COURT OF APPEAL FOR ONTARIO

CITATION: Dagenais v. Pellerin, 2022 ONCA 76

DATE: 20220128

DOCKET: C69738

Feldman, MacPherson and Thorburn JJ.A.

BETWEEN

Annette Dagenais and Richard Dagenais

Plaintiffs (Respondents)

and

Guy Pellerin and Slavko Concrete Finishing Inc.

Defendants (Appellant)

AND BETWEEN

Janet McGlone and Janet McGlone as Litigation Administrator of the Estate for Allan Timms

Plaintiffs (Respondents)

and

Guy Pellerin, Slavko Concrete Finishing Inc. and Annette Dagenais and John Doe

Defendants (Appellant)

Pat C. Peloso and Jaime Wilson, for the appellant

William R. Hunter and Patrick Simon, for the respondents Annette Dagenais and Richard Dagenais

Mikolaj T. Grodzki and Alexander N. Elkin, for the respondents Janet McGlone and Janet McGlone as Litigation Administrator of the Estate for Allan Timms

Heard: January 20, 2022 by video conference

On appeal from the orders of Justice Paul B. Kane of the Superior Court of Justice, dated June 25, 2021, with reasons reported at 2021 ONSC 3415.

REASONS FOR DECISION

[1] The respondents, Annette Dagenais and Janet McGlone, were the driver and passenger in a car that was in an accident with a car driven by Guy Pellerin, an employee of the appellant, Slavko Concrete Finishing Inc. (“Slavko”), who was on his way to a job site. Mr. Pellerin admitted liability for the accident. The respondents’ claims for damages, which will be determined by a jury, exceed the amount of Mr. Pellerin’s liability insurance coverage. They have therefore also claimed against the appellant on the basis of the doctrines of vicarious liability and respondeat superior. On summary judgment, the appellant was found to be responsible for the respondents’ damages on both bases. The appellant challenges both findings on this appeal.

A. Factual background

[2] The accident occurred on January 31, 2013. Mr. Pellerin was employed by Slavko as a cement finisher, and had been called by his supervisor on January 30, and told to go to a job site in Petawawa for noon the next day. The job site was about two hours away from Mr. Pellerin’s home. Five other employees were to attend for 9 a.m., as they were pouring the concrete slab. They went together in transportation provided by the company. Mr. Pellerin was to drive in his own car to the job site and back the same day. He had his tools for the job with him in the car.

[3] A collective agreement governed the terms and conditions of Mr. Pellerin’s employment. It included provisions regarding travel to job sites, including: payment of the hourly rate for up to four hours per day for travelling outside the National Capital Commission Greenbelt; transportation to be arranged by the employer for travel outside the National Capital Commission Greenbelt; and payment of a mileage allowance of $0.48 per kilometer for travel to or between job sites in a personal vehicle.

[4] Mr. Pellerin left home, got gas, did a personal errand, and then headed for Petawawa. At Renfrew, he decided to stop at Tim Horton’s for a coffee and to stretch his legs. When making the left turn off the highway, he hit the respondents’ vehicle coming through the intersection.

[5] Mr. Pellerin admitted responsibility for the accident and the damages suffered by the respondents to the limit of his liability insurance coverage, $2,000,000. As the claims of the respondents exceed that amount, they also pursued the appellant, alleging that it is responsible for the negligence of its employee during the course of his employment, on the basis of the doctrines of vicarious liability and respondeat superior.

[6] While the quantification of the damages was left to be determined in a jury trial, all parties agreed that it was appropriate to have the issue of the liability of the appellant determined on summary judgment.

B. Findings by the Motion Judge

[7] In detailed and thorough reasons, the motion judge considered the legal and factual issues necessary to determine whether the appellant is liable for the damages suffered by the respondents.

[8] He first found that while travelling to the job site in Petawawa, Mr. Pellerin was acting within the course of his employment. He was directed by the employer to travel to Petawawa and be there by noon; he was transporting his tools; and the collective agreement required the employer to arrange for transportation to distant job sites, such as Petawawa, and to pay a travel allowance and up to four hours’ salary. The motion judge concluded that the travel to the job site was part of the employee’s work.

[9] The motion judge next considered whether the fact that Mr. Pellerin was using his own vehicle meant that he was acting outside his employment. The motion judge concluded that Mr. Pellerin’s use of his own vehicle was directed, or at least authorized, by the employer, based on the evidence.

[10] The motion judge further found that Mr. Pellerin’s detour to get coffee and to stretch his legs was authorized by the employer as part of the travel requirement to get to the job site, a two-hour drive away. The motion judge relied on the record of evidence of the policy of the employer as well as case law from the Supreme Court of Canada, Battistoni v. Thomas, 1932 CanLII 255 (SCC), [1932] S.C.R. 144; the House of Lords, Smith v. Stages and another, [1989] 1 All E.R. 833 (H.L.); and other courts that have held that a brief deviation from the direct route or brief detour does not take the employee out of the course of employment.

[11] The motion judge summarized his factual and legal findings at paras. 148-150 as follows:

[148] The Court has concluded that Mr. Pellerin was acting in and continued in the course of his employment:

a. as he drove towards Petawawa;

b. as he did so while driving his vehicle;

c. as he attempted to turn off Highway 17 to stop to stretch and buy a coffee before continuing on to that destination; and

d. that each of those actions were permitted and authorized by his employer based on the evidence and as supported by reasonable inferences drawn from that evidence.

[149] Those were authorized acts therefore pursuant to the first branch of the Salmond test and not unauthorized acts governed under the second branch of the Salmond test.

[150] Slavko accordingly was legally responsible for the negligence of such actions by Mr. Pellerin under the doctrine of vicarious liability or in the alternative, pursuant to the doctrine of respondeat superior.

[12] These findings were made in the context of the test for vicarious liability known as the Salmond test, which was affirmed by the Supreme Court of Canada in Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534, at para. 10:

[T]he Salmond test … posits that employers are vicariously liable for (1) employee acts authorized by the employer; or (2) unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act.

[13] The motion judge found that Mr. Pellerin was specifically authorized to drive to the job site in Petawawa in his car with his tools, that he was in the course of his employment while driving to the remote job site, and that he was authorized to take a short detour to get a coffee and stretch his legs as part of the long drive. The employer was therefore vicariously liable under the first branch of the Salmond test.

[14] Slavko argued on the motion, and on the appeal, that the test to be applied was the second branch of the Salmond test because the drive and the accident were unauthorized. As a result, the motion judge was required to apply the two-part analysis from Bazley for determining vicarious liability for unauthorized acts.

[15] In Bazley, a children’s foundation unknowingly hired a paedophile, Mr. Curry, to look after children in its care. A child who was abused by Mr. Curry sued the foundation on the basis of vicarious liability. In that case, the court was concerned with the second branch of the Salmond test. The issue was whether the unauthorized abuse of the child constituted a mode of performing the authorized act of looking after the child. The Supreme Court held that where there is no precedent that determines the issue, the court should do so by considering and applying the policy underlying vicarious liability: Bazley, at para. 15. That policy has two fundamental concerns: (1) provision of a just and practical remedy for the harm; and (2) deterrence of future harm: Bazley, at para. 29.

[16] In response to the appellant’s submission, the motion judge considered, in the alternative, that if Mr. Pellerin’s acts had been unauthorized, whether vicarious liability should be imposed based on the two policy considerations from Bazley. He concluded that it should. First, the respondents are entitled to fair compensation for the accident, and may not get it if the only source is Mr. Pellerin’s insurance limit of $2,000,000. Second, imposing liability on the employer in this case could cause the employer, in the future, to provide safe transportation to distant work sites for all employees, in accordance with the requirements of the collective agreement.

C. Issues on the Appeal

[17] The appellant’s position is that the motion judge erred in fact and law by finding that the first branch of the Salmond test applies. It argues that the drive and the accident were unauthorized and the motion judge erred by finding that they were authorized. The appellant argues further that the motion judge’s alternative analysis and application of the two-part Bazley test was in error, and that as a matter of policy, the respondents are already being compensated by Mr. Pellerin’s insurance, and there is no applicable deterrence issue in this case.

[18] We reject these submissions. The motion judge’s reasons were thorough and comprehensive. He fully applied the Salmond test and found the facts that supported the legal conclusion that Mr. Pellerin, while employed as a cement finisher, was specifically authorized to drive in his own car to the job site at Petawawa and was entitled to a mileage allowance and up to four hours of wages for the driving time. Furthermore, he found, again based on the evidence and legal precedent, that the authorization included the employee taking a coffee break and stretching his legs during the drive. The small detour taken by Mr. Pellerin was not a “frolic of his own”, as in Battistoni, where the employee went off to socialize for a lengthy period during the drive. There is no basis to interfere with his findings or his conclusion.

[19] The appellant also argues that the motion judge should not have relied on the Saskatchewan Court of Appeal decision in Sickel Estate v. Gordy, 2008 SKCA 100, 311 Sask. R. 235, which, it submits, was wrongly decided and incorrectly applies the Salmond test contrary to the direction of the Supreme Court in Bazley. In Sickel, the court held that the negligent driver was acting in the course of her employment, moving the employer’s equipment from site to site, and stated at para. 39 that “it is not the negligence that must be seen as authorized by the employer, but only the activity, which, incidentally, was negligently performed” (emphasis in original).

[20] We reject the appellant’s legal submission. We see no error in the motion judge’s reliance on Sickel as an example of employee conduct authorized by the employer, and therefore falling within the first branch of the Salmond test for imposing vicarious liability for the accident on the employer.

[21] Because we agree with the motion judge’s conclusion that Mr. Pellerin was authorized to drive to the job site in Petawawa as part of his employment, and therefore the appellant is vicariously liable under the first part of the Salmond test, it is unnecessary to address the second part of the Salmond test, and the two policy criteria from Bazley. However, we add that we see no error in the alternative analysis conducted by the motion judge on this issue. We also affirm the motion judge’s finding that the appellant is also liable for the negligence of Mr. Pellerin on the basis of the application of the doctrine of respondeat superior.

[22] The appeal is therefore dismissed with costs to each of the two respondents fixed in the amount of $18,000 to each, inclusive of disbursements and HST.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“J.A. Thorburn J.A.”