Barker v. Budget Rent-A-Car of Edmonton Ltd., 2011 ABQB 126

Court of Queen ’ s Bench of Alberta Citation: Barker v. Budget Rent-A-Car of Edmonton Ltd., 2011 ABQB 126 Date: 20110307 Docket: 1003 09139 Registry: Edmonton Between: Michael Lee Barker Plaintiff/Respondent - and - Budget Rent-A-Car of Edmonton Ltd. Defendant/Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The Defendant Budget Rent-A-Car of Edmonton Ltd. (“ Budget ”) applies for

Summary Judgment pursuant to Rule 7.2 and 7.3 of the Rules of Court . [ 2 ] On or about May 1, 2006 Budget entered into an agreement with Brian Dennis of Suncor Marketing for the rental of a 2006 Chevrolet Silverado Truck. The rental agreement identified the Plaintiff and Cody Rayment as additional drivers. [ 3 ] On or about May 17, 2006 the Plaintiff while in the course of his employment was riding as a passenger in Budget ’s truck. The truck was driven by Cody Rayment and an accident ensued in which the Plaintiff sustained injuries.

[ 4 ] The Workers’ Compensation Board (WCB) made a number of factual determinations including:–

a) The driver of the vehicle (Cody Rayment) and the Plaintiff were “workers” in the course of their employment at the time of this accident and performing work related duties. Both individuals were employed by Ellen’s Contracting, an employer within the scope of Section 1(1) (

j) of the Workers’ Compensation Act .

b) The individual that rented Budget ’s vehicle (Brian Dennis) was also a “worker” in the course of his employment and performing work related duties for Suncor Marketing, an “employer” within the scope of Section 1(1) (

j) of the Workers’ Compensation Act .

c) Budget ’s employee who rented the vehicle to Mr. Dennis (Larry Bellar) was a “worker” in the course of his employment at the time of the rental and performing work related duties.

d) Budget is an “employer” within the scope of Section 1(1) (

j) of the Workers’ Compensation Act and has maintained a Workers’ Compensation Account since 1964. [ 5 ] The Plaintiff submitted a claim to the WCB and was granted WCB benefits for his injuries. Pursuant to

Section 22 of the Workers’ Compensation Act R.S.A. 2000, c. W-15 the WCB in turn commenced a subrogated action againt the Defendant Budget Rent- A-Car of Edmonton Ltd. [ 6 ] The Statement of Claim alleges the accident resulted solely from the negligence of Budget including:–

a) Failing to take reasonable steps and failing to exercise the care, diligence and skill required to ensure that the Defendant’s vehicle did not fall into the hands of an irresponsible driver.

b) Failing to properly screen the potential drivers of Defendant’s vehicle.

c) Failing to properly supervise individuals to whom permission was given to drive the Defendant’s vehicle.

d) Knowing or having the means of knowing that the Defendant’s vehicle was mechanically defective and failing to have the same properly repaired or repaired at all, properly serviced or adequately maintained.

e) Failing to have the Defendant’s vehicle equipped with adequate headlights, windshield wipers, tires, warning devices, and any other items necessary for the proper and safe operation of the vehicle under the circumstances.

f) Allowing Mr. Rayment to operate the Defendant’s vehicle when he was not licensed, trained or both, to operate the vehicle.

g) Allowing Mr. Rayment to operate the Defendant’s vehicle while his ability to do so was impaired by drugs, alcohol or fatigue or by a combination thereof.

h) Allowing Mr. Rayment to operate the Defendant’s vehicle when they knew or ought to have known that he was incompetent to operate the Defendant’s vehicle, or alternatively that his condition to operate the Defendant’s vehicle was adversely affected at the time of the Accident.

[ 7 ] In its Statement of Defence Budget denies it was negligent, and states the Plaintiff’s cause of action is statutorily barred pursuant to

Section 23 of the Workers’ Compensation Act . [ 8 ]

Section 23 of the Workers’ Compensation Act reads as follows:– Circumstances removing cause of action 23(1) If an accident happens to a worker entitling the worker or the worker’s dependants to compensation under this Act, neither the worker, the worker’s legal personal representatives, the worker’s dependants nor the worker’s employer has any cause of action in respect of or arising out of the personal injury suffered by or the death of the worker as a result of the accident (

a) against any employer, or (

b) against any worker of an employer, in an industry to which this Act applies when the conduct of that employer or worker that caused or contributed to the injury arose out of and in the course of employment in an industry to which this Act applies. Analysis [ 9 ] The test for striking an action is that it is “plain and obvious” or “beyond doubt” that the action cannot succeed. The Statement of Claim alleges that Michael Barker’s injuries result solely from the negligence of Budget . Budget submits that it is plain and obvious and beyond doubt that the action cannot succeed as it is barred pursuant to

Section 23 of the Workers’ Compensation Act . [ 10 ] Rule 7.3 of the Alberta Rules of Court reads:– Application and decision 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following:

(

a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount; (

b) if the only real issue to be tried is the amount of the award, determine the amount or refer the amount for determination by a referee; (

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstances require. [ 11 ] The following provisions of the Traffic Safety Act , R.S.A. 2000, c. T-6 are contained in Section 187(2) :– When driver deemed agent of owner 187(2) In an action for the recovery of loss or damage sustained by a person by reason of a motor vehicle on a highway, a person who, at the time that the loss or damage occurred, (

a) was driving the motor vehicle, and (

b) was in possession of the motor vehicle with the consent, expressed or implied, of the owner of the motor vehicle, is deemed, with respect to that loss or damage, (

c) to be the agent or employee of the owner of the motor vehicle, (

d) to be employed as the agent or employee of the owner of the motor vehicle, and (

e) to be driving the motor vehicle in the course of that person’s employment. Conclusion [ 12 ] The arguments for

summary dismissal put forward by the Applicant/Defendant are:– 1) the Plaintiff’s Statement of Claim is deficient; and 2) the Claim against Budget is statutorily barred pursuant to

Section 23 of the Workers’ Compensation Act . [ 13 ] The Plaintiff has applied to have the Statement of Claim amended in order to clarify the claim against Budget . I concluded that the proposed amendments did not create a new claim or cause of action against Budget in written Reasons now reported at 2011 ABQB 127 , and the amendments were allowed notwithstanding Budget’s other objections.

[ 14 ] The pertinent facts set out in the unamended Statement of Claim are as follows:–

a) Budget owned the Rented Truck;

b) The Rented Truck was involved in the accident;

c) The Rented Truck was driven by Rayment at the time of the accident;

d) Rayment was in possession of and driving the Rented Truck with the consent, express or implied, of Budget ;

e) The Plaintiff suffered injuries as a result of the accident. [ 15 ] Pursuant to Section 187(2) of the Traffic Safety Act and given that Rayment was in possession of the Rented Truck with the implied or express consent of Budget , Rayment could be deemed an agent of Budget at the time of the accident with respect to the loss or damage. Given that Rayment was Budget’s agent at the time of the accident, Budget may be held liable for the loss or damages caused by Rayment. [ 16 ] I conclude that the pertinent facts set out in the original Statement of Claim disclose a cause of action at law and establish a number of issues to be determined at trial. [ 17 ] The second argument for

summary dismissal advanced by Budget is founded on the argument that the Plaintiff cannot maintain a cause of action against Budget in accordance with

Section 23 of the Workers’ Compensation Act , as Budget is an “employer” under the Workers’ Compensation Act . [ 18 ] Where applicable

Section 23 bars a cause of action against an employer when the conduct of the employer caused or contributed to the injury of the claimant worker:– 23(1) If an accident happens to a worker entitling the worker or the worker's dependants to compensation under this act, neither the worker, the worker's legal personal representative, the worker's dependants nor the worker's employer has any cause of action in respect of or arising out of the personal injuries suffered by or the death of worker as a result of the accident (

a) against any employer; (

b) against any worker of an employer, in an industry to which this Act applies when the conduct of that employer that caused or contributed to the injury arose out of an in the course of employment in an industry to which this act applies. [ 19 ] Thus for an employer to benefit from this immunity,

Section 23 specifies three pre-conditions that must be met:– 1. The accident must be in an industry of which the Workers’ Compensation Act applies; 2. The conduct of the employer must cause or contribute to the injury; and 3. The injury must arise out of and in the course of employment in an industry to which the Workers’ Compensation Act applies.

[20] Employer immunity under

Section 23 is predicated on conduct and merely having the status of employer under the Workers’Compensation Act is not enough to grant an employer blanket immunity. All three statutory pre-conditions of

Section 23 includingconduct causing or contributing to injury must be met in order for employer immunity to apply. [21] In this instance Budget’s activity of owning and leasing vehicles does not fit within the definition of “conduct” that causes orcontributes to injury. Budget does not attract liability because of any “conduct” on its part, but rather by virtue of the operation of Section187(2) of the Traffic Safety Act. [22]

Section 187 of the Traffic Safety Act states that in an action for recovery of loss or damage, if the driver of a vehicle is inpossession of the vehicle with the consent of the vehicle’s owner, the driver is deemed the agent of the owner with respect to the loss ordamage. Budget was the owner of the Rented Trust and Budget consented to Rayment’s possession and operation of the Rented Truck.By virtue of

Section 187, Rayment was arguably Budget’s agent with respect to the loss or damage suffered by the Plaintiff. Budget’sliability for the Plaintiff’s injuries could arise not from conduct which caused or contributed to the Plaintiff’s injuries, but from itsexpress consent to allow Rayment to possess and operate the Rented Truck. [23] Budget’s arguments in the present circumstances are not unlike those addressed by the Alberta Court of Appeal in Lepine v. Fraser, 1985 ABCA 38 , 18 D.L.R. (4th) 156. In Lepine the Court of Appeal considered the same issue of whether owning andleasing a vehicle fits within the definition of conduct in

Section 15 of the Workers’ Compensation Act (now

Section 23). The Court ofAppeal concluded that although Budget was an employer under the Workers’ Compensation Act, its owning and leasing the vehicle didnot cause or contribute to Lepine’s injury. In fact the Court found that there was “no conduct” at all. Consequently Budget was notimmune from Lepine’s lawsuit under

Section 15 of the Workers’ Compensation Act. [24] I conclude that Budget is not entitled to immunity under

Section 23 because Budget’s conduct did not cause or contribute tothe Plaintiff’s injuries.

Summary Dismissal [25] Budget argues that the law relating to the striking of pleadings is applicable in this case. In that regard it is appropriate toconsider the decision of the Alberta Court of Appeal in Tottrup v. Lund, 2000 ABCA 121 at paragraph 8, where Conrad J.A. stated:– 8 The principles governing an application to strike a statement of claim for failure to disclose a cause of action are relatively settled. Inbrief, the Court must assume that the allegations of fact made by the plaintiff are true. The Court then determines whether those factsdisclose a cause of action in law.

The test set out by the Supreme Court in Hunt v. Carey Canada Inc., (SCC), [1990] 2S.C.R. 959 at 980 is whether it is " . . . plain and obvious' that the plaintiff's statement of claim discloses no reasonable cause of action."Caution is required before concluding that the plaintiff has no chance of success. The plaintiff is entitled to a broad reading of thepleadings. In my view, this is particularly important where a question arises as to the expiry of a limitation period. Subject to limitationquestions, the Court may grant leave to include further facts if an application is made.

In addition, a determination that there is no causeof action on one set of pleadings is generally no bar to framing a new action on different facts. [26] The facts pled in the Statement of Claim surrounding Budget’s ownership of the Rented Truck and Budget’s consent toRayment to possess and operate the Rented Truck disclose a cause of action in light of the deemed agency relationship between Budgetand Rayment pursuant to Section 187(2) of the Traffic Safety Act. [27] In an application for

summary judgment the onus on the Applicant is high. The

summary judgment rule was discussed by theSupreme Court of Canada in Canada (Attorney General) v. Lameman, 2008 SCC 14 , [2008] 1 S.C.R. 372, and at paragraph 11the Supreme Court confirmed that the party seeking

summary judgment bears the evidentiary burden of showing – and must prove – thatthere is no genuine issue of material fact requiring trial:– 11 For this reason, the bar on a motion for

summary judgment is high. The defendant who seeks

summary dismissal bears the

evidentiary burden of showing that there is "no genuine issue of material fact requiring trial". . .The defendant must prove this; it cannot rely on mere allegations or the pleadings . . . If the defendant does prove this, the plaintiff must either refute or counter the defendant's evidence, or risk

summary dismissal. . . . Each side must "put its best foot forward" with respect to the existence or non-existence of material issues to be tried. . . . The chambers judge may make inferences of fact . . . [ 28 ] In the case at bar Budget has not discharged its burden of showing there is no genuine issue for trial. Budget has tendered in support of its application is the Affidavit of Gary Hill, whose Affidavit largely focuses on information relevant to the application of

Section 23 of the Workers’ Compensation Act . [ 29 ] Given that Budget cannot shield itself behind

Section 23 , and the facts pled show there is a genuine triable issue – the liability arising out of Budget’s consent for Rayment to possess and drive the Rented Truck – I deny

summary dismissal of this matter. Heard on the 24 th day of February, 2011. Dated at the City of Edmonton, Alberta this 7 th day of March, 2011. Donald Lee J.C.Q.B.A. Appearances: Geoffrey W. Coombs Workers’ Compensation Board for the Applicant/Plaintiff Dawn Pentelechuk, Q.C. Cleall for the Respondent/Defendant