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Baby, you can drive my car!

The logo of car-sharing service app Uber on a smartphone over a reserved lane for taxis in a street is seen in this photo illustration taken in Madrid on December 10, 2014. REUTERS/Sergio Perez  (SPAIN) - RTR4HGT3

The logo of car-sharing service app Uber on a smartphone over a reserved lane for taxis in a street is seen in this photo illustration taken in Madrid on December 10, 2014. REUTERS/Sergio Perez

(Actually, you drive your car and I’ll pay to ride in it. Welcome to Uber!)

There has been much talk about the use of Uber in the media and we recently had occasion to consider whether the use of Uber services in the employment context is a wise choice.

Consider this: if an employer arranges for an employee to utilize an Uber vehicle when being transported in the course of their workplace duties and an accident occurs, can an employer be exposed to legal liability?

For employers, there are at least two pieces of legislation to consider:

1. Workplace safety and insurance considerations

If the employer participates in the Workplace Safety and Insurance program, the Workplace Safety and Insurance Act (“WSIA”) prevents the employee from suing the employer as long as there is a valid claim. Subsection 26(1) of the WSIA provides that no action lies to obtain benefits under the insurance plan, but all claims for benefits shall be heard and determined by the Board. Subsection 26(2) further provides that entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, child or dependant has or may have against the worker’s employer by reason of an accident happening to the worker while in the employment of the employer.

With respect to a valid claim, subsection 13(1) of the WSIA provides that a worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. Accordingly, the question is whether the accident arose in the course of employment.

In this regard, Document 15-03-05 of the WSIB Operational Policy Manual states as follows:

When the conditions of the employment require the worker to travel away from the employer’s premises, the worker is considered to be in the course of the employment continuously except when a distinct departure on a personal errand is shown. The mode of travel may be by public transportation or by employer or worker vehicle if the employment requires the use of such a vehicle. However, the employment must obligate the worker to be travelling at the place and time the accident occurred.

Accordingly, the accident would likely be in the course of employment and the employee would be forced to pursue their claim through the WSIB. Of course, like under any insurance scheme, this could result in increased insurance costs to the employer.

If the employer is not covered by the Workplace Safety and Insurance Act, and if the employer offers Short Term Disability/ Long Term Disability insurance, the employee could qualify for benefits under those plans instead. Alternatively, the employee could sue the employer for damages.

2. The Highway Traffic Act

The other piece of legislation employers should be concerned about is Section 39.1(3) of the Highway Traffic Act which provides as follows:

No person shall arrange or offer to arrange for a passenger to be picked up in a motor vehicle other than a bus for the purpose of being transported for compensation except under the licence, permit or authorization that is required to do so, as described in subsection (1).

While there does not seem to be any judicial commentary on the section, it would appear that by procuring the unlicensed Uber vehicle for the employee, the employer would be “arranging” or “offering to arrange” for the passenger to be picked up and transported for compensation. An employer could, therefore, be held liable for violation of this provision of the Highway Traffic Act and liability carries with it a penalty of up to $20,000.

As a result, employers should think twice when considering the use of Uber vehicles which are not licenced taxis. The convenience of the service may not outweigh the liability an employer could face.

By Patrizia Piccolo with assistance from Titus Totan, Rubin Thomlinson LLP

About the Author: Toronto Employment Lawyer, Patrizia Piccolo, is a trusted advisor to senior executives in transition; provides strategic advice and training to both large and small employers and their human resources and management teams; and is entrusted by employers and their counsel to conduct investigations into harassment and other problematic workplace behaviour. She also advises employers on employment related regulatory issues including, Employment Standards Act, Human Rights Act, Labour Relations Act and Workplace Safety and Insurance Act compliance.

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