- Right to sue (vicarious liability)
The issue in this application was whether the respondents' right of action was taken away pursuant to section 31 of the WSIA and whether the respondents were entitled to claim benefits under the WSIA. On June 24, 2015, the applicant and respondents were all in a vehicle, driven by the applicant driver, when it struck a deer. The co-applicant owner of the vehicle was not personally involved in the accident. The issue was the applicability of section 29(4) of the WSIA with respect to the liability of the applicant owner.
The application was granted. The Vice-Chair was able to make a section 29(4) declaration; however, the Vice-Chair was unable to make any specific findings as to the liability of the applicant owner.The Vice-Chair distinguished this case from Decision No. 1086/15 in that once the company was brought into the purview of the WSIA vis a vis as a Schedule 1 employer, it was treated as an entity that was covered under the WSIA. That was different than the circumstances of this case where the applicant owner was not covered under the WSIA and in fact, was a stranger to the WSIA. Whether or not the applicant owner had vicarious liability under the Highway Traffic Act as the vehicle owner was for the Courts to determine and outside the jurisdiction of this Tribunal. That was not disputed by the parties. Further, as found in Maria-Antony v. Selliah, subsection 29(4) of the WSIA does not preclude an action for vicarious liability against the owner of the vehicle where the owner is a stranger to the WSIA, and indemnity against the WSIA-covered worker or employer. Rather, O'Marra J. in that case, adopted the public policy discussion in Wadsworth v. Hayes, where vicarious liability should not be barred because "[v]icarious liability runs so deep in our law that the effects of barring it would be incalculable." O'Marra J found that the purpose of s. 29(4) was to eliminate joint liability between protected and unprotected defendants and not to eliminate an unprotected defendant's vicarious liability under the Highway Traffic Act. Section 29(3) sets out that the Court will determine the loss, damage and fault of the employer, director, executive officer or other worker, whether or not they are party to the action. Lastly, 29(4) sets out that no damages or indemnity under section 29(3) to be caused by a person described in that subsection is recoverable in an action. The applicant owner was not an employee, officer, director of a Schedule 1 employer. The Vice-Chair found that she did not have the protection under s. 29 unlike the company in Decision No. 1086/15. The respondents' rights of action against the applicant owner were not taken away by the Act.