IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Ding v. Prévost, A Division of Volvo Group  
Canada Inc.,  
2022 BCSC 215  
Date: 20220210  
Docket: M166513  
Registry: Vancouver  
Between:  
And  
Jie Ding  
Plaintiff  
Brian Spittal, Western Bus Lines Ltd., Canam Super Vacation Inc. d.b.a. Super  
Vacation, Prévost, A Division of Volvo Group Canada Inc., Mark Yu, Universal  
Coach Line Ltd., Laurels Tak Lau and Paul Tao Way Chan  
Defendants  
- and -  
Docket: M166164  
Registry: Vancouver  
Between:  
Hua Li Pan  
Plaintiff  
And  
Brian Spittal, Western Bus Lines Ltd., Canam Super Vacation Inc. d.b.a. Super  
Vacation, Prevost, A Division of Volvo Group Canada Inc., Laurels Lau, Paul  
Tao Way Chan, Universal Coach Line Ltd. And Tat Chi Yu a.k.a. Mark Ewan and  
Mark Yu  
Defendants  
Corrected Judgment: The text of the judgment was corrected at paragraphs 23, 37,  
42, 45, 87, 88, 165, 213(a), 214 and 374 on February 28, 2022.  
Before: The Honourable Justice E.M. Myers  
Reasons for Judgment  
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 2  
Counsel for the Plaintiff, Jie Ding:  
Michael Slater, Q.C.  
James Buckley  
Vivian Cheung  
Counsel for the Plaintiff, Hua Li Pan:  
Sean Pihl, Q.C.  
Whitney Derber  
Robert Marcoux  
Counsel for the Defendant, Prévost, A  
Division of Volvo Group Canada Inc.:  
Guy Brown, Q.C.  
Nigel Trevethan  
Siobhan Sams  
Counsel for the Defendants, Brian Spittal  
and Western Bus Lines Ltd.:  
Danine Griffin  
Elizabeth Clarke  
Counsel for the Defendant, Universal Coach  
Line Ltd.  
Harley Harris  
Tom Dusevic  
Kinda Garcha  
Heather Maconachie  
Brian Cheng  
Laura Buitendyk  
Counsel for the Defendants, Canam Super  
Vacation Inc., d.b.a. Super Vacation,  
Laurels Tak Lau a.k.a. Laurels Lau and Paul  
Tao Way Chan:  
Todd Davies  
Justin McGregor  
Counsel for the Defendant, Mark Yu a.k.a.  
Tat Chi Yu, Mark Ewan and Mark You:  
Stephen Berezowskyj  
Daniel Babcock  
Place and Date of Trial:  
Vancouver, B.C.  
March 22-26, 29-31,  
April 1, 6-9, 12-16, 19-20, 22-23,  
26, 28-30,  
May 3-7, 10-14, 17-21, 25-28, 31,  
June 1-4, 7-11, 14-18, 21-25,  
November 22-26, 29-30,  
December 1-3, 2021  
Place and Date of Judgment:  
Vancouver, B.C.  
February 10, 2022  
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 3  
Table of Contents  
Paragraph  
I. INTRODUCTION  
[1]  
II. LIABILITY OF PRÉVOST  
A. Background Facts  
[22]  
[24]  
[24]  
[31]  
[34]  
[49]  
1. Regulation of motor vehicle safety standards  
2. Prévost and the motor coach industry  
3. The H3-45 Bus Model  
B. Was Prévost negligent in manufacturing the H3-45 coach  
without seatbelts in 1998?  
1. Industry and government consideration of seatbelts in  
motor coaches  
[54]  
2. Why Prevost did not install seatbelts until 2009 and the  
decision to change to seatbelts  
[114]  
3. Plaintiffs’ expert evidence regarding seatbelts  
a) Gregory Sypher  
[132]  
[134]  
[146]  
[155]  
[161]  
[169]  
[179]  
[182]  
[188]  
[188]  
[192]  
[199]  
[205]  
[229]  
b) William Vigilante  
c) Andrew Rentschler  
d) Gary Whitman  
e) James Hall  
f) Amrit Toor  
g) Gregory Cole  
4. Prévost’s experts dealing with seatbelts  
a) Gray Beauchamp  
b) Darrin Richards  
c) William Gardner  
5. Analysis: seat belt issue  
C. Was Prévost negligent in not recalling the coach when the  
retrofit was available?  
D. Was Prévost negligent in using tempered glass instead of  
laminate glass in the passenger windows?  
[247]  
1. Background facts  
2. The plaintiffs’ expert witnesses  
a) Gregory Sypher  
b) Dr. Toor  
[247]  
[247]  
[247]  
[251]  
[254]  
[259]  
[264]  
c) Dr. Rentschler  
d) Mr. Whitman  
e) Donald Phillips  
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 4  
3. Prévost’s experts  
a) Jack Ridenour  
[278]  
[278]  
[296]  
[300]  
[304]  
b) Mr. Richards  
4. Analysis: glass issue  
III. LIABILITY OF UNIVERSAL AND CANAM FOR  
NEGLIGENT SUB-CONTRACTING  
A. Lack of seatbelts  
[307]  
[311]  
B. Failure of Universal and CanAm to investigate training and  
safety planning at Western  
1. Did Universal’s duty of care to the plaintiffs require it to  
investigate Western’s training and safety procedures?  
[314]  
2. Was the accident caused by fatigue?  
a) Mr. Spittal  
[332]  
[333]  
[340]  
[346]  
[362]  
[375]  
b) The tour before the accident  
c) The accident  
d) Analysis: cause of the accident  
3. Assuming the accident was caused by fatigue, would a  
training programme at Western or a fuller inquiry by  
Universal of Western have avoided the accident?  
IV. FAILURE TO WARN  
V. LIABILITY OF MR. YU  
VI. CONCLUSION  
[385]  
[405]  
[406]  
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 5  
I.  
INTRODUCTION  
This action involves the crash of a tour bus on the Coquihalla Highway on  
[1]  
August 28, 2014. Fifty-five passengers were on board. The driver and the company  
operating the bus have admitted liability. This trial concerns the liability of other  
defendants: the bus manufacturer, the tour operator, another bus company who sub-  
contracted the bus charter, and the tour guide.  
[2]  
The bus was travelling south, returning to Vancouver from a four-day Rocky  
Mountain tour. South of Merritt, it rolled onto its left side, slid across the road and  
was forced back into the upright position after the left wheels furrowed into the  
ground on the opposite side of the road. No other vehicle was involved. The road  
was clear and the sky was bright. I describe the accident more fully below at para.  
346.  
[3]  
The bus was not equipped with seatbelts and some passengers were ejected  
through the side windows. Fortunately, no one was killed, but all occupants say they  
were injured to varying extents.  
[4]  
Each passenger commenced their own action. Separate trials of 55 actions  
would have been unmanageable and duplicative. Similarly, a trial of all 55 claims at  
the same time would have been equally unmanageable. Therefore, during the case  
management process it was agreedand I orderedthat two claims proceed to trial  
to act as “bellwether” cases. Ms. Ding and Ms. Pan’s cases were selected, one  
being representative of passengers who had been ejected from the bus (Ms. Ding)  
and the other (Ms. Pan) being representative of passengers who remained in the  
bus. Only liability is to be determined.  
[5]  
I will briefly describe the roles of the defendants and the basis of the claims  
made against them.  
[6]  
Western Bus Lines Ltd. owned the bus. Mr. Spittal was the driver and an  
employee of Western.  
 
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 6  
[7]  
Canam Super Vacation Inc. organised the tour. The passengers either  
booked the tour directly with Canam or indirectly through a travel agent.  
[8]  
Laurels Lau and Paul Chan are the directors of CanAm. The plaintiffs  
discontinued the claim against them during the final argument.  
[9]  
Mark Yu was the tour guide and worked for Canam.1  
[10] CanAm contracted with Universal Coach Line Ltd. for the provision of a bus  
and driver for the tour. However, Universal did not have an available bus so it sub-  
contracted the job to Western. The industry term for that is a “farm-out”.  
[11] The basis of the claim against Mr. Spittal is negligent operation of the bus. In  
particular, it is alleged that he fell asleep. He has admitted liability on the basis that  
the accident was caused by a momentary lapse in attention. He denies that he fell  
asleep. Western also admits liability on the basis that it was vicariously responsible  
for the negligence of Mr. Spittal. It does so on the basis that the accident was  
caused by inattention and not by fatigue. The fatigue allegation is important to the  
plaintiffs because it is the “hook” to establish liability of the defendants other than  
Western and Prévost.  
[12]  
With respect to Universal and Canam, the plaintiffs say they were negligent  
because they did not exercise proper care in selecting Western. This is so, they say,  
because the bus did not have seatbelts and also because Western had no training  
programme in place which would allow driver fatigue to be identified. Initially, the  
plaintiffs also claimed that Universal and CanAm were responsible for the  
negligence of Western on the basis of vicarious liability, agency, and non-delegable  
duty. However, that aspect of the claim was dropped during argument.  
1 During the course of the final argument, the plaintiffs and Mr. Yu entered into a BC Ferries type settlement agreement and CanAm accepted liability for  
any negligence of Mr. Yu. A BC Ferries agreement gives one or more defendants an opportunity to settle a multi-party proceeding on the plaintiff’s  
agreement to forego recovery of any portion of the loss ultimately attributable to the settling parties from the non-settling defendants: British Columbia Ferry  
Corp. v. T & N, (1995), 16 B.C.L.R. (3d) 115 (C.A.). Because of the BC Ferries order, I must still determine the liability of Mr. Yu and his apportionment of  
responsibility, if any.  
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 7  
[13] The plaintiffs allege that Mr. Yu was negligent because he should have  
recognised signs of fatigue in Mr. Spittal.  
[14]  
This brings me to Prévost. The bus was manufactured in 1998 by Prévost  
Car Inc. in Québec. In 1995, Volvo Group Canada Inc. purchased Prévost and later  
turned it into a division. The plaintiffs claim that the bus was negligently designed  
because it did not have seatbelts and used tempered glass for the passenger  
windows instead of laminated glass. The plaintiffs do not claim that the accident was  
caused by a defect in the bus, whether one of manufacture or design; rather, the  
plaintiffs’ case is that their injuries were made worse by the lack of seatbelts and the  
use of tempered glass.  
[15] The liability of Prévost does not depend on a determination as to what caused  
the accident. That is not the case for Universal, CanAm, or Mr. Yu; the case against  
them depends on the accident having been caused by fatigue. However, the issue of  
whether the bus should have had seatbelts is common to both the claims against  
Prévost and the other defendants. I will therefore deal with the claim against Prévost  
first.  
[16] I will then deal with the liability of the other defendants, considering the  
seatbelt and fatigue issues separately. That said, because this is a long judgment  
with overlapping issues, there will be some repetition for the sake of clarity.  
[17] Because it may be counter-intuitive, I mention at the outset that the  
advisability of seatbelts in motor coaches was not a simple issue. It was not a matter  
of “seatbelts good; no seatbelts bad”. The technology for seatbelts in cars is not  
directly transposable to coaches. Coaches perform differently from cars and have  
different safety considerations. There was a concern as to whether coach  
passengers would use seatbelts; if they did not, they could be more severely injured  
by the hardened seats that seatbelt installations would require.  
[18] The advisability of seatbelts in motor coaches was one of ongoing  
investigation within the industry and the regulators in Canada and the United States.  
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 8  
In this regard, this case is unique: counsel have found no other product liability case  
where there has been this level of interplay between the industry and the regulators  
with respect to developing safety standards.  
[19] A requirement for seatbelts for newly manufactured motor coaches did not  
come into force in Canada until September 2020.  
[20] Ms. Pan and Ms. Ding were represented by separate counsel. Ms. Ding’s  
counsel primarily argued the case against Prévost, while Ms. Pan’s counsel primarily  
argued the case against the other defendants. However, they adopted each other’s  
arguments, and I will largely refer to the plaintiffs collectively.  
[21] Finally, three points of terminology:  
The type of accident here is known as a rollover accident. To be more  
precise, it was a one-quarter rollover.  
Three-point belts, three-point restraints, and lap-shoulder belts are  
synonymous.  
The terms inter-city coach and motor coach areat least in this judgment—  
synonymous. Although there is no standard definition of a motor coach, they  
are larger buses suitable for long trips on the highway. A report prepared for  
the B.C. Ministry of Transport on motor coach safety in 2016 defined a motor  
coach for the purposes of the study as including larger buses commonly  
identified as Over-The-Road-Buses with an elevated seating area over the  
luggage storage which typically seat over 30 passengers.Coaches are not  
mini-buses, nor are they city transit buses. The bus involved in this case is  
shown in the photo below.  
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 9  
II.  
LIABILITY OF PRÉVOST  
[22] As I stated in the introduction, the allegation against Prévost is that it was  
negligent in not installing seatbelts and in using tempered glass instead of laminated  
glass for the passenger windows. The claim is for negligent design and not for a  
manufacturing defect.  
[23] The regulatory and industry context was a major factor in the evidence and  
arguments, especially for the seatbelt issue. To put the matter in some perspective,  
Canada did not require seatbelts in newly manufactured buses until September 1  
2020 (having promulgated the regulation in 2018). The United States made seatbelts  
for motor coaches mandatory effective 2016, with no retro-fit requirement. When  
Prévost manufactured the bus 1998, no other jurisdiction required seatbelts except  
for Australia. The European Community had passed legislation requiring seatbelts,  
but only to take effect in 1999.  
 
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
A. Background Facts  
1. Regulation of motor vehicle safety standards  
Page 10  
[24] The motor transport industry is a heavily regulated one. I will describe here  
the regulatory environment concerning the safety of vehicles. Later (at para. 315), I  
deal with the regulation of the operation of coaches.  
[25] Motor vehicle safety and design requirements are regulated under the Motor  
Vehicle Safety Act, S.C. 1993, c. 16 and the Motor Vehicle Safety Regulations,  
C.R.C., c. 1038, referred to in the industry as the Canada Motor Vehicle Safety  
Standards. They set out the standards against which a vehicle manufacturer is  
required to test its product. The Act and Regulations are administered by Transport  
Canada.  
[26] Canada is responsible for the safe movement of interprovincial buses, but it  
has largely delegated this to the provinces in view of their enforcement and licensing  
responsibilities. For example, the Act and Regulations govern the requirements for  
the installation of seatbelts in a vehicle. Responsibility for legislating and enforcing a  
requirement that seat belts be worn falls to the provinces and territories. Section  
220(4) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 requires a passenger in a  
vehicle to wear a belt if the vehicle has them.  
[27] Serious motor coach crashes are documented by Transport Canada  
investigators.  
[28] In its 1998 report Review of Bus Safety Issues Abstract & Index, Transport  
Canada summarized its approach to bus safety:  
(a)  
Transport Canada develops and enforces Canada Motor Vehicle  
Safety Standards for new buses under the Motor Vehicle Safety Act;  
(b) through the Canadian Council of Motor Transport Administrators,  
Transport Canada supports development and enforcement of the national  
safety code for motor carriers;  
(c)  
Transport Canada reports on motor carrier safety under the federal  
Motor Vehicle Transport Act;  
   
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 11  
(d) Transport Canada defect investigators identify safety defects and take  
steps with manufacturers to correct defects through the Motor Vehicle Safety  
Act notice of defect provisions; and  
(e)  
bus operator associations participate in regular national public safety  
organisations consultation meetings with Transport Canada.  
[29] As will be seen, there is frequent consultation and communication between  
the United States authorities and industry players. There are two U.S. entities of  
import here. The National Transportation Safety Board (NTSB) was established in  
1967 as an independent US federal agency dedicated to promoting aviation,  
railroad, highway, marine, pipeline, and hazardous materials safety. It is mandated  
to investigate transportation accidents, study transportation safety issues, and  
evaluate the safety effectiveness of government agencies involved in transportation  
accidents. Amongst other things, the NTSB investigates significant highway  
accidents and advocates safety improvements. It issues accident reports, special  
investigation reports, and safety recommendations.  
[30] The NTSB does not have power to mandate standards or regulations. That is  
done by the National Highway Transportation Agency (NHTSA), an agency within  
the US Department of Transportation. It develops and implements safety  
performance standards and regulations for motor vehicles. The performance criteria  
for motor vehicles and motor vehicle components are compiled into the Federal  
Motor Vehicle Safety Standards (FMVSS). Vehicle and component manufacturers  
must certify that all new vehicles and covered components comply with the minimum  
provisions of the FMVSS at the date of manufacture. The 1998 Transport Canada  
report alluded to that and the consultation between the regulators and the industry:  
Transport Canada is one among many players involved in the question of bus  
safety. Any action towards a change in safety regulation policy begins with  
consultation at least with governments: provincial/territorial, the U.S. NHTSA  
and FHWA; and with industry: bus manufacturers, bus operators and tour  
operators (purchasers of bus charters). The cooperation of all those interests,  
as well as the public, is necessary for successful safety regulation.  
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
2. Prévost and the motor coach industry  
Page 12  
[31] Prévost was founded in 1924 and is based in a Sainte-Claire, Québec, a town  
of approximately 3,300 people. It manufactures approximately 400 coaches per year  
and employs 1,400 people.  
[32] Prévost’s principal competitor is Motor Coach Industries (MCI), which is also  
based in Québec. The two manufacturers dominate the motor coach industry in  
North America. MCI is the larger company. For a point in time, it was owned by  
Greyhound. Other players are Van Hool and Setra. The latter is owned by Daimler.  
Mr. Bolduc, the former president of Prévost, described Van Hool and Prévost as  
competing for the number two position (after MCI) in North America. In 1982, he  
estimated that Prévost had ten percent of the North American market. In 2015 it  
reached and peaked at thirty percent market share.  
[33] In 1995, Volvo Group purchased one hundred percent of Prévost Car Inc. and  
in the same year sold 49% to a British company, Henlys PLC. In 2004, Volvo re-  
acquired the Prévost shares from Henlys. Prévost is now a division of Volvo Group  
Canada Inc., which is part of the international Volvo Group.  
3.  
The H3-45 Bus Model  
[34] The bus was a model H3-45. The design for the model began in 1992 and the  
model was introduced in 1993 as a model year 1994 product. Design changes were  
introduced between 1995 and 1998, primarily with respect to the driver’s  
environment and side windows. As I detail below, the side windows were changed  
from laminate glass in framed windows to frameless tempered glass.  
[35] When the bus was initially designed, Volvo did not own Prévost.  
[36] The specific bus involved in the accident was manufactured in April 1998. It  
was configured with 56 passenger seats. The driver’s seat had a lap belt; the  
passenger seats had none.  
   
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 13  
[37] The bus was a monocoque design also known as “unibody” or “integral”, as  
opposed to a body-on-chassis design. At the risk of oversimplifying, the latter  
involves a ladder-type frame on top of which a bus body is attached. One of the  
main differences between the two is that the unibody design has crumple zones  
which are meant to absorb energy in a crash. As described by Mr. Bolduc:  
Well, a body-over-chassis behaviour would be a little bit like -- and I will talk  
about image to help. If you take a baseball bat and you drop it to the floor it  
will bounce back. So this means that the structure itself does not absorb a lot  
of energy. All the energy is transferred. On the other hand, a monocoque  
structure is built of a lot of small components. See it a little bit like if you  
would take any shape you want to create in a monocoque, and you would  
take a web, a spider web, and you wrap it around. So you're talking about a  
larger, more complex structure where all the components will be oriented in  
the direction of the forces you want to address.  
And when you have a collision or when there is an impact, those smaller  
components, compared to the larger beam, will start to bend and they will  
start to absorb the energy. So therefore, it will not bounce back all this energy  
either to the passengers or to the car in front or the other -- so it will absorb  
as it gets bended and gets deformed. So basically in terms of dynamics of  
accidents, this -- the monocoque structure is a more complex but more  
energy absorbing structure.  
[38] Mr. Bolduc said that in North America, the industry moved from chassis to  
unibody construction 30 to 50 years ago.  
[39] Passenger protection was provided by what was termed in the industry as  
“compartmentalisation”. The first element of this was the monocoque design which—  
as I have set outwas designed to absorb impact in a crash. Mr. Bolduc described  
the balance of the concept:  
[Y]ou see that as a bubble around the passenger, a little bit like you would  
have an egg in its crate. So in this area you will try to have smooth  
components. No tubing, no steel pipes. You will try to keep that person in its  
seat. So a coach with the compartmentalization strategy would have -- well,  
the seat in front will be high. So a high back in front of you that will collapse if  
you put pressure to it. It will absorb energy if you're moving there. You will  
have armrests on each side of you. So it keeps you in this area. You would  
have a foot step where you put your foot, but the minute that you put your  
foot there, you're better braced if something happened. The hat rack on top of  
your head will have carpet into it. So the idea is to have a soft shell around  
the person. So that was the approach of compartmentalization, keeping the  
people in this shell surrounded with smooth or energy absorbing material.  
 
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 14  
[40] The concept of compartmentalization and the belief in its effectiveness was  
not an invention of Prévost. Rather, as will be seen, it was the industry standard,  
known and approved by the Canadian and US regulators. All thought the safety  
record of the bus industry in terms of overall crashes and serious injury to  
passengers was exceedingly safe. That said, it was recognised that rollover  
accidentsas the one here waswere the most serious type of accident because it  
could lead to passenger ejection. However, rollover accidents were by far the  
minority of bus accidents and were considered rare events.  
[41] Prévost began to manufacture the H3-45 coach with seatbelts in 2009, initially  
as standard equipment but with an opt-out option. It was the first North-American  
coach manufacturer to introduce seatbelts.  
[42] The reason for the opt-out choice was because of customer reluctance to buy  
the bus with seatbelts, in part due to the extra cost. As described by Mr. Bolduc, the  
customers were stuck on their position. Their attitude as described by Mr. Bolduc  
was “It's not required by law and I'm not going to pay for it. I'll buy something else. If  
you're not able to supply me that coach, we'll buy from the competition.In 2011,  
Prévost removed the opt-out choice for the U.S. and removed it for Canada the  
following year.  
[43] A major impetus for the addition of seatbelts was a crash test done by  
NHTSA in December 2007, as I set out below.  
[44] In 2010, Prévost offered a retrofit programme for seats with belts. It was built  
to a 10g (the force of gravity or acceleration on a body) standard because that was  
the maximum that was possible for the retrofit. New buses were produced to the 20g  
standard.  
[45] The retrofit comprised seats with integrated seatbelts. The cost to a customer  
was $30,000 to $50,000 depending on the choice of seat options and fabric, plus  
$2,500 of hardware that was required. Prévost offered the retrofit at its cost because  
it recognised the heavy cost of retro-fitting a fleet of coaches. In addition to the  
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 15  
hardware and installation cost, Prévost’s customers would lose revenue while the  
installation was done, which could take up to two weeks.  
[46] Prévost sent its customers an email attaching a brochure for the retrofit. An  
email was sent to Western, but none of its witnesses could remember receiving it.  
Western did not purchase any retrofit kits.  
[47] The fact that the Western witnesses did not recall receiving the retrofit  
brochure does not mean that they did not receive it. The same can be said for the  
fact that it was not in Western’s documents, which were not able to be produced in  
their entirety. The company was packed up and relocated two months prior to the  
accident. It then moved again in the summer of 2015, when the assets of the  
business were sold and the company shut down.  
[48] The email was sent to the correct email address, and I find as a fact that  
Western received it.  
B.  
Was Prévost negligent in manufacturing the H3-45 coach without  
seatbelts in 1998?  
[49] Prévost has admitted the following with respect to causation:  
Prévost concedes that if the court finds that (1) Prévost breached the  
applicable standard of care in failing to install seatbelts in the Bus for  
passengers, and (2) Ms. Ding and/or Ms. Pan would have been properly  
using a seatbelt at the time of the accident had one been available, such  
failure to install seatbelts caused or contributed to the injuries sustained by  
Ms. Ding and/or Ms. Pan.  
This does not go as far as admitting that the plaintiffs would have worn their  
seatbelts if the bus had them.  
[50] There is no dispute that Prévost owed coach users a duty of care not to  
negligently design an unreasonably dangerous bus. The real issue is whether that  
duty was breached.  
[51] At its most general level, the plaintiffs’ position is:  
   
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 16  
Not having seatbelts was dangerous in rollover accidents because of the risk  
of passengers being ejected through the windows;  
Prévost knew of the risk from prior accidents;  
Seat belts could have feasibly been installed; and  
Prévost cannot rely on regulatory and industry compliance as a defence.  
[52] Again at its most general level, Prévost says that when the coach was  
designed and manufactured in 1998, the risk of ejection in a rollover was known, but  
that rollover incidents were exceedingly rare. It was not known until 2002 that they  
were responsible for a disproportionate number of deaths in motor coach crashes.  
Rollovers were, and remain, rare events, and crashes involving death or serious  
injury were rare. In 1998, government regulators were investigating whether  
seatbelts were the most effective way of enhancing safety, given that they could  
have a detrimental effect in other types of crashes. In 1998, the industry standard in  
North Americain collaboration with regulators in Canada and the United States—  
was not to have coaches with seatbelts. Prévost, it argues, therefore acted  
reasonably in manufacturing its coach without seatbelts.  
[53] I point out here that at the time the bus was designed, the regulators and  
industry knew of the existence of bus crashes, that some of those crashes were  
rollover events, and that passengers could be ejected from the bus in a rollover. I  
mention this at the outset because counsel for Ms. Ding approached the matter as if  
these were denied by Prévost, but they were not. Rather, what Prévost puts at issue  
here is the balancing of risks. This will become clearer as this judgment unfolds.  
1.  
Industry and government consideration of seatbelts in motor  
coaches  
[54] In this section I will lay out the history of the regulators’ and industry’s  
consideration of the installation and use of seatbelts in motor coaches. This is  
relevant because it shows both the regulatory environment and industry practice. It  
 
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
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also shows the state of knowledge of the industry players, including Prévost.  
Because the chronology is important, I have bolded the dates for ease of reference.  
[55] Both Prévost and Ms. Ding provided detailed chronologies of bus crashes,  
investigations, studies, and papers by North American and some foreign regulators.  
Ms. Ding’s was an interactive graphic and it contained entries for virtually every bus  
rollover and collision. I will not go to the same length here because it would make  
this judgment overly long and complicated. More importantly, it is not necessary to  
do more than set out the more significant events.  
[56] The history here was largely proved by reference to documents introduced  
pursuant to a document agreement acknowledging the authenticity of the documents  
but not the truth of their contents. Therefore, these documents show the state of  
knowledge of the industry but are not proof of the accuracy of that knowledge. That  
said, many the Canadian documents were elucidated by a former Transport Canada  
employee, Mr. Gardner, who had personal knowledge of them.  
[57] The earliest matter referred to by the parties was in 1968. This involved a one  
quarter roll-over near Baker, California, in which some passengers were partially  
ejected. The NTSB recommendation was:  
The NTSB recommends that the Federal Highway  
Administrator: Expedite the proceeding initiated under Part II of  
the Interstate Commerce Act, Docket Ex Parte No. MC-69,  
Dated May 27, 1966, "To Inquire Into the operations of motor  
carriers of passengers in order to determine whether it is  
necessary or desirable to adopt regulations and establish  
standard which would require carries to install, provide, and  
maintain seat belts for the use of passengers and drivers.” The  
experience in this case indicates definitely that restraint of  
drivers and occupants in their seats under rollover conditions is  
necessary to reduce initial injury, disorientation, and thus insure  
more likelihood of timely post-crash escape from the vehicle.  
This report and the Safety Board’s conclusion should be  
seriously considered by the Federal Highway Administrator in  
reaching his decision concerning a requirement that seat belts  
be available in buses. The Safety Board urges that a decision  
be made on this important matter which had been under  
consideration for more than 22 months at the time this accident  
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
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occurred, and more than 30 months prior to the date of this  
report.  
[58] However, in response, the FHWA stated that it did not support the NTSB’s  
position that belts should be required for bus occupants, but that it intended to  
require the installation and use of lap belts for drivers of buses in interstate  
commerce. The NTSB Recommendation was closed and superseded in 1985.  
[59] Between 1968 and 1973, a number of other recommendations were made by  
the NTSB, but NHTSA made no requirement for seatbelts in motor coaches.  
[60] After 1973, the NTSB ceased to issue recommendations favoring seat belts in  
coaches. The next discussion by the NTSB of seatbelts on coaches is contained in  
their report on motorcoach safety in 1999 (discussed further in para. 73).  
[61] In 1994, the installation of three-point seatbelts in new motor coaches  
became mandatory in Australia.  
[62] In June 1996, the EU enacted legislation regarding the installation of  
seatbelts in buses heavier than 11,023 lbs with more than eight seats. It applied to  
all new vehicle designs manufactured after October 1, 1997, and to all vehicles that  
went into service after October 1, 1999. It required lap/shoulder belts at all exposed  
seats. For seats behind energy absorbing seat-backs, it required either three-point  
or two-point belts. No retrofit was required.  
[63] In 1997, Transport Canada began an internal review of the most serious  
motor coach collisions in its files. The report was initiated by William Gardner, who  
was both a fact and expert witness at the trial. Mr. Gardiner was the head of  
Transport Canada’s Crashworthiness division for the 18 years prior to his retirement  
in 2006. Prior to that, he was the regulatory safety engineer responsible for bus  
safety at Transport Canada. He stated:  
The review concluded that many fatalities resulted from ejection from the bus,  
often during a rollover event. Although it was clear that most coach collisions  
did not produce serious injuries, a multi-phased study was initiated in 1998 to  
determine whether occupant safety in motor coaches could be improved.  
 
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
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He said he thought this was the first analysis of its type in North America. He used  
both Canadian and U.S. data for the study.  
[64] Mr. Gardner described the difficulty in obtaining and analysing the data:  
The files that I had to review were not accessible in terms of digital data. The  
only way I could do it was to take hardcopy files of collisions that had been  
investigated and combine that with what data we had so that I could -- I could  
pinpoint what was referred to in the data and what was referred to in the files  
and connect the two so that I could read what had actually happened in that  
collision and therefore interpret myself what type of bus was involved and  
what were the injuries and so on that had occurred.  
[65] In 1998, the coach involved in the accident was manufactured.  
[66] In 1998, a study by the German company DEKRA Automobil AG was  
published: Pointers Toward the Improvement of Safety in Buses, Derived from an  
Analysis of 371 Accidents Involving Buses in Germany and From Crash Tests  
Results. The DEKRA report noted the safety of the motor coach industry but the  
enhanced dangers to bus occupants in rollover crashes. It examined the protective  
features of two-point and three-point restraints and noted:  
Given the current status of knowledge, two-point seat belts offer advantages  
over the three-point belt (shoulder/lap belt). The particular dynamics with side  
overturns and rollovers can lead to the torso of the belted passenger  
becoming free from the shoulder strap. This causes the entire belt to become  
loose and there is also the risk of the passenger becoming released by the  
belt around the hips.  
[67] In 1998, Transport Canada initiated a study to determine whether motor  
coach passenger safety could be improved. It was done in three phases. According  
to Mr. Gardner:  
The first phase of the study involved the preparation of a report consolidating  
the collision experience of the European Community, Australia and North  
America. The European community and Australia were selected since they  
had developed regulations concerning seat belts and therefore also regulated  
seat and belt anchorages.  
. . .  
The second phase of the project was funded jointly by Transport Canada and  
the National Highway Traffic Safety Administration in the U.S. It involved  
 
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
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conducting testing with current bus seats that utilize three point seat belts on  
an acceleration sled, and conducting quasi-static tests on these seats . . . .to  
establish the floor loading required for seat belt equipped seats.  
. . .  
The third phase of the study involved research to establish whether  
substantial improvements in occupant protection could be realised by the  
introduction of a passive safety compartment utilising improved glazing on  
motor coaches. The research involved computer simulation of coach rollover  
to establish the forces expected to be applied to the glazing by the bus  
occupant during rollovers of various severities.  
[68] In November 1998, Transport Canada published a report titled Review of Bus  
Safety Issues. The abstract stated, in part:  
The data show that travel by bus generally is very safe. Nonetheless, the  
review identifies a number of areas that may warrant further investigation and  
recommends that efforts continue to reduce all road collisions, and that  
consultations with provincial, industry and other stakeholders be undertaken  
as a first step toward any change in bus safety regulatory policy.  
[69] The report referred to accident statistics:  
In the ten years 1987 to 1996 there were 44 bus passengers killed and bus  
passengers injured in buses other than school buses or urban transit buses.  
For buses specifically identified as "intercity" there were 7 fatalities (average  
less than 1 per year) and 1403 injuries. One accident in 1997, however,  
claimed 43 lives.  
. . .  
Of the 4,665 injuries in Canada, the majority are minor. Less than 250  
involved admission to hospital. The relatively small numbers of identified  
serious injuries and fatalities limit statistical information on potential  
passenger impact protection measures.  
There are various possible solutions to passenger injury. Among them are:  
additional body structural integrity; window retention designed to resist  
ejection; school bus style seating compartmentalization; and seat padding. It  
is also possible that some of the injuries could be addressed by careful  
attention to fittings such as seatback tables, overhead luggage racks and  
video screen attachments.  
The latter paragraph is obviously a reference to compartmentalisation, without the  
use of the name.  
[70] The report went on to discuss seat belts:  
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Seat Belts  
Seatbelts would be of potential benefit in only a very few cases. They would  
need management by bus operators and reliable use by passengers to  
achieve effectiveness. The benefit is too uncertain to impose seat belts  
without a clear demand for a standard from the public and the motor carrier  
industry.  
. . .  
Two point seat belts help to prevent ejection or being thrown from a seating  
position and are relatively easy to install and use. Three point seat belts  
provide some performance enhancement but have their own disadvantages,  
including complexity and difficulties with use and comfort. In either case  
portions of the bus interior need to be redesigned to reflect passenger crash  
dynamics with specific kinds of seat belts.  
[Emphasis added.]  
[71] The report referred to the Australian and European seatbelt standards:  
Some major bus collisions have led to seatbelts being required on highway  
coaches in Australia and Europe. There is a new ECE seatbelt standard for  
buses with accompanying seat specifications. The presence of seatbelts on  
highway coaches in other countries raises the issue whether they should also  
be considered for North American intercity buses. There are no obvious or  
easy answers to improving bus safety. A number of areas of current interest  
are identified in the report and most are already being addressed. The  
general recommendations are to continue efforts to reduce overall road  
collisions and to consult extensively with provincial governments, industry  
and bus stakeholders as a first step towards any change in bus safety  
regulation policy.  
[Emphasis added.]  
[72] Mr. Gardner testified that the European and Australian standards were not  
adopted at this time because it was not known how they could be applied to the  
Canadian situation. He said that Transport Canada had a lot of work to do to get to  
that stage.  
[73] In September 1999, the NTSB published a report titled Highway Special  
Investigation Report: Bus Crashworthiness Issues. Its conclusions noted the risk of  
ejection and injury in rollovers and recommended testing of new occupant crash  
protection systems to standards developed by NHTSA based on actual crash testing  
 
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
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of motor coaches. The report had two recommendations concerning seatbelts in  
motor coaches:  
In 2 years, develop performance standards for motorcoach occupant  
protection systems that account for frontal impact collisions, side impact  
collisions, rear impact collisions, and rollovers. (H-99-45)  
Once pertinent standards have been developed for motorcoach occupant  
protection systems, require newly manufactured motorcoaches to have an  
occupant crash protection system that meets the newly developed  
performance standards and retains passengers, including those in child  
safety restraint systems, within the seating compartment throughout the  
accident sequence for all accident scenarios.  
[74] Mr. Gardner was a witness at the public hearing that led up to the report. He  
said he did not understand the first paragraph regarding the two year mandate to  
mean that seatbelts should be required as part of the occupant protection system.  
Rather, that was a question to be determined.  
[75] The report referred to the Australia and EU regulations (the latter detailed  
above, para. 62) pointing out shortfalls in their standards and research (or lack of it)  
leading up to the developments of those standards.  
[76] With respect to Europe, the report noted:  
The primary intent of this legislation was to reduce fatalities due to ejection.  
The EU conducted no dynamic crash testing of buses in support of its  
occupant restraint system design. Further, no dynamic crash testing of buses  
is required of manufacturers by the legislation. Although researchers stated  
that the crash pulse was thought to be supported by dynamic crash testing of  
motor coaches, no one was able to refer to actual crash tests. Sled testing  
was performed in support of this regulation at the Cranfield Impact Centre  
using the UNECE R80 crash pulse.2  
The report was critical of the EU allowing the use of two-point belts noting that it  
would cause greater injury than no belt at all.  
[77] With respect to Australia, the report noted:  
2 In a sled test, seats would be placed on a platform on wheels (the sled) which is propelled into a  
barrier: see para. 96 below.  
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
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Like the EU, Australia conducted no dynamic crash testing of motor coaches  
in support of its regulation.  
And:  
The EU and Australian occupant crash protection regulations were based on  
sled testing. Actual dynamic testing of motor coaches was not conducted to  
determine the effectiveness of restraint systems as occupant protection  
systems.  
Occupant protection systems should be tested to performance standards  
before their implementation to ensure that they are beneficial and to guard  
against possible negative effects such as have occurred in the rear seats of  
automobiles in front collisions.  
[Emphasis added.]  
[78] In February 2001, Transport Canada issued its report Bus Safety  
Consultations Final Report. It was prepared in collaboration with provincial and  
territorial representatives. The objective of the consultation was to obtain input from  
stakeholders on bus safety issues, particularly with respect to the installation of seat  
belts in school buses and motor coaches.  
[79] In the introduction, after noting the very good history of school bus and motor  
coach safety, the report noted:  
Canada’s buses are not required to be equipped with seat belts. There are  
very few passenger injuries that would potentially be prevented by seat belts  
and there are potential hazards involved with the use of seat belts by bus  
passengers, especially children. The most successful safety solution for car  
occupants is not necessarily the best for bus passengers.  
[80] The report made reference to the view of stakeholders:  
The issue of seat belts was raised at each of the sessions because of its  
importance to Transport Canada. The reason for this is mainly due to the  
public perception that there should be seatbelts in motor coaches (based in  
part on the fact that most other vehicles require the use of a belt). The call for  
seatbelts is most acute after an accident, such as the one in Quebec at Les  
Éboulements.  
When raised during the sessions, however, the overwhelming majority of  
stakeholders did not feel the installation of seatbelts was an issue. The  
reason for this is twofold: the motor coach industry’s strong safety record and  
inconclusive evidence that seatbelts would prevent injury. Some participants  
did feel further research on three point belts would be useful and that  
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 24  
passengers seated in non-compartmentalized areas should be fitted with seat  
belts. However, representatives of bus manufacturers argued the industry  
does a good job investigating crashes and the current lessons do not point to  
the need for seatbelts in motor coaches.  
[81] With respect to “suggested next steps” for seatbelts in motor coaches, the  
report stated:  
Conduct more research to determine the safety impact of seat belts, including  
three point belts. Response: Transport Canada keeps current on all relevant  
research initiatives, including that done recently in Australia and Europe, and  
does not feel further Canadian research is warranted at this time.  
[82] On April 30, 2002, Transport Canada and NHTSA held a joint public meeting  
on motorcoach safety improvements. This was a consultative hearing involving the  
regulators, the NTSB, owner-operators including their professional associations,  
manufacturers of coaches, and manufacturers of coach seats. No report was  
produced but a verbatim transcript was made. Mr. Gardiner was a representative of  
Transport Canada.  
[83] The purpose of the meeting was described by NHTSA’s Associate  
Administrator for Safety Standards when he opened the meeting:  
Our expectation is that we will get information and reactions to the different  
approaches we are considering for improving motorcoach occupant  
protection. We have no preconceived notions that we won't do this or we will  
do something else.  
What we will say is whatever we do is going to be based on solid data and a  
scientific analysis of the occupant protection situation. NHTSA and Transport  
Canada are not going to require changes to the current regulations just for  
the sake of quote "doing something".  
[84] A NTSB representative commented on the safety of motor coach transport  
and remarked that the number of people killed in motor coach crashes was trending  
downward and was remarkable, given the number of passenger miles travelled, and  
referred back to the 1999 report and its recommendations.  
[85] The NTSB’s Director of the Office of Highway Safety, Mr. Osterman,  
discussed compartmentalisation and stated:  
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We report on what we found and if you can stay within the compartment,  
even without a seat belt, and this is one of the reasons why the Board did not  
come out and say put seat belts on motorcoaches under their current  
configuration. As a matter of fact, we think that may not necessarily be the  
right engineering solution. Although seat belts may be the right solution, you  
have to redesign the compartment with seat belts engineered into the  
equation rather than simply applying them to the existing seat that was never  
designed for belts.  
[Emphasis added.]  
[86] Industry representatives included those from Prévost, Van Hool and  
Greyhound. They were all in general agreement with the need for further research  
and the setting of standards. They noted the effectiveness of compartmentalization  
but recognised that ejections resulting in death could take place with rollovers,  
although rollovers were a small percentage of total accidents. The president of  
Greyhound, Mr. Haugsland, noted:  
Greyhound reviewed its accident history for the period January 1, 1999 to  
April 16, 2002. We found that 54.13 percent of the DOT reportable accidents  
were front-rear impact collisions while rollover-overturns represented just 2.3  
percent of the DOT reportable accidents. In other words, Greyhound had over  
23 times as many DOT reportable front-rear impact collisions during that  
period than we had DOT reportable rollover-turnovers.  
. . .  
But NHTSA and Transport Canada must be certain that in trying to increase  
the occupant protections from an infrequent catastrophe, the rollover ejection,  
they do not adopt standards that detract from the excellent protections  
available for the much more common and potentially catastrophic event, the  
front-rear crash.  
[87] Prévost’s director of safety and compliance, Mr. Bertrand, spoke at the  
meeting. With respect to seatbelts he stated:  
Big question. Seatbelts. In the invitation it was mentioned. Adequate strength  
to withstand impact. What kind of impacts? I believe it's not practical to  
consider all kinds of impacts and it would be preferable to consider the most  
probable ones. The two major accidents that Bill described were very, very  
severe and I don't think we will see those kind of impacts very often. If proper  
testing proves their efficiency, we would favour lap belt over shoulder type.  
The driver's seat could be although fitted with a shoulder belt and I believe  
there is already some but that's pretty widely spread because of the seat  
design itself which has an air suspension and not very comfortable for a  
shoulder belt.  
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Also, the first row of seat will be the most important seats to work on because  
they don't have a whole lot of protection in front of them except the modesty  
panels which is quite different than a seat in front of another. And also, some  
rear seats which are facing the aisle in some coach design where you have  
three seats at the back of the rear bulkhead, there is most of the time one  
seat right in the middle of the aisle and this passenger could be better  
protected.  
[88] In his evidence at trial, Mr. Bolduc partially disagreed with this: he said  
Prévost was ahead of where Mr. Bertrand said it was because Prévost was, in fact,  
moving to three-point belts.  
[89] The differences between chassis-on-frame type buses used in Australia and  
Europe, and the monocoque construction, used in Canada and the United States,  
was noted at the meeting.  
[90] In June 2002, Transport Canada published a report titled Evaluation of  
Occupant Protection in Buses, prepared for it by RONA Kinetics and Associates Ltd.  
Mr. Gardiner was the project manager for Transport Canada. The report’s main  
author was Dr. Jocelyn Pedder who had worked in England and had connections in  
Australia as well. Mr. Gardner described her as ideal to conduct the study, the goal  
of which was to set out the state of the art in bus occupant protection, focussed on  
new intercity buses. The report reviewed bus occupant protection research and  
regulatory practices in Canada, the United States, Australia, and Europe. A goal was  
to identify issues for further consideration.  
[91] A conclusion of the RONA report was that rollovers and ejections were the  
major causes of serious and fatal injuries. Mr. Gardner said he considered that to be  
a major conclusion of the study.  
[92] With respect to seatbelts, the conclusion of the RONA report was:  
12.5 Seat Belts  
Full scale and sled tests using instrumented dummies as well as modelling  
have shown that lap/torso seat belts are highly effective in reducing the likely  
injuries to bus occupants.  
Feasible seat systems are now available which allow the fitting of lap/torso  
seat belts for bus occupants without weight penalty. Through the installation  
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
Page 27  
of seat belts in buses, there is also an opportunity for a consistent approach  
to safety systems for motor vehicle occupants.  
The fitting of lap belts is less beneficial and requires significant improvement  
in the energy absorption capability of bus interiors. Research indicates that  
lap belts may increase the risk of head injuries.  
Seat belt retrofit experience in Australia and Britain was hampered by poor  
control and the overall problems suggest it is inadvisable. If retrofit seat belts  
are used, available floor structure must be strong enough or capable of taking  
loading.  
There are concerns regarding the difficulties of enforcing the use and proper  
use of seat belts. There are no known seat belt use data.  
[93] With respect to the enforcement of seatbelt use on coaches, in his evidence  
Mr. Gardner noted that passengers could not be seen by passing police vehicles  
because they were too high up and that the only effective way to enforce use was for  
an officer to board the bus.  
[94] In the spring and summer of 2003, Transport Canada carried out sled tests on  
coach seat systems, as well as quasi-static tests using loading methods similar to  
those used in the European and Australian standards.  
95]  
The analysis and results of the 2003 sled tests were set out in a March 2005  
report of Biokinetics and Associates (the Biokinetics Report). The report compared  
the test results with seat belt performance standards from Australia and Europe.  
[96] The report describes the dynamic testing methodology using a sled:  
The overall approach to the dynamic testing is similar in both test standards.  
That is, two rows of seats are mounted to a test bed, crash test dummies are  
installed, and the test bed is either crashed into a barrier or accelerated  
rearward with a sled. The complete seats must be mounted as they would be  
in a vehicle and must also be equipped with all the standard options like  
storable tables. The ADR 68 test method has some variation with the addition  
of a third row of seats.  
However, the report noted that the testing scenarios used in Australia and Europe  
were different, that the required crash pulses for the standards differed greatly  
between the two, and that the seat performance criteria were also different.  
 
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
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[97] The report also described static testing and alternative anchorage testing and  
noted the there were, again, differences between Australia and Europe.  
[98] The Biokinetics Report also reported on the testing that was done on  
Australian and European seats done by Transport Canada. It noted, once again,  
differences between their performance. It noted the future work that would have to  
be done by seat manufacturers in designing a set once performance standards were  
established:  
The data provided by both the belt force transducers and the load plate which  
was mounted between the seats and the floor should provide useful input for  
seat, seatbelt and anchorage designers in the event that a standard is  
introduced in Canada in future. Knowledge of the types of loads produced  
during the specified testing should be of assistance in initial design work to  
help ensure a design which will be likely to pass the tests. Given the moment  
data about the Centre of Gravity of the load plate, and knowing the geometry  
of a proposed seat, a manufacturer would be able to calculate expected loads  
on the various anchorages using the Transport Canada test data.  
Unfortunately, in some cases, seats failed in various ways before full  
specified test loads were reached, and none of the dynamic tests reached the  
more severe ADR 68 crash pulse levels. Nevertheless, the static tests were  
accomplished with both seats passing at ADR and ECE required applied  
force levels, so should provide useful data.  
[99] The report concluded:  
If Transport Canada wishes to implement a standard for seat belts in  
motorcoaches in the future, it is recommended that ADR 68 (in its most  
current form at the time) be used as a template. Specific test input conditions  
and performance criteria should follow the methodologies and values as  
noted in detail earlier in this report. These values, of course, may be varied if  
additional data is available at the time to suggest this is a reasonable  
approach.  
[100] Mr. Gardner explained that this was not a recommendation to adopt the ADR  
standard’s criteria. Rather, Mr. Gardner explained that:  
I think what they’re suggesting is that if a regulation is adopted in Canada that  
could be stylized around the ADR 68. I don't think they or ourselves were in a  
position to say that we should just adopt 68. We didn't even know exactly  
how to test ADR 68 in that form. I don't think they or ourselves were in a  
position to say that we should just adopt 68. We didn't even know exactly  
how to test ADR 68 in that form.  
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He added:  
It encouraged us to continue with the plan to gather more data on how buses  
would react to proper rollover to do modelling work and to -- and eventually to  
do more work on the sled to try and establish better methods of injury criteria  
and appropriateness of a pulse for the Canadian sled. But primarily the next  
step was to model a bus and determine how it performed both from a view of  
glazing and from a view of seatbelts.  
[101] To digress momentarily to Prévost, in 2003, it began to plan the engineering  
and developing of seatbelts for its buses.  
[102] In August 2007, NHTSA published NHTSA’s Approach to Motorcoach Safety.  
Its goal was to provide a comprehensive review of motorcoach safety and what  
NHTSA was proposing to do to address them. With respect to seatbelts, the report  
compared the Australian and European standards and concluded:  
PLANNED APPROACH: While both Europe and Australia currently have  
such requirements for seat belts on motorcoaches, they differ. The  
fundamental information that would be necessary to establish adequate  
performance requirement for seat belts on motorcoaches does not exist. For  
example, the crash forces transmitted to the occupant compartment that seat  
and/or belt anchors would need to sustain are unknown. An approach for  
applying seat belts to motorcoaches will require the following tasks:  
1. Procure a recent vintage motorcoach and conduct a frontal barrier  
crash test with instrumented dummies aboard. [2007]  
2. Using the crash pulse information obtained from the crash test,  
conduct sled testing under various conditions to determine the level of  
occupant protection afforded by each and the forces transmitted to the  
belt and seat anchors. The sled test conditions would include  
unbelted, lap belted, and lap/shoulder belted occupants using current  
North American motorcoach seats as well as European and/or  
Australian designs. [2007]  
3. With this information, develop FMVSS No. 210 type performance  
requirements for the seat belt assembly and seat anchorages. [2008]  
[Emphasis added.]  
[103] In December 2007, after input from the industry, NHTSA conducted a crash  
test of a 2000 MCI coach with crash dummies. The bus was fitted with seats from  
different manufacturers in different configurations: two-point belts, three-point belts  
and no belts. NHTSA reported the results to the industry in January 2008.  
   
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[104] In May 2008, Transport Canada met with the industry’s Motorcoach Crash  
Test Industry Group to plan crash tests, which would include a rollover. The test was  
planned for July 2008.  
[105] In 2009, Prévost started delivering coaches with seatbelts, with an opt-out  
option. I will return to this later.  
[106] In November 2009, the U.S. Department of Transportation released its Motor  
Coach Safety Action Plan. It stated:  
FARS data indicates that ejection due to a rollover crash causes the highest  
percentage of motorcoach passenger fatalities. NHTSA determined that  
installing seat belts would be the most direct method of retaining passengers  
within the seating compartment and preventing ejection. Seat belts could also  
potentially provide protection in multiple crash modes, including frontal  
crashes, side crashes, and rollovers. NHTSA tentatively determined that  
installing seat belts on motorcoaches has potential to enhance motorcoach  
occupant protection.  
It specified requiring seatbelts as an action item with a goal of publishing a Notice of  
Proposed Rule Making (NPRM) in the first quarter of 2010 and the development of a  
final rule in 2010 to 2011.  
[107] Prévost offered its customers a three-point retrofit in August 2010. I will also  
return to this later.  
[108] In August 2010, NHTSA published a notice of proposed rule making with  
respect to seatbelts in motorcoaches.  
[109] On August 28, 2014 the crash that gives rise to this litigation occurred.  
[110] In November 2013 NHTSA published its final rule requiring three-point  
seatbelts for coaches manufactured after November 2016.  
[111] In March 2016 NHTSA issued a Report to Congress Retrofit Assessment for  
Existing Motorcoach. It confirmed an earlier position against requiring the retrofitting  
of seatbelts because belt usage rates would not be high enough to offset the cost of  
retrofitting. NHTSA used a seat belt usage rate of between ten and fifty percent in  
   
Ding v. Prévost, A Division of Volvo Group Canada Inc.  
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coming to this conclusion but stated that the more realistic usage rate was ten to  
twenty percent.  
[112] As previously noted, in November 2016 the requirement for three-point belts  
on coach passenger seats in the US came into force.  
[113] I now move back to Canada and conclude this chronological review. In June  
2018 Canada promulgated regulations requiring three-point seat belts on motor  
coaches, with no retrofit requirement. The regulations come into force on September  
1, 2020.  
2.  
Why Prevost did not install seatbelts until 2009 and the decision  
to change to seatbelts  
[114] As noted, the engineering planning for seatbelts was started in 2004. Prévost  
began to deliver the H3-45 with three-point belts in 2009. I will now canvass why the  
decision to add seatbelts was made and why it was made when it was. This is  
obviously relevant to the central allegation of the plaintiffs that seatbelts ought to  
have been installed in the subject coach when it was manufactured in 1998.  
[115] The evidence for this decision-making comes almost exclusively from Mr.  
Bolduc’s testimony and Prévost documents. As I mentioned above, Mr. Bolduc was  
the former president of Prévost. He became involved with safety issues in 1994  
when he became vice president of manufacturing and part of the product committee.  
In 2004 he was promoted to president and CEO.  
[116] Mr. Bolduc explained how Prévost along with the whole industrywas  
initially focussed on compartmentalization as the main occupant safety feature. I  
have set out his description of compartmentalisation earlier (para. 39). It is worth  
noting again that on a motor coach this includes the monocoque design with its  
collapse zones, as opposed to European and Australian buses which are body-on-  
ladder-frame construction without the energy-absorbing zones. Mr. Bolduc explained  
that while the term compartmentalisation was also used in relation to school buses,  
 
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the implementation was different, including that school buses had body-on-frame  
designs, again without collapse zones.  
[117] Mr. Bolduc said that prior to the decision to install seatbelts,  
compartmentalisation had a good track record, as did the whole industry. The  
majority of accidents were front and rear-end collisions in which  
compartmentalisation worked very well. While there were rollovers, the numbers  
were low. Therefore, seatbelts were not designed into the H3-45.  
[118] There were a number of things that cumulatively led to the decision to make  
the change.  
[119] Mr. Bolduc said that in 1998 and 1999 there was a spike in serious  
motorcoach accidents. This is shown in the following graph from US Department of  
Transportation Motorcoach Safety Action Plan (above para. 106).  
[120] After this, Mr. Bolduc said the industry began discuss seatbelts. As he put it:  
Because the industry at that time, we were all questioning ourselves. Is  
compartmentalization the only element. Could it be better. Could we do  
something extra. And I would say this has boiled into my mind up to the point  
where we have started to put into our plan steps, and some of them are  
directly coming from recommendation that we -- that we have being part of  
those discussions in 2002, 2003.