The Ontario Court of Appeal confirmed the lower court’s decision that a vehicle owner in his capacity as an employer was vicariously liable for damages under the no fault insurance regime

Vollick v. Sheard, [2005] O.J. No. 1601, Ontario Court of Appeal

This is an appeal dealing with the nature of the vicarious liability of an employer as vehicle owner. At issue was the interpretation of the “protected defendant” provisions of the Ontario no-fault automobile insurance scheme. The scheme limits a plaintiff’s ability to recover pecuniary damages from the driver or owner of a vehicle but is silent as to the ability to recover from the driver’s employer if the accident occurred during the course of employment. The trial judge, relying on decisions under previous legislation, held that the employer was a protected qua “owner” but not qua “employer”, and thus the Plaintiff was not precluded by the scheme from recovery against the employer. The Court of Appeal, after considering more recent decisions and the seeming incongruity of a legislative system limiting recovery from the tortfeasor but allowing that same recovery from the tortfeasor’s employer, concluded that the employer’s vicarious liability supersedes the owner’s liability, and thus an employer, even if it is also the owner of the vehicle and thus a protected defendant under the Act, is not protected in his capacity as employer.

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