DATE: 20010524

DOCKET: C32886

COURT OF APPEAL FOR ONTARIO

RE: THE CORPORATION OF THE CITY OF MISSISSAUGA (Plaintiff/Respondent) v. KEIFER RECARO SEATING, INC. (Appellant/Defendant)

BEFORE: McMURTRY C.J.O., ABELLA AND GOUDGE JJ.A.

COUNSEL:

Patrick J. Monaghan For the appellant/defendant

David G. Boghosian and Johanne Desloges For the plaintiff/respondent

HEARD: May 22, 2001

RELEASED ORALLY: May 22, 2001

On appeal from the judgment of the Honourable Romain Pitt, dated June 7, 1999 and August 30, 1999.

E N D O R S E M E N T

[1] We are of the view that there was evidence before the trial judge on which he could find that the damage to the respondent’s bus was caused by a fire as a result of the type of seat heater incorporated into the seat manufactured by the appellant.

[2] The trial judge appears to have fallen into error when he stated that the “heating pads were defective when they left the defendant’s hands, there is a presumption against the defendant that the heater pads were negligently manufactured”.

[3] The evidence accepted by the trial judge establishes the fact that the heating pads were not defective in themselves but were inappropriate components for the type of driver’s seat into which the appellant chose to incorporate them. It was therefore negligent for the appellant to manufacture the bus seat with the particular type of heating pad given the heavy use to which the seat would be exposed. It also is reasonable to imply from the trial judge’s reasons that he did find negligence on the part of the appellant in relation to the manufacture of the bus seat which caused the respondent’s damages. The appellant had a duty to take reasonable care in the manufacture of its product including its component parts and it is clear that it did not do so. (Farno v. Nutone Electrical Ltd. 72 O.R. (2d) 63 (C.A.) Lacourciere J.A. at 640.)

[4] The appeal is therefore dismissed with costs.

“McMurtry C.J.O.”

“R. S. Abella J.A.”

“Stephen Goudge J.A.”