A recent Alberta Court of Appeal has made an unorthodox ruling that an employer is liable for an employee’s bad behaviour – despite that behaviour running contrary to the employer’s express instructions.
According to an ILSTV Daily News article, in Mustafi v. All-Pitch Roofing Ltd., the roofing company was on the hook for the negligence of an employee who drove a company truck – despite the explicit direction by the company not to do so.
Although told not to drive the vehicle, the All-Pitch Roofing employee was given the keys and access to a company vehicle in the winter to keep warm and store his tools.
However on Christmas Eve 2007, the employee drove the company truck and had an accident. The injured party, Xhevat Mustafi, sued the employee and All-Pitch.
Although in the original trial All-Pitch was found not to be liable for the actions of its employee, the issue was reconsidered on appeal.
The overturning of the trial decision by the Alberta Court of Appeal turned on an analysis of section 187(2) of the Alberta Traffic Safety Act, which makes the owner of a vehicle liable if, at the time of the accident, the driver was in “possession” of the vehicle with the consent of the owner.
The Court decided that, even though the employee did not have permission to drive the truck, he did have permission to use the truck to store supplies and keep warm. As All-Pitch had provided the employee with keys to the truck so that he could carry out his employment, the condition not to drive the vehicle was not determinative – it was unwritten and could be revoked at the employer’s convenience with one phone call.
The law in Alberta is now that, for the owner of a vehicle to be vicariously liable for the driver’s negligence, all that is required is that the owner have consented to the driver being in possession of the vehicle. (continued.)
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The same may be true in other provinces where similar legislation exists, such as Ontario’s Highway Traffic Act which makes the owner of a vehicle liable for loss resulting from negligent operation, unless the vehicle was in the possession of another person without the consent of the owner, Manitoba’s Highway Traffic Act and others.
In light of this finding, brokers should remind clients who may be subject to this decision to review their policies on the use and “possession” of company vehicles, states ILSTV Daily News. Even when an employee is instructed not to drive a vehicle, an employer can still be found to have consented to possession, opening employers up to liability from injured third-parties – and underlines the importance of having driver use policies.
