



COURT OF APPEAL FOR ONTARIO

CITATION: Dagenais v. Pellerin, 2022 ONCA 76

DATE: 20220128

DOCKET: C69738

Feldman, MacPherson and Thorburn
    JJ.A.

BETWEEN

Annette Dagenais and Richard
    Dagenais

Plaintiffs (Respondents)

and

Guy Pellerin and
Slavko
    Concrete Finishing Inc.

Defendants (
Appellant
)

AND BETWEEN

Janet McGlone and
Janet McGlone as Litigation Administrator of the Estate for Allan Timms

Plaintiffs (Respondents)

and

Guy Pellerin,
Slavko Concrete
    Finishing Inc.
and Annette Dagenais and John Doe

Defendants (
Appellant
)

Pat C. Peloso and Jaime Wilson, for the
    appellant

William R. Hunter
    and Patrick Simon, for the respondents Annette Dagenais and Richard Dagenais

Mikolaj T.
    Grodzki and Alexander N. Elkin, for the respondents Janet McGlone and Janet
    McGlone as Litigation Administrator of the Estate for Allan Timms

Heard: January 20, 2022 by
    video conference

On appeal from the orders of Justice Paul
    B. Kane of the Superior Court of Justice, dated June 25, 2021, with reasons
    reported at 2021 ONSC 3415.

REASONS FOR DECISION

[1]

The respondents, Annette Dagenais and Janet
    McGlone, were the driver and passenger in a car that was in an accident with a
    car driven by Guy Pellerin, an employee of the appellant, Slavko Concrete Finishing
    Inc. (Slavko), who was on his way to a job site. Mr. Pellerin admitted
    liability for the accident. The respondents claims for damages, which will be
    determined by a jury, exceed the amount of Mr. Pellerins liability insurance
    coverage. They have therefore also claimed against the appellant on the basis
    of the doctrines of vicarious liability and
respondeat superior
. On
    summary judgment, the appellant was found to be responsible for the
    respondents damages on both bases. The appellant challenges both findings on
    this appeal.

A.

Factual background

[2]

The accident occurred on January 31, 2013. Mr.
    Pellerin was employed by Slavko as a cement finisher, and had been called by
    his supervisor on January 30, and told to go to a job site in Petawawa for noon
    the next day. The job site was about two hours away from Mr. Pellerins home.
    Five other employees were to attend for 9 a.m., as they were pouring the
    concrete slab. They went together in transportation provided by the company.
    Mr. Pellerin was to drive in his own car to the job site and back the same day.
    He had his tools for the job with him in the car.

[3]

A collective agreement governed the terms and
    conditions of Mr. Pellerins employment. It included provisions regarding
    travel to job sites, including: payment of the hourly rate for up to four hours
    per day for travelling outside the National Capital Commission Greenbelt;
    transportation to be arranged by the employer for travel outside the National
    Capital Commission Greenbelt; and payment of a mileage allowance of $0.48 per
    kilometer for travel to or between job sites in a personal vehicle.

[4]

Mr. Pellerin left home, got gas, did a personal
    errand, and then headed for Petawawa. At Renfrew, he decided to stop at Tim
    Hortons for a coffee and to stretch his legs. When making the left turn off
    the highway, he hit the respondents vehicle coming through the intersection.

[5]

Mr. Pellerin admitted responsibility for the
    accident and the damages suffered by the respondents to the limit of his
    liability insurance coverage, $2,000,000. As the claims of the respondents
    exceed that amount, they also pursued the appellant, alleging that it is
    responsible for the negligence of its employee during the course of his
    employment, on the basis of the doctrines of vicarious liability and
respondeat
    superior
.

[6]

While the quantification of the damages was left
    to be determined in a jury trial, all parties agreed that it was appropriate to
    have the issue of the liability of the appellant determined on summary
    judgment.

B.

Findings by the Motion Judge

[7]

In detailed and thorough reasons, the motion
    judge considered the legal and factual issues necessary to determine whether
    the appellant is liable for the damages suffered by the respondents.

[8]

He first found that while travelling to the job site
    in Petawawa, Mr. Pellerin was acting within the course of his employment. He
    was directed by the employer to travel to Petawawa and be there by noon; he was
    transporting his tools; and the collective agreement required the employer to
    arrange for transportation to distant job sites, such as Petawawa, and to pay a
    travel allowance and up to four hours salary. The motion judge concluded that
    the travel to the job site was part of the employees work.

[9]

The motion judge next considered whether the
    fact that Mr. Pellerin was using his own vehicle meant that he was acting
    outside his employment. The motion judge concluded that Mr. Pellerins use of
    his own vehicle was directed, or at least authorized, by the employer, based on
    the evidence.

[10]

The motion judge further found that Mr. Pellerins
    detour to get coffee and to stretch his legs was authorized by the employer as
    part of the travel requirement to get to the job site, a two-hour drive away. The
    motion judge relied on the record of evidence of the policy of the employer as
    well as case law from the Supreme Court of Canada,
Battistoni v. Thomas
,
    [1932] S.C.R. 144; the House of Lords,
Smith v. Stages

and another
,
    [1989] 1 All E.R. 833 (H.L.); and other courts that have held that a brief
    deviation from the direct route or brief detour does not take the employee out
    of the course of employment.

[11]

The motion judge summarized his factual and
    legal findings at paras. 148-150 as follows:

[
148
]  The Court has
    concluded that Mr. Pellerin was acting in and continued in the course of his
    employment:

a.       as he drove
    towards Petawawa;

b.       as he did
    so while driving his vehicle;

c.       as he
    attempted to turn off Highway 17 to stop to stretch and buy a coffee before continuing
    on to that destination; and

d.       that each
    of those actions were permitted and authorized by his employer based on the
    evidence and as supported by reasonable inferences drawn from that evidence.

[
149
]  Those were
    authorized acts therefore pursuant to the first branch of the Salmond test and
    not unauthorized acts governed under the second branch of the Salmond test.

[
150
]  Slavko accordingly
    was legally responsible for the negligence of such actions by Mr. Pellerin
    under the doctrine of vicarious liability or in the alternative, pursuant to
    the doctrine of
respondeat superior
.

[12]

These findings were made in the context of the
    test for vicarious liability known as the Salmond test, which was affirmed by
    the Supreme Court of Canada in
Bazley v. Curry
, [1999] 2 S.C.R. 534,
    at para. 10:

[T]he Salmond test  posits that employers are
    vicariously liable for (1) employee acts authorized by the employer; or (2)
    unauthorized acts so connected with authorized acts that they may be regarded
    as modes (albeit improper modes) of doing an authorized act.

[13]

The motion judge found that Mr. Pellerin was specifically
    authorized to drive to the job site in Petawawa in his car with his tools, that
    he was in the course of his employment while driving to the remote job site, and
    that he was authorized to take a short detour to get a coffee and stretch his
    legs as part of the long drive. The employer was therefore vicariously liable
    under the first branch of the Salmond test.

[14]

Slavko argued on the motion, and on the appeal,
    that the test to be applied was the second branch of the Salmond test because the
    drive and the accident were unauthorized. As a result, the motion judge was
    required to apply the two-part analysis from
Bazley
for determining
    vicarious liability for unauthorized acts.

[15]

In
Bazley
, a childrens foundation unknowingly
    hired a paedophile, Mr. Curry, to look after children in its care. A child
    who was abused by Mr. Curry sued the foundation on the basis of vicarious
    liability. In that case, the court was concerned with the second branch of the
    Salmond test. The issue was whether the unauthorized abuse of the child
    constituted a mode of performing the authorized act of looking after the child.
    The Supreme Court held that where there is no precedent that determines the
    issue, the court should do so by considering and applying the policy underlying
    vicarious liability:
Bazley
, at para. 15. That policy has two
    fundamental concerns: (1) provision of a just and practical remedy for the harm;
    and (2) deterrence of future harm:
Bazley
, at para. 29.

[16]

In response to the appellants submission, the
    motion judge considered, in the alternative, that if Mr. Pellerins acts had
    been unauthorized, whether vicarious liability should be imposed based on the
    two policy considerations from
Bazley
. He concluded that it should. First,
    the respondents are entitled to fair compensation for the accident, and may not
    get it if the only source is Mr. Pellerins insurance limit of $2,000,000.
    Second, imposing liability on the employer in this case could cause the
    employer, in the future, to provide safe transportation to distant work sites
    for all employees, in accordance with the requirements of the collective
    agreement.

C.

Issues on the Appeal

[17]

The appellants position is that the motion
    judge erred in fact and law by finding that the first branch of the Salmond
    test applies. It argues that the drive and the accident were unauthorized and
    the motion judge erred by finding that they were authorized. The appellant
    argues further that the motion judges alternative analysis and application of
    the two-part
Bazley
test was in error, and that as a matter of policy,
    the respondents are already being compensated by Mr. Pellerins insurance, and there
    is no applicable deterrence issue in this case.

[18]

We reject these submissions. The motion judges
    reasons were thorough and comprehensive. He fully applied the Salmond test and
    found the facts that supported the legal conclusion that Mr. Pellerin, while
    employed as a cement finisher, was specifically authorized to drive in his own
    car to the job site at Petawawa and was entitled to a mileage allowance and up
    to four hours of wages for the driving time. Furthermore, he found, again based
    on the evidence and legal precedent, that the authorization included the
    employee taking a coffee break and stretching his legs during the drive. The
    small detour taken by Mr. Pellerin was not a frolic of his own, as in
Battistoni
,
    where the employee went off to socialize for a lengthy period during the drive.
    There is no basis to interfere with his findings or his conclusion.

[19]

The appellant also argues that the motion judge
    should not have relied on the Saskatchewan Court of Appeal decision in
Sickel
    Estate v. Gordy
, 2008 SKCA 100, 311 Sask. R. 235, which, it submits, was
    wrongly decided and incorrectly applies the Salmond test contrary to the
    direction of the Supreme Court in
Bazley
. In
Sickel
, the
    court held that the negligent driver was acting in the course of her employment,
    moving the employers equipment from site to site, and stated at para. 39 that
    it is not the
negligence
that must be seen as authorized by the
    employer, but only the activity, which, incidentally, was negligently
    performed (emphasis in original).

[20]

We reject the appellants legal submission. We
    see no error in the motion judges reliance on
Sickel
as an example of
    employee conduct authorized by the employer, and therefore falling within the
    first branch of the Salmond test for imposing vicarious liability for the
    accident on the employer.

[21]

Because we agree with the motion judges conclusion
    that Mr. Pellerin was authorized to drive to the job site in Petawawa as part
    of his employment, and therefore the appellant is vicariously liable under the
    first part of the Salmond test, it is unnecessary to address the second part of
    the Salmond test, and the two policy criteria from
Bazley
. However, we
    add that we see no error in the alternative analysis conducted by the motion
    judge on this issue. We also affirm the motion judges finding that the
    appellant is also liable for the negligence of Mr. Pellerin on the basis of the
    application of the doctrine of
respondeat superior
.

[22]

The appeal is therefore dismissed with costs to each
    of the two respondents fixed in the amount of $18,000 to each, inclusive of
    disbursements and HST.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

J.A.
    Thorburn J.A.


