking mechanisms, but due to the seat only containing one spring after the design change in conjunction with the misalignment of the seat on the pallet, the seat had not been pushed properly all the way back, or upright, so that the locking mechanisms in the seat could be engaged. Hence, Magna Seating contends that this unique and particular combination of factors, which caused Sharma to mistakenly believe she had pushed the seat back far enough to engage the locking mechanisms, and that had led to the seat falling forward and striking Sapna Sharma, had not been reasonably foreseeable.

131Still, one would think that if the locking mechanism on the side of the seat without the spring had been more in front on the pallet that the side with the spring, so that when the seat was pushed all the way back then the locking mechanism on that side of the seat would have locked first, which would then prevent the seat from falling forward. Especially, when the locking mechanisms had been designed to meet a specific safety standard to prevent seats from coming forward once engaged, in order to withstand collisions and bumpy roads. In other words, only one locking mechanism being engaged ought to have been sufficient to prevent the seat from falling and striking Sapna Sharma on June 11, 2012, considering there would not have been the same forces affecting the seat, as there would have been from an automobile collision or while being driven over a bumpy road, since Sapna Sharma had not even commenced using the torque gun on the seat after the seat had been raised upright by her.

132However, after it had been discovered that the seat's alignment was becoming askew on the pallet before it arrived at station 1630, Magna Seating had shims welded to 42 of the pallets, which are used on the assembly line to transport the seats from workstation to workstation, to make sure that the side of the seat with the spring would be sitting on the pallet more in front than the side of the seat without the spring, so that when a worker push the seat back to the full upright position the side of the seat with the spring would lock first. Moreover, Kyle Heathcote, the manufacturing engineer, said that he could not re-create the June 11, 2012, event once the shims were put into the pallet, but could do so once the shims had been removed. This remedy then solved the glitch and the unusual set of circumstances that had led Sapna Sharma to mistakenly believe that she had pushed the seat back far enough to engage the locking mechanisms in the seat, when in fact she had not done so.

(i) Standard of care

133As this court indicated in R. v. Modern Niagara Toronto Inc., [2003] O.J. No. 3332 (O.C.J.), at para. 137, there is no expectation that an employer be superhuman or to perform their duties to perfection, and that an employer's failure to comply with the O.H.S.A. has to be considered on the basis of their prudence and reasonableness for the circumstances:

Although, the O.H.S.A. is concerned about the protection and safety of workers in the workplace, there is no expectation that an employer be superhuman or to perform their duties to perfection. An employer's failure to comply with the Act has to be considered on the basis of their prudence and reasonableness for the circumstances. Even though the O.H.S.A. requires the employer to protect a worker's safety while on the job, it does allow for alternative measures to any statutory procedure, as well as a statutory defence of taking every precaution reasonable for the circumstances.

134Furthermore, in R. v. Blair, [1993] O.J. No. 1477 (Ont. Ct. (Prov. Div.)), at para. 169, Harris J., in considering the standard of care required for exercising due diligence, held that it must not be characterized as being unrealistic, superhuman or beyond that which is reasonable:

It should be recognized from the outset that the standard of care must not be characterized as being unrealistic, superhuman, or beyond that which is reasonable. If that was the case, the offence would be converted to one of absolute liability, because that type of onus could never be discharged. On the other hand the onus should not be characterized as being flimsy, elusive, a figment of imagination, or something made of compromise.

135Moreover, in his dissertation, "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, under section C, "Due Diligence: Defined", N.J. Strantz also commented on the standard of care that should be exercisable by employers to establish due diligence and the two-step test that employers must meet to set up the defence of due diligence. For the applicable standard of care to be exercised by the employer to establish the due diligence defence, Stranz indicated that it would depend on the facts of each case and the particular industry or activity involved, and that the greater the likelihood of harm and the greater the awareness of the potential danger, the more due diligence an employer must exercise in order to escape liability. And, in order to establish the due diligence defence, the employer must first show that the act took place without the employer's direction or approval, and second, that the employer exercised all reasonable care by establishing a proper system to prevent the commission of the offence as well as taking reasonable steps to ensure the effective operation of the system:

What constitutes "due diligence" is case specific, and the standard of care required to establish the defence depends on the facts of each case, and the particular industry or activity involved. Basically, the greater the likelihood of harm, and the greater the awareness of the potential danger, the more "due diligence" an accused must exercise in order to escape liability. Thus, only the outer limits of the defence can be stated with any certainty. For example, it is clear that the standard of diligence required for the defence to be operative will fall "short of risking life and limb" and "where an accused chooses in a moment of crisis to deposit a relatively small quantity of a deleterious substance, rather than risk a man's life, he has acted as a reasonable man would have done in similar circumstances and will not be held liable."

Actions amounting to "due diligence" may change with time; what might amount to an appropriate solution at one juncture might not meet "due diligence" standards at a future point in time. Thus, "due diligence" includes keeping abreast of technological change and ensuring equipment is not only in good operating condition, but also meets current specifications and standards.

"Due diligence" as a defence to direct liability of an employer has been stated as simply taking "every precaution which is reasonable" in the circumstances to "follow the rules". In some circumstances, "due diligence" may mean retaining consultants or experts when the appropriate level of expertise is lacking internally.

To set up a "due diligence" defence to vicarious liability as an employer, the employer must meet a two-part test. The employer must show "the act took place without the accused's direction or approval, thus negating wilful involvement of the accused, and ... the accused exercised all reasonable care by establishing a proper system to prevent the commission of the offence and ... [took] reasonable steps to ensure the effective operation of the system."

The Court stated that, because employees were not "infallible people," if the potential consequences are serious it might not be enough "if one does nothing but hire careful people train them carefully and tell them not to [do certain acts]," and that the corporate employer might have to "make adequate provisions in its systems or otherwise" to prevent the damage that may occur "when employees are not as careful as they are told to be." "Due diligence" also requires "adequate information and instructions from the company right down to the man on the job."

136In addition, Megginson J. in R. v. Cancoil Thermal Corp. (1988), 1 C.O.H.S.C. 169 (Ont. Prov. Ct.), at p. 186, held that it is the employer's specific reasonable care or non-negligence in relation to the statutorily-defined actus reus of the particular offence that is determinative and not a general state of reasonable care or non-negligence:

In the case of the second branch or aspect, it is not "reasonable care" or "non-negligence" at large in the overall prevailing situation that exonerates, but rather "reasonable care" or "non-negligence" specifically relational to the statutorily-defined actus reus (be it commission or omission) of the particular offence charged.

137Moreover, in determining the standard of care required of Magna Seating for the business activity involved, Stuart C.J. in R. v. Gonder (1981), 1981 CanLII 3207 (YK TC), 62 C.C.C. (2d) 326 (Y.T.C.), at p. 331, found the approach consisted of two stages: (1) whether there exists any general standard of care common to the business activity and (2) whether there are special circumstances which require a different level of care:

The approach consists of two stages. First, the existence of any general standard of care common to the business activity in question must be determined. Is there a standard practice of care commonly acknowledged as a reasonable level of care and did the accused act in accord with that standard? The second stage examines any special circumstances of the case which might require a different level of care other than the level suggested by the standard practice. Evidence of a standard practice is only one important component of that test, the ultimate test is the degree of due diligence required in the circumstances of each case.

138Furthermore, at pp. 332-333 of R. v. Gondor, Stuart C.J. held that reasonable care implies a scale of caring related to the special circumstances of each case, and that this standard of care is variable, raised or lowered according to the special circumstances of each factual setting. He also held that the degree of care is primarily governed by the following circumstances: gravity of potential harm, alternatives available to the accused, likelihood of harm, degree of knowledge or skill expected of the accused, and the extent that the underlying causes of the offence are beyond the control of the accused:

Reasonable care implies a scale of caring. The reasonableness of the care is inextricably related to the special circumstances of each case. A variable standard of care is necessary to ensure the requisite flexibility to raise or lower the requirements of care in accord with the special circumstances of each factual setting. The degree of care warranted in each case is principally governed by the following circumstances:

(a) Gravity of potential harm.

(b) Alternatives available to the accused.

(c) Likelihood of harm.

(d) Degree of knowledge or skill expected of the accused.

(e) Extent underlying causes of the offence are beyond the control of the accused.

139And further at p. 333 of his decision, Stuart C.J. indicated that the reasonableness of care is best measured by comparing what was done against what could have been done:

Alternatives available to the accused - Reasonableness of care is often best measured by comparing what was done against what could have been done. The reasonableness of alternatives the accused knew or ought to have known were available is a primary measure of due diligence. To successfully plead the defence of reasonable care the accused must establish on a balance of probabilities there were no feasible alternatives that might have avoided or minimized injury to others.

140Furthermore, in R. v. Stelco Incorporated (1989), 1 C.O.H.S.C. 76 (Ont. Prov. Div.), at p. 87, Bennett J. held that in order to establish due diligence an employer must also establish that the supervisor or the person in charge had been doing what they were supposed to be doing:

I must agree with the Crown that the obligation of the constructor is much more than to simply create a system to inform employers concerning their responsibilities under the Act; it must take the next reasonable step and ensure the effective operation of the system through its supervisors. Due diligence must in addition to a good system, establish that a person in charge is doing what he is supposed to do.

141In addition, in 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.)) at p. 5 of 3 C.O.H.S.C. 1, Greco J. held that one important factor in determining the degree of diligence required of any employer would relate to how much injury or damage would result in the event that some error is made or might be made, and that an employer must take reasonable precautions to guard against harm which is forseeable or which might be expected:

In this regard then, one important factor to be taken into account in determining the degree of diligence required would relate to how much injury or damage would result in the event that some error is made or might be made. It is put by myself that the greater the risk; the greater for potential harm; the greater the care required.

I should not be taken as saying, however, that the accused should be able to foresee the future; that he should be a seer; that he should perhaps be required to guard against that which is unexpected, unknown or beyond any expectation. No. But, he must take precautions which are adequate to guard against that which is foreseeable, that which might be expected.

142Greco J., also commented at the end of his judgment, in R. v. Sault Ste. Marie (City) Public Utilities Commission that where the type of accident involves human intervention or error, then those circumstances may require that someone be faulted or held responsible for it occurring:

I wish to make this observation as well. There are events which occur without human fault or intervention -- accidents, pure accidents. There are other events which occur, you may call them accidents as well if you will, which would not have happened if human intervention or error had not been involved. Surely, no one should be faulted or held responsible in the first type of situation alluded to by myself, however, in the case of the second situation the opposite conclusion may often have to be reached.

143Therefore, in determining whether Magna Seating has proven on a balance of probabilities that it took all reasonable care in the circumstances to prevent the event from occurring, consideration will be taken of the particular industry; the type of workers; the nature and number of the workers' tasks and activities that were involved in respect to the accident; the knowledge, competence, and experience of those workers; the efforts of Magna Seating in dealing with the potential risk of harm to the workers at station 1630; and the probability of recurrence and the potential for grave injury to a worker at that station.

144For the present case, the particular industry that is involved encompasses the manufacturing and assembling of automotive seats in a large plant with five assembly lines and over 400 workers. The workers at workstation 1630 on assembly line #1 are required to do production work and an assembly type of manual and repetitive tasks over a quick timeline to complete their tasks on one automotive seat. The work is not complex or complicated, or physically demanding, and had been performed by the worker, Sapna Sharma, thousands of times at station 1630. In addition, training workers in the tasks at station 1630 would not take a long period of training to complete. Moreover, instructions and the tasks are listed in writing at station 1630 and Sapna Sharma had been trained in in how to perform those tasks at that workstation, and had acknowledged that she had been aware that if she did not push the seat all the way back to engage the locking mechanisms in the seat, then the seat could fall forward. In addition, Sharma said she also knew what the tasks were to be completed at station 1630.

145However, the due diligence defence is not necessarily made out based on proof of general diligence or reasonable care. The due diligence that is required to be proven must specifically be directed at or towards preventing the event in question from occurring.

(ii) Foreseeability of a seat falling forward and striking a worker on June 11, 2012, due to the new design change to the automotive seat being manufactured and assembled at that time in conjunction with the misalignment of the seat on the pallet

146In addition, the foreseeability of the accident occurring is a relevant factor in determining whether Magna Seating had taken every reasonable precaution in the circumstances to prevent the seat from falling forward and striking Sapna Sharma on June 11, 2012, at workstation 1630.

147In R. v. Rio Algom Ltd. (1988), 1988 CanLII 4702 (ON CA), 66 O.R. (2d) 674, 46 C.C.C. (3d) 242, the Court of Appeal for Ontario held that the test, which should have been applied, was not whether a reasonable man in the circumstances would have foreseen the accident happening in the way that it did happen, but rather, whether a reasonable man in the circumstances would have foreseen that an "overswing" of the gate could be dangerous in the circumstances, and if so, whether the respondent in this case had proven it was not negligent in failing to check the extent of overswing in order to consider and determine whether it created in any way a potential source of danger to employees by failing to take corrective action to remove the source of danger:

Nor can the respondent rely upon an assertion that it took all reasonable steps to avoid the accident in question (the particular event). The evidence makes it clear that the respondent took no steps to avoid the accident although the gate could readily have been repaired or a stop block could have been constructed in the ground which would have prevented the gate from overswinging past a 90 degrees angle.

Although the "overswing" of the gate did not adversely affect its utility as a protective device for the purpose for which it was originally intended, that does not relieve the respondent from responsibility for danger of injury to employees resulting from such disrepair even though such danger is not related to the original danger against which the device is designed to protect. Such a defence is not available to the respondent.

I am not prepared to say that every failure to comply with the provisions s. 14(1)(b) of the Occupational Health and Safety Act will result in a conviction thereunder. In applying the principle espoused by Dickson J. in Chapin quoted above, it is my view that the reasonable foreseeability of danger resulting from an act or omission which constitutes prima facie proof of the offence alleged is one of the factors to be considered in deciding whether an accused took all the care which a reasonable man might have been expected to take in the circumstances. If that is what the trial judge purported to do he was correct in so doing.

The trial judge, however, appears to have focused his attention on the fact that none of the witnesses foresaw "this type of accident happening" and that "no one had foreseen the happening of what happened on September 3rd". In my view, in purporting to determine whether the respondent had taken the care which a reasonable man might have been expected to have taken in the circumstances, he applied the wrong test. The test which should have been applied was not whether a reasonable man in the circumstances would have foreseen the accident happening in the way that it did happen, but rather whether a reasonable man in the circumstances would have foreseen that an "overswing" of the gate could be dangerous in the circumstances and if so whether the respondent in this case had proven it was not negligent in failing to check the extent of overswing in order to consider and determine whether it created in any way a potential source of danger to employees and in failing to take corrective action to remove the source of danger.

148Furthermore, in his textbook, "Libman on Regulatory Offences in Canada" (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., 2002), at pp. 7-11, Justice Libman noted that "[t]he phrase all due diligence means an area of precaution sufficient to prevent the foreseeable, but not the unforeseen, unexpected or unintended."

149Accordingly, the test in deciding this issue is whether Magna Seating should have foreseen that it had created a potential source of danger to its workers at station 1630, if it did not immediately do something to prevent the seat from falling forward and striking a worker after the seat had been pushed upright. Consequently, if Magna Seating had taken measures to prevent all reasonably foreseeable breaches or accidents by employees, it will not be held liable for any negligent act of the employee that caused the accident in question.

150To start with, it is reasonably foreseeable that a seat could fall forward if a worker fails to push the seat fully upright to engage the seat's locking mechanisms. This is evidenced by the documented incident of February 7, 2012, in which a seat had fallen forward and struck Lily Conway. Although both Lily Conway and Sapna Sharma had testified that the seat had falling forward unexpectedly after the seat had been pushed upright into the locked position, possibly due to the vibration from the torque gun that they had been using to secure the seat buckle to the seat. However, since there is no evidence that the two locking mechanisms were faulty or defective in the seat that fell forward and struck Sapna Sharma, and considering that the locking mechanisms installed in automotive seats have to meet certain safety standards to prevent them from coming forward in collisions, bumpy roads, or other jarring that could cause the seats to fall forward while an automobile is being driven, then for that particular seat to fall forward after it had been pushed upright by Sharma would imply that the seat could not have been, or had not likely been, pushed fully into the upright position to engage the two locking mechanisms in the seat. This is what likely had happened to Lily Conway as well on February 7, 2012.

151Therefore, if the seat had been pushed fully upright so that the seat's locking mechanisms on each side of the seat are engaged, then the seat being worked on by Sapna Sharma should not have fallen forward.

152Moreover, as of March 21, 2012, the management of Magna Seating had been aware of this safety issue pertaining to a seat falling forward and striking a worker where the seat had not been pushed back fully by the worker to engage the locking mechanism of the seat at station 1630. This is when Stacey Kapparis, who is the Human Resources Manager and co-chair of the Joint Health and Safety Committee, had learned of the February 7, 2012, incident when a seat being processed at station 1630 had fallen forward and struck Lily Conway, causing Conway to bleed at her upper lip area.

153However, although it was reasonably foreseeable that a seat could fall if the seat had not been pushed all the way back to engage the seat's locking mechanisms, it was not reasonably foreseeable that a worker would or could have erroneously believed that the seat had been pushed all the way back to the fully locked position at station 1630 because of the combination of the misalignment of the seat on the pallet and the new one-spring design in the Ford Edge automotive seat being manufactured on June 11, 2012, for the first time ever on a full run on assembly line #1. Especially, to the extent that the combination of these two factors could cause Sapna Sharma to mistakenly believe that the seat had been locked when she pushed the seat upright, but had not in fact been locked because the side of the newly-designed seat without a spring had been sitting more forward on the pallet than the side of the seat containing the spring, so that when Sharma had pushed the seat upright, she would have mistakenly felt or sensed that she had pushed the seat all the way back to the upright position based on the side of the seat without the spring being more forward than the side of the seat with the spring. In addition, the locking mechanism on the side of the seat with the spring would not be engaged due to that side not being pushed all the way back to the upright position. Furthermore, on two previous trial runs on manufacturing the new design for the Ford Edge automotive seat with only one spring, there had been no evidence of any problems with a falling seat striking a worker, and that there had been no other incidents of the seat falling forward and striking a worker at station 1630 between February 7, 2012, and June 11, 2012.

154It is also fortunate that in the event of a seat falling forward when it did not become fully locked through worker error or inattention, that the seat would not have carried a significant force that could, or would, have caused a serious injury to a worker. Moreover, the force of the seat coming forward on June 11, 2012, would have conveyed the same force as a seat coming forward in an automobile would have conveyed after the lever of that seat is pulled to release the seat. Moreover, the force from the tension of the spring in the seat that would cause the seat to move forward was estimated by Kyle Heathcote, a manufacturing engineer for Magna Seating, to be a force of about 60 newtons or about less than 15 pounds – feet per second squared. As such, this force that would cause the seat to fall forward would not be enough to cause any serious injury, if any at all, since it is reasonable and logical to conclude that most automobile manufacturers would not design or manufacture an automobile with an automobile seat that would come forward with a force that would be inherently dangerous, or that would have the potential to cause injuries to young children or toddlers who may be passengers in an automobile, or who happen to be playing on the seats inside a motor vehicle.

155It is also not unreasonable for a worker to mistakenly believe that they had pushed the seat back all the way to engage the locking mechanism, on account of the change in the seat design from two springs to one spring in conjunction with the misalignment of the seat on the pallet, so that the side of the seat without the spring would go back further when pushed upright than the side of the seat with the spring would have.

156On the other hand, it was not reasonably foreseeable for Magna Seating to be aware that the design change made to the seat being assembled on assembly line #1 on June 11, 2012, by the Ford Motor Company, from two springs to one spring, in conjunction with the seat's alignment on the pallet becoming askew from the vibrations and work being done on it at earlier stations, would cause Sharma to erroneously believe that the seat had been pushed far enough back to lock the seat even though the locking mechanism on the side with the spring would not always be engaged when the seat had been pushed upright, because the side of the seat without the spring in the new seat design was sitting more forward on the pallet than the side of the seat with the spring.

157Although one would think that the locking mechanism on the side without the spring in the newly-designed seat would have been able to hold the seat from falling forward when the seat had been pushed upright, as the locking mechanism is designed to do such an important function, especially considering that the locking mechanisms in the Ford Edge motor vehicle have not been proven to be defective and had been designed to hold the seat from falling forward in collisions or while being driven on bumpy surfaces. Unless of course, both locking mechanisms in the seat have to be both engaged at the same time in order to prevent the seat from falling forward in a collision or while being driven over a bumpy surface.

158In addition, because the probability of recurrence had been low and the force from the seat coming forward was generated by the tension in the spring in the seat that would measure about 60 newtons or less than 15 pounds-feet per second squared, which is a relatively small amount of force, as well as the head rest and the seat had been padded, then the force of the seat falling forward and striking a worker would not cause any serious injuries to a worker. Due to the low probability of recurrence and the low possibility of a serious injury from the seat falling forward and striking a worker, then it was not unreasonable for the Joint Health and Safety Committee to act in the manner that it did in not promptly dealing with the safety issue concerning workstation 1630, after Lily Conway had been struck on February 7, 2012. It was also not unreasonable in those circumstances for them not to immediately find a solution to remedy the issue of the falling seat, or for them to treat this issue with low priority.

(iii) Conclusion

159In sum, Magna Seating had taken all reasonable care for the circumstances to prevent the accident from occurring on June 11, 2012. Although there had been no permanent measure implemented immediately by Magna Seating at station 1630 to prevent the seat from falling forward after the seat had been pushed upright, after the first documented incident of a seat falling forward and striking a worker at station 1630 on February 7, 2012, the probability of recurrence and the potential of serious injury from the seat falling forward in any event had been very low. What's more, there had been only two documented incidents in which a seat had fallen forward at station 1630 that struck a worker out of nearly two million seats that had been built by Magna Seating from November 2006 to June 11, 2012, at the Mississauga plant. In addition, the most serious injury from the two incidents that had resulted from the seat falling forward and striking a worker had been the cut to Lily Conway that only required a Band-Aid being applied to the cut and only a few minutes away from the assembly line to get the Band-Aid. Hence, the potential for any serious injury had been low, since the force of the seat falling forward came from the tension in the spring fitted into the seat, which would have only been a force of 60 newtons or less than 15 pounds-feet per second squared, which would have to be a relatively minor amount of force. Specifically, the force of the seat falling forward would have to be minimal, otherwise a seat that fell forward when used in a motor vehicle could potentially harm young children, or other individuals who are sitting on the seats in the motor vehicle, were the force of the seat falling forward be of any significant amount.

160Moreover, the Joint Health and Safety Committee had not identified the seat-falling concern at station 1630 as one of high priority, since the seat falling forward and striking a worker was a rare occurrence and that no serious injury would result if the seat did fall forward and strike a worker, as the seat coming forward was only from the tension of the two springs in the seat that only involved a relatively small amount of force.

161And, although it appears that Magna Seating had not moved promptly in dealing with the safety issue of the falling seat at station 1630, especially in light of the fact that the afternoon maintenance department of Magna Seating had been able to almost immediately design, fabricate, and install a "stopper guard" device at station 1630 within a day of Sapna Sharma being struck, and that it had been a little over four months between February 7, 2012, when Lily Conway was struck by a seat falling forward, and June 11, 2011, when Sapna Sharma was struck by a seat falling forward, Magna Seating's efforts in resolving and finding a solution for the seat falling forward issue at station 1630 had not been unreasonable in light of the circumstances.

162Those circumstances includes the Joint Health and Safety Committee, which is comprised of management and workers from the Mississauga plant, not considering the seat falling forward issue at station 1630 to be of high priority; the possibility of guarding being implemented at station 1630 was still being investigated by the Joint Health and Safety Committee; the guarding issue at station 1630 was still an open item for the Committee from March 28, 2012, to June 11, 2012; the supervisor of the afternoon maintenance department had been assigned on April 26, 2012, to investigate the feasibility of guarding station 1630; a design change being made to the Ford Edge seat that was being assembled and manufactured for the first time ever on a full run on assembly line #1 on June 11, 2012; the alignment of the seat on the pallet becoming askew so that the side of the newly-designed seat Ford Edge seat without the spring was sitting more forward on the pallet then the side of the seat with the spring; and there were only two documented occurrences of a seat falling forward and striking a worker at station 1630 and causing minor injuries out of nearly two million seats built at the Mississauga plant from November 2006 to June 11, 2012; and the possibility of recurrence and the potential for grave injury to a worker had been very low.

163Furthermore, the cause of the seat falling forward and striking Sapna Sharma on June 11, 2012, due to the design change to the Ford Edge automotive seat from two springs to one spring, in conjunction with the misalignment of the seat on the pallet before it arrived at station 1630, so that when the seat had been raised upright by Sapna Sharma, it had caused Sharma to erroneously believe that she had pushed the seat back far enough to engage the locking mechanisms in the seat even though the seat had not become locked, had not been reasonably foreseeable.

164Moreover, Magna Seating's ability to implement the measure of installing a "stopper guard" device at station 1630 almost immediately after the seat fell forward and struck Sapna Sharma on June 11, 2012, does not mean that it had not been acting reasonably in all the circumstances to prevent the seat from falling forward and striking Sharma, since the actual solution used to remedy the issue of the side of the seat with the spring not locking on some occasions when the seat had been pushed to the upright position, and which arose on June 11, 2012, due to the design change to the seat and the misalignment of the seat on the pallet had been to weld shims on the pallets used to assemble the automotive seats. With the shims added to the pallets, the side of the seat with the spring would then sit more forward on the pallet than the other side, so that when the seat was raised upright, the locking mechanism on the side of the seat with the spring would lock first and prevent the seat from falling forward.

165Accordingly, Magna Seating has met its burden in proving on a balance of probabilities that it had taken all reasonable care in the circumstances to prevent the seat from falling forward and striking Sapna Sharma on June 11, 2012, to avoid being convicted of contravening s. 45(b) of O. Reg. 851/90 set out in count #1.

5. DISPOSITION

166In respect to Count #1, the Crown has not proven beyond a reasonable doubt that Magna Seating Inc., operating as Mississauga Seating Systems, failed as an employer, to ensure that the measures and procedures prescribed by s. 45(b) of Ont. Reg. 851/90, contrary to s. 25(1)(c) of the O.H.S.A, in particular, that it 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. An acquittal will therefore be entered.

167In respect to Count #2, the Crown has not proven beyond a reasonable doubt that Magna Seating Inc., operating as Mississauga Seating Systems, failed as an employer, to ensure that the measures and procedures prescribed by s. 26 of Ont. Reg. 851/90 were carried out at a workplace located at 400 Courtneypark Drive East, Mississauga, Ontario, contrary to s. 25(1)(c) of the O.H.S.A, in particular that it had 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. An acquittal will therefore be entered.

Dated at the City of Mississauga on January 9, 2015.

QUON J.P.

Ontario Court of Justice