An employer may not be a protected defendant under section 267.5 of Ontario's Insurance Act.
The court held that a limitation on liability under the Insurance Act did not apply to an employer where its employee was involved in a motor vehicle accident while driving the employer’s vehicle from a training site to a hotel where the employee stayed during a training session. The issue of whether Ms. Jew was working was discussed at James Morton's blog.
Collings v. Jew [2008] O.J. No. 3002 Ontario Superior Court of Justice T.R. Lederer J July 30, 2008
The plaintiff in the underlying action sued for injuries suffered in a motor vehicle accident when he was a passenger in a taxi that was reared-ended by the defendant Jew. At the time of the accident, Jew attended a training session in Toronto conducted by her employer (“Newell”). The accident occurred after the first part of the training program ended and before the trainees were to be flown to Alberta for the conclusion of the program. The accident occurred when Jew was driving from the training site to her hotel room. The vehicle she was driving was owned by Newell.
The issue the court was asked to review was whether or not Newell was an “unprotected defendant” to which the limitations on liability provided for by s. 267.5 of the Insurance Act did not extend. The section stated in part that:
“the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for . . . income loss and loss of earning capacity from bodily injury . . . arising directly or indirectly from the use or operation of the automobile”.
The court reviewed the limitation of liability provision and noted that if Newell was liable as the owner of the vehicle, the limitations in the section would apply to protect it. However, if its liability arose because it was the employer of Jew, the limitation would not apply. Accordingly, the single issue was whether, at the time of the accident, Jew was acting in the course of her employment. The court reviewed the guidance provided by the case of Bazley v. Curry, 1990 Carswell B.C. 1264 (S.C.C) and noted that the fundamental question was whether the wrongful act was sufficiently related to the conduct authorized by the employer to justify the imposition of vicarious liability. The connection must be real, meaningful and substantive.
In this case, the court narrowed the issue to whether the drive from the locale of the training session to the hotel contained the required connection or nexus to the employment of Jew by Newell. The court held that in the circumstances, there was sufficient connection or nexus to the employment that this activity was inexorably tied to her employment. As a result, the court held that the liability of Newell flowed from it being an employer of Jew rather than from being the owner of the vehicle. Therefore, Newell did not obtain the protections offered by s. 267.5 of the Insurance Act.
This case was originally sumnmarized by jmeadows@harpergrey.com and originally edited by dpilley@harpergrey.com
