Court distinguishes “driving” from “care and control”

Is your client vicariously liable if the employee ignores the instructions not to drive and gets into an accident with the truck? 

 

No, the Alberta Court of the Queen’s Bench ruled in Mustafi v. All-Pitch Roofing Ltd. 

 

In making its decision, the court drew a distinction between “driving” a vehicle and “having the care or control of a vehicle.” Similar language can be found in various different motor vehicle laws throughout the country.  

 

Daryn McMann and Trevor Porter owned a company called All-Pitch Roofing, which had employed Marc A. Carroll for a period of about four months prior to the day of an accident that occurred on Dec. 24, 2007. On that morning, McCann drove Carroll to pick up supplies and then dropped him off at his worksite near southwest Calgary, where Carroll was to work alone.

 

A company vehicle, a 1995 Dodge Ram, was already on the worksite, hitched to a Haulmark closed unit trailer. McCann gave Carroll the keys to the truck for the stated purpose of allowing Carroll to start the vehicle and warm up during breaks and to obtain tools for the job.

 

McMann told Carroll that when he wanted a ride home, McMann would return and pick him up from the job site.

 

“McMann specifically told Carroll he was not to drive the vehicle,” the court found in an agreed statement of facts. “McMann told Carroll on the date of the collision that if Carroll moved the vehicle, he would consider it stolen.” 

 

Later that day, Carroll called McMann and advised that he had driven the vehicle to the store and had been involved in a motor vehicle accident and had left the scene. The truck has crashed into a 2006 Toyota Corrolla.

 

Motor Vehicle Accident Claims (MVAC), which protects victims in accidents with uninsured or unknown drivers, had been unable to locate Carroll. It argued that All-Pitch was vicariously liable for the driving actions of Carroll because of the definition of “driving” contained within the Traffic Safety Act of Alberta. 

 

According to s. 1(1)(l) of the Act, ‘driving’ or ‘drive’ includes “having the care or control of a vehicle.”

MVAC held that when Carroll was given the keys to the truck and left on his own, he was left in care and control of the truck with the consent of All-Pitch. When Carroll later drove the truck, he continued to have that self-same care or control and consent.

 

All-Pitch countered with the fact that Carroll received the keys to the truck for two and only two purposes: 1) to get tools or 2) to start up the engine in order to warm up since he was working outside in the cold of winter. Carroll was explicitly told that he could not move or drive the truck.

 

The court ruled the extended definition of “driving,” which included having “care and control” of the vehicle was not applicable under the circumstances.

 

“The reality was that Carroll was given care or control over a static or stationary item, which was ordered to remain static or stationary,” the court found. “When Carroll was driving the truck, i.e. operating the truck, he had no such permission and he was well aware of that. 

 

“Neither his operation of nor his care or control of that vehicle while it was in motion was with the owner’s consent. The manner of his driving is quite beside the point.”