Vicarious Liability

Persaud v. Bratanov and Unifund Assurance Co., 2012 ONSC 5232 (CanLII)

[22] I have no hesitation in concluding that the question of whether or not Ms. Bratanov is vicariously liable for the plaintiffs’ damages under s. 192(2) of the Highway Traffic Act meets the “full appreciation” test from the Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (CanLII) decision. I have no doubt that the necessary “full appreciation of the evidence and issues” that is required in order to make a dispositive finding in relation to this liability issue can be fairly and justly achieved by way of this summary judgment motion, without the need for a full trial.

[23] There are, essentially, four components of vicarious liability under s. 192(2) of the Highway Traffic Act which must be established by a plaintiff, namely: (1) that the defendant was the owner of the vehicle; (2) that the negligent operation of the vehicle by the driver caused the plaintiff’s damages; (3) that the incident took place on a “highway;” and (4) that the driver was operating the vehicle with the consent of the owner. See: Ladouceur v. Zimmerman, [2009] O.J. No. 4777 (S.C.J.) at para. 21.

[38] Ms. Bratanov could only be held vicariously liable for the damages caused by her grandson, pursuant to s. 192(2) of the Highway Traffic Act, if Andrew had been operating her van on a “highway” at the time he caused the death of Mr. Persaud. Given that the public park where the plaintiffs’ damages were suffered cannot be considered a “highway” for purposes of the Act, Ms. Bratanov cannot be held vicariously liable for those damages. Without the application of s. 192(2) there is no vicarious liability on the owner of a motor vehicle merely by reason of their ownership of the vehicle, when damages are caused by the driver. See: Vollick v. Sheard (2005), 2005 CanLII 13777 (ON CA), 75 O.R. (3d) 621 (C.A.) at para. 14-16. As this aspect of the cross-claim by Unifund cannot possibly succeed, and there is no genuine issue that requires a trial, this aspect of the summary judgment motion by Ms. Bratanov must succeed.