Defence + Indemnity: December 2017 - II. Liability Issues

by Field Law

Field Law

A. The 2009 amendments to the Traffic Safety Act and the Insurance Act with respect to the liability of a renter, lessor or lender of a vehicle were intended to cap their vicarious liability for the driver’s negligence at $1 million and to make the driver’s insurer the first loss insurer, and nothing more. Thus, WCB payments to the injured driver are not deductible from the liability of the renter, lessor or lender.
Hobin v. Enterprise Rent-A-Car Company, 2017 ABQB 670, per Goss, J. [4247]
Hobin was injured in a motor vehicle accident on March 22, 2012, where the at-fault driver (Shaw) was driving a truck owned by the Defendant Enterprise Rent-A-Car (“Enterpise”).  At the time, Hobin was on the job and a “worker” within the meaning of s. 22 of the Worker’s Compensation Act, RSA 2000, cW-15. Shaw was also on the job and a “worker” whose employer was an “employer” covered by the Worker’s Compensation Act. Section 23 of the Worker's Compensation Act prevented Hobin from bringing a claim against either Shaw or Shaw's employer. However, he was not precluded from bringing a claim against the owner of the vehicle Enterprise Rent-A-Car for being vicariously liable for Shaw's negligence. Enterprise was a “renter" within the meaning of the Traffic Safety Act, R.S.A 2000, c.T-6 s. 187(0.1)(c.1).
Hobin received compensation for his injuries from the Worker's Compensation Board under the Worker's Compensation Act.
Enterprise argued that its liability to Hobin ought to be reduced with respect to any amounts of benefits he was paid from by the WCB pursuant to s. 187(2.1) of the Traffic Safety Act which provides as follows:


(2.1)  Notwithstanding any other provision in this Division except subsections (5) and (6), in an action for the recovery of loss or damage sustained by a person by reason of a motor vehicle on a highway, the maximum amount for which a lender, lessor, renter or seller of the motor vehicle is liable in respect of the same incident in its capacity as a lender, lessor, renter or seller of the motor vehicle is the amount determined under subsection (4) less any amounts that:

  1. are recovered for loss or damage under the third party liability provisions of contracts evidenced by a motor vehicle liability policy issued to a person other than a lender, lessor, renter or seller,
  2. are in respect of the use or operation of the motor vehicle, and
  3. are in respect of the same incident.
The WCB benefits were “compensation costs” within the meaning of s. 22(1) of the Workers Compensation Act. Section 22(5) provides that an action vested in the WCB in the name of the injured worker for the value of compensation costs. With respect to proceeds of settlement or judgment from such an action, s. 22.1(11) provides that payment of “compensation costs” was to be distributed in priority to payment of the balance of any judgment or settlement to the injured worker:

(11) All proceeds of settlement or judgment resulting from an action, including any costs and disbursements recovered, shall be paid to the Board or its designate and shall be distributed in the following order:

  1. payment of any compensation costs;
  2. payment of the balance, if any, to the claimant.
Enterprise applied for a decision on an issue in advance of trial, i.e. as to whether or not its liability and damages to Hobin should be reduced for any amounts received by him from the WCB pursuant to s. 187(2.1) of the Traffic Safety Act. Enterprise argued that the provisions of s. 187(2.1) should be read disjunctively such that Enterprise’s liability as a “renter” of the at-fault vehicle could be reduced by any one of the three items listed in section 187(2.1)(a) – (c).
The Plaintiff argued that those three factors should be interpreted conjunctively, i.e. that a deduction from Enterprise’s liability as a “renter" would only be justified where all three factors were met.
II. HELD: For the Plaintiff; application dismissed.  
  1. The Court summarized the applicable principles of statutory interpretation.
    1. In general, the Court noted as follows:
​[19]   Section 10 of the Interpretation Act, RSA 2000, c I-8, directs that an enactment shall be construed as being remedial, and shall be given the fair, large and liberal construction and interpretation that best ensures the attainment of its objects. The Supreme Court of Canada has confirmed that statutory interpretation cannot be founded on the wording of the legislation alone. The words of an Act must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. The legislature does not intend to produce absurd, ridiculous or frivolous consequences or consequences that are extremely unreasonable or inequitable, illogical or incoherent, or incompatible with other provisions or with the object of the legislative enactment or that defeat the purpose of a statute or render some aspect of it pointless or futile:  Rizzo & Rizzo Shoes Ltd, Re, 1998 CanLII 837 (SCC), [1998] 1 SCR 27, [1998] SCJ No 2 at paras 21 and 27.
[20]   In McDonald v McDonald, 1998 ABCA 241 (CanLII), [1998] AJ No 802 at paras 24-27, the Court held that the context of an enactment includes the legal environment of the provision, the other provisions of the statute and related statutes, the circumstances which led to the enactment, the aim and purpose of the legislature, the legislator’s value system and linguistic habits.
[21]   This Court noted in Continental Stress Relieving Services Ltd v Stang (1991) 115 AR 90, [1991] AJ No 191 (QB) that courts should not expand or extend the social policy formulations of the legislature. As outlined by Master Smart in 1597130 Alberta Ltd v Condominium Corp No 1023241, 2016 ABQB 195 (CanLII), [2016] AJ No 315 at para 16, there are also a number of presumptions that apply when interpreting any statute:
  1. The legislature is a competent and careful user of language and skillful crafter;
  2. Legislatures use simple, straightforward and concise language;
  3. The legislature avoids superfluous or meaningless words and does not repeat itself or speak in vain; and
  4. The legislature uses language carefully and consistently so that the same words have the same meaning and different words have different meanings.
  1. In particular, with respect to the use of the word “and” between clauses, the Court concluded that this generally meant that the clauses should be read conjunctively but this was not mandatory:

[22]   The use of the word “and” between clauses should generally be read conjunctively, but this interpretation is not mandatory. Moshansky J. in Austin v Omand, 2002 ABQB [415] at paras 48-50 cited R Sullivan, Statutory Interpretation (Irwin Law: Concord, Ontario, 1997) and S Edgar, Craies on Statute Law, 7th ed (Sweet & Maxwell: London, 1971). According to those authorities, the word “and” is always conjunctive in the sense that it signals the cumulation of the possibilities listed before and after it. However, “and” is ambiguous in that it may be intended to mean either joint or joint and several. In the case of a joint “and,” every listed possibility is necessarily included. In the case where “and” is joint and several, all the possibilities may, but need not, be included. The determination of which meaning is appropriate depends on the context. Where “and” is used before the final item in a list of powers, for example, it is normally joint and several. In most legislation, “and” is joint rather than joint and several. Where the idea of “and/or” is intended, typically the inclusive “or” is used. The legal and the grammatical meaning of a statute must be determined. Where the grammatical construction is clear, then that construction should be employed unless there is some strong reason to the contrary such that the apparent grammatical construction cannot be the true one.

  1. The Court held that the amendments to the Traffic Safety Act and Insurance Act of 2009, including the introduction of s. 187(2.1) into the Traffic Safety Act, were intended to cap the liability of lenders, renters and lessors to $1 million and to make insurers of persons renting or leasing the vehicles the first loss payors, changing the situation previously whereby the renters/lessors/lenders policy was the first loss payor, and nothing more. It was not intended to add additional reductions in liability to the lenders, lessors and renters:

[27]   In my view, the proper interpretation of the provisions in question is informed by the larger legislative context. The operation of s. 187(2.1), if interpreted disjunctively as suggested by the Applicant, would reduce a renter’s liability by the Benefits paid to or on behalf of a claimant under the WCA. Such Benefits are defined as “compensation costs” in the WCA. Section 22(11) provides for the order of distribution of all the proceeds of settlement or judgment resulting from an action that are paid to the WCB. Those proceeds would be lowered or reduced by the Benefits deducted. Section 22(11)(f) provides that payment of any compensation costs (or the Benefits) is to be in priority to payment of the balance, if any, to the claimant. In this manner, the Benefits can be deducted twice from the balance of all proceeds of settlement or judgment available to the claimant. In my view, there is nothing to suggest that this outcome was intended by the legislature in enacting s. 187(2.1) and indeed it would appear to be unduly punitive to claimants.
[28]   The amendments to the Insurance Act and the TSA which came into force on March 1, 2011 changed the priority in terms of which motor vehicle liability policy is responsible for the payment of damages caused by the operation of these vehicles, such that insurers of persons renting or leasing vehicles became the first loss payors in responding to a claim, prior to looking to the insurer of the lender, lessor, renter or seller of the motor vehicle covering the same peril. The amendments also capped the vicarious liability of owners of leased, rented, conditionally sold or financed vehicles to a $1 million limit when their vehicles are operated by a lessee, rentee, buyer or other driver. An exemption exists where there was a non-arm’s length relationship with the day-to-day operator of the vehicle.
[29]   The amendments to s. 187(2.1) address the priority of insurance; I am not satisfied that the intent of the section was to do more than this. Specifically, I am not satisfied that the intent of the section was to add additional reductions in liability available to lenders, lessors, renters or sellers beyond the deduction of payments made under third party liability by another motor vehicle liability insurer. This interpretation coincides with the ordinary grammatical use of the conjunctive “and.” Had the legislature sought to specifically reduce liability in the way suggested by the Applicant, it would not have been difficult to draft the provision so as to make this clear.
[30]   This conclusion is bolstered by the difficulties posed by the alternative proposed interpretation. Clearly, for benefits to be deducted, they must always arise out of the same incident. Furthermore, all motor vehicle liability policies require use and operation to trigger third party liability coverage in all cases. Such qualifications may state the obvious, but the provisions are absurd and ridiculous standing on their own.
[31]   The interpretation proposed by the Applicant would allow lenders, lessors, renters or sellers to deduct amounts in respect of the use or operation of the motor vehicle and/or amounts in respect of the same incident, without qualification. Such an overly broad opportunity to reduce liability could not have been intended. The only rational and logical interpretation of section 187 (2.1) is that the three items noted in s. 187(2.1) are to be read conjunctively, as a joint list, consistent with the grammatical construction of the provision.

Written by:

Field Law

Field Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.