Barz v Driving Force Inc, 2021 ABQB 248

Court of Queen’s Bench of Alberta Citation: Barz v Driving Force Inc, 2021 ABQB 248 Date: 20210331 Docket: 1903 04881 Registry: Edmonton Between: Jason Barz Plaintiff/Appellant - and - Driving Force Inc and ABC Corporation Defendants/Respondents _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] This is an appeal from the decision of Master Schlosser reported at Barz v Driving Force Inc , 2019 ABQB 866 .

Since that decision, two similar cases have reached the same conclusion: Lavigne v Paccar Financial Services Ltd , (action 1514 00376, unreported March 9, 2020, per Master Summers) and Manak v Maxim Transportation Services Inc , (action 1701 00226, unreported endorsement filed March 15, 2021, per Master Mason). For the reasons which follow, the appeal is dismissed.

Background [ 2 ] This case is an appeal from the defendant Driving Force’s successful application for

summary dismissal. [ 3 ] As noted by the Master in his succinct reasons, the facts are that in November, 2013 Driving Force rented a truck to Magna Electric Corporation. A Magna employee was driving it. The Plaintiff, Jazon Barz, also a Magna employee, was his passenger. The vehicle operator drove the truck into the ditch. Mr. Barz was injured. [ 4 ] All parties to this litigation except one are covered by Workers’ Compensation benefits and, by virtue of s 23 of the Workers’ Compensation Act , RSA 2000 c W-15 (the “ WCA ”) have no causes of action against each other. The one exception is Driving Force.

It is an owner of the truck in question. It is not protected from its vicarious liability under the Traffic Safety Act , RSA 2000 c T-6 (the “ TSA ”) by the bar to suit in the WCA . [ 5 ] In dismissing the claim against Driving Force, the Master reasoned as follows, at para 5: [5] This application engages four questions: 1) Is there an action against Driving Force, as owner, notwithstanding s 23 of the Workers’ Compensation Act ? The answer to this question is yes: Wadsworth v Hayes, 1996 ABCA 39 . 2) If so, what for? Section 23(2) of the Workers’ Compensation Act provides: 23(2) In an action to which

section 22 applies, a defendant may not bring third party or other proceedings against any employer or worker whom the plaintiff may not, by reason of this

section bring an action against, but if the court is of the opinion that that employer or worker, by that employer’s or worker’s fault or negligence, contributed to the damage or loss of the plaintiff, it shall hold the defendant liable only for that portion of the damage or loss occasioned by the defendant’s own fault or negligence. [emphasis added] 3) Is liability joint, several or joint and several? The liability is several: McIver v McIntyre , 2018 ABCA 151 , at para 58 . 4) Is there any evidence from any source establishing Driving Force’s several liability on the balance of probabilities?

Answer: No [ 6 ] Not mentioned in the reasons but coming out of the record before the Master in Barz were the following additional facts:

a) As the owner of the vehicle in question Driving Force coordinated the month-to-month rental of the vehicle and invoiced Magna monthly pursuant to a rental agreement;

b) Magna had sole possession of the vehicle at all material times;

c) Driving Force had no actual supervision or control over the operation and use of the vehicle;

d) Driving Force did not supervise or have any control over or contact with Magna or its employees, including the vehicle’s operator, in relation to the vehicle or its operation, at any material time. [ 7 ] The Master in Barz asked the following question in argument (transcript, p 12, ll 17-19): Is there any evidence from any source, that would show that [Driving Force] or their acts or omissions caused or contributed to this accident in any way? [ 8 ] The answer, according to Driving Force, was no. [ 9 ] The answer, according to counsel for Barz, was yes.

Yes, if only by virtue of Driving Force’s several vicarious liability under the TSA . And with reference to the rental agreement between Driving Force and Magna that was before the court. But in argument before the Master (transcript, p 15, l 31 to p 16, l. 3), and before this court, counsel for Barz was unable to articulate any material breach of the rental agreement. In the absence of such material evidence, Barz referred to the rental agreement itself, pointing out the way in which, if only in the abstract, Driving Force maintained certain control over the vehicle.

Analysis Standard of review [ 10 ] No one disagrees the standard of review is correctness. The record

[11] It is inarguable that on an application for

summary dismissal, if the moving party has met its burden, the resisting party mustput its best foot forward and demonstrate, from the record, a genuine issue requiring a trial: Weir-Jones Technical ServicesIncorporated v Purolator Courier Ltd, 2019 ABCA 49 at para 47.

It is not sufficient for a resisting party to suggest that a genuine issuefor trial exists on a theory that a better record may be established at trial: Weir-Jones, para 37. [12] With regard to the record before the Master, which is not supplemented by any new evidence before this court, Barz arguedthrough counsel that “a number of questions were not answered” during cross-examination on affidavit sworn by a representative ofDriving Force.

Barz argued these questions intended to elicit answers as to how the rental agreement was administered and enforced andwould be directly relevant to the issue of control of the vehicle in question. Other than saying it is so, Barz does not say specifically whyit is so. Nor does Barz point to a successful application, prior to the

summary dismissal application before the Master, or prior to thisappeal, taking issue with Driving Force’s ‘questions not answered’. Indeed, by way of a Consent Procedural Order filed September 19,2019 the parties agreed, ahead of the

summary dismissal application, that amongst other things all cross-examinations were complete, allundertakings had been provided and all questioning on undertakings was complete. [13] Barz argued as well that by referencing the rental agreement, “findings of fact and inferences can be drawn regarding howDriving Force controls the possession and use of the vehicle.

However, in its submissions before the Master, and on this appeal, Barzfailed to identify any material findings or inferences of fact. [14] On this record, the Master was correct to conclude there was no evidence from any source establishing Driving Force’sseveral liability on the balance of probabilities. The authorities [15] In McIver v McIntyre, 2018 ABCA 151, leave to SCC denied , the owner dropped his vehicle at a repairshop and authorized his vehicle to be test-driven. The court upheld the trial judge’s finding of zero per cent liability to the owner.

Thatfinding at trial was based on a record that the repair shop was in a position to supervise the driver whereas the owner was not. At the timeof the accident, the repair shop had full control of the vehicle and supervised the driver, whereas the owner did not. Citing Blackwater vPlint, 2005 SCC 58, the court in McIver found the trial judge had appropriately considered “the crucial factors” in Blackwater of thelevel of supervision over, and direct contact with, the tortfeasor: [72] …The trial judge found that Mr. McIntyre did not have the power, factually or legally, to supervise Mr.

Morgan and there is noevidence to contradict that finding. Further, the agreed statement of facts does not indicate that Mr. McIntyre had any direct contact withMr. Morgan (although direct contact on its own would not be enough). By contrast, the trial judge found that Calgary Propane had thepower to supervise Mr. Morgan because it was his employer and it had direct contact with him. Again, there is no contrary evidence.

Itfollows that the trial judge’s apportionment of 100% of the loss to the “fault” of Calgary Propane should be upheld. [16] Barz relies on the final paragraph in McIver which states: [74] To clarify, our decision should not be understood as establishing that every time a vehicle owner leaves a vehicle at a garage forrepairs, and an employee takes the vehicle out for a test drive and negligently injures a plaintiff, the employer garage is always(notionally) liable for 100% of the loss. The trial judge’s decision on apportionment was sensitive to Mr.

McIntyre’s and CalgaryPropane’s degrees of supervision over, and contact with, the negligent driver.

On different facts, other considerations and a differentapportionment might well be appropriate. [17] But as noted by the Master in Paccar, with whom I agree, if a car owner who authorizes the use of his car has zero per centliability, surely an owner finance company – or here, an owner leasing company – can have no more fault by virtue of having less controlthan the car’s actual owner. [18] Barz says McIver is distinguishable as being a case not involving a leasing or rental agreement but rather a private ownerleaving his vehicle with a repair garage. [19] While of course decided on somewhat different facts, I do not agree that McIver is distinguishable.

The McIver court’scomments at paras 62-67 in particular are of general application. The court said clearly that s 187 of the TSA is not frustrated when a trierof fact determines a party has zero per cent actual vicarious liability as between two or more vicariously-liable parties. As noted at para64: [64] Even though the purpose of s 187 of the TSA is to enable plaintiffs injured in motor vehicle accidents to “more readily recoverdamages”, it does not follow that this purpose is frustrated if injured plaintiffs obtain compensation from another source.

Nothing in s187 of the TSA expresses a preference for compensating loss caused by the consensual use of a vehicle through an action against thevicariously liable vehicle owner rather than some other mode of compensation. Where, as here, the Workers’ Compensation schemeprovides compensation to the injured plaintiff, the objective of s 187 of the TSA – that plaintiffs injured by the consensual but negligentuse of a vehicle are compensated – is satisfied. [20] Barz relies on the pre-McIver decision in Dempsey v Bagley, 2016 ABQB 124.

In Dempsey an issue of apportionment arosebetween the owner leasing company (PHH) and vehicle leasee (Brinks). Before the trial judge in Dempsey PHH acknowledged somevicarious fault, albeit only 10 per cent. The trial judge said this at para 52: [52] Brinks and PHH submit that in light of Blackwater v Plint, 2005 SCC 58 read in conjunction with section 23(2) of the WCA, theCourt needs to assess the relative vicarious liability of Brinks and PHH.

They submit that given that Brinks has full custody and controlof the Vehicles and the employees who operate the Vehicles, at least 90% of the liability should be attributed to Brinks and the rest (i.e.10%) to PHH who is a non-protected party and is a bare legal title holder (vicariously) liable only by virtue of the statutory ownershipprovisions under

section 187 of the TSA. They acknowledge that PHH’s liability cannot be zero as that would defeat the intention of the

TSA . For as Côté J.A. stated in para 34 of Wadsworth: “Our whole scheme of compensation for automobile accidents through compulsory automobile liability insurance would fall down if there was no vicarious liability. The law does not require drivers to insure; it requires owners of vehicles to insure. The Highway Traffic Act s. 181 [now s. 187 of TSA ] imposes liability on vehicle owners for special policy reasons.” [emphasis added]. [ 21 ] As in the case on appeal – and for that matter as in Paccar and Manak – in Dempsey there was no evidence of actual control by the leasor.

The only evidence implicating the leasor came out of the wording of the lease and of the abstract opportunity the leasor had to exercise control over the leased vehicles. Whether by reason of PHH’s acknowledgement of at least 10 percent vicarious liability, and/or in law as argued before the court, the trial judge in Dempsey concluded that it was necessary to apportion some vicarious liability to PHH.

At paras 63-70 in particular the trial judge considered the record and law and concluded 25 per cent vicarious liability was appropriate in the circumstances. [ 22 ] Based on the outcome in Dempsey the appellant here argues that 25 per cent is at least the starting point for an apportionment of vicarious liability in a case involving, as here, a rental agreement and nothing more in the way of actual or direct fault. [ 23 ] The Master in Paccar rejected similar arguments by concluding that Dempsey was implicitly overruled by McIver .

The Master reasoned as follows: [Paccar] says that [the ruling in McIver ] implicitly, if not explicitly, overrules a very important premise from Dempsey , that is that each owner must have some liability pursuant to the Traffic Safety Act . I agree that the Court of Appeal ruling in McIver overrules this very important premise, which is critical to the decision in Dempsey .

I agree with counsel for Paccar Financial, [that] the lease provisions in the Paccar lease do not really give the finance company any control over the operation or use of the motor vehicle. (transcript, p 20, l 35 to p 21, l 1) [ 24 ] The recent decision of the Master in Manak again deals with a number of parties immune from suit owing to WCA provisions, and one – Maxim Transportation Services Inc – facing vicarious liability for its own fault. At issue was a lease materially indistinguishable from the lease or rental agreements in the cases of Paccar and Barz .

Likewise, in Manak the owner Maxim Transportation had no interaction, control or supervision with the leased vehicle’s driver. While the lease enabled Maxim to assert control over the vehicle in question, the unchallenged evidence was that it was not aware of any reason or occasion to do so.

The Master concluded that, as in McIver , there was no evidence in Manak that Maxim could have done anything differently to ensure the safe and lawful operation of the vehicle in question: On the facts here, it was not within Maxim’s power to prevent the accident, nor is there any evidence that the scope or exercise of Maxim’s control contributed to Mr. Manak’s loss. I decline to apportion any of his damages to Maxim. (Endorsement, at para 44) [ 25 ] In answer to Mr.

Manak’s reliance on Dempsey , the Master pointed out the acknowledgement of some vicarious liability in that case, and the comment in McIver that a finding of fact of zero per cent vicarious liability does not frustrate the purpose of the TSA . [ 26 ] The court in Manak relied on McIver , at paras 64-67 , to conclude that assigning no liability to a vicariously-liable owner under s 23(2) of the WCA does not frustrate s 187 of the TSA . Conclusion [ 27 ] As noted, the Master in the case on appeal was correct to conclude there was no evidence from any source establishing Driving Force’s several liability.

This record, viewed through the lens of the prevailing authority in McIver and cases which follow it, supports the conclusion that

summary dismissal was the fair and just determination on the merits of the claim. [ 28 ] For these reasons the appeal is dismissed. [ 29 ] If they are unable to agree, the parties may speak to costs by way of written submissions. Heard on the 19 th day of November, 2020. Dated at the City of Edmonton, Alberta this 31 st day of March, 2021. Peter Michalyshyn J.C.Q.B.A. Appearances:

Geoffrey W. Coombs Workers’ Compensation Board of Alberta for the Plaintiff Ted Spyracopoulos Brownlee LLP for the Defendant, Driving Force Inc.