Highlights of Noteworthy Decisions

Decision 1086 15
R. McCutcheon
  • Negligence
  • Products liability
  • Right to sue
  • Supplier of motor vehicle, machinery or equipment

The plaintiff and personal defendant in a civil action were workers of Schedule 1 employers. They attended a mandatory health and safety training seminar. They were involved in a motor vehicle accident just after leaving the seminar, when the defendant's car struck the plaintiff's car. In Decision No. 1086/15I, the Vice-Chair found that the plaintiff's right of action against the personal defendant was taken away.

At the time of the accident, the plaintiff was driving a vehicle that was leased by his employer from a vehicle financing company. The plaintiff also brought the action against the finance company, making allegations of negligence including failure to maintain the vehicle. In this decision, the Vice-Chair considered whether the plaintiff's right of action was taken away as against the company.
Section 28(4) of the WSIA provides that the provision in s. 28(1) taking away the right of action does not apply to an employer other than the worker's employer who supplies a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate the motor vehicle, machinery or equipment. Based on the plain language in s. 28(4), the exception would apply regarding the finance company which supplied the vehicle without supplying an operator, and the action would be permitted to proceed against the company.
The company relied on two Tribunal decisions which appear to suggest that the plaintiff must adduce evidence to show that a defect in the vehicle caused or contributed to the accident in order for the exception in s. 28(4) to apply. However, the Vice-Chair preferred the prevailing approach in Tribunal case law that the Tribunal does not address questions of negligence, which are properly within the jurisdiction of the court. The Vice-Chair also noted that the comments in the two decisions relied on by the company were obiter.
The Vice-Chair referred to the Ontario Superior Court decision in Maria-Antony v. Selliah, which did not directly address the question in this application, but did illustrate that adopting the approach suggested by the defendant (to decline to apply s. 28(4) on the basis that the plaintiff did not adduce proof of the defendant's direct negligence), could potentially deprive the plaintiff of the opportunity to pursue an issue of vicarious liability in the courts.
The plaintiff's right of action against the defendant company was not taken away. The company was entitled to an order under s. 29(4) that no damages, contribution or indemnity is recoverable for any amount determined by the court to be caused by the fault or negligence of the personal defendant against whom the right of action was taken away.