CITATION: Hinds v. Metrolinx, 2019 ONSC 2318

DIVISIONAL COURT FILE NO.: DC-17-106-00 DATE: 20190411

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

GORDON, BACKHOUSE, BALE JJ.

BETWEEN:

JANETTE HINDS

Appellant

• and -

METROLINX

Respondent

George Pappas and John Lykos, for the Appellant

Brian I. Monteiro, for the Respondent

HEARD at Brampton: April 9, 2019

R. GORDON J.

Overview

Overview

1The Appellant was injured as a result of an accident on a Metrolinx Go Bus. At trial a jury awarded her $35,000 for non-pecuniary loss. On motion the trial judge applied the statutory deductible, thereby effectively reducing the award for non-pecuniary loss to zero. The Appellant appeals that decision.

Background Facts

Background Facts

2The Appellant was injured while riding a Metrolinx Go Bus on July 23, 2009. The Go bus was owned by Metrolinx and was operated by its employee. On the day of the incident, the employee suddenly applied the gas and then braked abruptly, causing the Appellant to lose her balance and fall, sustaining injury. The Respondent admitted liability for the negligent operation of the Go Bus by its employee.

3Following a 13-day trial, the jury awarded the Appellant $35,000 for non-pecuniary damages and $5,000 for past house-keeping and home maintenance expenses.

4Following the jury’s verdict, the presiding judge heard argument on two motions.

5In the first, the trial judge was asked to determine whether the Respondent was vicariously liable for the negligence of its employee; in the second he was asked whether Metrolinx enjoyed the protections offered defendants under s. 267.5(5) of the Insurance Act.

6The trial judge determined that the Respondent was vicariously liable for the negligence of its employee and as such was not a protected defendant; however, he determined that by virtue of s. 267(10.1) of the Insurance Act, the Respondent could be responsible for no greater amount of damages than the driver as a protected defendant. He therefore reduced the effective award to zero.

7The Appellant has framed the issue on appeal as follows: Did the trial judge err by reducing the damages awarded by the jury to the Plaintiff for non-pecuniary loss to $0 by applying the statutory deductible in section 267.5(7)3iB of the Insurance Act pursuant to section 265.5(10.1) for an unprotected Defendant?

Jurisdiction

Jurisdiction

8Under Section 19 of the Courts of Justice Act, an appeal lies to the Divisional Court from a final order of a judge of the Superior Court of Justice when the amount at issue is less than $50,000. It follows that we have jurisdiction to hear this appeal.

Standard Of Review

Standard Of Review

9The parties agree that the trial judge’s interpretation of the Insurance Act is a question of law reviewable on the standard of correctness.

Analysis

Analysis

10Section 265.5(7) of the Insurance Act, insofar as it applies to this matter, provides as follows:

Subject to subsections (5)…in an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the court shall determine the amount of damages for non-pecuniary loss to be awarded against a protected defendant in accordance with the following rules:

3…. The amount of damages for non-pecuniary loss to be awarded against the protected defendant shall be determined by reducing the amount determined under paragraph 1, by,

In the case of damages for non-pecuniary loss other than damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, the greater of,

B. the amount prescribed by the regulations.

11A “protected defendant” is defined in the Insurance Act as a person who is protected from liability by subsections 267.5(1),(3) and (5).and in the context of this case includes the owner of an automobile, the occupants of an automobile and any person present at the incident.

12When a driver of a vehicle is involved in an accident in the course of his employment duties and is driving a vehicle owned by his employer the law can impose liability on the employer in more than one way. It can be liable as an owner of the vehicle as provided in the Insurance Act thereby gaining the status of a protected defendant; and it may be vicariously liable for the negligence of its employee.

13Traditionally, in a line of cases ending with Vollick v. Sheard, 2005 13777 (ON CA), 75 O.R. (3d) 621, the courts have held that such a defendant, vicariously liable as the employer of the driver of the vehicle, does not gain protected status under the Insurance Act. Specifically, the Court in Vollick held as follows:

44In Harrison, a defendant otherwise protected from liability as owner of a motor vehicle was nevertheless held liable to an injured party on the basis of his vicarious liability for the negligence of his employee. So, in the present case, a defendant otherwise enjoying protected defendant status as owner of a motor vehicle is nevertheless liable to an injured party for the negligence of its employee. Hechavarria cannot stand in the face of Harrison. On the question of employer’s vicarious liability, the gratuitous passenger provisions of the Highway Traffic Act and the protected defendant provisions of the Insurance Act are indistinguishable in principle from each other. Just as the employer’s vicarious liability superseded the restriction against the owner’s liability in Harrison, so, too, in my view, the employer’s vicarious liability supersedes the owner’s liability in the present case, as, indeed, in all of the cases that have decided the question under Bill 59 except Hechavarria.

14The Appellant is of the view that Vollick remains good law and binds the court in its determination of this matter.

15But for the addition of subsection 267.5(10.1) added to the Insurance Act and effective October 1, 2003, I would agree. It provides as follows:

Despite any provision of this Part, a person vicariously liable for the fault or negligence of a protected defendant is not, in respect of the person’s vicarious liability, liable for any amount greater than the amount of damages for which the protected defendant is liable.

16The trial judge considered the effect of this subsection and held as follows:

Metrolinx is a protected defendant as owner of the Go Bus. However, as the driver’s employer, Metrolinx is nonetheless vicariously liable for his negligence in the operation of the Go Bus that caused Ms. Hinds to fall. Metrolinx is therefore liable to Ms. Hinds for the amount for non-pecuniary damages the jury awarded to Ms. Hinds. However, by operation of s. 267.5(10.1), the amount of those damages for which Metrolinx is vicariously liable under the common law principles can be no greater than the amount for which the driver is liable as a protected defendant. As Mr. Dhanoa was a protected defendant who is entitled to a reduction of the amount of damages for non-pecuniary loss by the statutory deductible of $37,385.17 at the time judgment was rendered, this has the effect of reducing the jury award to zero.

17I agree with the trial judge. In fact, as pointed out by him, this seems to be the conclusion reached in Vollick had s. 267.5(10.1) been in effect at the time of the accident the court was then considering. In this regard, the court in Vollick remarked as follows:

45Section 267.5(10.1) was added to the Insurance Act by S.O. 2002, c. 22 and came into force on October 1, 2003. It answered, in the negative, the question whether an employer’s exposure for vicarious liability was any greater than his exposure as owner of the vehicle.

18Indeed, this is the only sensible and rational interpretation of this section. In addition to the thorough analysis provided by the trial judge, I would observe that absent the reduction in damages contemplated by the statutory deductible, it is difficult, if not impossible, to imagine a circumstance in which an employer’s vicarious liability for his employee’s negligence would result in liability for greater non-pecuniary loss than that to which the employee is exposed. It can only be different when the employee enjoys the status of a protected defendant and gets the benefit of the statutory deductible. That is specifically the provision to which the section is directed.

Conclusion

Conclusion

19The appeal is dismissed. The Respondent shall have its costs in the amount of $20,000.

R. Gordon J.

I agree _______________________________

Backhouse J.

I agree _______________________________

Bale J.