Rankin (Rankin’s Garage & Sales) v. J.J.

Rankin (Rankin’s Garage & Sales) v. J.J.
Collection
Supreme Court Judgments
Date
2018-05-11
Neutral citation
2018 SCC 19
Report
[2018] 1 SCR 587
Case number
37323
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Ontario
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, [2018] 1 S.C.R. 587
Appeal Heard: October 5, 2017
Judgment Rendered: May 11, 2018
Docket: 37323
Between:
James Chadwick Rankin, carrying on business as Rankin’s Garage & Sales
Appellant
and
J.J. by his Litigation Guardian, J.A.J., J.A.J., A.J. and C.C.
Respondents
- and -
Ontario Trial Lawyers Association and Justice for Children and Youth
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment:
(paras. 1 to 67)
Karakatsanis J. (McLachlin C.J. and Abella, Moldaver, Wagner, Côté and Rowe JJ. concurring)
Dissenting Reasons:
(paras. 68 to 85)
Brown J. (Gascon J. concurring)
Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, [2018] 1 S.C.R. 587
James Chadwick Rankin,
carrying on business as Rankin’s Garage & Sales Appellant
v.
J.J. by his Litigation Guardian, J.A.J.,
J.A.J.,
A.J. and
C.C. Respondents
and
Ontario Trial Lawyers Association and
Justice for Children and Youth Interveners
Indexed as: Rankin (Rankin’s Garage & Sales) v. J.J.
2018 SCC 19
File No.: 37323.
2017: October 5; 2018: May 11.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for ontario
Torts — Negligence — Duty of Care — Foreseeability — Personal injury — Motor vehicles — Teenagers stealing vehicle from commercial garage and joyriding — Vehicle crashing causing serious injury to passenger — Whether business owes duty of care to injured passenger — Whether risk of personal injury reasonably foreseeable — Whether business had positive duty to guard against risk of theft by minors — Whether illegal conduct could sever any proximity between parties or negate prima facie duty of care — Whether lower courts erred in recognizing duty of care.
J and his friend C, both then minors, were at the house of C’s mother drinking alcohol and smoking marijuana. Sometime after midnight, they left the house to walk around town, with the intention of stealing valuables from unlocked cars. Eventually they made their way to R (a commercial car garage) located near the main intersection. The garage property was not secured, and the boys began walking around the lot checking for unlocked cars. C found an unlocked car parked behind the garage. He opened it and found its keys in the ashtray. Though he did not have a driver’s licence and had never driven a car on the road before, C decided to steal the car so that he could go and pick up a friend in a nearby town. C told J to “get in”, which he did. C drove the car out of the garage and on the highway where the car crashed. J suffered a catastrophic brain injury. Through his litigation guardian, J sued R, C and C’s mother for negligence.
At trial, it was held that R owed a duty of care to J. The jury found that all parties had been negligent and made the following apportionment of liability: R’s garage, 37 percent liable; C, 23 percent liable; C’s mother, 30 percent liable; and J, 10 percent liable. The Ontario Court of Appeal upheld the trial judge’s finding that R owed a duty of care to J and dismissed the appeal.
The only issue in this appeal is whether R owed J a duty of care.
Held (Gascon and Brown JJ. dissenting): The appeal should be allowed and the claim against R dismissed.
Per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Côté and Rowe JJ.: This case can be resolved based on a straightforward application of existing tort law principles. J did not provide sufficient evidence to support the establishment of a duty of care owed by R.
There is no clear guidance in Canadian case law on whether a business owes a duty of care to someone who is injured following the theft of a vehicle from its premises. Therefore, an Anns/Cooper analysis will be conducted in this case. To establish a duty of care, there must be a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff. Once foreseeability and proximity are made out, a prima facie duty of care is established. Whether or not something is “reasonably foreseeable” is an objective test. The question is properly focussed on whether foreseeability was present prior to the incident occurring and not with the aid of 20/20 hindsight.
Here, it is not enough to determine simply whether the theft of the vehicle was reasonably foreseeable. The proper question to be asked is whether the type of harm suffered — personal injury — was reasonably foreseeable to someone in the position of R when considering the security of the vehicles stored at the garage. The evidence could establish, as the jury found, that R ought to have known of the risk of theft. However, physical injury is only foreseeable when there is something in the facts to suggest that there is not only a risk of theft, but a risk that the stolen vehicle might be operated in a dangerous manner. To find a duty of care, there must be some circumstance or evidence to suggest that a person in the position of R ought to have reasonably foreseen the risk of injury — that the stolen vehicle could be operated unsafely. In the circumstances of this case, the courts below relied upon the risk of theft by minors (who could well be inexperienced or reckless drivers) to connect the failure to secure the vehicles with the nature of the harm suffered, personal injury.
The risk of theft in general does not automatically include the risk of theft by minors. Some evidentiary basis is required before a court can conclude that the risk of theft includes the risk of theft by minors. Here, there was insufficient evidence to suggest that minors would frequent the premises at night, or be involved in joyriding or theft. Aside from evidence that could establish a risk of theft in general, there was nothing else in this case to connect the risk of theft of the car to the risk of someone being physically injured. Thus, the evidence did not provide specific circumstances to make it reasonably foreseeable that the stolen car might be driven in a way that would cause personal injury. The burden of establishing a prima facie duty of care owed by R has not been met. Reasonable foreseeability could not be established on this record.
Further, R, as a commercial garage, did not have a positive duty to guard against the risk of theft by minors. The fact that J was a minor does not automatically create an obligation to act.
It is not necessary to consider whether illegal conduct could sever the proximate relationship between the parties or negate a prima facie duty of care. However, the notion that illegal or immoral conduct by a plaintiff precludes the existence of a duty of care has consistently been rejected by the Court. Whether the personal injury caused by unsafe driving of the stolen car is suffered by the thief or a third party makes no analytical difference to the duty of care analysis. Both are reasonably foreseeable when circumstances connect the theft of the car to the unsafe operation of the stolen vehicle. While illegality can operate as a defence to a tort action in limited circumstances when it is necessary to preserve the integrity of the legal system, this concern does not arise in the circumstances of this case. Plaintiff wrongdoing is integrated into the analysis through contributory negligence, as occurred here.
J has not met the burden of establishing a prima facie duty of care owed by R. Reasonable foreseeability could not be established on this record. A business will only owe a duty to someone who is injured following the theft of a vehicle when, in addition to theft, the unsafe operation of the stolen vehicle was reasonably foreseeable.
Per Gascon and Brown JJ. (dissenting): The trial judge’s finding that R owed a duty of care to J should be upheld and the appeal should be dismissed. The relationship between R and J falls within a category of relationships in which a duty of care has been previously found to exist. This case does not require the Court to undertake a full analysis to establish a novel duty of care. It involves the application of a category of relationships that has long been recognized as imposing a duty of care — namely, where the defendant’s act foreseeably causes physical harm to the plaintiff. Physical injury to J was a reasonably foreseeable consequence of R’s negligence.
The reasonable foreseeability inquiry is objective (that is, into what reasonably ought to have been foreseen), and it must be undertaken from the standpoint of a reasonable person. Whether, therefore, the defendant actually foresaw the risk which ultimately manifested in injury to the plaintiff is not determinative. Reasonable foreseeability represents a low threshold and is usually quite easy to overcome. A plaintiff must merely provide evidence to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged. In this case, both the trial judge and the Court of Appeal held that it was reasonably foreseeable that an individual such as J could suffer physical injury as a consequence of R’s negligence in the locking, securing and storing of vehicles. The majority concedes that the risk of theft was reasonably foreseeable but would have required additional evidence that theft would have occurred at the hands of a minor in order to find that physical injury to J was foreseeable. Even were J required to show that theft by a minor must have been reasonably foreseen in order to support the trial judge’s finding, J has satisfied that burden. Minors are no less likely to steal a car than any other individual. In order to establish a duty of care, however, J was not required to show that the characteristics of the particular thief who stole the vehicle or the way in which the injury occurred were foreseeable. Imposition of a duty of care was conditioned in this case only upon J showing that physical injury to him was reasonably foreseeable under any circumstances flowing from R’s negligence. It was open to the trial judge to conclude that R’s negligence in leaving unattended vehicles unlocked with keys inside overnight could have led to reasonably foreseeable physical injury. There is no palpable and overriding error in these findings and, therefore, they should not be interfered with.
The trial judge’s finding of reasonably foreseeable physical injury is sufficient to bring the circumstances of this case within a category of relationships which has already been found to support a duty of care. As a matter of law, proximity is thereby established, and it is unnecessary to proceed to the second stage of the Anns/Cooper framework.
Cases Cited
By Karakatsanis J.
Applied: Anns v. Merton London Borough Council, [1978] A.C. 728; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; distinguished: Holian v. United Grain Growers Ltd. (1980), 112 D.L.R. (3d) 611, rev’d (1980), 114 D.L.R. (3d) 449; considered: Kalogeropoulos v. Ottawa (City) (1996), 35 M.P.L.R. (2d) 287; Cairns v. General Accident Assurance Co. of Canada, [1992] O.J. No. 1432 (QL); Provost v. Bolton, 2017 BCSC 1608, 100 B.C.L.R. (5th) 362; referred to: Donoghue v. Stevenson, [1932] A.C. 562; Stewart v. Pettie, [1995] 1 S.C.R. 131; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114; Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643; Galaske v. O’Donnell, [1994] 1 S.C.R. 670; Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165; Hollett v. Coca‑Cola Ltd. (1980), 37 N.S.R. (2d) 695; Tong v. Bedwell, 2002 ABQB 213, 311 A.R. 174; Moore v. Fanning (1987), 60 O.R. (2d) 225; Werbeniuk v. Maynard (1994), 93 Man. R. (2d) 318; Norgard v. Asuchak, [1984] A.J. No. 394 (QL); Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; Canada (Attorney General) v. LaFlamme, [1983] 3 W.W.R. 350; Aldus v. Belair (1992), 41 M.V.R. (2d) 129; Campiou Estate v. Gladue, 2002 ABQB 1037, 332 A.R. 109; Canadian Pacific Ltd. v. Swift Current No. 137 (Rural Municipality) (1991), 88 Sask. R. 281, aff’d (1992), 109 Sask. R. 33; Arnold v. Teno, [1978] 2 S.C.R. 287; Jordan House Ltd. v. Menow, [1974] S.C.R. 239; Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21; K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403; Hall v. Hebert, [1993] 2 S.C.R. 159; British Columbia v. Zastowny, 2008 SCC 4, [2008] 1 S.C.R. 27.
By Brown J. (dissenting)
Anns v. Merton London Borough Council, [1978] A.C. 728; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114; Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543; Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855; Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643; Donoghue v. Stevenson, [1932] A.C. 562; Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132; Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165.
Statutes and Regulations Cited
Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 4(1), (2).
Authors Cited
Clerk & Lindsell on Torts, 21st ed. by Michael A. Jones. London: Sweet & Maxwell, 2014.
Klar, Lewis N., and Cameron S. G. Jefferies. Tort Law, 6th ed. Toronto: Thomson Reuters, 2017.
Linden, Allen M., and Bruce Feldthusen. Canadian Tort Law, 10th ed. Toronto: LexisNexis, 2015.
Osborne, Philip H. The Law of Torts, 5th ed. Toronto: Irwin Law, 2015.
Owen, David G. “Figuring Foreseeability” (2009), 44 Wake Forest L. Rev. 1277.
Perry, Stephen R. “Protected Interests and Undertakings in the Law of Negligence” (1992), 42 U.T.L.J. 247.
Weinrib, Ernest J. “The Disintegration of Duty” (2006), 31 Adv. Q. 212.
Weinrib, Ernest J. “The Disintegration of Duty”, in M. Stuart Madden, ed., Exploring Tort Law. New York: Cambridge University Press, 2005, 143.
APPEAL from a judgment of the Ontario Court of Appeal (Strathy C.J. and Brown and Huscroft JJ.A.), 2016 ONCA 718, 403 D.L.R. (4th) 408, 32 C.C.L.T. (4th) 245, [2016] O.J. No. 5082 (QL), 2016 CarswellOnt 15069 (WL Can.), affirming a judgment of Morissette J., sitting with a jury, dated September 25, 2014, on the issue of the duty of care, and the jury verdict on the issue of liability. Appeal allowed, Gascon and Brown JJ. dissenting.
David S. Young, Kevin R. Bridel, Cory Giordano and Marie‑France Major, for the appellant.
Maia Bent, Cynthia B. Kuehl and Alfonso E. Campos Reales, for the respondents J.J. by his Litigation Guardian, J.A.J., J.A.J. and A.J.
Jennifer Chapman and John Friendly, for the respondent C.C.
Gavin MacKenzie and Brooke MacKenzie, for the intervener the Ontario Trial Lawyers Association.
Bryn E. Gray, Mary Birdsell and Carole Piovesan, for the intervener Justice for Children and Youth.
The judgment of McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Côté and Rowe JJ. was delivered by
[1] Karakatsanis J. — A vehicle is stolen from a commercial garage. The vehicle is crashed. Someone is injured. Does the business owe a duty of care to the injured party? The question in this appeal is whether the courts below erred in recognizing a duty of care owed by a business that stores vehicles to someone who is injured following the theft of a vehicle.
[2] In my view, this case is easily resolved based on a straightforward application of existing tort law principles. This requires analytical rigour and a proper evidentiary basis. The plaintiff did not provide sufficient evidence to support the establishment of a duty of care in these circumstances. While the risk of theft was reasonably foreseeable, the evidence did not establish that it was foreseeable that someone could be injured by the stolen vehicle. Here, there was no evidence to support the inference that the stolen vehicle might be operated in an unsafe manner, causing injury. When considering the security of the automobiles stored at the garage, there was no reason upon this record for someone in the position of the defendant garage owner to foresee the risk of injury. I would allow the appeal. A business will only owe a duty to someone who is injured following the theft of a vehicle when, in addition to theft, the unsafe operation of the stolen vehicle was reasonably foreseeable.
I. Background
A. Facts
[3] This case emerges from a tragic set of events. On an evening in July 2006, in the small village of Paisley, Ontario, the plaintiff J. (then 15 years old) and his friend C. (then 16 years old) were at the house of C.’s mother. The boys drank alcohol (some of which was provided by the mother) and smoked marijuana.
[4] Sometime after midnight, the boys left the house to walk around Paisley, with the intention of stealing valuables from unlocked cars. Eventually they made their way to Rankin’s Garage & Sales, a car garage located near the main intersection in Paisley that was owned by James Chadwick Rankin. The garage property was not secured, and the boys began walking around the lot checking for unlocked cars. C. found an unlocked Toyota Camry parked behind the garage. He opened the Camry and found its keys in the ashtray. Though he did not have a driver’s licence and had never driven a car on the road before, C. decided to steal the car so that he could go and pick up a friend in nearby Walkerton, Ontario. C. told J. to “get in”, which he did.
[5] The 16-year-old C. drove the car out of the garage and around Paisley before starting toward Walkerton. On the highway, the car crashed. J. suffered a catastrophic brain injury.
[6] Through his litigation guardian, J. sued Rankin’s Garage, his friend C. and his friend’s mother for negligence. The issue in this appeal is whether Rankin’s Garage owed the plaintiff a duty of care.
B. Judicial History
[7] At trial, Morissette J. held that Rankin’s Garage owed a duty of care to the plaintiff: Ontario Superior Court of Justice, September 25, 2014. The trial judge concluded that previous cases had already established the existence of this duty. She nonetheless conducted an analysis to determine whether the duty should be recognized. The trial judge held that the risk of harm to J. was reasonably foreseeable. She based this ruling, in part, on the fact that Mr. Rankin knew he had an obligation to secure his vehicles on his property, and that “[i]t certainly ought to be foreseeable that injury could occur if a vehicle were used by inebriated teenagers”. The trial judge further held there were no policy reasons to negate the duty of care.
[8] The jury found that all parties (including J. himself) had been negligent and made the following apportionment of liability: Rankin’s Garage, 37 percent liable; the friend (C.), 23 percent liable; C.’s mother, 30 percent liable; and the plaintiff (J.), 10 percent liable. With respect to Rankin’s Garage, the jury set out the particulars of the negligence finding as follows:
- Left car unlocked;
- Key in it;
- Knew or ought to have known the potential risk of theft;
- Very little security; and
- Testimony inconsistencies.
[9] The Ontario Court of Appeal upheld the trial judge’s holding that Rankin’s Garage owed a duty of care to the plaintiff. Writing for the court, Huscroft J.A. held that the trial judge erred in concluding that a duty of care had already been recognized. The Court of Appeal therefore conducted a full duty of care analysis, following the test laid out in Anns v. Merton London Borough Council, [1978] A.C. 728, as affirmed and explained in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537 (Anns/Cooper test).
[10] The Court of Appeal concluded that there was sufficient foreseeability of harm and proximity between the parties to impose a duty of care. There was “ample evidence to support the conclusion of foreseeability in this case”: 2016 ONCA 718, 403 D.L.R. (4th) 408, at para. 39. The court reasoned that Rankin’s Garage “had care and control of many vehicles for commercial purposes”; with that “comes the responsibility of securing them against minors, in whose hands they are potentially dangerous” (para. 57). As such, the court concluded that “it is fair and just to impose a duty of care in these circumstances” (para. 59).
[11] Moving to the second stage of the Anns/Cooper test, Huscroft J.A. concluded there were no residual policy considerations that negated the prima facie duty of care (para. 73). The law does not already provide a remedy in this case (para. 63); the recognition of a duty in these circumstances would not create the spectre of unlimited liability (para. 65); and there are no other policy considerations (such as the illegality of the plaintiff’s conduct) that negated the duty (paras. 68-73).
[12] The Court of Appeal dismissed the appeal.
II. Issues
[13] Before this Court, Rankin’s Garage submits that it was not reasonably foreseeable that an individual would steal a car from the garage and operate it in an unsafe manner. In any event, J.’s illegal conduct would sever any proximate relationship between the parties or operate as a residual policy basis upon which to negate a duty of care.
[14] In response, J. argues that the foreseeability component of the Anns/Cooper test does not impose a high threshold and it is a matter of common sense that vehicle theft is carried out by inexperienced youth. Further, Rankin’s Garage had a positive duty to guard against the risk of theft because it was storing goods that are potentially dangerous in the hands of minors. Rankin’s Garage had a special duty to protect minors who might steal a car and suffer injuries in a subsequent accident.
[15] This appeal raises the issue of whether a duty of care exists in these circumstances:
A. Was the risk of personal injury reasonably foreseeable in this case?
B. Did the commercial garage have a positive duty to guard against the risk of theft by minors?
C. Could illegal conduct sever any proximity between the parties or negate a prima facie duty of care?
III. The Anns/Cooper Test
[16] Perhaps the most famous negligence case in history also occurred in a town called Paisley — Paisley, Scotland. That decision, Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), revolutionized tort law by defining a principled approach to the development of the tort of negligence. Lord Atkin’s famous achievement in this regard was his articulation of the “neighbour principle”, under which parties owe a duty of care to those whom they ought reasonably to have in contemplation as being at risk when they act: Stewart v. Pettie, [1995] 1 S.C.R. 131, at para. 25.
[17] The modern law of negligence remains based on the foundations set out in Donoghue. It is still the case today that “[t]he law takes no cognizance of carelessness in the abstract”: Donoghue, at p. 618, per Lord Macmillan. Unless a duty of care is found, no liability will follow. Similarly, the neighbour principle continues to animate the Anns/Cooper test that Canadian courts use to determine whether a duty of care exists.
[18] It is not necessary to conduct a full Anns/Cooper analysis if a previous case has already established that the duty of care in question (or an analogous duty) exists: Cooper, at para. 36; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at paras. 5-6; Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855, at para. 26. If it is necessary to determine whether a novel duty exists, the first stage of the Anns/Cooper test asks whether there is a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 39; see also Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, at para. 12; Cooper, at para. 30. Once foreseeability and proximity are made out, a prima facie duty of care is established.
[19] Whether or not a duty of care exists is a question of law and I proceed on that basis: Galaske v. O’Donnell, [1994] 1 S.C.R. 670, at p. 690. The plaintiff bears the legal burden of establishing a cause of action, and thus the existence of a prima facie duty of care: Childs, at para. 13. In order to meet this burden, the plaintiff must provide a sufficient factual basis to establish that the harm was a reasonably foreseeable consequence of the defendant’s conduct in the context of a proximate relationship. In the absence of such evidence, the claim may fail: see, e.g., Childs, at para. 30.
[20] Once the plaintiff has demonstrated that a prima facie duty of care exists, the evidentiary burden then shifts to the defendant to establish that there are residual policy reasons why this duty should not be recognized: Childs, at para. 13; Imperial Tobacco, at para. 39.
Reasonable Foreseeability and Proximity
[21] Since Donoghue, the “neighbour principle” has been the cornerstone of the law of negligence. Lord Atkin’s famous quote respecting how far a legal neighbourhood extends incorporates the dual concerns of reasonable foreseeability of harm and proximity:
The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. [p. 580]
Reasonable foreseeability of harm and proximity operate as crucial limiting principles in the law of negligence. They ensure that liability will only be found when the defendant ought reasonably to have contemplated the type of harm the plaintiff suffered.
[22] The rationale underlying this approach is self-evident. It would simply not be just to impose liability in cases where there was no reason for defendants to have contemplated that their conduct could result in the harm complained of. Through the neighbour principle, the defendant, as creator of an unreasonable risk, is connected to the plaintiff, the party whose endangerment made the risk unreasonable: E. J. Weinrib, “The Disintegration of Duty”, in M. S. Madden, ed., Exploring Tort Law (2005), 143, at p. 151. The wrongdoing relates to the harm caused. Thus, foreseeability operates as the “fundamental moral glue of tort”, shaping the legal obligations we owe to one another, and defining the boundaries of our individual liability: D. G. Owen, “Figuring Foreseeability” (2009), 44 Wake Forest L. Rev. 1277, at p. 1278.
[23] In addition to foreseeability of harm, proximity between the parties is also required: Cooper, at para. 31. The proximity analysis determines whether the parties are sufficiently “close and direct” such that the defendant is under an obligation to be mindful of the plaintiff’s interests: Cooper, at para. 32; Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165, at para. 24. This is what makes it just and fair to impose a duty: Cooper, at para. 34. The proximity inquiry considers the “expectations, representations, reliance, and the property or other interests involved” as between the parties: Cooper, at para. 34. In cases of personal injury, when there is no relationship between the parties, proximity will often (though not always) be established solely on the basis of reasonable foreseeability: see Childs, at para. 31.
[24] When determining whether reasonable foreseeability is established, the proper question to ask is whether the plaintiff has “offer[ed] facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged”: A. M. Linden and B. Feldthusen, Canadian Tort Law (10th ed. 2015), at p. 322 (emphasis added). This approach ensures that the inquiry considers both the defendant who committed the act as well as the plaintiff, whose harm allegedly makes the act wrongful. As Professor Weinrib notes, the duty of care analysis is a search for the connection between the wrong and the injury suffered by the plaintiff: p. 150; see also Anns, at pp. 751-52; Childs, at para. 25.
[25] The facts of this case highlight the importance of framing the question of whether harm is foreseeable with sufficient analytical rigour to connect the failure to take care to the type of harm caused to persons in the plaintiff’s situation. Here, the claim is brought by an individual who was physically injured following the theft of the car from Rankin’s Garage. The foreseeability question must therefore be framed in a way that links the impugned act (leaving the vehicle unsecured) to the harm suffered by the plaintiff (physical injury).
[26] Thus, in this context, it is not enough to determine simply whether the theft of the vehicle was reasonably foreseeable. The claim is not brought by the owner of the car for the loss of the property interest in the car; if that were the case, a risk of theft in general would suffice. Characterizing the nature of the risk-taking as the risk of theft does not illuminate why the impugned act is wrongful in this case since creating a risk of theft would not necessarily expose the plaintiff to a risk of physical injury. Instead, further evidence is needed to create a connection between the theft and the unsafe operation of the stolen vehicle. The proper question to be asked in this context is whether the type of harm suffered — personal injury — was reasonably foreseeable to someone in the position of the defendant when considering the security of the vehicles stored at the garage.
IV. Analysis
[27] There is no clear guidance in Canadian case law on whether a business owes a duty of care to someone who is injured following the theft of a vehicle from its premises. The lower court jurisprudence is divided and there is no consensus: see, e.g., Hollett v. Coca-Cola Ltd. (1980), 37 N.S.R. (2d) 695 (S.C.T.D.); Tong v. Bedwell, 2002 ABQB 213, 311 A.R. 174; Moore v. Fanning (1987), 60 O.R. (2d) 225 (H.C.J.); Werbeniuk v. Maynard (1994), 93 Man. R. (2d) 318 (Q.B.); and Norgard v. Asuchak, [1984] A.J. No. 394 (QL) (Q.B.); but see Kalogeropoulos v. Ottawa (City) (1996), 35 M.P.L.R. (2d) 287 (Ont. C.J. (Gen. Div.)); Cairns v. General Accident Assurance Co. of Canada, [1992] O.J. No. 1432 (QL) (Gen. Div.); and Provost v. Bolton, 2017 BCSC 1608, 100 B.C.L.R. (5th) 362. The courts below disagreed on whether a duty had been established in the jurisprudence, but both conducted an Anns/Cooper analysis. This Court has never addressed the issue. Like the courts below, I turn to the Anns/Cooper analysis.
[28] I cannot agree with my colleague’s position that this case is captured by a broad category defined simply as foreseeable physical injury: see Cooper; Childs. Such an approach would be contrary to recent guidance from this Court that categories should be framed narrowly (see Deloitte, at para. 28); indeed, even in Deloitte, the “broad” categories discussed were narrower than foreseeable physical injury (e.g. the duty of care owed by a motorist to other users of the highway; the duty of care owed by a doctor to a patient) (see para. 27). Moreover, in a case like this, applying such a broad category would ignore any distinction between a business and a residential defendant that may be relevant to proximity and/or policy considerations. The application of my colleague’s proposed category to the facts in this case would signal an expansion of that category in a manner that would subsume many of the categories recognized in tort law, rendering them redundant in cases of physical injury (e.g. the duty of a motorist to users of the highway (Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 25); the duty of a manufacturer to consumers (Mustapha, at para. 6)). Neither the courts below nor the parties articulated the issue in this case so broadly. Finally, foreseeability of injury is built into the category that my colleague identifies — and, as discussed below, foreseeability of injury is not present in the instant case.
A. Was the Risk of Personal Injury Reasonably Foreseeable in This Case?
[29] The trial judge, in brief oral reasons on foreseeability, found that “Mr. Chad Rankin knew he had an obligation to secure his vehicles on his property”. She went on to note that “[i]t certainly ought to be foreseeable that injury could occur if a vehicle were used by inebriated teenagers”.
[30] The Court of Appeal conducted a more robust analysis on this point, and found that there was “ample evidence to support the conclusion of foreseeability in this case”. However, its analysis of the evidence was related only to the risk of theft in general.
[31] The Court of Appeal noted that Rankin’s Garage was a commercial establishment with care and control of many vehicles on an ongoing basis and that several witnesses testified that Rankin’s Garage had a practice of leaving cars unlocked with keys in them. In addition, it relied upon evidence of two witnesses respecting a prior history of vehicle theft from Rankin’s Garage and the area in general. C.’s older sister testified that between 9 and 11 years prior to this incident, she witnessed a stolen vehicle being returned to Rankin’s Garage sometime after midnight, and overheard unknown individuals discussing how they had taken the vehicle to McDonald’s.
[32] In addition, a police officer gave evidence that vehicle theft and/or mischief — people rummaging through vehicles — was a common occurrence in the detachment area prior to this incident occurring. He further testified that local detachments would place articles in newspapers and use radio advertising to remind people to lock their vehicles. In 2007 — after the accident occurred — a “Lock It or Lose It” program was established. Through this program, auxiliary police members would check to see if vehicles were locked and notify owners if they were not.
[33] All the evidence respecting the practices of Rankin’s Garage or the history of theft in the area, such as it was, concerns the risk of theft. The evidence did not suggest that a vehicle, if stolen, would be operated in an unsafe manner. This evidence did not address the risk of theft by a minor, or the risk of theft leading to an accident causing personal injury. Indeed, the jury noted that it found liability based on the foreseeability of theft.
[34] I accept that the evidence could establish, as the jury found, that the defendant ought to have known of the risk of theft. However, it does not automatically flow from evidence of the risk of theft in general that a garage owner should have considered the risk of physical injury. I do not accept that anyone that leaves a vehicle unlocked with the keys in it should always reasonably anticipate that someone could be injured if the vehicle were stolen. This would extend tort liability too far. Physical injury is only foreseeable when there is something in the facts to suggest that there is not only a risk of theft, but that the stolen vehicle might be operated in a dangerous manner.
[35] This approach is consistent with the weight of lower court jurisprudence. In most of the cases we were referred to and which were cited by the courts below, the courts concluded that subsequent harm (to a third party) was not reasonably foreseeable. The rationale is often that while theft may have been foreseeable, injury, loss, and damage arising from the subsequent negligent operation of the motor vehicle was not: see, e.g., Hollett; Tong; Moore; Werbeniuk; and Norgard. See also Canada (Attorney General) v. LaFlamme, [1983] 3 W.W.R. 350 (B.C. Co. Ct.); Aldus v. Belair (1992), 41 M.V.R. (2d) 129 (Ont. C.J. (Gen. Div.)); Campiou Estate v. Gladue, 2002 ABQB 1037, 332 A.R. 109; and Canadian Pacific Ltd. v. Swift Current No. 137 (Rural Municipality) (1991), 88 Sask. R. 281 (Q.B.), aff’d (1992), 109 Sask. R. 33 (C.A.).
[36] We were referred to only three trial court decisions where the subsequent injury to a third party was found to be foreseeable: Kalogeropoulos (relied on by the trial judge); Cairns; and Provost.
[37] In Kalogeropoulos, a defendant left a vehicle running in an area with bars nearby just after closing time (paras. 50-52). A man returning from an evening of drinking stole the vehicle. The defendant’s colleagues chased the thief and the stolen vehicle was crashed into a taxi cab.
[38] In Cairns, a group of high school students stole the keys for six cars from a car dealership and returned to the car dealership a few days later to steal two cars in broad daylight. One of the youth, who had never driven before, drove through a red light and struck and killed a pedestrian. The trial judge found as a fact that the dealership was aware that young people without driving experience were the most likely perpetrators of the theft of the keys (p. 4). In these circumstances, it was foreseeable that they would return to steal the cars. This connected the risk of theft to a risk of harm from an inexperienced driver fleeing the scene of the theft.
[39] In Provost, a duty of care on the part of an automobile dealership was found based on the Court of Appeal’s decision in the present case. Provost concerned the theft of a truck left running for 40 minutes in public view in an open area frequented by many. The accident occurred while fleeing the scene of the crime. Without determining whether this evidence was sufficient to establish a duty of care, I note that there was specific evidence led about the risk of erratic driving that flows from fleeing the police in a stolen vehicle (paras. 142-45).
[40] In each of these cases, there was something in the factual matrix that could connect the theft and the subsequent unsafe driving of the stolen car and thus make personal injury foreseeable.
[41] I agree with the weight of the case law that the risk of theft does not automatically include the risk of injury from the subsequent operation of the stolen vehicle. It is a step removed. To find a duty, there must be some circumstance or evidence to suggest that a person in the position of the defendant ought to have reasonably foreseen the risk of injury — that the stolen vehicle could be operated unsafely. That evidence need not be related to the characteristics of the particular thief who stole the vehicle or the way in which the injury occurred, but the court must determine whether reasonable foreseeability of the risk of injury was established on the evidence before it.
[42] In the circumstances of this case, the courts below relied upon the risk of theft by minors (who could well be inexperienced or reckless drivers) to connect the failure to secure the vehicles with the nature of the harm suffered, personal injury.
[43] Despite the fact that all of the evidence went to the risk of theft in general, the Court of Appeal nonetheless found the harm in this case — personal injury — to be reasonably foreseeable. In doing so, the court relied o