Vicarious Liability - Negligent vs Intentional Acts

It is well established that one could be held vicariously liable for the NEGLIGENT acts of his/her children, when they are driving vehicles owned by their parents, with their parent’s consent. This vicarious liability may require the parent’s auto liability insurer to respond to all liability incurred, due to the negligent acts of their children, subject to the relevant terms, conditions and limits of the auto liability policy. But does this apply to intentional acts as well, especially when someone is charged with criminal negligence?

Subsection 192(2) of the Highway Traffic Act provides:

The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of NEGLIGENCE in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur. 

In Liu v. The Personal Insurance Company, 2019 ONCA 104, the Court of Appeal for Ontario was faced with a similar question. The appellant, Ms. Pearce, appealed to allow her to withdraw an admission made by her during the argument of a summary judgment motion. Her son was involved in a motor vehicle accident where he deliberately rammed a Ford Truck into a Honda Civic and was convicted by a jury of criminal negligence causing bodily harm and aggravated assault. The driver of the Honda Civic, Liu, sued his own insurer, The Personal Insurance Company [Personal] to make sure he gets relief in the event the parties legally responsible are uninsured or underinsured. Ms. Pearce was insured under a policy issued by Wawanesa Insurance [Wawanesa]. 

During the argument of the motion, the appellant and other involved parties agreed that if she was found to be the owner of the truck, Wawanesa would respond to the claim, and the action against Personal could then be dismissed. The motion judge found Ms. Pearce to be the owner of the truck, thus dismissing the action against Personal. However, the appellant, after release of this decision, wished to withdraw her agreement, arguing that she could be held vicariously liable only for negligent driving of her son, but not for his intentional acts/assaults using a vehicle. Ms. Pearce never pleaded this earlier that she was not liable for intentional acts of her son, though, at all material times, she was fully aware of the nature of her son’s driving causing the motor vehicle accident. She only made a general denial of negligence.

The Ontario Court of Appeal dismissed the appeal, providing an analysis at Para 16 [In Part]:

If the appellant were successful in the arguments she proposes to make, she would not be vicariously liable, and Wawanesa would not be liable to pay the loss. However, Personal would not be available to respond to the loss caused by an uninsured or underinsured driver because the action has been dismissed against Personal as a result of the appellant’s admission before the motion judge. This amounts to prejudice to other injured parties who might wish to have resort to that policy.

In a nutshell, the court dismissed the appeal due to the potential prejudice that would be caused because of the motion’s judge decision [of dismissing the action against Personal] that was based on the appellant’s earlier admissions. The court did not discuss the viability of the argument raised by the appellant with respect to intentional vs negligent torts committed by a driver, wherein the appellant argued that one should not be held vicariously liable under the relevant section of the Highway Traffic Act for intentional acts.

Apparently, the decision to dismiss the action against Personal, based on earlier admissions made by the appellant, precluded her from successfully bringing forth the argument. However, had the appellant not made such admissions earlier and had no potential prejudice deemed to have occurred in allowing the appeal, due to a decision made based on such admissions, did the appellant have a winning argument?


The content of this article is intended to provide general guidance only. A specialist must be consulted for specific circumstances. 

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