864475 Alberta Ltd. v. Hilton, 2007 ABPC 297

• Judge: Ingram, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: August 24, 2007
• Citations: 2007 ABPC 297;(2007), 447 A.R. 337 (PC)

864475 Alta. v. Hilton (2007), 447 A.R. 337 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JA.050

864475 Alberta Ltd. carrying on business as Kia West Edmonton (plaintiff) v. Ross Hilton (defendant)

(P0690304606; 2007 ABPC 297)

Indexed As: 864475 Alberta Ltd. v. Hilton

Alberta Provincial Court

Ingram, P.C.J.

October 25, 2007.

Summary:

While working as a used car salesman, Hilton negligently operated one vehicle and smashed into two other vehicles. His employer owned all three vehicles. His employment ended. The employer sued Hilton for damages. Hilton counterclaimed for unpaid commissions.

The Alberta Provincial Court dismissed the action and provisionally assessed the parties' damages.

Damage Awards - Topic 513

Torts - Injury to goods or personalty - Depreciation - While working as a used car salesman, Hilton negligently operated one vehicle and smashed into two other vehicles - His employer owned all three vehicles - His employment ended - The employer sued Hilton, claiming $10,166.27 for the costs of repairs and $8,149.63 for the reduced value of the vehicles after the repairs - The Alberta Provincial Court dismissed the action - The court provisionally assessed damages stating that it would have allowed the claim for the costs of repairs - With respect to the depreciation claim, the court stated that there was ample authority that damages could include not only repair costs but also depreciation due to repair damage - The problem was that there was no third party involvement nor any third party evidence concerning the loss - The amount claimed was excessive - The court provisionally assessed the employer's total damages at $12,500 - See paragraph 17.

Damages - Topic 1842

Torts affecting goods - Damage to goods - Depreciation due to damage - [See Damage Awards - Topic 513 ].

Damages - Topic 1845

Torts affecting goods - Damage to goods - Repair - General - [See Damage Awards - Topic 513 ].

Master and Servant - Topic 1165

Contract of hiring (employment contract) - Implied terms - Property insurance - The Alberta Provincial Court stated that "an employee is entitled to expect that the employer has insured the employer's vehicle and that the employee as an un-named insured has the protection of that insurance, both as to third party liability and damage to the vehicle itself. A driver with consent of an owner, or an employee operating an employer's vehicle, would expect to be liable, if at all, only for a reasonable deductible amount of a few hundred dollars. In the absence of any specific arrangement at the time of hiring, an employee would expect the employer 'to look after the whole matter of insurance'. ... Loss and damage to property and liability for causing loss and damage to other persons and their property are risks faced by everyone. In this society at this time the manner in which these risks are normally managed is by insurance. Decisions as to liability should reflect this reality. Liability should rest where society expects the risks can best be insured against. Owners, rather than drivers, are expected to insure their vehicles and liability arising from their operation. Employers, rather than employees, are expected to insure their property and liability arising from employees' negligence arising in the course of employment. The terms to be implied in contracts of employment should reflect these social norms. It is not realistic at this time and place in this society that employees should be expected to carry liability insurance in respect of claims arising from the operation of motor vehicles in the course of their employment. Nor is it realistic that employees should carry property insurance against damage to their employers' property." - See paragraphs 10 and 11.

Master and Servant - Topic 1165

Contract of hiring (employment contract) - Implied terms - Property insurance - While working as a used car salesman, Hilton negligently operated one vehicle and smashed into two other vehicles - His employer owned all three vehicles - His employment ended - The employer sued Hilton for damages - The Alberta Provincial Court concluded that, absent an express term to the contrary, the implied agreement between the parties was that the employer would bear the risk to his property and would insure that risk under a policy in which Hilton would be protected as an unnamed insured - Hilton's ability to drive did not make him a "skilled" employee - As an unskilled employee, without more, he was not liable for the damage - See paragraphs 1 to 16.

Master and Servant - Topic 2604

Duties of master - General - Insurance - [See both Master and Servant - Topic 1165 ].

Master and Servant - Topic 3679

Liability of master for acts of servant - Torts - Acts in course of employment - [See both Master and Servant - Topic 1165 ].

Master and Servant - Topic 4523

Liabilities of servant - To master - For torts - [See second Master and Servant - Topic 1165 ].

Master and Servant - Topic 4523

Liabilities of servant - To master - For torts - The House of Lords in Lister v. Romford Ice and Cold Storage Co. (1957) referenced the general proposition that "in determining the rights inter se of A and B, the fact that one or other of them is insured is to be disregarded" - Further, the House of Lords considered harmful the social consequence of implying a term which would relieve an employee from his duty to exercise his proper skill and care in the performance of his duties - The broad general proposition expressed in Lister was followed by the British Columbia Court of Appeal in Overmyer Company v. Wallace Transfer Ltd. (1976) - The Alberta Provincial Court stated that "Subsequent to Overmyer, numerous Canadian decisions have dealt with this issue. ... the preponderance of opinion is that, aside from indemnity for liability arising vicariously ... 'skilled' employees may be liable to their employers for failure to exercise reasonable care in the performance of the skill which they were employed to exercise, but, generally, unskilled employees are not liable to their employers for negligence in the absence of wilful misconduct or dishonesty. ..." - The court noted that the same view was expressed in Employment Law in Canada (2nd Ed.) where the author suggested that the Lister ruling should be reversed by legislation - The court stated that the question was better dealt with by relating the duty and standard of care to the particular circumstances based on the terms, express and implied, of the particular employment situation - While the claim arose in the context of a contract, it was in essence a negligence action. - See paragraph 15.

Master and Servant - Topic 4524

Liabilities of servant - To master - Respecting master's property - [See second Master and Servant - Topic 1165 ].

Master and Servant - Topic 4524

Liabilities of servant - To master - Respecting master's property - The Alberta Provincial Court opined that an employee would be liable for damage to the employer's property caused intentionally and would probably be liable for damage were it caused recklessly - See paragraph 16.

Cases Noticed:

Lister v. Romford Ice and Cold Storage Co., [1957] A.C. 555 (H.L.), consd. [para. 8].

Overmyer Co. v. Wallace Transfer Ltd., [1976] 2 W.W.R. 656 (B.C.C.A.), refd to. [para. 9].

Necula v. Ducharme (1963), 38 D.L.R.(2d) 736 (Alta. S.C.), refd to. [para. 13].

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200, refd to. [para. 14].

Machtinger v. HOJ Industries Ltd. - see Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd.

Petrone v. Marmot Concrete Services Ltd. (1996), 179 A.R. 241 (Q.B.), refd to. [para. 15].

Ozmun Holdings Ltd. v. Young (2000), 188 Sask.R. 284 (Prov. Ct.), refd to. [para. 15].

Lynch & Co. v. United States Fidelity & Guaranty Co. (1970), 14 D.L.R.(3d) 294 (Ont. H.C.), refd to. [para. 15].

Kleinsasser v. Alexander, [1994] 10 W.W.R. 100; 122 Sask.R. 52 (Q.B.), refd to. [para. 15].

Sun Toyota Ltd. v. Mitha (2001), 287 A.R. 334; 2001 ABPC 81, refd to. [para. 17].

Authors and Works Noticed:

Christie, Innis, England, Geoffrey, and Cotter, W. Brent, Employment Law in Canada (2nd Ed. 1993), p. 474 [para. 15].

Counsel:

Elizabeth Caines (McGregor Stillman LLP), for the plaintiff;

Aaron Robertson (Student Legal Services), for the defendant.

This action was heard on August 24, 2007, by Ingram, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for judgment on October 25, 2007.