COURT FILE NO.: 14-62167, 14-61807

DATE: 2021/06/25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANNETTE DAGENAIS and RICHARDS DAGENAIS

Plaintiffs

– and –

GUY PELLERIN and SLAVKO CONCRETE FINISHING INC.

Defendants

AND BETWEEN:

JANET MCGLONE and JANET MCGLONE as Litigation Administrator for the Estate of ALLAN TIMMS

Plaintiffs

W.R. Hunter, Counsel for the Plaintiffs

P. Peloso, Counsel for the Defendants

B. Elkin and A. Elkin, Counsel for the Plaintiff

– and –

GUY PELLERIN, SLAVKO CONCRETE FINISHING INC., ANNETTE DAGENAIS and JOHN DOE

P. Peloso, Counsel for the Defendants

Defendants

HEARD: November 9 and 16, 2020

REASONS FOR JUDGMENT

Kane j.

[1] There are four motions for summary judgment before the Court.

[2] The plaintiffs in each of these two actions have brought a motion for summary judgment against Slavko Concrete Finishing Inc. (“Slavko”) seeking judgment that it as the employer, is vicariously liable to the plaintiffs for the negligent operation by the defendant Guy Pellerin, its employee, of his motor vehicle on January 31, 2013 which caused injury and damages to them.

[3] The Dagenais plaintiffs in their motion in their action seek:

a. Summary Judgment on part of their claim to find the Defendant Guy Pellerin (“Mr. Pellerin”) was in the course of his employment at all material times during the motor vehicle accident with the Plaintiff Annette Dagenais on January 31, 2013; and

b. Summary Judgment on a question of law in determining that the Defendant Slavko Concrete Finishing Inc. (“Slavko”) is vicariously liable for the negligence of the Mr. Pellerin who was in the course of his employment at the time of the motor vehicle accident.

[4] The McGlone plaintiffs in their motion seek summary judgment on a question of law to determine if Slavko is vicariously liable for the negligence of Mr. Pellerin who was in the course of his employment at the time of the motor vehicle accident.

[5] Slavko in its cross-motion in each action seeks an order for summary judgment dismissing each action on the basis that it is not vicariously liable for the alleged negligence of the defendant Mr. Pellerin.

Background

[6] Slavko carried on business as a concrete contractor. It provided qualified tradesmen to general contractors. Slavko tradesmen attended and conducted the pouring and finishing of new concrete floor slabs at construction sites throughout eastern Ontario.

[7] Slavko at the time had its office and a warehouse in the Ottawa area.

[8] Mr. Pellerin was employed by Slavko as a concrete tradesman between 2007 and 2015. He lived in Ottawa in January 2013. Slavko at all material times was the employer of Mr. Pellerin.

[9] The terms of employment of Mr. Pellerin and the other fourteen similar tradesmen then employed by Slavko included and were governed by the provisions of a collective agreement, the term of which was from May 1, 2010 until April 30, 2013 (the “C-A”).

[10] Slavko sent six of its concrete tradesmen, including Mr. Pellerin, on January 31, 2013, to conduct the pour and finishing of a new concrete floor slab at a military base construction site located at Petawawa Ontario. That construction site was approximately 170 kilometers, or a two-hour drive west of Ottawa.

[11] Slavko, pursuant to the C-A, was obligated to arrange for the transportation of its employees to distant construction sites such as Petawawa.

[12] Slavko on January 31, 2013 arranged the transportation of its five other concrete tradesmen who drove together in a Slavko vehicle to that Petawawa construction site. These five tradesmen were required to travel from Ottawa to this Petawawa site early on January 31, 2013, as they were to conduct the pour of the concrete slab. The C-A required that they be onsite and commence that pour of the concrete slab prior to 9:00 a.m.

[13] Slavko’s supervisor telephoned Mr. Pellerin on the evening of January 30, 2021 and advised him that:

a. he would work as a concrete finisher at that Petawawa construction site on January 31, 2013. He was not to be involved with the other five tradesmen in the earlier concrete pour at that site on January 31, 2013;

b. he was required to be at this Petawawa construction site by noon on January 31, 2013 to work as a concrete finisher; and

c. he would then drive back to Ottawa.

[14] Mr. Pellerin departed Ottawa and drove alone in his automobile on January 31, 2013 pursuant to this direction of his supervisor.

[15] Prior to departing from Ottawa, Mr. Pellerin purchased gasoline for his motor vehicle, a coffee and he may have done an errand. He then drove his motor vehicle from Ottawa west on Highway 17 towards Petawawa.

[16] As he was about to drive by the Town of Renfrew, Mr. Pellerin decided he would like to stretch his legs and buy a coffee at a Tim Horton’s shop he knew was located on O’Brien Rd. which intersects with Highway 17 at Renfrew, and then continue on to Petawawa. He accordingly pulled into the turning lane at a stop light at the corner of Highway 17 and O’Brien Rd., waited for an oncoming east bound truck to pass by and then began to cross the east bound lane whereupon his vehicle struck Ms. Dagenais’ vehicle as she, on a green light, drove east on Highway 17.

[17] The force of the impact of these two motor vehicles caused:

a. Mr. Pellerin’s motor vehicle to stop in the east bound lane of Highway 17;

b. injury to Ms. Dagenais and to her passenger, Ms. McGlone; and

c. damaged Ms. Dagenais’ motor vehicle beyond repair.

[18] Mr. Pellerin was charged in relation to this motor vehicle accident under s. 142(1) of the Highway Traffic Act for failing to ensure that he could safely turn left across Highway 17 on January 31, 2013. Mr. Pellerin did not contest that charge and paid the accompanying fine.

[19] Mr. Pellerin at the time of this accident had automobile insurance with a liability coverage limit of $2,000,000.

[20] The Dagenais plaintiffs claim damages in excess of $3 million against Mr. Pellerin and Slavko.

[21] The McGlone plaintiffs claim damages against Mr. Pellerin and Slavko of $600,000 for pain and suffering. They also claim damages for loss of household and handyman capacity, unquantified special damages to be determined at trial for past and future loss of earning capacity as well as for loss of competitive advantage.

[22] The extent of injuries and the quantum of damages claimed are not in issue on these motions. Issues as to damages are to be determined at trial which is to proceed with a jury. The combined damages claimed by the plaintiffs in both actions at this point exceeds Mr. Pellerin’s then automobile insurance liability coverage.

[23] The Dagenais and the McGlone plaintiffs in their Statement of Claim in their action allege:

a. that Mr. Pellerin was negligent in his operation of his motor vehicle on January 31, 2013, that he caused the collision and is thereby liable for the resulting injuries and damages suffered by them; and

b. that Mr. Pellerin at the time of the accident was travelling for the purpose of his employment and that Slavko is legally responsible for Mr. Pellerin’s negligence.

[24] The McGlone plaintiffs in their claim also allege negligence and claim damages against Ms. Dagenais as to her operation of her motor vehicle regarding this motor vehicle accident.

[25] Slavko in its Statements of Defence and Crossclaim in each action:

a. denies the extent of the alleged injuries claimed;

b. denies the collision occurred as a result of any act, negligence or breach of duty on its part, or anyone for whom it is at law responsible;

c. acknowledges that Mr. Pellerin was its employee at the time of this accident on January 31, 2013;

d. denies Mr. Pellerin was operating his vehicle at the time of the accident for the purpose of his employment with Slavko;

e. denies it is vicariously liable for any negligence or omission of Mr. Pellerin; and

f. alleges that any injuries suffered and claimed by the plaintiffs were caused or contributed to by the negligence of Ms. Dagenais in her operation of her vehicle.

[26] Mr. Pellerin defended and crossclaimed in both actions.

[27] The crossclaims in the Dagenais action were by:

a. Mr. Pellerin against Slavko; and

b. Slavko against Mr. Pellerin.

[28] The crossclaims in the McGlone action were by:

a. Mr. Pellerin against Ms. Dagenais;

b. Ms. Dagenais against Slavko and Mr. Pellerin; and

c. Slavko against Mr. Pellerin and Ms. Dagenais.

[29] Mr. Pellerin:

a. consented on April 19, 2019 in the McGlone action, to an order that he was liable for this motor vehicle accident; and

b. consented to an order dated June 15, 2020 in the Dagenais action, that he was liable for such motor vehicle accident.

[30] An order dated August 20, 2020, was granted on consent of all parties in each action pursuant to which;

a. the action and all crossclaims were dismissed:

i. against Mr. Pellerin in the Dagenais action; and

ii. against Mr. Pellerin and Ms. Dagenais in the McGlone action;

b. Mr. Pellerin was ordered to pay into court the $1,950,000 balance of his automobile insurance policy limits to the credit of both actions, without allocation amongst the plaintiffs in these actions;

c. the plaintiffs in each action were entitled to continue their respective actions against Slavko; and

d. such payment into Court in each of such actions and the dismissal of such actions against Mr. Pellerin in the Dagenais action, and against Mr. Pellerin and Ms. Dagenais in the McGlone actions, were made without prejudice to Slavko’s right to defend including all claims for damages, interest and costs in each action.

[31] Mr. Pellerin’s negligent operation of his motor vehicle on January 31, 2013 and his liability for such motor vehicle accident as between these parties is not in issue on these motions, as confirmed in Mr. Pellerin’s above April 19, 2019 consent, the June 15, 2020 consent order and the August 20, 2020 consent orders in each action.

[32] The parties agree that aside from the question on these motions as to whether Slavko is legally responsible and therefore liable for the negligence of Mr. Pellerin, the remaining issues in each of these actions to be determined at trial are:

a. the nature and extent of injuries suffered by the plaintiffs as a result of this collision; and

b. what level of damages are the plaintiffs in each action entitled to.

[33] The central issue in these four summary judgment motions is whether Slavko is legally responsible as the employer and therefore liable to the plaintiffs in each action for Mr. Pellerin’s negligent operation of his motor vehicle and the damages he caused in relation to this January 31, 2013 collision.

[34] Central to the issue whether Slavko is legally responsible is whether Mr. Pellerin at the time of this accident was acting within the course of his employment. That question raises the following issues:

a. whether Mr. Pellerin’s drive on this occasion in his motor vehicle from Ottawa towards Petawawa was authorized by and during his performance of his employment responsibilities to Slavko;

b. in the alternative, whether Mr. Pellerin only commenced performance of his employment on January 31, 2013 upon his arrival at Petawawa and starting to work as a concrete finisher at the construction site;

c. whether Mr. Pellerin’s decision to stop in order to stretch and purchase a coffee before continuing on to Petawawa, was authorized or permitted by Slavko under the terms of his employment;

d. whether Mr. Pellerin continued within the course of his employment or whether such employment was interrupted, as he attempted to turn off Highway 17 in order to stretch and purchase a coffee before continuing to drive to Petawawa; and

e. whether Mr. Pellerin’s wish to stop in order to stretch and purchase a coffee before continuing on to Petawawa, if unauthorized by Slavko, was so connected with authorized acts by Slavko that it may be regarded as a mode, although an improper mode, of doing an act authorized by Slavko.

Whether Motions Are Appropriate for Summary Judgment

[35] Examinations for discovery of the parties in each action were conducted, including of Mr. Pellerin, and are relied upon on these motions. The Court understands that there was no cross-examination of affidavit deponents on these summary judgment motions.

[36] The Dagenais plaintiffs, the McGlone plaintiffs and Slavko in both actions, agree that:

a. their common issue as to whether Slavko is vicariously liable for the negligence of Mr. Pellerin is appropriately determinable by way of summary judgment: and

b. that each of such motions should be determined now prior to the trial by jury of these actions.

[37] The Court agrees with the shared position of the parties that these four motions are appropriately and should be determined on these motions for summary judgment.

[38] Rules 20.04 (2) and (2.1) state:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[39] Summary judgment motions must be granted if there is not genuine issue requiring a trial: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 35.

[40] Slavko by affidavit could have provided more information as to the position and instructions its supervisor gave to Mr. Pellerin as to the January 31, 2013 travel arrangements regarding that employee’s drive to Petawawa including whether that employee was or was not authorized or permitted to stop enroute to stretch and pick up a coffee before continuing on.

[41] I am satisfied however that there is sufficient evidence now before the Court to permit it to consider and determine such matters with the use of the r. 20.04(2.1) powers to weigh the evidence and draw any reasonable inferences therefrom, that the interests of justice do not require that such powers be exercised only at trial, is proportionate, more expeditious and a less expensive means to achieve a just result: Hryniak, at para. 49.

[42] Slavko’s request that these four summary judgment motions now be decided reinforces that conclusion.

Whether Such Motions for Partial Summary Judgment Are Appropriate

[43] Rule 20.01 permits the parties to move for summary judgment on part of the claim in the statement of claim, namely whether Slavko is legally responsible and therefore liable for the negligence of Mr. Pellerin.

[44] A motion for partial summary judgment pursuant to r. 20.01 should be considered a rare procedure. It should be reserved for one or more issues that may be “readily bifurcated” from those in the main action and that may be expeditiously be dealt with in a cost effective manner: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34 and Ozimkowski v. Raymond, 2018 ONSC 5779, at para. 5, aff’d. 2019 ONCA 435.

[45] It is not submitted that the trial of these actions regarding damages has been delayed by the bringing of these motions.

[46] Despite the cost of such motions and the fact that their determination will not dispose of the issues as to damages, this court concludes that the issue as to whether Slavko as employer is legally responsible and liable for the negligence of its employee may appropriately be separated and determined independently on these motions from the remaining trial issue regarding damages as:

a. determination of whether Slavko is legally responsible and therefore liable for the negligence of Mr. Pellerin is unrelated to the remaining trial issues as to the damages of the plaintiffs. Determination of whether Slavko as the employers is legally responsible, is separate from and does not constitute a risk of inconsistent findings with the trial determine action regarding damages;

b. determination now of the issue as to Slavko’s legal responsibility and liability as employer will significantly shorten the length of evidence, of argument and the cost of the trial of these actions;

c. such jury trial would not be required to hear evidence on the issue as to liability;

d. determination of the liability issue as to this employer on these motions thereby advances access to justice;

e. given the agreement of all parties; and

f. pursuant to r. 20.04 (2)(b): Hryniak, para. 47 and Butera, at paras. 30- 34.

[47] This liability issue as to this employer should be determined on these summary judgement motions.

Nature of Proceedings Against Slavko

[48] The Statements of Claim in each action against Slavko alleges that:

a. Mr. Pellerin on this occasion negligently drove his vehicle, caused and is liable for this collision and damages to the plaintiffs;

b. Mr. Pellerin at all material times was employed by Slavko;

c. as Mr. Pellerin was travelling for the purpose of his employment at the time of the accident; Slavko and of that as his employer is vicariously responsible for his negligence.

[49] Slavko submits that various liability is a strict liability tort.

[50] The issue whether an employer should be liable for the wrong done by its employee is in law referred to as “vicarious”, “strict” or “no-fault” liability: Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534, at para. 1.

[51] Vicarious liability:

a. is a theory, not a tort, which holds one person responsible for the misconduct of another because of the relationship between them;

b. the most common relationship that gives rise to “vicarious” liability is the relationship between an employer and an employee;

c. involves whether an employer should be held liable for the wrong of its employee:

d. is known as “vicarious”, “strict” or “no fault” liability because it is imposed notwithstanding the absence of fault by the employer; Bazley, at para. 1, 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, at paras. 25-26 and K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403, at para. 20.

[52] The plaintiffs in these actions and in their summary judgment motions accordingly seek judgment against Slavko on the basis that it is legally responsible and therefore liable as the employer of Mr. Pellerin for his negligence during the course of his employment based on the legal theory of “vicarious”, “no-fault” or “strict” liability.

[53] The rule in the law of agency that a principal is only liable for the acts of his agent which he expressly or impliedly authorized, is subject to an exception in the case of the particular agency between an employer and its employee: T.G. Bright & Co. Ltd. v. Kerr, [1939] S.C.R. 62, at p. 73.

[54] Imposing vicarious liability in the employer/employee relationship will often serve both policy goals of fairness and deterrence. When the employer creates a risk, which materializes and causes injury, it is fair that the employer which created the enterprise and hence the risk should bear the loss. And assigning responsibility to an employer for an employee’s tort will often have a deterrent effect as employers are often in a position to reduce accidents by efficient organization and supervision: K.L.B. para. 20 and Bazley, at paras. 31-32.

[55] Pursuant to the Salmond test, employers are “vicariously” liable for torts falling within the “scope” or “course of employment” if such acts were:

a. authorized by the employer; or

b. unauthorized acts by the employee so connected to authorized acts that they may be regarded as modes, albeit improper modes, of doing an authorized act: Bazley paras. 6 and 10 and Sickel v. Gordy, 2008 SKCA 100, 2008 SKCA100, [2008] 9 WWR 397, at para. 26.

[56] The Dagenais and McGlone plaintiffs submit Mr. Pellerin’s actions of driving his motor vehicle on this occasion and his decision to stop to stretch and pick up a coffee pursuant to the Salmond test as to when employers will be held vicariously liable for the actions of its employees, were:

a. actions within his employment and authorized by the employer; or

b. in the alternative, were unauthorized actions so connected with authorized acts that that they may be regarded as modes, albeit improper modes, of doing an authorized act.

[57] Slavko submits that the issue whether it is vicariously liable for the tort of Mr. Pellerin is governed by the second branch of the Salmond test regarding unauthorized acts of an employees which is a matter to be determined pursuant to the decision of the Supreme Court of Canada in Bazley, by identifying whether there are any judicial precedents in a similar fact scenario, failing which, the Court is to determine whether vicarious liability should be imposed based on the policies of fairness and deterrence. Slavko submits there are no Ontario authorities sufficiently close as to whether it is vicariously liable on the facts in this case.

Respondeat Superior

[58] The Dagenais plaintiffs, based upon several of the decisions they argued, submit that that Slavko is also legally responsible and liable pursuant to the similar relationship liability doctrine of respondeat superior.

[59] Pursuant to the agency doctrine of respondeat superior, it is fair and not unjust that he who selects the agent and will have the benefit of the agent’s services if efficiently performed should bear the risk of the agent’s negligence in “matters incidental to the doing of the acts, the performance of which have been entrusted to him.” T.G. Bright, at pp. 69- 70.

[60] Under the doctrine of respondeat superior:

a. a principal is liable to third persons for negligence of his agent in the course of the agent’s engagement even though the principal did not authorize know of such misconduct or even forbid the acts, provided the negligence occurred in the course of the agency; and

b. a principal who expects to derive advantage from an act which is done negligently by another for him in the course, must answer for an injury which a third party may sustain from it: T.G. Bright, pp. 69 and 70

[61] As to the current status of the doctrine of respondeat superior and how it relates to the doctrine of vicarious liability, Fridman’s The Law of Torts in Canada (Fourth Edition) states:

Rationale of Vicarious Liability

In order to provide a theoretical, legal and juridical basis for vicarious liability, two competing maxims have traditionally been relied upon by courts to provide a theoretical, legal or judicial basis … . qui facit per alium facit per se … and respondeat superior …. (p. 300)

In the case of respondeat superior, the person who is the master or controller of the one who has acted tortuously is answerable for what was done simply because that person was the other’s superior and, inconsequence, in charge or command of the … perpetrator of harm. This will only be so however if what was done was done in the course of the duties entrusted to the tortfeasor. But liability will ensue even if the act was not for the benefit of the superior but for the benefit of the one subject to control and command. The superior is liable as they are the superior … and ought to have controlled the behaviour of the tortfeasor. … The problem with this theory, however is that the courts have held the superior liable even where it was physically or otherwise impossible for the superior to have exercised real, meaningful control over the conduct of the of the tortfeasor physically … maybe because of distance … . Notwithstanding this, courts have held that, once the relevant relationship existed between the tortfeasor and the superior, vicarious liability results, unless what was done was wholly outside the scope of the activities for which the tortfeasor was employed by the superior. (p. 301)

Given the perceived inadequacies of qui facit per alium and respondeat superior, however, modern courts have turned from these legalistic justifications to policy to explain vicarious liability. The Supreme Court in Bazley stated that vicarious liability is justified by the policies of fair compensation and deterrence. (p. 302)

The combined enterprise risk and deterrence justifications for vicarious liability adopted in Bazley have now become firmly ensconced in Canadian law and have been applied in numerous Supreme Court of Canada decisions. (p. 303)

Cases confirming vicarious liability under the second Salmond branch as to unauthorized acts in furtherance of the employer’s aims, rely upon the agency rationale implicit in that second Salmond test, namely because the employee was acting in furtherance of the employer’s aims, they are said to have “implied” or “ostensible” authority to do the unauthorized act. Such rationale is appropriate for torts of negligent accident.: Bazley, para. 28 and Sickel, para. 27.

Parties’ Position Whether Mr. Pellerin Acted Within Course of Employment

[62] The Dagenais and McGlone plaintiffs submit that Slavko is legally responsible and should be held liable for the negligent operation by Mr. Pellerin of his vehicle at the time of this accident because:

a. Mr. Pellerin was acting within his and performing his employment responsibilities as he drove his vehicle to Petawawa, as directed by Slavko;

b. Mr. Pellerin was entitled to two hours of his regular hourly salary as well as a distanced based mileage allowance while he drove to Petawawa, thereby evidencing he was acting within the course of his employment at the time of this collision;

c. Slavko paid the required mileage allowance to Mr. Pellerin for the travel distance to and back from Renfrew;

d. Mr. Pellerin’s attempt to turn across Highway 17 in order to stop and pick up a coffee before continuing on was not a “personal frolic” interrupting his then performance of his employment and would at most have been a permissible short, slight detour in his performance of the direction to drive to Petawawa: and

e. M. Pellerin’s negligence in the operation of his vehicle occurred during the course of his employment.

[63] Slavko submits that Mr. Pellerin’s actions of driving his motor vehicle on this date and his decision to stop and pick up a coffee:

a. are governed by the second branch of the Salmond test as they were unauthorized acts which were not performed in the course of employment;

b. were not unauthorized actions so connected with authorized acts that that they may be regarded as modes, albeit improper modes, of doing an authorized act, pursuant to the second branch in Salmond: and

c. the circumstances in this case do not meet the policy consideration requirements as to fairness or deterrence as established in Bazley.in order to justify the imposition of vicarious liability.

[64] Slavko submits that the following circumstances, prior to and at the time of this collision, should lead the Court to not impose liability:

a. Mr. Pellerin was driving to work to the construction site in Petawawa where his employment responsibilities would then commence, and he was not then at work or working on behalf of Slavko;

b. Mr. Pellerin was employed as a cement finisher;

c. Mr. Pellerin was not then driving his automobile at the request or direction of Slavko, that rather than travelling by transportation arranged by Slavko, he choose to drive his own automobile for unknown reasons;

d. Mr. Pellerin used his personal vehicle to run a number of personal errands in Ottawa prior to his departure to Petawawa;

e. Mr. Pellerin had no need to stop at Renfrew to pick up or purchase anything related to his employment with Slavko;

f. Mr. Pellerin’s drive to Petawawa did not require it, however he decided to turn left off Highway 17 in order to buy a coffee before proceeding further and but for that turn, this collision would not have occurred;

g. Mr. Pellerin was not paid an hourly wage on January 31, 2013 and Slavko has no record of paying him a mileage allowance to or from Renfrew for that date;

h. Mr Pellerin was not in the supervision, care or control of Slavko as he drove his personal vehicle on this date; and

i. The operation of a personal vehicle is not one of the risks associated with Mr. Pellerin’s employment as a cement finisher with Slavko.

When Did Mr. Pellerin’s Employment “Commence”

[65] The Court disagrees with Slavko’s submission that it can only be held vicarious liable for the negligence of Mr. Pellerin upon his arrival in Petawawa and during his performance of his concrete finisher responsibilities at the construction site, but not during his travel from Ottawa to that site..

[66] Slavko’s business involving the pouring and finishing of concrete floor slabs was not limited to the City of Ottawa. It conducted that business in distant locations in Eastern Ontario such as Petawawa. The business conducted by Slavko, including its employment and deployment of concrete pour and finish tradesmen like Mr. Pellerin, involved and required that it direct such employees to travel to distant site locations such as Petawawa in order to and as part of it carry on its business.

[67] This accident did not occur during what for many employees is their common daily trip of driving from home to their office or place of work in order to perform their employment responsibilities at or in the premises of the employer. Slavko on discovery stated their trade employees like Mr. Pellerin “always” went from their residence directly to the job site and did not first come to that employer’s Ottawa office.

[68] It is acknowledged that Slavko on January 30, 2013, directed Mr. Pellerin to go to Petawawa on January 31, 2013, to work there on its behalf and to then return to Ottawa. That direction involved him travelling some four hours and 340 kilometers return on behalf of Slavko in order to enable that employer to conduct that business project.

[69] Slavko on discovery acknowledged that Mr. Pellerin on January 31, 2013 was carrying in his vehicle the tools he would be using as a concrete finisher that day.

[70] Tradesmen like Mr. Pellerin pursuant to the then terms of the C-A:

a. were to be paid a specified hourly rate of pay for work performed during the regular specified hours, between 7:00 a.m. and 5:00 p.m., during a regular 40-hour work week;

b. were to be paid their hourly rate of pay when the employer required them to travel outside the National Capital Commission Greenbelt, up to a maximum of four hours per day in the case of travelling to and from Petawawa;

c. were to have their transportation arranged by the employer if the construction project was located beyond the National Capital Commission Greenbelt; and

d. were to be paid at the rate of $0.48 cents per kilometer, via the shortest route, if an employee was required to travel from one job site to another and used his own motor vehicle to do so.

[71] The obligation to pay and the employees’ entitlement to receive their regular hourly rate of pay for travel time to and from a construction site outside such Greenbelt area, to a maximum of four hours per day, contradicts Slavko’s submission that Mr. Pellerin while so travelling on January 31, 2013, was not “then at work” and was not while so driving to that distanced site therefore acting within the course or scope of his employment.

[72] Mr. Pellerin on the evidence, claimed and repeatedly asked for payment by Slavko of his January 31, 2013 hourly rate of pay for four hours travel time and his return mileage allowance between Ottawa and Renfrew on that date.

[73] Slavko, despite the C-A requirement to do so and the employee’s request for payment, never paid wages to Mr. Pellerin for his travel time on January 31, 2013. Slavko’s breach of that C-A obligation cannot be relied upon in support of its argument that Mr. Pellerin was not acting within his employment as he drove to Petawawa pursuant to that directive from his employer.

[74] The Court concludes on the evidence that Slavko paid Mr. Pellerin his return mileage allowance pursuant to the C-A for his travel in his vehicle on January 31, 2013 to and from the point of the collision. Mr. Pellerin claimed the $120.23 allowance and asked for its payment on several occasions. Slavko paid that mileage claim to Mr. Pellerin in June 3013. The cheque stub states it is payment of his travel allowance to Renfrew. Slavko acknowledged that Mr. Pellerin in June 2013 did not work at a Renfrew job site for Slavko. That cheque stub from Slavko contradicts its undertaking statement that it can find no record of such payment. Slavko has no records or evidence in contradiction of Mr. Pellerin’s evidence and his written records which include the Slavko cheque stub that the employer paid such mileage allowance to him.

[75] Slavko’s payment of that travel allowance was made pursuant to its C-A obligation which formed part of Mr. Pellerin’s terms of employment and entitlement as a Slavko employee in his performance of his employment obligations and employment contract.

[76] Slavko’s argument that Mr. Pellerin’s did not commence acting within the course of his employment until he arrived and commenced work as a concrete finisher in Petawawa, is similar to the argument rejected by the English Court of Appeal in Nancollas v. Insurance Officer; Ball v. v. Insurance Officer, [1985] 1 All ER 833.

[77] Although not binding, this court finds the Nancollas decision relevant and informative as to whether Mr. Pellerin was acting in the course of his employment as he drove towards Petawawa to commence work as a concrete finisher.

[78] Mr. Nancollas was a disablement settlement office in the Department of Employment. He was injured as he drove to another town to interview a disability claimant. He worked from a central office. He also travelled to and worked at other regional offices and at the homes of some disabled claimants he attended to interview them.

[79] As a result of his injury, Mr. Nancollas applied for industrial injury benefits under s. 50(1) of the Social Security Act, 1975, which stated that “…. where an employed earner suffers personal injury …. by accident arising out of and in the course of his employment, being employed earner’s employment, there shall be payable to in respect of him …. industrial injury benefits …..”

[80] Unlike similar Ontario workmen’s safety insurance compensation or injury benefit decisions relied upon in this case, there were no policy directives interpreting and directing decision makers regarding that legislative wording in Nancollas referred to or relied upon by the Court of Appeal.

[81] Mr. Nancollas had interviewed a claimant on a prior occasion in one town. He then scheduled an appointment to continue that interview the following day in another town and then drive back to his home in a third town.

[82] Mr. Nancollas departed from his home the following morning to drive to the other town where he would meet and conduct the interview with the disabled person. It was during this drive that the motor vehicle accident and his injury occurred.

[83] Mr. Nancollas applied for but was initially denied injury benefits on the basis that he was not at the time of the injury acting in the course of his employment. That denial was later reversed and the matter then came before the Court of Appeal.

[84] The Court of Appeal stated the issue was whether Mr. Nancollas:

a. “was at the relevant time engaged on an activity which was in the course of his employment or whether he was going from his home to another place in order to resume his employment.”

b. was “whether the journey was not only in the course of, but part of his work: whether at the material time the road was his work place.”: and

c. was “employed to, inter alia to drive to places in his area at which disabled persons could be interviewed and there interview them or whether he had a number of work places which he had to reach in order to work at them.”: at pp. 835- 836.

[85] The Court of Appeal held that Mr. Nancollas was “an itinerant officer who, in the course of his employment, had to roam his area calling at appropriate offices and, no doubt, private homes to attend case conferences and to interview disabled people. In driving to Aldershot, Mr. Nancollas was not going to work. That was part of his work.”: Nancollas, at p. 837

[86] The Court of Appeal cautioned that decision makers in determining entitlement must avoid the dangers and temptations of being nearsighted and must stand back and look at the full circumstances or picture as a whole: Nancollas, at p. 838.

[87] The Court of Appeal concluded that while he drove to the other city in order for him to conduct the interview with a claimant, Mr. Nancollas at the time of the accident was acting in the course of his employment.

[88] The Court of Appeal in Sickel v. Gordy, used similar reasoning and reached the same conclusion that the employee in that case as she drove and was in the course of stopping at a gas station was then “…doing what she was required to do as a term of her employment” and “doing what she was employed to do.”: paras. 36 and 39.

[89] The employer’s direction to Mr. Pellerin to travel to Petawawa, with a required time of arrival, that Mr. Pellerin was then transporting the tools he would be using that day as a concrete finisher and the above provisions of the C-A which required the employer to arrange the transportation and pay a salary and travel allowance, all indicate that Mr. Pellerin as he drove from Ottawa enroute to Petawawa on January 31, 2013, in the words of the Court of Appeal in Nancollas, “… was not going to work. That was part of his work.” and was then acting in the course of his employment on January 31, 2013.

[90] For these reasons, there is a significant and sufficient connection to Mr. Pellerin’s employment as he drove from Ottawa towards Petawawa.

Use of Personal Vehicle

[91] The fact Mr. Pellerin drove his own vehicle on January 31, 2013 does not on the evidence establish that he thereby was acting outside the course of his employment as he drove enroute to Petawawa.

[92] Mr. Pellerin on January 31, 2013 was only going to drive to Petawawa as directed by his employer in transportation arranged or provided by Slavko, or in his own vehicle.

[93] Driving a company vehicle may be an indicia of but is not determinative as to whether the employee was acting within the course of their employment while doing so. All relevant evidence must be considered.

[94] Slavko in seeking summary judgment has the onus on its motions to place all relevant evidence before the Court regarding the issues. Slavko is also required to present the relevant evidence in response to the plaintiffs’ summary judgment motions. The issues include its argument that liability should not be imposed on Slavko because Mr. Pellerin at the time of the accident was driving his own vehicle and was not in a vehicle owned by the employer.

[95] Mr. Pellerin on the evidence was directed by his supervisor on January 30, 2013 to attend the following day to work as a concrete finisher at the Petawawa site and to be there to do so by noon on January 31, 2013.

[96] Slavko filed no affidavit by, or evidence based on information and belief, from such supervisor as to:

a. the employer’s obligation to arrange Mr. Pellerin’s transportation on January 31, 2013,

b. why or whether Mr. Pellerin was directed to travel in the company vehicle with the other five tradesmen who were to commence the concrete pour prior to 9:00 a.m. on January 31, 2013;

c. whether that supervisor directed or agreed that Mr. Pellerin drive to the site in his vehicle for his directed later noon scheduled arrival to work as a finisher.

[97] Slavko instead filed a thirteen-paragraph affidavit of its Ms. Veljkovic who describes herself as a “co-owner” of Slavko. It was the Slavko supervisor of Mr. Pellerin and not Ms. Veljkovic who spoke to and directed Mr. Pellerin to attend the Petawawa site and who should have addressed his transportation arrangements.

[98] Ms. Veljkovic in her affidavit states on information she received from Mr. Pellerin’s supervisor, that such supervisor told Mr. Pellerin on January 30, 2013 that he was to be at the Petawawa site by noon on January 31, 2013.

[99] Ms. Veljkovic states in her affidavit that:

a. Slavko was required by the C-A to arrange transportation for employees who were required to travel to job sites beyond the Ottawa Greenbelt;

b. Slavko also allowed employees to travel to job sites in their personally owned vehicles if the employee preferred to do so;

c. Slavko arranged the transportation of its five other employees who travelled together for the earlier concrete pour on January 31, 2013;

d. without reference as to what the supervisor told Mr. Pellerin, that Slavko did not instruct Mr. Pellerin to drive to the job site in his personal vehicle on January 31, 2013; and

e. without reference as to what the supervisor told Mr. Pellerin, that Mr. Pellerin chose to drive on January 31, 2013 in his own vehicle for reasons unknown to Slavko.

[100] Ms. Veljkovic on discovery stated that the employer tried when it was possible to keep groups of employees travelling to distant sites together but if that was not possible, Salvko permitted workmen to travel in their vehicle if they choose to do so. That policy of Slavko does not alter its C-A obligation to arrange transportation of employees like Mr. Pellerin.

[101] Mr. Pellerin on discovery was asked whether he had the option on January 31, 2013 to travel earlier with the other five Slavko employees in the employer’s vehicle. He stated he did not have that option on January 31, 2013 because he was assigned as a later finisher of the concrete and was not involved in the earlier pouring of the concrete.

[102] It was not asked or suggested Mr. Pellerin on discovery:

a. that Slavko on January 30, 2013 directed or requested that he travel together with the other employees in the transportation it arranged for those five other employees who were to commence work on site approximately four hours prior to Mr. Pellerin’s scheduled time to commence his work as a concrete finisher;

b. that Mr. Pellerin objected to using his employer’s earlier arranged transportation for the other employees;

c. that Slavko offered or directed him to take later transportation to Petawawa that it would arrange as required pursuant to C-A due to his later commencement time as a concrete finisher; or

d. that Mr. Pellerin asked and received Slavko’s permission to use his own vehicle instead of transportation the employer offered to arrange.

[103] Mr. Pellerin’s use of his vehicle if not directed by, was authorized by Slavko on the evidence as:

a. Slavko directed him to attend this worksite some 170 kilometers. away;

b. there is no evidence contradicting Mr. Pellerin’s discovery evidence that he could not have travelled with the other five employees some four hours earlier;

c. there is no evidence this employer directed or made any arrangements as required in the C-A for Mr. Pellerin to travel by any means other than his use of his own vehicle or directed him to travel by other means;

d. in carrying out that travel direction, Slavko was required to pay Mr. Pellerin his hourly salary to a maximum of two hours each way and a mileage allowance if he drove his own vehicle; and

e. the employer on the evidence paid such mileage allowance to Mr. Pellerin to and back from Renfrew for January 31, 2013.

[104] The obligation under the C-A for Slavko to arrange Mr. Pellerin’s travel on this occasion was that employer’s requirement and opportunity to exercise control of that employee during such travel to that destination. That further contradicts Slavko’s argument that Mr. Pellerin’s employment did not commence prior to his arrival in Petawawa as it had no control of him as he drove there.

[105] There was for these reasons a significant and sufficient connection to Mr. Pellerin’s employment as he drove his vehicle on this occasion.

[106] Mr. Pellerin’s use of his vehicle on January 31, 2013 on the evidence was either pursuant to the direction or agreement of his employer and was thereby authorized conduct. That fact, together with the employer’s obligation to pay and Mr. Pellerin entitlement to receive salary and a mileage allowance during that directed travel to such distant location leads the Court to conclude that Mr. Pellerin was acting within the course of his employment as he drove his automobile on Highway 17 on January 31, 2013.

Whether Turn to Pickup A Coffee Was Unauthorized, Sufficiently Connected To or Interrupted Course of Employment

[107] The test in Ontario as to whether an employee was acting within the course of their employment at the time in issue, including for non-intentional torts, is as stated in Bazley at para. 41(2), Collings v. Jew, 2008 CanLii 38259, at para. 11, (Ont. S.C.), aff’d. 2009 ONCA 18, at para. 3 and Fridman’s The Law of Tort in Canada, pp. 336-337.

[108] The fundamental question in determining whether an employer is vicariously liable for an employee’s unauthorized, intentional wrongful act under the second branch of Salmond, is whether the wrongful act is sufficiently related to conduct authorized by the employer. The degree of connection between the tort and the employment is broad. Imposition of vicarious liability is generally appropriate whether there is a significant connection between the creation of a risk by the employer and a wrong that accrues therefrom, even if unrelated to the employer’s desires. Subsidiary factors may be considered. A significant connect between the creation of a risk and the wrong that accrues from that will serve the policy considerations of providing an adequate and just remedy and deterrence.: Bazley, paras. 37, 39 and 41(2).

[109] The Supreme Court in Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, relying upon its decision in Bazley, stated the level of connection required as follows:

20 Vicarious liability may be imposed where there is a significant connection between the conduct authorized by the employer or controlling agent and the wrong. Having created or enhanced the risk of the wrongful conduct, it is appropriate that the employer or operator of the enterprise be held responsible, even though the wrongful act may be contrary to its desires….[Emphasis Added]

[110] Plaintiffs seeking imposition of vicarious liability on an employer must demonstrate “that the tort is sufficiently connected to the tortfeasor’s assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise”: ,K.L.B., para. 19.

[111] To be successful in a claim for vicarious liability, the plaintiffs must demonstrate that the tort was committed in the course and scope of employment, namely the tort “is sufficiently connected to the tortfeasor’s assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise”: K.L.B., para. 19 and Canadian Law of Tort, Eleventh Edition, A.M. Linden, B. Feldthusen, M.I. Hall, E.S. Kneutsen and H.A.N. Young, para. 11.59.

[112] It is not the employee’s negligence that must be seen to be authorized by the employer under the Salmond first branch. The question of authorization is as to the activity in which the employee is engaged when the negligence occurred which incidentally, was negligently performed.: Bazley, paras. 37 and 40 and Sickel, at paras. 29, 36 and 39.

[113] Courts over time under the second Salmond branch have imposed vicarious liability on employers for the acts of their employee in cases of negligence as the method of performing the act was done negligently and not carefully. Vicarious liability for negligent acts in the course of employment are clear. An employer would not be held vicariously liable where the employee’s actions were committed “on a frolic”, but will be imposed if a “departure from employment guidelines could be said to be a “mere detour.””: Fridman’s, at p. 332.

[114] Policy dictates that liability for agents should not strictly be confined to acts done with the employer’s authority: Dubai Aluminum Co. v. Salaam, [2003] 2 S.C. 336 H.L., at para. 22.

[115] Mr. Pellerin on discovery stated that it was common for he and his fellow tradesmen while travelling to distant sites to arrange and to stop enroute in order to buy a coffee. He further stated that Slavko was told and knew of this and his practice to do so on such longer drives.

[116] Slavko led no evidence that it prohibited Mr. Pellerin, or its other tradesmen, from stopping to purchase a coffee, or to buy gas and/or to use a washroom, during longer trips such as this directed 170 K., two-hour drive to Petawawa, and had so advised Mr. Pellerin.

[117] Mr. Pellerin’s attempt to turn across Highway 17 on January 31, 2013 was not to buy gas or to use a washroom. Stopping for those reasons however, like stopping to stretch and pick up a beverage before continuing, are common necessities and occurrences for automobile drivers, and/or their passengers, involved in highway travel over longer distances and time periods, whether driving as part of their work or for personal reasons.

[118] Mr. Pellerin’s decision to stop briefly whether to stretch and pick up a coffee, to buy gas or use a washroom may well involve the same amount of time or distance and during which, Mr. Pellerin was entitled to be paid his regular hourly wage, up to a maximum of four hours per day.

[119] Such common necessities to stop briefly, for any of those reasons, in the case of employer directed travel over longer distances occurs while the employee is carrying out that travel direction of their employer, which in this case was part of Slavko carrying on its business enterprise in Eastern Ontario.

[120] The C-A is again relevant and important as to whether this attempt to turn off Highway 17 in order to stretch and buy a coffee before continuing on to Petawawa.

[121] The terms of employment in the C-A state that:

a. Mr. Pellerin was “allowed to have one paid refreshment break of ten (10) minutes during each half of his working shift (p. 43); and

b. If requested to work overtime, he was to be provided with a ten (10) minute paid break period prior to the start of the overtime;(p. 44).

[122] The word “shift” is not a defined term in the C-A.

[123] Although his work as a concrete finisher had not yet commenced when this accident occurred, Mr. Pellerin’s performance of his employment “shift” had commenced at least one hour prior to this collision, during which time he was entitled salary and payment of a kilometer allowance.

[124] The C-A places not location limitation as to where such breaks may be exercised.

[125] Independent of the definition of the word “shift”, Mr. Pellerin’s terms of employment specifically acknowledged and entitled him to stop his work on behalf of the employer for brief break periods. Such breaks permitted workers to attend to their personal needs during such break periods.

[126] There was for these reasons therefore a significant and sufficient connection to Mr. Pellerin’s employment as he attempted to turn off of Highway 17 for that limited purpose. Mr. Pellerin’s operation of his vehicle at the time of this collision was not a “but for” or a “coincidental link” to his employment as described in Bazley .

Courts have held that a mere deviation or brief detour by an employee while driving in the course of employment does not interrupt such employment.

[127] The Supreme Court in reaching its decision in Battistoni v. Thomas, 1932 CanLII 255 (SCC), [1932] S.C.R. 144, quotes the following principles from earlier British decisions which held that the negligent driving of the employees in those cases may have resulted in liability to the employer if their driving at that point was:

a. a mere deviation from the direct route; or

b. a brief detour: Battistoni, p. 147 and Mitchell v. Crassweller, (1853) 22 L.J.C.P. 100.

[128] Although not binding the Court finds the reasoning in Smith v. Stages and another, [1989] All ER 833 is informative, relevant and supports this attempted turn to pick up a coffee occurred during the course of employment.

[129] The employee in Smith was employed as an installer of insulation at power stations located in different areas of the country. The employer sent the plaintiff and his co-worker to perform that work at a power station which required that they drive to another city. That work lasted over one week. The employees were paid eight hours travel time each way plus a travel allowance in an amount equal to the cost of train fare. The plaintiff rode in the car driven by his co-worker. He was injured on their trip back to their city at the end of the week when the co-worker negligently drove into a telephone pole.

[130] The plaintiff sued his co-worker in negligence for causing the accident and their employer relying upon the doctrine of vicarious liability.

[131] The issue, like this case, was whether the accident occurred during the plaintiff’s course of employment and therefore whether the employer was liable.

[132] The House of Lords determined that the accident occurred during the course of employment.

[133] The employer during argument requested that the House of Lords provide guidance due to the many actions involving similar claims against employers in the event it was determined to be liable. In response to that request, the House of Lords stated several prima facie propositions which are relevant as to Mr. Pellerin’s acts in this case which include the following:

2. Travelling in the employer's time between workplaces (one of which may be the regular workplace) or in the course of a peripatetic occupation, whether accompanied by goods or tools or simply in order to reach a succession of workplaces (as an inspector of gas meters might do), will be in the course of the employment.

3. Receipt of wages (though not receipt of a travelling allowance) will indicate that the employee is travelling in the employer's time and for his benefit and is acting in the course of his employment, and in such a case the fact that the employee may have discretion as to the mode and time of travelling will not take the journey out of the course of his employment.

4. An employee travelling in the employer's time from his ordinary residence to a workplace other than his regular workplace or in the course of a peripatetic occupation or to the scene of an emergency (such as a fire, an accident or a mechanical breakdown of plant) will be acting in the course of his employment.

5. A deviation from or interruption of a journey undertaken in the course of employment (unless the deviation or interruption is merely incidental to the journey) will for the time being (which may include an overnight interruption) take the employee out of the course of his employment: p. 851. [Emphasis added]

[134] Although again not binding, the Court finds the reasoning in the following California Court and Court of Appeal decisions informative and relevant. The cases involved civil tort actions for damages and appellate review of disability compensation awards as to whether conduct of an employee or an event at the time of an accident occurred during the course of employment.

[135] The employee in Western Greyhound Lines v. Industrial Accident Commission and G. I. Brooks, 225 Cal. App. 2d 517, was employed as a bus driver by Greyhound. She drove Greyhound buses between designated locations, which in that case included a forty- minute layover at one station before commencing her next trip. During such layovers, she remained on salary, was not required to remain at the bus depot and on this occasion walked to and had a coffee in a nearby restaurant where another patron attacked and injured her.

[136] The employee applied and was granted disability compensation by the Industrial Accident Commission. The employer appealed that award to the Court of Appeal where it argues that Commission had not proven that the employee’s injuries arouse out of or in the course of her employment and that the compensation award should therefore be set aside. The employer on that appeal, like Slavko in this case, argued that the injury to the bus driver occurred during her personal errand for her own pleasure, namely of having a coffee in a restaurant, which was unrelated to her employment.

[137] The Court of Appeal in Greyhound quotes several prior court decisions regarding disability entitlement which involved those courts determining whether an event occurred during a period of employment.

[138] The Court of Appeal in Greyhound, without reference to any policy guidelines of or to the Commission, held that the injuries to the employee occurred in the course of and arouse out of her employment as:

a. she was being paid during the layover;

b. she would not have been at that restaurant had she not been working on a late night shift;

c. she was drinking coffee because she had been driving a bus and would again be doing so shortly;

d. she was exposed to the danger she encountered as a Greyhound employee; and

e. that there was no interruption of employment and that the Commission on the facts could have concluded that it was very much to the advantage of Greyhound for the bus driver to refresh herself with a cup of coffee at that late hour before leaving on the next run: para. 8.

[139] The Court of Appeal in Greyhound adopted the following statements by the Court of Appeal in Western Pipe & Steel Co. v. Industrial Accident Com., 49 Cal. App.2d 108.

[140] Western Pipe involved entitlement to a death benefit for an employee killed during his authorized meal break as he drove several miles to, parked and then walked towards a restaurant for a meal. The adopted statements from Western Pipe include the following:

a. that it was not indispensable to recover a death benefit that the employee should be rendering service to the employee; and

b. that a slight deviation, such as crossing the street for cigarettes at the time of the accident was reasonably contemplated by the employment and would not take an employee outside his employment; and

c. “When the employer pays the employee at an hourly rate during his meal hours …. it seems to be, and is a reasonable inference, that by such an arrangement the employer has impliedly agreed that service will continue during such period.”: at paras. 2-4.

[141] The decision of the California Court of Appeal in Marvin Lazar v. Thermal Equipment Corporation, (1983) 148 Cal. App. 458, is an appeal of a decision in a civil jury trial. The plaintiff was struck and injured by the defendant’s truck which was driven by its employee. The employee at the time of the accident had diverted from the regular route in order to shop at a store before proceeding as authorized to his home.

[142] The plaintiff sued the employee driver and the driver’s employer pursuant to the doctrine of respondeat superior.

[143] The Court of Appeal held that the defendant employee was acting in the scope of his employment which was not interrupted by the diversion in driving to the store as the employee was in the course of returning the vehicle, to the benefit of the employer, to his home. The Court of Appeal held that the employee’s detour on the way home from work was a minor deviation from the scope of his employment because it was a minor and foreseeable departure from his employer’s business.

[144] In reaching such conclusion, the Court of Appeal stated:

a. “Under the doctrine of respondeat superior, an employer is responsible for the torts of his employee if these torts are committed within the scope of employment.”;

b. “Whereas the prior justification of the respondeat superior doctrine was based on theories such as a master’s control of the employee, …. the modern justification for vicarious liability is a rule of policy, namely that the losses caused by the torts of an employee, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. ... They are placed upon the employer because … it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them through prices, rates and liability insurance, to the public and so to shift them to society …”;

c. “Categorization of an employees’ actions as within or outside the scope of employment thus begins with a question of foreseeability, i.e., whether the accident is part of the inevitable toll of a lawful enterprise.”

d. ”One way to determine whether the risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. …. foreseeability as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs if the employer’s business”;

e. “One traditional means of defining foreseeability is seen in the distinction between minor “deviations” and substantial “departures” from the employer’s business.” … “The question is often one of fact , … only a substantial deviation or departure takes the employee outside the scope of his employment. If the main purpose of his activity is still the employer’s business, it does not cease to be within the scope of employment by reason of incidental personal acts, slight delays or deflections from the most direct route”; and

f. “More recently, the test is stated in this way: “In assessing whether an employee’s wrongful act was required by or incidental to his duties, the law defines occupational duties very broadly. The fact an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer. …For example, acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal to himself and not acts of service, do not take him outside the scope of his employment.””

[145] Mr. Pellerin’s attempted turn was and his intention to stop, stretch and pick up a coffee before continuing on to Petawawa would have been a “mere deviation”, a “brief detour” and “incidental” to his drive for Slavko to Petawawa. That attempt and purpose would and did not interrupt him then acting in the course of his employment.

[146] Unlike several cases referred to in argument, Mr. Pellerin at the time of this collision:

a. Had not stopped travelling as directed by his employer

b. Had not stopped, exited his vehicle and was doing something other than driving;

c. Was not intending to meet others for a social encounter; and

d. was not intending to commence or in the course of a “frolic” unrelated to his terms of employment.

[147] The facts in this case, including the absence of prohibitive terms of employment or evidence from Slavko that a stop to pick up a coffee while driving such distances for the employer was prohibited, lead the Court to conclude that Mr. Pellerin under his terms of his employment and while driving as directed to this distant location was authorized to make a brief stop to pick up a coffee and then continue on his directed travel. His attempt to do so in this case occurred during the course of and did not halt or interrupt his then performance of his employment.

Conclusion Whether Acts Occurred During Course of Employment

[148] The Court has concluded that 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.

Whether Liability Should Be Imposed Pursuant to Doctrine of Vicarious Liability

[151] Slavko in arguing that all of the above actions of Mr. Pellerin were unauthorized acts, submits that the following are relevant considerations and should guide the Court in determining that Slavko should not be held vicariously liable for Mr. Pellerin’s negligent operation of his vehicle on January 31, 2013:

a. the policy principles of fairness and deterrence cited by the Supreme Court of Canada in Bazley;

b. the mandatory requirement under s. 192 of the Highway Traffic Act that Mr. Pellerin’s car be insured, as occurred; and

c. the particular facts and circumstances in this case.

[152] The Court of Appeal in Sickel held that the Supreme Court in Bazley dealt with unauthorized acts under the second branch of Salmond and did not narrow or alter the existing law regarding the imposition of liability for authorized acts under the Salmond first branch regarding authorized acts, in which case the policy analysis absent unambiguous precedent pursuant to Bazley did not apply: at paras. 27- 28.

[153] The Dagenais plaintiffs submit that Mr. Pellerin’s above actions were authorized by the employer, are governed under the Salmond first branch, relied upon the decision in Sickel in that regard, but argued the policy principles as to fairness and deterrence in Bazley in the alternative.

[154] The McGlone plaintiffs argued such policy grounds in Bazley in the alternative to their primary position that Mr. Pellerin’s actions were authorized acts and are governed by the first Salmond branch. They also relied upon the decision in Sickle.

[155] Pursuant to the decision in Sickel and this Court’s conclusion that the actions in issue were authorized by the employer under the first Salmond branch, a policy analysis pursuant to Bazley regarding unauthorized acts is not required.

[156] Notwithstanding that conclusion, the Court in the alternative will provide its conclusions regarding the Supreme Court’s approach as to precedent and policy analysis in Bazley.

Are There Unambiguous Precedents Whether Vicarious Liability Should Be Imposed

[157] The plaintiffs rely upon the Collings decision in which the employer was found to be vicarious liable for its employee’s negligent operation of a motor vehicle.

[158] Ms. Jew was attending her employer’s out of town training session and driving a vehicle provided by the employer at the time. She was driving back at the conclusion of that day’s training session to the hotel where she stayed during that training program when the collision occurred. The issue pursuant to the Insurance Act was whether pursuant to Bazley, there was a sufficient connection or nexus between the employment enterprise and the wrong that justified the imposition of vicarious liability.

[159] The Court in Collings concluded there was a sufficient connection as:

a. Ms. Jew’s then drive to the hotel, which was not her home, was part of her being out of town in Toronto at the request of her employer; and

b. The employer’s liability flowed from it being the employer, rather than it being the owner of the vehicle she drove: at paras. 7-12.

[160] Slavko submits the Collings decision is distinguishable as the employer in that case owned the vehicle driven by the employee, the employee was then out of town for several days at the request of the employer and she was then travelling to the hotel where she was staying during the training program and not to her home.

[161] Slavko’s first alleged distinction as to vehicle ownership is incorrect as the Court in Collings specifically stated that its imposition of liability was based on the defendant being the employer and not on its ownership of the vehicle: at para. 12.

[162] Mr. Pellerin similarly was not driving to his home nor was he at the end of a workday.

[163] The facts in Collings are not identical to the present case. There are however important similarities and differences in the Collings case which support the conclusion that Mr. Pellerin was acting in the course of his employment at the relevant time, namely:

a. Mr. Pellerin at the time was also employed by and travelling out of town at the request of Slavko;

b. The Court’s reliance in Collings upon the employment relationship and not vehicle ownership, in determining there was sufficient connection between Ms. Jew’s employment and her negligent driving; and

c. The fact that Ms. Jew in driving to her hotel during that out-of-town employer directed conference, had finished her employment related conference work for day, whereas Mr. Pellerin was in course of performing the duties of his employment.

[164] Slavko submits a more applicable authority in the present case is Lockhart v. Stairs Building Ltd., 1994 CanLii 6530 (NB CA). The Court in Lockhart rejected a vicarious liability claim in determining that the employee while driving his own vehicle negligently was not doing something he was employed to do.

[165] The employee in Lockhart worked at the employer’s construction site. Weather conditions forced the site to close during the morning. The employer owned a fox farm and invited but did not direct the employees to work the balance of the day at such farm for which they would be paid their regular salary. The employer directed the route to the farm for those interested in working there for the balance of the day.

[166] The employee asked to leave the construction site early in order to do some personal banking and to then to go home. He took a different route in order to go to his home and the collision occurred before he got home. The trial judge, upheld on appeal, found that the employee:

a. was not entitled to a mileage allowance upon leaving the construction site;

b. would not have been paid for the balance of the day if he did not go and work at the fox farm; and

c. was not at the time of the accident doing something he was employed to do: pages 2 and 3.

[167] The Court of Appeal in Lockhart quotes from the trial decision. There is no reference by either court to that employee’s vehicle ownership as relevant in determining that the employee was not acting in the course of his employment.

[168] The decision in Lockhart is not comparable as Mr. Pellerin:

a. was driving to Petawawa as directed by his employer on the direct route via Highway 17;

b. was not driving to his home, a location unrelated to his employment; and

c. was entitled to salary and mileage in so driving.

[169] Slavko relies upon the decision in Battistoniin which the Supreme Court of Canada upheld the dismissal of an action against an employer for the negligent operation of that employer’s milk delivery vehicle during what that court referred to as the employee driver being on an extended “frolic of his own”.

[170] The employee in Battistoni was instructed to make a delivery of milk and to then drive and return to his home by 3 p.m.. The employee made the milk delivery but disobeyed his employer’s direction to drive back and return at the designated time. The employee instead:

a. changed out of his work clothes;

b. then went to dinner in a downtown café;

c. then picked up a friend who he spent two or three hours with;

d. he and the friend went to the theater and then drove to see another friend who was not home;

e. the employee therefore decided to drive his friend home and to then drive home during which time the accident happened.

[171] The Supreme Court on those facts held that the employee during these activities:

a. was not on the employer’s business;

b. did not fit within the principle of the “detour” cases as such activity “was not in any way connected with the business” of the employer; and

c. was on a frolic of his own: pp. 147-148.

[172] The facts in Battistoni are not comparable to the facts in this case.

Policy of Providing a Just, Fair and Practical Remedy to Victims of Wrong by Employees

[173] The Supreme Court of Canada regarding the related policy goals of fairness and deterrence has held that the employer-employee relationship is the most common relationship to attract vicarious liability. It has held that imposing liability in the context of that relationship will often serve the following and related policy goals underlying the imposition of vicarious liability:

a. of fair and effective compensation to the people harmed by the employee. It is fair that the organization that creates the enterprise which employs others to advance its own economic interest and that creates the resulting risk by the activities of it’s employee should, when those risks materialize and cause injury to the a member of the public, be liable for the losses incurred in the course of the enterprise, independent of and without diminishing the personal liability of the tortfeasor: and

b. of promoting deterrence, as the imposition of vicarious responsibility on an employer for an employee’s tort will often deter future harm as employers are often able to take steps to reduce harm or accidents by measures such as efficient organization and supervision: Bazley, paras. 31 to 34, British Columbia, para. 20, Blackwater, para. 20 amd Sagaz para. 25.

[174] The Supreme Court held that it is appropriate that an employer which has created or enhanced the risk of the wrongful conduct be held responsible, even if the wrongful act was contrary to the employer’s desires, as the fact that wrongful acts may occur is a cost of business: Blackwater, para. 20 and Bazley, para. 31.

[175] The business conducted by Slavko necessitated that it direct its employees like Mr. Pellerin to frequently travel considerable distances in vehicles as in this case. Extending one’s market over a considerable area enhances the employer’s business opportunities.

[176] Travelling by automobile involves risk of causing harm to others, such as these plaintiffs.

[177] The risk of a motor vehicle accident “was inherent in the very task this employee was assigned”, namely driving back and forth between Ottawa and Petawawa as Slavko directed Mr. Pellerin to do on this occasion: Sickel, at para. 38.

[178] Imposition of liability on the employer on the facts in this case is appropriate as the above stated business of Slavko created the associated risk which occurred, it should therefore be legally responsible for the loss associated to that risk and responds to the goal of ensuring “effective compensation” to the victims for their injuries: Bazley, at paras. 30-31.

[179] Slavko however submits that:

a. section 192 of the Highway and Traffic Act provides that as the owner of his vehicle, Mr. Pellerin is liable for damages sustained by the plaintiffs by reason of his negligent operation of his vehicle on a highway;

b. the purpose of s. 192 is to protect the public by imposing liability on a vehicle owner for all damages caused to others in the negligent operation of a vehicle on a highway;

c. section 192 supports Slavko’s position that it is the vehicle owner who should be found vicariously liable and not the employer of the employee/vehicle owner,

d. Mr. Pellerin at the time had an owner’s insurance policy with $2,000,000 of third party liability coverage and that insurer, pursuant to s. 2 of the Compulsory Insurance Act, is the first to respond to any claim related to the operation of a vehicle owned by the insured; and

e. it accordingly would therefore be unfair to impose vicarious liability on Slavko: Finlayson v. GMAC, 2007 ONCA 557 (CanLll),557 and Mugford v. Kodiak Construction Ltd., 2004 ABCA 145, at para. 31.

[180] The Court disagrees with this line of argument and it’s attempt to eliminate the legal responsibility and liability of this employer for the negligence of Mr. Pellerin during the course of his employment.

[181] Section 192 establishes liability for damages sustained by a person by reason of the negligent operation of a vehicle on a highway:

a. against the driver; and

b. against the owner of the vehicle, unless the vehicle was being driven without their consent: ss. 192(1)-(2).

[182] Mr. Pellerin owned and drove his vehicle on this occasion. His responsibility and liability has already been determined. Whether Slavko is also liable under either doctrine relied upon is what is the issue. The former does not determine the latter.

[183] Section 192, the fact that Mr. Pellerin is legally responsible and liable and the fact that Mr. Pellerin had some level of third party liability insurance does not address, alter or determine whether his directing employer is also legally responsible for and liable under the doctrines of vicarious liability, or respondeat superior.

[184] Slavko in argument stressed that the issues of the plaintiffs’ damages and the level thereof were not before this court and would be determined at trial. The fact of and Mr. Pelletier then chosen level of third-party liability coverage should not, in the absence of an acknowledgment by the plaintiffs that their combined damages are less that his third-party liability limit, support a fairness policy analysis conclusion that it would be unfair to hold Slavko liable in this case.

[185] The Court of Appeal in Mugford determined that the employer as owner of the vehicle was liable under the Alberta equivalent of Ontario’s s. 192(2) for the negligent operation of the company’s vehicle by its employee which caused damages to the plaintiffs as the employer had consented to the employee’s possession and use of that vehicle.

[186] Whether Slavko, had it owned the vehicle then being driven by Mr. Pellerin, would have been liable for the plaintiffs’ damages pursuant s. 192(2), is not a ground upon which liability is sought in these actions against this employer.

[187] It would not as a policy be unfair to also find Slavko as employer legally responsible and liable in this case.

[188] On the facts in this case, it would be unfair to not find Slavko legally responsible and liable in this case.

Policy of Deterrence to Avoid Future Harm

[189] Slavko submits that the policy of deterrence of future harm is not applicable as the risk of injury in this case is essentially independent from Mr. Pellerin’s employment and there was little it could do to avoid such risk.

[190] Slavko in support of this position relies upon the statement in Bazley that imposition of vicarious liability serves no deterrent purpose and is not justified where the wrong;

a. is only coincidentally linked to the activity of the employer and the duties of the employee: and

b. not closely and materially related to a risk introduced by the employer: Bazley para. 36.

[191] Regardless of why Slavko was required by the C-A to arrange for the transportation of its employees and why Slavko tried where possible to have its trades personnel travel together in a company vehicle, that C-A requirement and Slavko’s intention to carry out that objective where possible demonstrate:

a. the type of control and preventive measures available to this employer to reduce the number of vehicles its employees were using to travel to distant job sites; and

b. Slavko’s ability to reduce the associated risk to members of the public in having its employees travel such distances in fewer vehicles on January 31, 2013 in conducting such employer’s enterprise .

[192] Holding Slavko liable in this case, given its capacity through such administration and supervision measures to reduce the risk it had introduced into the community, may encourage it to enforce its existing obligation to arrange transportation or adopt other measures and thereby reduce the risk of future harm: Bazley, para. 33.

[193] For the reasons previously indicated:

a. the wrong to these plaintiffs was directly, not coincidentally, related to Slavko’s business activity of sending its tradesmen by vehicle to distant locations and the obligations of its employees to comply with those travel directives; and

b. vicarious liability in this case is closely and materially related to the risk introduced by Slavko and as occurred in this case.

[194] The Court, for the reasons previously determined, would in the alternative find that Mr. Pellerin’s drive on January 31, 2013 from Ottawa enroute to Petawawa, the fact he then drove his vehicle during that trip or his attempt to turn off the highway in order to stretch and pick up a coffee before continuing further:

a. were unauthorized acts so connected with authorized acts that each may be regarded as modes of doing an authorized act;

b. that imposition of vicarious liability in this case would be appropriate pursuant to the policies of fairness and deterrence; and

c. that imposition of liability on Slavko pursuant to the doctrine of vicarious liability is appropriate.

Conclusion

[195] In conclusion, the Court finds that Slavko is legally responsible for and liable pursuant to the doctrine of vicarious liability in both actions for the damages to the Dagenais and the McGlone plaintiffs caused by Mr. Pellerin’s negligent operation of his vehicle on January 31, 2013, as the actions of that employee in issue:

a. were performed during the course of his employment;

b. were acts authorized by the employer pursuant to the first branch of the Salmond test;

c. in the alternative if any of such acts were unauthorized, Slavko is also responsible and liable based upon the policy analysis as to fairness and deterrence.

[196] The Court in the further alternative, would find that Slavko as the employer and principal, is legally responsible and liable for the negligence of Mr. Pellerin as its agent pursuant to the doctrine of respondeat superior.

[197] The summary judgment motion of the Dagenais plaintiffs and of the McGlone plaintiffs are therefore granted against Slavko.

[198] Slavko’s motion for summary judgment in each action is dismissed.

[199] In reaching the above conclusions, the Court has not relied upon the decisions submitted by the plaintiffs, and by Slavko in the alternative, of the Ontario Workplace Safety and Insurance Appeals Tribunal, the Workers’ Compensation Appeals Tribunal or the judicial review decisions of such Tribunal decisions by the Divisional Court.

[200] The issues in such Tribunal decisions involved whether an injury occurred “in the course of employment.” Decision of that question determined whether an injured employee was entitled to benefits.

[201] Each of such Tribunal decisions and the judicial review decisions thereof refer to, and in most cases rely upon internal policy directives to benefit decision makers as to what events and circumstances are within, or beyond, the course of employment.

[202] Those directives to decision makers answer elements this court was required to determine. Such decisions therefore were not relied upon in this case.

Justice P. Kane

Released: June 25, 2021

COURT FILE NO.: 14-62167, 14-61807

DATE: 2021/06/25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ANNETTE DAGENAIS and RICHARDS DAGENAIS

Plaintiffs

– and –

GUY PELLERIN and SLAVKO CONCRETE FINISHING INC.

Defendants

AND BETWEEN:

JANET MCGLONE and JANET MCGLONE as Litigation Administrator for the Estate of ALLAN TIMMS

Plaintiffs

and –

GUY PELLERIN, SLAVKO CONCRETE FINISHING INC., ANNETTE DAGENAIS and JOHN DOE

Defendants

REASONS FOR JUDGMENT

Kane J.

Released: June 25, 2021