Canada: An Earthquake In The World Of Personal Injury

Supreme Court of Canada Case Study: McIver v McIntyre
Last Updated: February 18 2019
Article by Duncan Taylor

The Supreme Court of Canada released its decision in the application for leave to appeal by the Plaintiff in the matter of McIver v McIntyre. The Court declined to hear the Plaintiff's Appeal, upholding the findings of the Alberta Court of Appeal. This decision has the potential to be an earthquake in world of personal injury and insurance law in Canada. The case relates to whether an injured party or the Workers' Compensation Board by way of subrogated claim can recover against an owner and lessor of a vehicle involved in a motor vehicle collision when it played no part in the events of the collision, and had no supervision over the tortfeasor. This decision reinforces bar against litigation found in the Worker's Compensation Act and will be of particular interest to companies involved in the leasing of vehicles as the decision protects them from claims when they had little to no supervision or control over the driver.

The McIver case relates to events which covered in April of 2012. The Defendant, Willis McIntyre had taken his vehicle to an automotive shop (the "Employer") to have his brakes repaired. After the work was completed, an employee of the automotive shop (the "Employee Driver") took the vehicle out on a test drive during which it collided with a vehicle driven by the Plaintiff, Brent McIver. At the time of the accident, Mr. McIver and the Employee Driver were engaged in employment covered by the Workers' Compensation Act, RSA 2000, c W-15 (the "Act"), and the Employer was likewise an employer under the Act. The Plaintiff therefore was barred by operation of section 23 of the Act from bringing a claim against the Employee Driver or the Employer. The Plaintiff therefore attempted to circumvent the Act by bringing his claim against Mr. McIntyre (who was not protected by the Act) in order to recover damages allegedly suffered as a result of the collision.

At the Court of Queens's Bench, Mr. McIver argued that as Mr. McIntyre was vicariously liable due to the operation of section 187 of the Traffic Safety Act, RSA 2000, c T-6 and lacked the statutory protection afforded by the Act. Therefore, McIver argued, the claim should proceed.  Mr. McIntyre's position was that the Act severed him from any vicarious liability as owner of the vehicle, and that he was only responsible for Mr. McIver's injuries to the extent his own fault or negligence contributed to the accident.

Justice Campbell determined that Mr. McIntyre was only liable for the portion of the loss caused by his own "fault", and not for the "fault" of the Employer. Mr. McIntyre, having left his vehicle in the care and control of the Employer, had no control or say over who drove the vehicle and had no personal fault for the accident. By comparison, the Employer was responsible for hiring and supervising its mechanics, and for authorizing test drives. Justice Campbell found that there was nothing more the Defendant could have done to avoid the accident when he left his vehicle with the Employer. It would have been the Defendant's reasonable expectation that should any injuries result from an employee's use of the vehicle that the Employer would be responsible. It was also noted that the Defendant's Standard Automobile Policy (SPF no 1) specifically excluded garage personnel, meaning the Employee driver was not insured under the Defendant's policy. As such, 100% of the vicarious liability for the Plaintiff's damages was apportioned to the Employer, effectively barring the Plaintiff (and the Worker's Compensation Board who was running the claim on Mr. McIver's behalf) from recovering against the Mr. McIntyre.

The Plaintiff appealed Justice Campbell's decision to the Alberta Court of Appeal, arguing that Justice Campbell erred in apportioning 0% of the fault on the owner of the vehicle, as opposed to an amount more in keeping with the 25% liability awarded by the Alberta Court of Queens' Bench in the earlier decision of Dempsey v Bagley, 2016 ABQB 124. In its decision, the Court of Appeal upheld the Justice Campbell's ruling based on previous jurisprudence which confirmed that when two parties are vicariously liable for a loss caused by a third party, fault may be allocated according to the degree of control each party had over the tortfeasor. The appeal was dismissed. As this decision effectively overruled several more Plaintiff-friendly cases at the Queen's Bench level, the Plaintiff was left with little recourse but to roll the dice and sought leave to appeal to the Supreme Court.

On February 14, 2019, the Supreme Court of Canada released its decision in the Plaintiff's application for leave to appeal. By denying leave to appeal, it upheld the findings of the Court of Appeal, putting he matter to rest once and for all. The decision should be seen as especially positive news for vehicle rental companies and their insurers, as it prevents plaintiffs from bringing claims against them in an attempt to circumvent section 23 of the Act. The decision of the Court of Appeal confirms that the Act shields even unprotected vehicle owners so long as their own actions constituted fault, and should limit the exposure of vehicle rental companies from future litigation of this kind. 

* * *

Brownlee LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms .

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions