Mustafi v. All-Pitch Roofing Ltd., 2013 ABQB 40

Court of Queen ’ s Bench of Alberta Citation: Mustafi v. All-Pitch Roofing Ltd., 2013 ABQB 40 Date: 20130204 Docket: 0901 04226 Registry: Calgary Between: Xhevat Mustafi Plaintiff - and - All-Pitch Roofing Ltd. and Marc A. Carroll Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice E.C. Wilson _______________________________________________________ Introduction [ 1 ] With the consent of the parties this matter proceeded as a

summary trial. [ 2 ] The proceedings arose in a claim for personal injuries suffered by the Plaintiff as a result of a motor vehicle collision which occurred on December 24, 2007.

[ 3 ] The Plaintiff’s vehicle was struck by a truck owned by the Defendant All-Pitch Roofing Ltd. and being operated by one of its employees, the Defendant Marc A. Carroll. [ 4 ] All-Pitch has alleged in its Statement of Defence that Carroll did not have consent to operate its truck on the date of the accident and has, accordingly, denied any liability. [ 5 ] Carroll has disappeared. He has been noted in default. He held no auto insurance policy.

The Administrator of the Motor Vehicle Accident Claims Act , hereinafter ‘the Administrator’, has defended the action on behalf of Carroll pursuant to s. 4(6) of that Act . Issue [ 6 ] The issue I am called upon to decide is whether or not Carroll had the consent of All-Pitch to operate its truck at the time of the accident. [ 7 ] For the reasons that follow, I find that he did not. Facts [ 8 ] The facts were entered primarily by way of a Statement of Agreed Facts and they are as follows: 1.

On or about December 24, 2007 at approximately 12:45 p.m., a motor vehicle accident occurred between two vehicles at or near Macleod Trail South and 109 Avenue SE, Calgary, Alberta (the “collision”). 2. The collision involved a 2006 Toyota Corolla registered to, and being operated by, the Plaintiff Xhevat Mustafi, and a 1995 Dodge Ram (the “defendant vehicle”) registered to the Defendant All-Pitch Roofing Ltd. (“All-Pitch”) and being operated by the Defendant Marc A. Carroll (“Carroll”). 3.

At the time of the collision, All-Pitch was an Alberta Corporation owned and operated by Daryn McMann (“McMann”) and Trevor Porter. 4. As at the date of the collision, Carroll was an employee of all-Pitch and had been employed by All-Pitch for approximately 4 months. 5. McMann would typically pick up all of his workers and drive them to job sites every day, this included Carroll. 6. On the morning of the date of the collision, McMann picked up Carroll and dropped him off at a job site in the community of Woodbine in southwest Calgary. 7.

Prior to dropping Carroll off at the job site on the date of the collision, McMann took Carroll to the store so that Carroll could get everything he needed for the day before McMann dropped him off at the job site. 8. Carroll was working alone at the job site.

9. The defendant vehicle, which was hooked up to a Haulmark closed unit trailer, was already located at the job site, having been left there previously. 10. McMann gave Carroll the keys to the defendant vehicle for the stated purpose of allowing Carroll to start the vehicle and warm up during breaks and to obtain tools for the job. 11. McMann told Carroll that when he wanted a ride home, McMann would return and pick him up from the job site. 12. McMann specifically told Carroll he was not to drive the vehicle. 13.

McMann told Carroll on the date of the collision that if Carroll moved the vehicle, he would consider it stolen. 14. If Carroll had asked McMann on the date of the collision for permission to use the truck, McMann would have said no. 15. All-Pitch had an unwritten policy that its employees were not to drive the vehicles owned by the company. 16. On the afternoon of the date of the collision, McMann received a phone call from Carroll, wherein Carroll advised that he had taken the defendant vehicle for the purpose of going to the store and had been involved in a motor vehicle accident and had left the scene. 17.

After the date of the collision, Carroll continued to be employed by All-Pitch for approximately 1 month. 18. Notwithstanding all reasonable efforts, Motor Vehicle Accident claims has been unable to locate Carroll and the parties agree that locating Carroll and serving him with a Notice of Appointment for Questioning is impractical and the parties have agreed to proceed by way of the within Statement of Agreed Facts and other relevant evidence to determine the issue before the Court. [ 9 ] A transcript of the August 26, 2010 questioning of the principal of All-Pitch, Mr.

Daryn McMann, was also entered as an exhibit with various passages being highlighted by counsel for the purpose of providing the source and context to some of the admitted facts. Positions of the Parties [ 10 ] The Plaintiff took no

part in these proceedings. [ 11 ] The Defendant All-Pitch takes the straightforward position that Carroll was given the keys to the truck for two and only two purposes - to get tools or to start up the engine in order to warm up since he was working outside in the cold of winter. Carroll was explicitly told that he could not move or drive the truck. Indeed, if he did do so his employer would consider the truck stolen.

Thus, not only did Carroll drive the truck contrary to explicit orders, but he had to first go to the trouble of unhitching the truck from its trailer. [ 12 ] Further, Carroll’s stated purpose for doing so, i.e. “to go to the store”, makes no sense inasmuch as Mr. McMann had already taken Carroll “to the store” prior to being driven to the Woodbine work site.

[ 13 ] All-Pitch argues that when providing the keys to the vehicle to essentially help protect Carroll from the elements, McMann said all that could be expected in order to emphasize to Carroll that the truck was not to be put into motion. [ 14 ] However, the Administrator argues that All-Pitch is vicariously liable for the driving actions of Carroll by reason of the following provisions contained within the Traffic Safety Act of Alberta. S. 187(0.1)

(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, express 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. [ 15 ] The Administrator also points to s. 1(1)(

l) of the Act : 1

(1) In this Act, (l) “ driving ” or “ drive ” includes having the care or control of a vehicle; [ 16 ] The Administrator submits that when Carroll was given the keys to the truck and left on his own he was left in care and control of the truck with the consent of All-Pitch. When Carroll later drove the truck, he continued to have that self same care or control and consent. Thus All-Pitch is vicariously liable for Carroll’s driving conduct pursuant to s. 187(0.1)(2). Analysis [ 17 ] Interestingly, both counsel place considerable reliance for their positions upon the same decision - Mugford v.

Weber 2004 CarswellAlta 555, (C.A.) . [ 18 ] The Administrator puts particular emphasis on paragraphs 43, 44 and 51 thereof and submits that all-Pitch’s consent for Carroll to keep possession of the truck on the condition that he not actually operate it simply amounts to a “conditional consent” which is not permitted under s. 187. Counsel liken this situation to an owner giving a friend consent to operate the former’s automobile on the condition that he is only permitted to drive while sober. The driver’s subsequent collision caused by his state of intoxication would not

insulate the owner from liability in such a situation. [19] On the other hand, All-Pitch emphasizes the historical analyses provided by Wittmann, J.A. (as he then was) as he explainedthe basis for his statutory

interpretation of present

section 187 (the

section being interpreted was then numbered s. 181 - see paragraph 41of Mugford). Properly understood, the legislation was not intended to extend to implicate All-Pitch in these circumstances. [20] Counsel submits that a prior version of the legislation came to be interpreted as never excusing an owner from liability oncepossession had been surrendered to another with consent - see paragraph 22 of Mugford. [21] Indeed in Guyton v. Lacroix (1961) (AB CA), 30 D.L.R. (2d) 488 (Alta C.A.), Lacroix turned his vehicleover to Mr. Dufour - “a virtual stranger” - in order to store it.

Some time later Dufour drove off with the vehicle to B.C. where heintended to sell it. En route Dufour was killed when he crashed into Guyton’s vehicle. Lacroix was held liable for Guyton’s injuries. [22] Wittmann, J.A. pointed out the criticism of the Guyton decision which then ensured. He concluded that subsequent legislativeamendment to the traffic legislation was intended to avoid the harsh result of Guyton - see paragraphs 24-28 of Mugford. [23] All-Pitch relies upon the ruling of Wittmann, J.A., that the

interpretation of (now)

section 187 “must be read as imposingvicarious liability on an owner only when consent has been given to both possession and driving of the vehicle”. (Paragraph 41) [24] Here, All-Pitch only consented to Carroll’s possession of the truck - not to it being driven. Indeed Mr. McMann had forbiddenany driving. Thus s. 187 cannot impose liability upon All-Pitch. [25] The Administrator relies on the same phrase used by Wittmann, J.A. set out above at paragraph 23 except to broaden“driving” to also embrace its extended definition of having “care or control”. Thus s. 187 does apply and does impose liability.

Decision [26] If the argument of the Administrator was accepted, it would have the effect of returning Alberta to the situation that existedwhen the Guyton case was decided. But, as Wittmann, J.A. observed, subsequent amendment to the legislation was intended to avoid theresult in Guyton. It would be passing strange to now adopt an

interpretation which would not only appear to eschew the remedial purposebehind statutory amendments generally but which would also be contrary to the rationale, if not the ratio of a decision on the point by ourCourt of Appeal. Stare decisis binds me in that regard. [27] The logic of the Mugford decision in holding that a conditional consent is not permitted by s. 187 when an owner hasconsented to another taking possession of the vehicle and consented to it being driven, i.e. operated, is compelling.

Placing conditionsupon the manner in which the vehicle may be operated when the owner is in no position to ensure they are being fulfilled wouldundermine the purpose of the legislation and its remedial effect - see paragraph 43 of Mugford. [28] But in the case at bar, Carroll was not driving the vehicle with the consent of the owner. It is clear that Carroll was, in fact,told that he could not drive it at all.

He was told that, if he did so, McMann would consider the vehicle as having been stolen. [29] Not only did Carroll ignore what he was told, he did not turn the truck engine on for the sole purpose that was permitted - tokeep warm. Further, Carroll unhitched the trailer and drove off the job site and for some considerable distance before the accidentoccurred. [30] There is nothing to support the inference that he was operating this vehicle in furtherance of some activity even remotelyallied with his employment.

[ 31 ] If one feels uncomfortable in calling Carroll a thief, surely no discomfort would be felt in asserting that Carroll prima facie breached s. 335 of the Criminal Code , i.e. taking an automobile without the owner’s consent. [ 32 ] All-Pitch and Mr. McMann were victims of crime. [ 33 ] As eloquently expressed by counsel for All-Pitch - how could the corporate Defendant be made civilly liable for the criminal’s negligent use of stolen property? [ 34 ] The Administrator relies upon the extended definition of “driving” which includes having the care or control of a vehicle. Applying that extended definition to s. 187(0.1)(2) would result in the provision being reconfigured as follows:

(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) had the care or control of the motor vehicle, and (

b) was in possession of the motor vehicle with the consent, express or implied, of the owner of the motor vehicle, ... [ 35 ] When considering s. 187 (0.1)(2)(

b) it seems obvious that, when given possession of the motor vehicle, the recipient would be simultaneously in care or control of that vehicle. That being the case, then s. 187 (0.1)(2)(

a) which also requires that the recipient have the care or control of the vehicle would simply be a redundant requirement. [ 36 ] Since principles of statutory

interpretation eschew

interpretations favouring redundancy, I must conclude that the extended definition of “driving” is not applicable in these circumstances to s. 187 (0.1)(2)(a). [ 37 ] The reality was that Carroll was given care or control over a static or stationary item, which was ordered to remain static or stationary. [ 38 ] When Carroll was driving the truck, i.e. operating the truck, he had no such permission and he was well aware of that. Neither his operation of nor his care or control of that vehicle while it was in motion was with the owner’s consent.

The manner of his driving is quite beside the point. [ 39 ] Surely a static and precise location whereat care or control was to be exercised cannot be extended as a result of criminal activity to a virtually limitless expanse of geography. But that would be the result if the Administrator’s submission relying upon the extended definitional language of s. 1(1)(

l) of the Traffic Safety Act was accepted. [ 40 ] In the result I find that Carroll did not have the consent of All-Pitch to operate its truck at the time of the accident and that All- Pitch bears no liability for the allegedly negligent driving of Carroll. Heard on the 9 th day of January, 2013. Dated at the City of Calgary, Alberta this 4 th day of February, 2013.

E.C. Wilson J.C.Q.B.A. Appearances: Murray W. Bodnaruk for the Plaintiff Andrea K. Hay for the Defendant All-Pitch Roofing Ltd. Colin D. Roberts for the Administrator of the Motor Vehicle Accidents Claims Act