His Majesty the King in Right of Ontario (Ministry of Labour, Immigration, Training and Skills Development) v. Taiga Building Products Ltd./Produits de Batiment Taiga Ltee., Envirofor Preservers (Ontario) Division

DATE: October 31, 2022 Crt. #: 4011-99820-3639-00

ONTARIO COURT OF JUSTICE (NORTHEAST REGION)

His Majesty the King in Right of Ontario (Ministry of Labour, Immigration, Training and Skills Development) v. Taiga Building Products Ltd./Produits de Batiment Taiga Ltee., Envirofor Preservers (Ontario) Division

Oral Reasons given on May 3, 2022 Written Reasons released on October 31, 2022

Counsel: David McCaskill – Crown counsel Adrian Miedema/Claire Browne – Counsel for the Defendant/Moving Party

Mohan Admissibility Ruling

KIM, Leonard J

[1] The defendant, Taiga Building Product Limited, is charged with the offence of Failing, as an employer, to ensure that the measures and procedures prescribed by section 45(a) of Ontario Regulation 851 were carried out in a workplace, contrary to section 25(1)(c) of the Occupational Health and Safety Act.

[2] On January 7, 2022, the Crown brought a Mohan application to have Steve A. MacDonald, qualified as an expert ergonomist in the area of “Line of sight (“LOS”), visibility and human factors such as cognitive and visual factors”.

[3] The evidence considered in this voir dire consisted of video and photographic exhibits, testimony from the load operator, Mr. Chris Mercer and the testimony, report and C.V. of Mr. Steve A. MacDonald, the proposed Crown expert.

[4] For additional clarity, the scope of the proposed evidence that is captured by this voir dire ruling must be understood. The general exclusionary rule was explained by the Supreme Court of Canada in White Burgess at paragraph 14:

“Witnesses are to testify as to the facts which they perceived, not as to the inferences — that is, the opinions — that they drew from them. As one great evidence scholar put it long ago, it is “for the jury to form opinions, and draw inferences and conclusions, and not for the witness”: J. B. Thayer, A Preliminary Treatise on Evidence at the Common Law (1898; reprinted 1969), at p. 524; see also C. Tapper, Cross and Tapper on Evidence (12th ed. 2010), at p. 530. While various rationales have been offered for this exclusionary rule, the most convincing is probably that these ready-formed inferences are not helpful to the trier of fact and might even be misleading…”

[5] Accordingly, my ruling on this voir dire which will determine the admissibility of the proposed expert evidence from Steve MacDonald is applicable to any opinions, conclusions or inferences that stem from his evidence at trial.

[6] As explained in the White Burgess, the legal test for the Admissibility of Expert Evidence is a Two-Stage Approach: The first stage deals with the threshold requirements of admissibility, that being:

• Relevance;
• The necessity in assisting the trier of fact;
• The evidence must not be subject to any other exclusionary rule;
• The expert must be properly qualified; and
• For opinions based on novel areas, the underlying science must be reliable for that purpose

[7] With respect to the threshold requirement of Relevance, the Crown submits that the proposed evidence from Mr. MacDonald is logically relevant because it goes directly to the expected due diligence defence that is expected to form part of the legal analysis at trial.

[8] In consideration of the facts surrounding the line of sight, degree of obstruction from the operator’s point of view and the causes of this fatality, I find that the proposed expert evidence of Mr. MacDonald does have the potential to make the facts in issue more or less likely. Accordingly, the Crown has proven this first aspect of the four Mohan criteria at Stage 1.

[9] There are no concerns between the parties on the admissibility factors as they relate to the absence of an Exclusionary Rule, Novel Science or Bias. As a result, I will focus my analysis on the Mohan factors that are in dispute in this voir dire, namely, at Stage 1, Necessity, Properly Qualified Expert and Stage 2, my Gate-Keeping Role in assessing the costs and benefits to the evidence proposed.

The Evidence of Chris Mercer

[10] During submissions in this voir dire, counsel agreed that the testimony of the load operator, Chris Mercer, should form part of the evidentiary basis for this motion. This submission was in acknowledgement that counsel for both parties including in their arguments references to Mr. Mercer’s testimony and statement cited in the report of Mr. MacDonald.

[11] Mr. Mercer was called to testify by the Crown on January 6, 2022, as part of the trial proper. During the examination in chief, he testified to the following relevant facts:

a) That as a load operator, he is always scanning for people in the yard; b) That on the day of this incident, the loads of wood were stacked 2-3 bundles high on the trailer. These bundles were being moved from the rear portion of the trailer to the back yard area by him; c) In describing the loading process, it would take him a few minutes to completely transport a load from the trailer to the back yard area; d) That his speed was estimated at less than 10 km/hr, depending on the roughness of the yard. He estimated this speed in his words, “just by feel.” e) He described in detail the path he was travelling. With respect to the speed, Mr. Mercer explained that if an operator were to go too fast, this would cause the operator to bounce in his seat and jolt the loader and potentially cause part of the machine to hit the ground; f) Because he expected to hit a bump in the yard, he didn’t want to be going too fast. g) That he wanted the load to be high enough off the ground so that it wouldn’t hit the ground, but not too high to obstruct his visibility; h) He admitted that this task required a balance…what he described as the “Sweet spot” – he testified that these loads were 1 foot to 16 inches off the ground. He came to this estimation by feel and his years of experience as an operator. 10:55

[12] Photo stills from video footage at pg. 21 of Mr. MacDonald’s report were shown to Mr. Mercer, and he explained the loading process by stating the following:

a) He explained that the load at first would be higher, and then as he was travelling away from the truck, he would lower the load. b) With respect to visibility, he expressed that you will have a certain amount of blind spots. However, he explained that you are expected to take a look to ensure that the path is clear…that you are looking at everything, you scan everything from both sides. c) That he has applied these practices safely when operating a loader his whole life

[13] He testified to driving this path within the yard thousands of times per week.

[14] With respect to the CCTV videos that were put to him by the Crown, Mr. Mercer explained the loading process as seen on video. He identified Jimmy Bolger, the deceased, on the video and explained in detail what he could and could not see at various points within the unloading and moving process.

[15] While viewing the video, Mr. Mercer indicated that he was constantly scanning the view in the direction that he was going.

[16] He elaborated that upon unloading, he scanned towards the direction he was going and that when the load was up high, he could not see directly in from of him but that he had visibility to the sides of the loader in the direction of where he was about to go while he was turning. 11:08

[17] He testified that while scanning the area to where he was headed, he lowered the load while moving. He never saw Mr. Bolger at all.

[18] As the load was getting lowered, he estimated that he could not 50-60 feet straight in front of him but that he could scan to the sides of the loader.

[19] However, he was able to see around the edges, and continued to scan the yard for anybody that could be in the area. He re-affirmed that he did not see Mr. Bolger at all.

[20] He explained that this was a perfect storm and that Mr. Bolger had remained in the 50-60 foot blind spot while he was walking.

[21] Mr. Mercer also testified that he expected Mr. Bolger to walk along the edge of the bundles and then cross straight across from the bundles to the edge of the load that he would have been bar-coding and checking. This was the path that most other employees engaged in the same task would have taken.

[22] Under cross-examination by the defence, (12:23) Mr. Mercer explained that he could “see lots, you see over the load, both sides of load and you check before u head in a certain direction that nobody’s there….you are always scanning the yard…you see more than you think and u move your head to look around the blind spot if you think there is a blind spot.”

[23] Mr. Mercer testified that he could see over the load by looking down both sides…that his head was above the top of the bundles by about 2 feet or more

[24] He could see both sides of the load of wood and both sides of the road…he explained that if you scan the yard and look towards where you’re going…you can see everything except that little piece of pie. He stated that if you ensure that no comes within that piece of pie, you’re okay.

[25] Mr. Mercer repeated in his testimony that as a load operator, he would be constantly scanning ahead of himself and when backing up and that he could never assume that no one was ever there.

[26] In his own descriptive way, he explained that his head was on a swivel – meaning that he was always looking for potential danger, someone who was not supposed to be in the yard, or happened to be passing through. He cautioned that you cannot assume that no one is in the yard.

[27] Mr. Mercer specified that at the time of this incident, he backed up, articulated and had a clear view of path to be travelled. He was able to see the tire tracks in the gravel ahead of him from the prior travels, and intended to follow those tracks.

[28] While unloading the bundles from the truck, he focused on the truck to ensure that in picking up the wood, other bundles are not knocked over in the process. As soon as the bundles are safely secured, you’re scanning the area that you’re going to be headed to while turning the loader.

[29] He could see down the lane to the other staged wood, as he was turning, he was scanning both sides of the loader, no one was in front of him and as far as he was concerned, he was safe to go. He could see over the bundles and both sides of the yard. He explained that you are not strapped to your seat while operating and that you are constantly moving while scanning the area. This includes moving your head, your body and leaning forward.

[30] Under re-examination, Mr. Mercer explained that by going in reverse, there are more blind posts than there are going forward. He would rather go forward than reverse. He would spin his butt in the seat rather than use the mirrors…if he had to reverse, his whole body was on a swivel, not just his head.

The Proposed Expert Report from Steve A. MacDonald

[31] At the request of the Ministry of Labour inspector, Sylvie Laperriere, Mr. MacDonald conducted an ergonomics assessment which included a line of sight (LOS) assessment in this incident. The objective was to attempt to determine factors that may have contributed to or caused the death of Mr. James Bolger when he was walking to a staging area and was struck by a loader operated by Mr. Mercer. The loader was carrying two large bundles of wood and travelled behind Mr. Bolger, running him over. The evidence from Mr. Mercer is clear that he did not see Mr. Bolger, but that he could still see over top of the two bundles of wood when he was operating the loader and travelling forward towards the staging area. Mr. Mercer also gave evidence on the trial proper and as noted on page 12 of Mr. MacDonald’s report, indicated that he always “kept his head on a swivel”. [1]

Stage 1 – Necessity of Assisting the Trier of Fact

[32] The Crown argues that the proposed expert opinion of Mr. MacDonald is a necessary component for this Court to fully adjudicate the issue of the due diligence defence. Mr. McCaskill submitted that in considering this mens rea defence, the degree of visual obstruction to the operator will be an important factor to consider that could be provided through Mr. MacDonald opinion which includes a Line of Sight assessment. He further submits that while we have the subjective evidence of the lines of sight from Mr. Mercer’s testimony, the evidence of an objective expert in Mr. MacDonald would permit this Court to benefit from an objective opinion of visibility that is scientifically proven through appropriate calculations. This evidence would further support Mr. MacDonald’s ability to offer an expert opinion as to the cause of the fatality by assessing various factors in the workplace.

[33] Mr. Miedema on behalf of the defendant argues that the proposed expert opinion from Mr. MacDonald does not meet the necessity requirement. His argument is grounded in the fact that we have a direct, eye-witness account from the operator himself, Mr. Mercer, who provides the Court with ample evidence to adjudicate this matter. What Mr. Mercer was able to see and not see, was explained by him, which included evidence that he was not in a static position while operating the loader at any point. The defence further submits that there were other ways in which the Crown could have attempted to adduce objective evidence of sight lines, including by calling other operators, having someone operate the machine and capture this activity on video revealing sight lines, or re-create an actual real-world scenario based upon the underlying data that could have revealed what might have happened.

[34] I remind myself that the Supreme Court made it clear in Mohan and again in Sekhon, 2014 SCC 15 at paragraph 45, that if on the proven facts, a trier of fact can form their own conclusions without help, then the opinion of an expert is unnecessary. I adopt that reasoning with the case at bar.

[35] On January 6, 2022, Mr. Mercer provided extensive testimony that spoke to his direct, eye-witness account of what happened in this tragic accident in May 2019. Furthermore, a significant portion of what transpired was captured by video footage in the seconds prior to the incident that were filed as exhibits. While the moments just prior to the actual fatality were not captured on video, or witnessed directly by Mr. Mercer, his credibility is not in dispute. Moreover, Mr. Mercer’s reliability is not being challenged in any material way, as he forms an integral component of the Crown’s prosecution and the strongest criticism attributed to him is simply that his evidence is from a subjective perspective.

[36] There is an evidentiary gap of the events that were not witnessed by Mr. Mercer or captured on CCTV cameras in the moments prior to Mr. Bolger being ran over. A potential reconstruction of those events has been attempted by Mr. MacDonald by conducting a Line of Sight Assessment but in reliance of highly questionable underlying facts.

[37] In my respectful view, this is not necessary. To construct a scenario that attempts to fill in that evidentiary gap when it comes to visual obstructions from the perspective of the operator is not necessary for this Court to understand the nature of the evidence that goes to the essential element of the charge or the potential defence of due diligence. There is significant circumstantial and direct evidence that can be ascertained surrounding the actual incident itself that provides an ample evidentiary foundation to make reasonable inferences of what happened. Accordingly, I find that the proposed expert opinion from Mr. MacDonald is not necessary to assist me in determining visibility from Mr. Mercer’s vantage point, the degree of obstruction or the ultimate causes of this incident.

[38] Furthermore, any proposed expert opinion from Mr. MacDonald that attempts to speak to the cause of this accident as provided in pages 38-39 of his report, would be too close to the ultimate issue in this trial, and would in my view, effectively usurp my role as the trier of fact. The Supreme Court in Sekhon went on to elaborate within the context of the necessity criteria that “the concern “inherent in the application of this criterion [is] that experts not be permitted to usurp the functions of the trier of fact” (Sekhon, para. 45).

[39] Accordingly, I find that the Crown has failed to prove that the evidence of Mr. MacDonald in so far as any proposed expert opinion is concerned meets the necessity criteria in the Mohan factors.

Stage 1 – Properly Qualified Expert:

The Evidence of Mr. Steve MacDonald

[40] According to Mr. MacDonald, ergonomics is the study of people at work. It is a scientific discipline of studying the effects of people’s work and how they interact with the environment and tools around them. Line of sight is the practice of defining a boundary of where one has visibility or where one can see and cannot see. LOS is important in the field of ergonomics because it involves the human interaction with environment and machines. As explained by Mr. MacDonald, to see something, you need to perceive it which requires one to interact with something. Perception is a major factor in LOS assessments which require scientific study of sightlines from one’s seat.

[41] Mr. MacDonald’s evidence in this voir dire included a description of his qualifications as a Regional Ergonomist. As noted in his C.V. and his testimony, Mr. MacDonald has been employed by the Ministry of Labour, Training and Skills and Development for 6 years as an ergonomics consultant since Sept. 2015 and has been Practising ergonomics for 16 years in combination with safety work in a variety of settings. He is a member of the Association of Canadian Ergonomists since 2005 and has been certified as a member of the Canadian Certified Professional Ergonomists (CCPE) since 2016. The CCPE is a professional governing body that regulates professional ergonomists. It has a Code of Ethics which sets out expected professional responsibilities and minimum standards of competence and professionalism. To become qualified as a member of the CCPE, there is no testing procedure but one must take at least 700 hours of course work, with at least 500 out of those hours to consist of university level courses.

[42] Mr. MacDonald is also a member of the Canadian Registered Safety Professionals and has past experience as a certified kinesiologist from 2006 to 2013. His education is self-explanatory in his C.V. filed in this voir dire. He holds an Honours Bachelor of Science in Kinesiology and a Master of Science in Human Development, both from Laurentian University. His master’s thesis consisted of studying low back injuries, line of sight and driving postures in lift-truck operators.

[43] His previous work experience includes employment as an ergonomist for Occupational Health Clinics for Ontario Workers. In this capacity, his duties included performing on-site ergonomic assessments and seminars as well as writing reports to address health concerns and risk factors for injury which included recommendations to prevent workplace injuries and illnesses. He delivered training seminars on various topics including office ergonomics, back care, carpel tunnel syndrome, stress, working in the heat and general ergonomics.

[44] Mr. MacDonald was also employed as an Environmental Health and Safety Coordinator with Boart Longyear where he oversaw the environmental and safety programs at two manufacturing facilities. He investigated accidents and provided training for new employees, sat on the general safety committee and was responsible for environmental monitoring of chemicals coming into the facility. He also completed ergonomic assessments, assisted in revamped their forklift training program and focused on better sight lines, better handling and control of materials to ensure a safer workplace.

[45] He then moved on to Golder and Associates as a Health and Safety Specialist where he assisted in growing this company’s ergonomics program while conducting job safety analyses which included risk assessments and workplace safety investigations with the objective to develop safer work procedures.

[46] In 2015, Mr. MacDonald was then hired by his current employer as an ergonomics consultant. A detailed description of his duties are provided on page 5 of his C.V. and have has been reviewed by the court. His current role includes:

a) assisting Ministry of Labour inspectors when they conduct investigations pursuant to the Occupational Health and Safety Act (OHSA) in matters where an inspector issues work orders if a workplace is deemed to be unsafe. He described his work as reactive in nature involving serious accidents and fatalities in response to questions put to him and his office by a Ministry inspector. b) collecting scientific data of an ergonomic nature on force requirements, design, sight lines, lighting conditions, task frequency, equipment configuration, vibration, employee reach requirements, among other factors. c) providing scientific analyses and advice to other health and safety inspectors in cases involving ergonomics-related hazards. This includes analyzing ergonomic data based on identified hazards, measurements and injuries in the workplace. d) preparing technical reports on workplace conditions based on field visits and research. e) In a preventative sense, advising on a variety of ergonomic-related hazards to professional groups, health and safety committees, Ministry inspectors, hygienists, engineers and other government officials.

[47] As is evident in his C.V., Mr. MacDonald has and maintains ongoing Continuing Education in the general discipline of ergonomics. Mr. MacDonald also testified to possessing experience in forklift operation with materials such as bundles of lumber and assessing line of sights which he claims assisted in the completion of this report.

Mr. MacDonald’s Experience in Line of Sight Assessments

[48] Mr. MacDonald testified in a general sense that he has offered advice as an ergonomist in several hundreds of cases which includes his training experience. However, it became evident that the degree to which he was involved in each case varied over the years.

[49] In the case at bar, Mr. MacDonald assessed ergonomics and line of sight factors on May 7, 14 and 17, 2019.

[50] This was his first lead investigation involving the Total Station device at a scene. He did not operate the Total Station in this case as it belonged to the Ontario Provincial Police.

[51] The underlying data that was applied to the Total Station was collected by Cst. Brown of the OPP. A review of his testimony under cross-examination confirms that Mr. MacDonald did not verify the accuracy of the raw data entered into the Total Station (12:26)

[52] Prior to May 2019, during his work experience with the Ministry of Labour, Mr. MacDonald testified that he had experience in 4 Line of Sight Assessments prior to the incident at bar:

1. he had attended 2 critical and fatality scenes while in training with his mentor. In doing so, he had assisted and learned the techniques.
2. In a 3rd incident, he assisted in performing the Laurentian Method;
3. His 4th case was in 2017, when he worked with an inspector using mirrors to assess visibility from a seated position and masking calculations
4. His Master’s Thesis covered LOS but was not the main focus. Of note, LOS is not mentioned as an area covered in his CV, which states, “Thesis: Low Back Injuries and Driving Postures in Lift-Truck Operators”

[53] Of particular relevance in this analysis was the fact that this was Mr. MacDonald’s first LOS assessment relying on the Total Station, which is a device designed to map the scene and visibility around the front and sides of the loader. As indicated, Mr. MacDonald did not operate the Total Station but worked with Cst. Brown of the OPP who gathered the data for the Total Station and provided it to him in support of his LOS assessment.

[54] I remind myself that the scope of expertise the Crown is seeking to have Mr. MacDonald qualified as an expert witness in is described as:

“Line of sight, visibility and human factors such as the cognitive and visual factors of the human body”

[55] The Crown characterizes this area of expertise as a sub-area of the general field of ergonomics. A constant theme in the Crown’s submission in this voir dire is to attribute any weaknesses in the evidence as they relate to the Mohan factors to weight. However, I prefer the instructions of Justice T. Ducharme in Thomas [2], in applying the principles from Justice Binnie in J.-L.J. regarding a trial judge’s gate-keeping function at the time the expert evidence is proffered:

“3 There is no question that the path of least resistance in motions such as these oftentimes seems to be to admit the evidence and then compensate for any of its weaknesses by attaching less weight to the opinion. But such an approach is an abdication of the proper function of a trial judge and was explicitly rejected by Binnie J. in R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600 (S.C.C) at p. 613 :

• the Court has emphasized that the trial judge should take seriously the role of "gatekeeper". The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility.

Of course, this gatekeeper function directly collides with the general requirement that the parties to an action must be afforded the opportunity to lead the most complete evidentiary record consistent with the rules of evidence. This fundamental tension can only be resolved by the careful and consistent application of the rules of evidence.”

[56] Furthermore, I remind myself that the question is not whether the witness is an expert, but whether the witness has the expertise to offer an opinion in the relevant area. [3]

[57] There is no doubt in my mind that Mr. MacDonald is an expert in the general area of Ergonomics. His C.V. proves that his extensive education, training and experience as a member of the Canadian Certified Professional Ergonomists and the Association of Canadian Ergonomists is supportive of this finding. However, he is not being proffered as an expert in Ergonomics generally. The precise scope of expertise the Crown is seeking to have him give evidence is focused on sight lines and described as “Line of sight (“LOS”), visibility and human factors such as cognitive and visual factors”.

[58] At the time Mr. MacDonald conducted this Line of Sight Assessment in May 2019, his experience and training in this more narrow area was limited. His investigate steps taken at the scene of the fatality and factual assumptions applied do not give me the requisite confidence to endorse him as an expert in this defined scope of expertise. For example, it should come as a fundamental standard practice to verify the accuracy of any data relied upon to base an expert opinion presented, if possible. This was not done here on many levels, for reasons that are not acceptable to this Court.

[59] Mr. McDonald asserted that verification of the data utilized with the Total Station was not possible. He then proceeded to base his complex calculations upon assumed facts that required some degree of specificity as an evidentiary foundation for his opinion. Additionally, Mr. McDonald assessed the height of the load by placing it on the ground due to safety concerns. Respectfully, this was unacceptable given the cumulative degree of assumptions attributed to this portion of the facts. Mr. McDonald also applied general population averages to the height of the operator when the actual operator was readily accessible to determine this evidence with precision. The cumulative impact of these factual assumptions on many levels falls well short of acceptable evidentiary practice for this Court to accept the proposed expert opinion from Mr. McDonald.

[60] Regrettably, the number of factual assumptions relied upon by Mr. MacDonald do not seem to cause him any concern in advancing his opinion forward. These factual assumptions, many of which were completely opposite to the evidence we know from Mr. Mercer, should have been properly recognized by Mr. MacDonald by taking the necessary steps to ascertain, as much as reasonably possible, the accurate facts in support of his conclusions. For example, under no circumstances would a loader operator ever operate such a machine by staying still, without moving their head, body or leaning forward to adjust for sight lines. Yet Mr. MacDonald’s entire opinion was based upon a static operator, which is not realistic in practice.

[61] Evidence of his lack of experience in the proposed area was self-evident when he required the guidance and approval of Mr. Gillespie while collecting data points while Cst. Brown operated the Total Station at the scene. This was not a situation of peer-review or a collaborative exercise, but rather, a suggestion that Mr. MacDonald required a second opinion at the most fundamental tasks at hand at the initial stages of an investigation in the field. On closer analysis, this supports the conclusion that Mr. McDonald was in the process of learning these skills, and by no means, an expert in the proposed area.

[62] Additionally, during cross-examination in this voir dire, Mr. McDonald was completely unaware that the ISO standards he relied upon in his report were now outdated. With respect to the net impact of this new standard, this was also unknown to him and he required some time to research this. While I accept the Crown’s submission that there was no net impact in the different ISO standards from 2006 and 2017, the very existence of this new standard came as news to Mr. MacDonald and had their been a material impact, he would not have been aware upon presenting his opinion to this Court.

[63] The mark of a true expert is one of a professional who is remains informed of new developments and amendments in policies, procedures and industry-wide standards. This should not come as a surprise to any competent member of the Canadian Certified Professional Ergonomists who is up to date on recent developments.

[64] I have considered the non-exhaustive list of factors as provided by Justice Durno in Pham [4], in the Crown’s Book of Authorities. The number of factual assumptions and lack of depth in practical experience in Line of sight Assessments prior to May 2019, do not permit me to have the requisite confidence to accept Mr. MacDonald as a qualified expert in the area of “Line of sight (“LOS”), visibility and human factors such as cognitive and visual factors”.

[65] While appreciate the professional credentials Mr. McDonald holds as an ergonomist generally, I find that the Crown has not proven that Mr. MacDonald is an expert in this proposed area of expertise.

[66] Finally, my findings on this issue are limited only to the facts of this case, at the point in time when Mr. McDonald conducted his assessment in May of 2019. I must acknowledge that his experience in the proposed area of expertise has increased since then, and it would be open to another court to come to different conclusions on the facts of another case, in light of his growing professional experience in LOS.

[67] In the event that I am wrong in my analysis, I will proceed to provide an analysis at Stage 2 of the White Burgess test.

Stage 2 – Cost-Benefit Analysis

[68] The second stage involves the gatekeeping role and determining the benefit of admitting the evidence against the potential risks. The Court must consider:

• The legal relevance;
• The necessity of the evidence;
• The reliability of the evidence; and
• There must be the absence of bias

[69] In White Burgess, the Supreme Court of Canada provided further instructions on the factors to consider at this second stage and the trial judge’s gate-keeping role:

“[24] At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), while in J.-L.J., Binnie J. spoke about “relevance, reliability and necessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para. 47. Doherty J.A. summed it up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility 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”: para. 76.”

[70] With respect to stage two of the test, I find that the risk of the admission of the opinion evidence of Mr. MacDonald outweighs any benefit when I consider the comments above in White Burgess.

The Reliability of the Evidence

Reliability of the Total Station

[71] There was an assumption that the Total Station device was working properly and operated properly. According to Mr. MacDonald, these devices tend to be calibrated annually. It was more than a year since the Total Station was calibrated prior to being utilized in this incident in May 2019. However, I treat this as a neutral factor since I did not hear any evidence that the Total Station was malfunctioning in any way and the time recommended for annual calibration was exceeded by only a few months.

The Assumptions in the Proposed Expert Opinion or predictions

[72] Within the reliability analysis, the evidence indicated that Mr. Bolger was out of view from the CCTV camera footage at the time of the fatal incident, there were several assumptions made by Mr. MacDonald in formulating his opinion that are contradictory to the known facts. They include the following:

1. As noted on page 15 of the report, the operator was in a static position, and not moving his head and body position to adjust for line of sight as testified to by Mr. Mercer. We know this to be contradictory from the evidence we hard in viva voce form from Mr. Mercer.
2. The precise walking path taken by Mr. Bolger leading up to the accident was assumed amongst various different paths.
3. There was an assumption of the speed at which Mr. Bolger was walking. This was calculated at the general comfortable walking speed for a man in his 40s
4. There was an assumption assumed by Mr. MacDonald calculated at 19 km/hr in his report. However, Mr. Mercer testified that he was operating the loader at less than 10/km/hr.
5. The direction the operator was facing or looking was assumed;
6. There was an assumption that Mr. Bolger walked at a consistent pace, and did not slow down, stop or did not increase his speed at any point prior to the incident.
7. There was an assumption with respect to the height of the load. According to Mr. MacDonald, this calculation was a general estimate at best due to inaccurate scaling factors derived from the video footage and the variances in the operator’s height and degree of tilt of the bundle of wood. Ultimately, the height of the load was calculated at 52 cm off of the ground, which was an estimate. However, Mr. Mercer testified to the load being one foot to 16 inches off the ground. And described this as a “sweet spot.”
8. Mr. MacDonald did not know Mr. Mercer’s height at the time the line of sight assessment was initially calculated. And as a result, that height was assumed.
9. The initial calculations would have concluded that the operator did not have sight lines over the load. However, Mr. Mercer testified that he could see down the road and around the edges while scanning the yard.

[73] With respect to point number eight, I remind myself that Mr. MacDonald calculated the operator’s height at the 50th percentile of the general population when this measurement was actually higher than the actual height of the operator. Although the exact elevation of the load and height of the operator were not relied upon, Mr. MacDonald gave the benefit to the operator. In other words, Mr. MacDonald calculated the height of the load and line of sight in a more generous manner attributing more vision and less obstruction in the operator’s vision.

10. The data provided by Cst. Brown for use of the Total Station was also an assumption and was not verified for accuracy by Mr. MacDonald, as admitted under cross-examination.

[74] According to Mr. MacDonald himself, small changes can affect the sight lines when assessed. Additionally, there is also the unknown factor of what exactly Mr. Bolger was doing in the moments prior to being run over. Any contributory actions that might have been taking place in this tragic case is almost unknown. Considering this reality, I am mindful of the cumulative impact of the various assumptions made by Mr. MacDonald in calculating the Lines of Sight and coming to certain conclusions in his report. In a careful comparison of what he assumed and what the actual evidence is as witnessed by Mr. Mercer, the risk of an erroneous factual conclusion is high. Given this risk, the prejudice to the truth-seeking function of this court would be seriously compromised. Therefore, I cannot find that his proposed expert opinion with respect to Line of Sight is sufficiently reliable to be admitted at trial.

[75] To admit this evidence would permit evidence that could be misleading to this Court and result in findings of fact made at trial that are speculative or completely inaccurate. It is this risk of potentially unreliable evidence that this Court must guard against in the trial process.

The Assumptions Regarding the Underlying Facts

[76] The Supreme Court of Canada has re-affirmed in R. v. J(J-L), 2000 SCC 51, that “before any weight at all can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist.” [5] As explained in R v Lavallee, [1990] SCJ 36, at paragraph 74, the failure to prove underlying facts goes to the weight, rather than admissibility of the expert opinion. The law is also clear that if the necessary factual foundation for the expert opinion is not accepted to exist, the opinion should not be given any weight.

[77] If I am wrong in my admissibility assessment and any concerns, I have with respect to the reliability of Mr. MacDonald’s proposed opinion should be a matter of weight, I would attach no weight to his expert opinion.

Cost-Benefit Analysis – The Trial Judge’s Gate-Keeping Function

[78] The leading case of Mohan emphasized that trial judges must conduct a cost-benefit analysis to assess otherwise admissible evidence by ensuring the probative value of the evidence is not outweighed by its prejudicial effect. [6] In order to fulfill this function, trial judges maintain the residual discretion to exclude evidence that would otherwise be admissible under the four Mohan criteria. According to Justice Doherty in the 2009 Court of Appeal decision of Abbey:

“the trial judge must decide whether expert evidence that meets the preconditions to admissibility 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” para. 76.” [7]

Simply put, the question remains whether the potential benefits justify the risks.

[79] Additional dangers of admitting expert evidence as enunciated in previous appellate-level jurisprudence was partly summarized at paragraph 18 of White Burgess:

“…the potential prejudice created by the expert’s reliance on unproven material not subject to cross-examination (D.D., at para. 55); the risk of admitting “junk science” (J.-L.J., at para. 25); and the risk that a “contest of experts” distracts rather than assists the trier of fact (Mohan, at p. 24). Another well-known danger associated with the admissibility of expert evidence is that it may lead to an inordinate expenditure of time and money: Mohan, at p. 21; D.D., at para. 56; Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, [2011] 2 S.C.R. 387, at para. 76.”

[80] Seven years ago, Justice Cromwell on behalf of the Supreme Court of Canada provided the most focused instructions with respect to my gate-keeping role. In White Burgess at paragraph 20, he stated, “The unmistakable overall trend of the jurisprudence, however, has been to tighten the admissibility requirements and to enhance the judge’s gatekeeping role.”

[81] Counsel have made it clear during their submissions that if the proposed expert opinion of Mr. MacDonald is admitted, this trial would transition to another Mohan admissibility voir dire where the admissibility of the proposed defence expert, would have to be litigated. While both parties have the freedom to make tactical decisions in how and what evidence they would seek to introduce, the reality is that the admission of Mr. MacDonald’s evidence would embark this proceeding into a battle of the experts. The second Mohan voir dire would add no less than 2 to 3 days of additional trial time to a case that started in early January 2022 and is nowhere near complete. While the seriousness of this matter is an inherent part of this tragic fatality resulting in a lengthy proceeding, the admission of Mr. MacDonald’s proposed expert opinion would direct the trajectory of this trial into an area that would be of little or no assistance to this Court.

[82] There is no cap on the number of days this trial can sit if the court time allotted is focused on evidence that would assist me in adjudicating this case. However, in light of the concerns I expressed above with respect to the lack of necessity, the unreliable nature of the evidence relied upon and the absence of facts in support of the proposed opinions, I find that the cost in admitting Mr. MacDonald’s evidence would far outweigh its very limited probative value.

[83] Upon application of my gate-keeping role at Stage 2 of the White Burgess test, the proposed evidence of Mr. MacDonald must be excluded. Accordingly, the application to qualify Mr. MacDonald as an expert witness in the area of “Line of sight (“LOS”), visibility and human factors such as cognitive and visual factors” is dismissed.

Justice Leonard Kim

Oral reasons given May 3, 2022 Written reasons released October 31, 2022

Footnotes

[1] This statement from Mr. C. Mercer was amplified in his trial evidence, where he repeatedly stated that he was “always scanning for people in the yard” when he operated the loader, by moving his head from side to side to check for any potential safety hazards and to ensure no one was in his path.

[2] R. v. Thomas, [2006] O.J. No. 153 (S.C.J.) at para. 3.

[3] As explained in the 8th Edition of “The Law of Evidence”, by Justice D. Paciocco citing R. v. C(M), 2014 ONCA 611.

[4] R. v. Pham, 2013 ONSC 4903, at para. 31.

[5] R. v. J (J-L), 2000 SCC 51 at para. 59.

[6] White Burgess, at para. 19.

[7] White Burgess, at para. 20.