Employer's exposure to vicarious liability was not any greater than his exposure as owner of vehicle

Plaintiff was injured while riding bus, when driver applied gas and then braked abruptly. Bus was owned by defendant, and driver was defendant's employee. Negligence of employee was admitted. Jury awarded, inter alia, $35,000 in non-pecuniary damages. Trial judge determined that defendant was vicariously liable for negligence of employee, and as such was not protected defendant. Trial judge also determined that by virtue of s. 267.5(10.1) of Insurance Act, defendant could be responsible for no greater amount of damages than driver as protected defendant. Trial judge reduced effective award to zero. Plaintiff appealed. Appeal dismissed. There was agreement with trial judge with respect to: operation of s. 267.5(10.1); finding that driver was protected defendant who was entitled to reduction of amount of damages for non-pecuniary loss by statutory deductible of $37,385; and finding that effect was to reduce jury award to zero. Case law indicated that when s. 267.5(10.1) came into force, it answered, in negative, question of whether employer's exposure to vicarious liability was any greater than his exposure as owner of vehicle. This was only sensible and rational interpretation of this section, and trial judge provided thorough analysis.

Hinds v. Metrolinx (2019), 2019 CarswellOnt 5449, 2019 ONSC 2318, R. Gordon J., Backhouse J., and Bale J. (Ont. Div. Ct.); affirmed (2017), 2017 CarswellOnt 17771, 2017 ONSC 6619, Emery J. (Ont. S.C.J.).