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
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
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
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