In Mustafi v. All-Pitch Roofing Ltd., 2013 ABQB 40, an employer escaped vicarious liability for the negligence of an employee who was driving a vehicle owned by the employer. The Court found that the employer gave consent to the employee to use the vehicle to warm up during his breaks, but that the employer did not consent to the employee driving the vehicle.
The trial turned on the interpretation of s. 187(2) of the Traffic Safety Act (the "Act"), which makes a vehicle owner vicariously liable for the actions of a driver who:
- was driving the motor vehicle, and
- was in possession of the motor vehicle with the consent, expressed or implied, of the owner of the motor vehicle,
One of the owners of the employer drove the employee to a jobsite. The owner gave the employee the keys to the pick-up that was parked at the jobsite. He told the employee that he could use the keys to get tools from a trailer attached to the pick-up. He also told the employee he could use the pick-up to warm up during his breaks. The employee was told he was not allowed to drive the pick-up. He was also told that, if he moved the pick-up, it would be considered stolen. The owner said he would return at the end of the day to drive the employee home in another vehicle.
The employee took the pick-up from the jobsite and was involved in an accident. The plaintiff sued the employer and employee for personal injuries caused by the accident. The employer denied that the employee had its consent to drive the pick-up.
The word "driving" is defined in the Act to include "having the care or control of a vehicle". The Administrator for the Motor Vehicle Accident Claims Fund argued that the employee had care and control of the pick-up with the employer's consent, and, based on the definition of driving contained in the Act, was driving the vehicle with the consent of the owner.
The Court rejected this argument and found that, for the purpose of s. 187 of the Act, "driving" did not include having care and control of a vehicle. Instead, the Court found that "driving" should be given its usual and ordinary meaning.
The Court ruled that s. 187 required that the driver of the vehicle must be in possession of the vehicle with the consent of the owner and that the driver of the vehicle must be driving with the consent of the owner. Since the employer expressly told the employee he could not drive the pick-up, the employer did not consent to the employee driving the pick-up and the Court found the employer was not liable under s. 187 of the Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
