The employee worked for a roofing company. He was working on a residential roof. The employer gave him access to a company truck and trailer which were parked at the site, but only to access supplies and to keep warm. The employer told him not to drive the truck.

The employee disobeyed the instructions and drove the truck and got into an accident.

Section 187(2) of the Alberta Traffic Safety Act makes the owner of a vehicle liable if, at the time of the accident, the driver was in "possession" of the motor vehicle with the consent of the owner.

In Mustafi v. All-Pitch Roofing Ltd., the appeal court decided that even though the employee did not have permission to drive the truck, he did have permission to use the truck for supplies and to keep warm. Thus, he was "in possession of" the truck, and the employer was liable for any damages caused by him in the accident. As long as the employee had consent to be in possession of the truck, which he did, the employer was liable.

In light of this decision, employers in Alberta – and across Canada – should review their policies on the use and "possession" of company vehicles. Especially where the employee does not have enough assets to satisfy a court judgment, plaintiff lawyers may seek to have the employer also declared liable.

Note: This a reprint of an article by Adrian Miedema of Dentons (Canada).