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Articles & Publications - Alberta, NWT & Nunavut CLC Member

February 2019

An Earthquake in the World of Personal Injury

Supreme Court of Canada Case Study: McIver v McIntyre

Duncan E. Taylor
Duncan E. Taylor,

by Duncan E. Taylor, Brownlee LLP

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 the world of personal injury and insurance law in Canada. This 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 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' 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.

...Mr. McIntyre was only liable for the portion of the loss caused by his own "fault"...

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 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 the 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.

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