Maria-Antony et al. v. Selliah et al.

[Indexed as: Maria-Antony v. Selliah]

Ontario Reports

Ontario Superior Court of Justice,

O'Marra J.

September 12, 2014

122 O.R. (3d) 350 | 2014 ONSC 4264

Case Summary

Workers' compensation — Actions — Plaintiff and S employed as truck drivers by lessee of truck — Plaintiff injured in motor vehicle accident caused by driver S's negligence — Application of s. 29 of Workplace Safety and Insurance Act not precluding plaintiff's claim against owner of truck based on vicarious liability under the Highway Traffic Act for S's negligence — Highway Traffic Act, R.S.O. 1990, c. H.8 — Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, s. 29.

The plaintiff and S were employed by 136 as truck drivers. 136 leased the truck from FT Inc. The plaintiff, who was asleep in the sleeper compartment of the truck at the time, was injured in a single-vehicle accident caused by S's negligence. The plaintiff sued S, 136 and FT Inc. The Workplace Safety and Insurance Appeals Tribunal found that the plaintiff's right to sue S and 136 was barred by the Workplace Safety and Insurance Act, 1997 ("WSIA"), but that the plaintiff had a limited right of action against FT Inc. FT Inc. brought a motion for summary judgment dismissing the action against it.

Held, the motion should be dismissed.

The application of s. 29 of the WSIA did not preclude the plaintiff's claim against FT Inc. as the owner of the truck based on vicarious liability under the Highway Traffic Act for S's negligence. Because s. 29 does not specifically restrict or remove statutorily available vicarious liability claims, such actions must remain actionable.

Ling v. Transamerica Commercial Corp. Ltd. (1980), 1980 1730 (ON SC), 31 O.R. (2d) 32, [1980] O.J. No. 3829, 118 D.L.R. (3d) 188, [1981] I.L.R. Â1-1347 at 149, 6 A.C.W.S. (2d) 180 (Div. Ct.); Wadsworth v. Hayes, 1996 ABCA 39, [1996] A.J. No. 26, 132 D.L.R. (4th) 410, [1996] 3 W.W.R. 561, 36 Alta. L.R. (3d) 204, 178 A.R. 256, 60 A.C.W.S. (3d) 662 (C.A.), consd

Other cases referred to

583809 Ontario Ltd. v. Kay (1995), 1995 7080 (ON SC), 24 O.R. (3d) 445, [1995] O.J. No. 1626, 55 A.C.W.S. (3d) 646 (Gen. Div.); DiCarlo v. DiSimone (1982), 1982 3173 (ON SC), 39 O.R. (2d) 445, [1982] O.J. No. 3529, 140 D.L.R. (3d) 477, 16 A.C.W.S. (2d) 149 (H.C.J.); Gibb v. Munro, 1981 161 (SCC), [1981] 1 S.C.R. 42, [1981] S.C.J. No. 5, 117 D.L.R. (3d) 513, 35 N.R. 237, [1981] 3 W.W.R. 344, 32 B.C.L.R. 145, 15 C.C.L.T. 235, 10 M.V.R. 95, 7 A.C.W.S. (2d) 4; Meyer v. Waycon International Trucks Ltd., [1986] O.J. No. 511, 15 O.A.C. 202, 37 A.C.W.S. (2d) 448 (Div. Ct.); Rocchetti v. Pitre, Decision No. 1014/97, [1998] O.W.S.I.A.T.D. No. 340; Zago v. Davies (1985), 1985 2072 (ON CA), 50 O.R. (2d) 428, [1985] O.J. No. 2497, 18 D.L.R. (4th) 272, 7 O.A.C. 379, 50 C.P.C. 160, 32 M.V.R. 1, 30 A.C.W.S. (2d) 469 (C.A.)

Statutes referred to

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 192 [as am.]

Idaho Code 49-2417(1)

Public Authorities Protection Act, R.S.O. 1980, c. 406

Worker's Compensation Act, R.S.A. 1980, c. W-16, s. 18(2)

Workers' Compensation Act, R.S.O. 1990, c. W.11, s. 10(11)

Workmen's Compensation Act, R.S.O. 1980, c. 539, s. 8(11)

Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, ss. 28, (4), 29, (4)

MOTION for summary judgment dismissing an action as against a moving party.

John J. Adair and Gordon McGuire, for plaintiff/respondent.

Roderic McLauchlan and Sara Benbrahim, for the defendant/moving party.

[1] O'MARRA J.: — The defendant Financial Transport Inc. ("FTI") has brought a motion for summary judgment to dismiss the plaintiffs' action for personal injury and Family Law Act damages in relation to injuries suffered by plaintiff Kandavanam Maria-Antony in a motor vehicle accident near Lovell, Idaho, U.S.A.

[2] The sole issue on the motion is whether the application of s. 29 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A ("WSIA" or the "Act") precludes the plaintiffs' liability claim against the defendant FTI under the Highway Traffic Act, R.S.O. 1990, c. H.8, s. 192 ("HTA"), which imposes vicarious liability on the owner of a car for negligence of the driver. The parties agree that the only genuine issue is a question of law which can be determined by summary judgment.

[3] On October 5, 2000, the date of the single-vehicle accident, Kandavanam Maria-Antony and defendant Sritaran Selliah ("Selliah") were employed as transport truck drivers for 1362038 Ontario Ltd. ("136"), contracted to transport cargo for 1323109 Ontario Ltd. ("132"). The transport truck was owned by Financial Transport Inc. ("FTI"), but leased to 136 for its exclusive use in its business operations during the term of the lease. Selliah was operating the transport truck and Kandavanam Maria-Antony was asleep in the sleeper compartment at the time of the accident. Idaho State Police investigation determined that the single-vehicle accident was caused by Selliah losing control of the transport truck on a curve in the roadway due to excessive speed.

[4] There is no dispute between the parties that the evidence obtained through the investigation indicates that the single-motor-vehicle accident resulted from the negligence of Mr. Selliah.

[5] On March 8, 2007, the Ontario Workplace Safety and Insurance Appeals Tribunal issued a decision under the WSIA that Maria-Antony's right to sue defendants Selliah, 136 and 132 was barred by the provisions of the WSIA. The tribunal found that s. 28 of the Act precluded Maria-Antony's action against the numbered company defendants and Mr. Selliah on the basis that they were "protected" defendants under the Act. The tribunal determined that Financial Transport was not an employer in relation to either Mr. Selliah or Mr. Maria-Antony.

[6] The tribunal concluded that the plaintiffs' right of action against FTI was not barred pursuant to s. 28(4). Immunity under the Act did not apply to FTI because it was "an employer other than the worker's employer that supplied a motor vehicle . . . on purchase or rental basis without also supplying workers to operate the motor vehicle". The tribunal stated the plaintiffs had "a limited right of action against Financial Transport" pursuant to s. 29(4) of the Act without expanding on what was meant by a "limited" right of action.

[7] Subsequently, the defendants brought a summary judgment motion based on the decision of the Ontario Workplace Safety and Insurance Appeals Tribunal, on which Sosna J. of the Superior Court of Justice dismissed claims against Selliah, 136 and 132 by order dated November 27, 2007.

[8] The defendant FTI's position is that the appeals tribunal's decision limited the plaintiff's rights against FTI, by making its liability several rather than joint, thereby limiting liability to its own negligence. It was Selliah's negligence that caused the accident and resultant injuries. There is no evidence of direct or independent negligence on FTI's part with respect to the accident and injuries to Maria-Antony therefrom. FTI owed no duty of care owed in the circumstances.

[9] The plaintiffs contend that while any action against the driver, Selliah, is statute-barred by operation of the WSIA, s. 192 of the HTA imposes vicarious liability on the vehicle owner, FTI, for the driver's negligence.

[10] The relevant provisions are set out below.

(Decision continues exactly as in the original judgment text through paragraph [36], ending:)

[36] In the result, the defendants' motion for summary judgment to dismiss the plaintiffs' action is denied. The action shall proceed to trial. Costs should be left to be determined by the trial judge in the action.

Motion dismissed.

End of Document