In Mustafi v All-Pitch Roofing Ltd., the
Court of Appeal of Alberta analyzed when an employer is vicariously
liable for the negligent driving of an employee in a company owned
vehicle. On Christmas Eve in 2007, Marc Carrol, an employee with
All-Pitch Roofing ("All-Pitch"), got into an accident
while driving a vehicle owned by All-Pitch. Mr. Carrol had been
given access to the company truck and trailer in order to store his
tools and to keep warm in the winter. The Court found that
All-Pitch had explicitly instructed Mr. Carrol that he was only to
use the company truck for those purposes, and was not to drive it.
On the night in question, Mr. Carrol acted contrary to his
employer's instructions and drove the truck, during which an
The Plaintiff, Mustafi, was injured in the accident, and sued
All-Pitch and Mr. Carrol; only the liability of All-Pitch was
contested. At the trial level, All-Pitch was found to be not liable
for the accident.
Counsel on the appeal did not argue the issue of vicarious
liability at common law, and instead based their argument solely on
section 187(2) of the Traffic Safety Act (RSA 2000 c T-6),
In an action for the recovery of loss
or damage sustained by a person by reason of a motor vehicle on a
highway, a person who, at the time that the loss or damage
a) was driving the motor vehicle,
b) was in possession of the motor
vehicle with the consent, expressed or implied, of the owner of the
is deemed with respect to that loss
c) to be the agent or employee of the
owner of the motor vehicle,
d) to be employed as the agent or
employee of the owner of the motor vehicle, and
e) to be driving the motor vehicle in
the course of that person's employment.
Following this provision of the legislation, the Court concluded
"it is clear from section 187(2) that the employer is liable
if, at the time, the driver was in possession of the motor vehicle
with the consent of the owner." At the trial level, the
Mugford v Kodiak Construction Ltd, (2004 ABCA 145)
decision was used to argue that the employer needed to have given
consent to both the driving and the possession of the vehicle in
order to be found liable for the employee's negligent driving.
However, as the Traffic Safety Act has since been updated
from the date of that decision, consent to driving is no longer
needed to find liability on behalf of the employer. All that is
required is the employer's consent to possession of the motor
As All-Pitch had provided Mr. Carrol with the keys to the truck,
and had provided the truck so that Mr. Carrol could carry out his
employment, "the condition not to drive the vehicle is
unwritten and can be vitiated at the employer's convenience
with one phone call." Therefore consent to possession was
given by All-Pitch. As such, the majority of the Court of Appeal
found the employer liable and allowed the appeal.
Interestingly, Justice O'Brien dissented from the majority
of the Court of Appeal and declared that he would have dismissed
the appeal and upheld the decision of the Trial Judge to find
All-Pitch not liable for the accident. Justice O'Brien agreed
that the legislation only requires the employer to give consent,
whether express or implied, to the possession of the motor vehicle.
However, Justice O'Brien concluded that, while Mr. Carrol had
the consent to possession of the stationary vehicle, he did not
have consent to possess the vehicle when it was being driven.
Justice O'Brien explained:
What started as possession with
consent may be transformed by theft, or another unlawful act, into
wrongful possession to which no consent was given.
Nevertheless, the majority of the Court of Appeal still
concluded that consent to possession was given and therefore found
Due to the current Traffic Safety Act, employers should
be careful when giving employees possession of a motor vehicle
owned by the company. As evidenced in Mustafi v All-Pitch
Roofing Ltd., even when the employee is not supposed to drive
the vehicle to which they have the keys, the employer can still be
found to have consented to possession, opening them up to liability
from an injured third-party.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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