Appellant was a company licensed to manufacture and sell wine throughout Ontario, and had a retail store on Yonge St., Toronto. Its deliveries up to 4 o’clock p.m. were made by a certain delivery service. In the evening one S. would telephone inquiring if there were parcels to deliver, and if so would call for them and make delivery (within the time prescribed by regulations under the Liquor Control Act), collecting payment and securing signatures to orders and receipts. He was paid a stipulated sum per parcel, payment being made weekly. While delivering parcels as aforesaid, the motorcycle which he (S) was driving struck K. who died as the result.
At the trial, which was had with a jury, the trial judge, on motion at close of plaintiff’s case, dismissed the action as against appellant (defendant). The Court of Appeal for Ontario (Middleton J.A. dissenting) ( O.R. 205) set aside said dismissal and ordered a new trial between plaintiff and appellant, confined to the question of liability of appellant and assessment of damages. Appellant appealed to SCC.
The question on this appeal was appellant’s liability for damages by reason of the accident (in an action brought under the Ontario Fatal Accidents Act).
As long as an agent is acting on behalf of the principal within the scope of the prescribed agency, the principal will he held vicariously liable.
Two Step Test to determine whether the scope of the agency (either or, not both):
A Principal should bear responsibility for the torts committed by its agent:
A) in “matters incidental to the doing of the acts the performance of which has been delegated to him” or,
B) Where the principal expressly authorized the act or has subsequently adopted them.
Per Crocket J.: This was a clear case of casual or collateral negligence on the part of a private carrier for hire. In the operation of the motorcycle, S. was not appellant’s servant within the meaning of the rule which makes a master liable for the acts of a servant in the performance of his duty as such—he was not subject to appellant’s control or direction, he was entirely his own master; his negligence, therefore, cannot properly be attributed to appellant. Also, neither the agreement under which S. was entrusted with the custody of the wine for delivery, nor any of the regulations made under the Liquor Control Act imposed any responsibility upon appellant for the injury of third persons by the negligent operation of the motorcycle. It is only upon the basis of appellant’s employment of S. to make this particular delivery by means of a motorcycle in itself involving such danger to third persons that the accident might reasonably have been foreseen that appellant could properly be fixed with responsibility for K.’s death. In that case appellant’s responsibility would really rest upon its own direct negligence in employing S. to make the delivery by that means rather than upon the so-called doctrine of vicarious responsibility (City of Saint John v. Donald,  S.C.R. 371, at 383-4); it cannot be said that the delivery of parcels on occasion by means of a hired motorcycle is inherently dangerous.
Appeal allowed and judgment at trial restored.