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08 January 2019
McIver v McIntyre (2018 ABCA 151) examined the apportionment of liability for damages between multiple defendants where at least one of them is statutorily immune from liability.
Defendant Carlyle McIntyre took his vehicle into Calgary Propane and Automotive for repairs. A Calgary Propane employee Lewis Morgan, took the vehicle for a test drive and collided with a vehicle driven by Brent McIver, causing McIver injuries. Both Morgan and McIver were driving in the course of their employment but, at trial, Morgan's negligence was found to have caused the collision.
McIver obtained benefits from the workers' compensation scheme under the Alberta Workers' Compensation Act,(1) and the Workers' Compensation Board sued McIntyre on the basis that he was vicariously liable for McIver's loss as the owner of the vehicle under Section 187 of the Traffic Safety Act.(2)
The provisions of the Workers' Compensation Act immunised Calgary Propane from the lawsuit. The only party with exposure was McIntyre, the owner of the vehicle, who did not come under the protection of the Workers' Compensation Act.
The Court of Queen's Bench considered whether an employer could be held vicariously liable for damages caused by its employee's negligence when the injured party, the employee and the employer, are subject to the Workers' Compensation Act. If so, could the court apportion liability for the resulting damages to the employer? At trial, Justice GA Campbell determined that there are two vicariously liable tort feasors:
The court found that the effect of this section is that a defendant who is not immune from a law suit under the Workers' Compensation Act can be held liable only for the portion of the plaintiff's loss that was occasioned by the defendant's own fault or negligence.
For reasons discussed below, Campbell apportioned 100% of the plaintiff's damages to Calgary Propane.
The court of appeal explored the question: what is the apportionment of liability between the defendants pursuant to Section 23(2) of the Workers' Compensation Act when the tort feasor is immune under the legislation? The court re-examined liability for McIver's injuries. More specifically, it addressed whether the court should apportion liability between:
The court of appeal returned to the notion that vicarious liability is a no-fault offence in the sense that the employer or owner need not have participated in, or even authorised the employee's act of wrongdoing. However, in another sense, it implies fault. The court found that the percentage of liability is proportional to the fault, and defendants who are unprotected under the Workers' Compensation Act are liable only for the portion of a plaintiff's loss that is caused by their own fault. In instances where the fault is only notional (eg, vicarious liability situations) a defendant could end up being apportioned none of the liability. To determine the percentage of notional fault the court will look at various elements, such as the degree of supervision of, and direct contact with, the protected employee or defendant.
The court of appeal upheld the decision of the trial judge to allocate 0% of the fault to the unprotected vehicle owner.
The court states as follows:
The court of appeal cautioned that its decision should not be understood as establishing the precedent that, when a vehicle owner leaves a vehicle at a garage for repairs and an employee takes the vehicle out for a test drive and negligently injures a plaintiff, the employer's garage is always (notionally) liable for 100% of the loss. The trial judge's decision on apportionment was sensitive to the unprotected and protected owners' degrees of supervision and contact with Morgan.
McIver filed an application for leave to appeal to the Supreme Court of Canada on 18 June 2018.
This case is a good example of the laws of apportioning liability where a statute protects one tort feasor. If the remaining defendant is only notionally liable and has no actual fault as evidenced by a failure to exert expected control over the actual tort feasor, such cases may have the unfortunate result of leaving the plaintiff with no recourse.
For further information on this topic please contact Wendy N Moody or Omolara Oladipo at Dentons Canada LLP by telephone (+1 604 687 4460) or email (email@example.com or firstname.lastname@example.org). The Dentons Canada LLP website can be accessed at www.dentons.com.
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