Category: Vicarious Liability

Dyck v Kent & Essex Mutual Insurance Company et al, 2023 ONSC 3725

This action arises from a rear end motor vehicle accident. The at-fault driver was operating a transport truck. The tractor portion was registered to Orchid Leasing Corp., however as of the time of the accident the tractor’s driver had made final payment on the lease, had received a bill of sale and ownership documentation, and had a letter authorizing transfer of ownership. In essence, the only “ownership” that Orchid had as of the time of the accident was as the registered owner with the MTO.

Orchid brought a summary judgment motion on the grounds that it was not the owner of the tractor and therefore was not vicariously liable under the Highway Traffic Act. Justice Hebner accepted the defendant’s position and granted the motion, dismissing the claim as against Orchid. Justice Hebner accepted that: Orchid agreed to sell the tractor to the driver and the driver paid the purchase price in full; Orchid gave the driver the necessary paperwork to transfer ownership; Orchid exercised no possession or control over the vehicle at the time of the accident; there was no evidence that Orchid retained keys to the vehicle; Orchid was not in a position to provide consent or withhold consent to operation of the vehicle at the material time; and Orchid did not have an insurance interest in the vehicle at the material time.

Dagenais v. Slavko, 2021 ONSC 3415

This action arises from a motor vehicle accident. The defendant driver, Pellerin, was employed by the defendant Slavko Concrete Finishing at the time. Pellerin’s employment was governed by a collective agreement.

On January 31, 2013, Slavko sent Pellerin and other tradesmen to finish pouring concrete at a site in Petawawa. Pellerin lived in Ottawa. The collective agreement obligated Slavko to arrange for the transportation of its employees to distant construction sites. Despite this obligation, Pellerin drove himself in his personal vehicle from Ottawa to Petawawa. Prior to leaving Ottawa, Pellerin purchased gasoline for his car, stopped for a coffee, and may have done an errand. He then drove to Highway 17 on his way to Petawawa. He decided to stop for a break in the Town of Renfrew. He pulled into the left turning lane on Highway 17 and waited for an oncoming truck to pass. He then began his turn across the lane, where he struck the plaintiff’s vehicle which was travelling behind the truck. Pellerin was charged with failing to make a turn in safety and he paid the associated fine.

The total damages claimed by the plaintiff driver, plaintiff passenger, and FLA claimants was $3.6 million. Pellerin had limits of $2 million, which was paid into Court. The plaintiffs also sued Slavko as Pellerin’s employer. Justice Kane held that Pellerin was in the course of his employment at the time of the accident, and that Slavko was vicariously liable for his negligence. The Court disagreed that Slavko could only be vicariously liable for Pellerin after he arrived at the job site. Pellerin was being paid for his time in transit and mileage to and from Petawawa, pursuant to the collective agreement. Pellerin’s use of his personal vehicle did not establish that he was working outside the course of his employment. His planned stop for coffee and to stretch was not a “personal frolic” removing vicarious liability either.

Justice Kane further accepted that Pellerin could be considered Slavko’s agent pursuant to the doctrine of respondeat superior.

Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA 1017

The Plaintiff sued Starbucks and two individual employes for spilling hot water on her. Starbucks brought a motion to strike the claims against the individual Defendants on the basis that the Statement of Claim did not disclose a reasonable cause of action against either individual. The motion judge agreed and struck the claims against the individual Defendants on the basis that they were not liable for actions taken within the scope of their authority and on behalf of their corporation. On appeal, the Ontario Court of Appeal overturned the decision finding that the Statement of Claim set out specific alleged acts of negligence against each individual Defendant (e.g. the pouring of hot water and the failure to supervise) for which each may be found personally liable. The Court of Appeal held that the motion judge had conflated two separate concepts: an employer’s vicarious liability for its employees acting within the scope of their employment and employees’ personal liability for their own negligence while acting within the scope of their employment.

T.I. v. Lakovic, 2016 ONSC 5750, aff’d 2017 ONCA 446

The female plaintiff was sexually abused by a taxi driver. She became intoxicated at a party and her friend called the defendant taxi company, which dispatched the driver to pick her up. The defendant taxi company successfully moved for summary judgment on the basis that it should not be held vicariously liable for the intentionally tortious acts of the driver. Justice Broad found that the wrongful acts of the defendant driver were only coincidentally linked to the defendant taxi company’s activities as the operator of a taxi dispatching business. The Court of Appeal upheld the decision, finding that the motions judge properly applied the law of vicarious liability and reached the correct conclusion on the record.