Employer Held Vicariously Liable for Employee Negligence

January 31, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Hinds v. Metrolinx

Decision Date: November 3, 2017
Heard Before: Emery J.

LIABILITY: employer held vicariously liable for the negligence of their employees

On July 23, 2009 Jannette Hinds boarded a GO Bus to go to work as she did every morning.  Unfortunately, the GO Bus driver engaged the bus in a forward motion, and then braked abruptly before Ms. Hinds had taken a seat. The driver’s operation of the GO Bus caused Ms. Hinds to fall in the aisle of the bus, striking a part of a passenger seat with her leg as she fell. Ms. Hinds commenced an against Metrolinx as the owner and operator of the GO Bus. She did not name the driver as a defendant.  Ms. Hinds was seeking general damages and damages for past and future housekeeping and home maintenance expenses.

Metrolinx admitted liability for the negligent operation of the GO Bus.  Although negligence was admitted, the causal link between the fall experienced by Ms. Hinds and the damages she was claiming has always been at issue.  The trial proceeded before a jury on the issue of damages. After nine days of trial, the jury found that Ms. Hinds had suffered personal injuries as a result of her fall on the GO Bus. However, the jury also found that Ms. Hinds had recovered from those personal injuries. The jury awarded Ms. Hinds $35,000.00 for general damages and $5,000 for past housekeeping and home maintenance expense. The jury awarded Ms. Hinds nothing for housekeeping and home maintenance expenses in the future.

There are three motions for this court to decide. These motions involve questions of law, having regard to the evidence at trial and the verdict returned by the jury:

1. Is Metrolinx is vicariously liable for the negligence of driver, despite the fact that it is a protected defendant under s. 267.5(5) of the Insurance Act. This motion requires the court to consider if and how the decision in Vollick v. Sheard, 2005 CanLII 13777 (ON CA), 75 O.R. (3d) 621 applies to these facts;

1. If it is found that Metrolinx is a protected defendant, the motion of the defendant to determine if Jannette Hinds did not suffer a permanent, serious impairment of an important physical, mental or psychological function. Jannette Hinds will not be entitled to general damages if her injuries do not meet that threshold. If they do, then the general damages awarded by the jury are subject to the statutory deductible in an amount that has been the subject of some dispute; and

1. A motion by Metrolinx reducing the damages awarded by the jury for past housekeeping and home maintenance expenses by the amount Jannette Hinds received from her own insurer under her own insurance policy.

Ms. Hinds had two jobs when she had the accident. One as a full-time customer service representative at a bank, and another part time as a bar tender. Although she was in pain after the fall Ms. Hinds didn’t go to the hospital or her doctor. She missed ten days of work due to the accident. Her full-time employer provided her with some accommodations (special chair). Ms. Hinds gave evidence about how her injuries had interfered with her life at home, and with her enjoyment of family and friends. She did not walk as much, and she could not enjoy watching TV and go to the movies as frequently as she participated in those activities before she fell.

Ms. Hinds accepted $15,000 from her own insurer, Allstate Insurance, for all accident benefits to which she was entitled to claim. Those accident benefits included her claims for past and future housekeeping and home maintenance expenses.

VERDICT OF THE JURY

The jury was given five questions to answer.

Q1:      Has Jannette Hinds proven, on a balance of probabilities that the fall in the GO Bus on July 23, 2009, has caused her personal injury?

ANSWER:      Yes

Q2:      Has Jannette Hinds recovered from those injuries?

ANSWER:      Yes

Q3:      At what monetary amount, if any, do you assess the general damage claims by Jannette Hinds for pain and suffering and loss of employment of life arising from her fall on the GO Bus on July 23, 2009?

ANSWER:      $35,000

Q4:      At what amount, if any, do you assess the claim made by Jannette Hinds for past housekeeping and home maintenance loss arising from her fall on the GO Bus on July 23, 2009?

ANSWER:      $5,000

Q5:      At what amount, if any, do you assess the claim made by Jannette Hinds for future housekeeping and home maintenance loss arising from her fall on the GO Bus on July 23, 2009?

ANSWER:      N/A

Counsel then made submissions to the court to seek clarification from the jury about the answer they had given to question 4. 

Q.   Is the $5,000 awarded for past housekeeping and home maintenance loss in Question #4 in addition to the $5,000 received by Ms. Hinds from Allstate Insurance set out in Exhibit #3, Tab 19, page 2 under the heading “Offer to Settle Benefits for Payment of Other Expenses – Housekeeping and Home Maintenance Benefits?

MOTIONS BEFORE THE COURT

There are essentially four questions on two motions brought by the parties after trial for the court to decide.  Those questions are:

1. On the plaintiff’s motion, whether the decision of the Court of Appeal in Vollick v. Sheard, 2005 CanLII 13777 (ON CA), 75 O.R. (3d) 621 applies in this case for the court to find that Metrolinx is vicariously liable under employment law principles as Mr. Dhanoa’s employer despite being a protected defendant under section 265.5(5) of the Insurance Act. 
2. On the defendant’s motion, if the case of Vollick v. Sheard does not apply, whether the plaintiff Jannette Hinds has suffered injuries that meet the threshold requirements to make the defendant Metrolinx liable for that non-pecuniary loss;
3. Whether, as a matter of law, the new deductible of $37,385.17 prescribed by Ontario Regulation 461/96, as amended to apply for tort awards between January 1 and December 31, 2017 up to $124,616.21 should be applied retrospectively to the jury’s award of $35,000 to Ms. Hinds; and
4. Whether the $5,000 awarded to Ms. Hinds for past housekeeping and home maintenance expenses should be reduced by the amounts received from her own insurer for settling her claims for that accident benefit.

The Court of Appeal released its decision in Cobb v. Long Estate, 2017 ONCA 717 (CanLII) while these reasons were under reserve. Cobb v. Long Estate answered questions 3 and 4 as matters of law.

1. Whether Vollick v. Sheard Applies

The Insurance Act  Subsection (6.1) reads as follows: In respect of an incident that occurs on or after the date this subsection comes into force, subsections (1), (3) and (5) do not protect the owner or driver of a public transit vehicle if it did not collide with another automobile or any other object in the incident.  2011, c. 9, Sched. 21, s. 3 (4).

In this action, the GO Bus did not collide with another automobile. If this subsection was in force at the time, it would mean that neither the operator, or Metrolinx as the owner of the GO Bus would be a protected defendant to limit their liability for damages payable to Ms. Hinds. The plaintiff no longer seeks this ruling. The language used in subsection (6.1) expresses the intention of the legislature to have the section apply to an incident involving an injury on a public transit vehicle that occurs on or after the subsection came into force. Subsection (6.1) came into force almost two years after the date Ms. Hinds fell on the GO Bus.

Counsel for Ms. Hinds focuses the motion instead on the applicability of Vollick to the facts. Ms. Hinds seeks an order that Metrolinx is liable despite being a protected defendant under section 267.5(5) of the Insurance Act under the principles set out in Vollick.  Vollick is a decision of the Court of Appeal that determined how an owner of a motor vehicle may be vicariously liable for the negligence of its employee in the operation of a motor vehicle involved in an accident despite each of them being a protected defendant and establishes that an owner may be vicariously liable for the negligence of its employee on employment law principles, even though they otherwise qualify as a protected defendant under the Insurance Act.

Subsection 267.5(10.1) does not limit the exposure of a person having vicarious liability to the liability of a protected defendant, but to the amount of damages for which a protected defendant is liable, if found liable. For (10.1) to mean something in relation to subsection (10), the legislature must be taken to have intended that the vicariously liable person’s damages must be subject to the reductions found elsewhere in s. 267.5.

The Judge considered various parts of the subsection as follows:

a.   The subsection opens with the words “despite any provision of this part”. I take from this language that the legislature intended for the subsection to stand alone from any of the other provisions of s. 267.5 that govern protected defendants;

b.   The words “a person vicariously liable for the fault or negligence of a protected defendant” refers to different persons. One would be an employer of another person. The other person would be that employee who would be considered a protected defendant under s. 267.5(5), being either the operator, occupants of an automobile or any person present at the incident.

c.   The owner of the motor vehicle would otherwise be liable for the negligence of its driver under employment law principles in addition to how that person would have been liable under s. 192 of the Highway Traffic Act;

d.   If the protected defendant is found at fault or negligent, the subsection refers only to that persons vicarious liability as an employer under the common law and not as an owner of the automobile or otherwise as a protected defendant;

e.   The person vicariously liable is not liable for any amount greater than the amount of damages for which the protected defendant is liable. This clause involves a determination of the amount of damages for which the protected defendant is liable to limit the liability of the vicariously liable person from any greater amount.

The fact that the driver was not named as a defendant does not matter. The term “protected defendant” is a defined term that is expressed in s. 267.3 to mean “a person who is protected from liability from subsections 267.5(1), (3) and (5), therefore, the driver was a protected defendant whether he was named as a defendant or not. This issue was rendered academic in any event when Metrolinx admitted liability for the negligent operation of the GO Bus by its driver.

A deductible of $37,385.17 must be applied to the jury’s award for non-pecuniary damages awarded to Ms. Hinds under subsection (10.1) from a reading of the authorities.

Vicarious liability

267.5 (10.1) Despite any provision of this Part, a person vicariously liable for the fault or negligence of a protected defendant is not, in respect of the person's vicarious liability, liable for any amount greater than the amount of damages for which the protected defendant is liable.

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

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