On October 5, 2017, David S. Young and Kevin R. Bridel of Benson Percival Brown LLP appeared before the Supreme Court of Canada on behalf of the Defendant, James Chadwick Rankin carrying on business as Rankin’s Garage & Sales, to request that the decision of the Ontario Court of Appeal in JJ v. CC [1] be overturned.
On May 11, 2018, the Supreme Court granted the Appellant’s request and dismissed this action against our client (Rankin’s Garage & Sales v. JJ)[2].
The majority decision of the High Court reaffirms the basic principles upon which tort law in Canada is premised and rejects the lower court’s acceptance of assumptions and suppositions to establish a “duty of care”. This recently released decision will prove to be of importance to many Canadians including business owners and insurers.
Facts
In July 2006, in Paisley, Ontario, the Plaintiff JJ and his friend CC (then 15 and 16 years old) were in the home of CC’s mother, DC. The mother supplied the teenagers with alcohol. DC went to bed and the boys continued to drink and smoke marijuana. Thereafter, the boys left the house with the intention of stealing valuables from unlocked cars.
The pair eventually made their way to Rankin’s Garage, where they found an unlocked Toyota Camry with the keys in the ashtray. CC and JJ then decided to steal the car even though neither had a driver’s license and neither had previously operated a vehicle. A single-vehicle accident occurred as the pair was driving to Walkerton, Ontario. JJ experienced a catastrophic brain injury.
Trial
JJ, by his Litigation Guardian, commenced proceedings against his friend CC, CC’s mother, and the garage owner.
The action proceeded to Trial only in respect of liability. The presiding judge found that Rankin owed a duty to JJ (based on previous cases) and she instructed the jury accordingly. The Jury accepted the evidence of several witnesses who testified that Rankin’s Garage had a practice of leaving cars unlocked with keys in the vehicles.
Ultimately, the Jury found all parties negligent and apportioned liability as follows:
- Rankin’s Garage: 37%
- CC’s mother: 30%
- The friend, CC: 23%
- The Plaintiff, JJ: 10%
Court of Appeal
The Court of Appeal held that the Trial Judge erred in concluding that a duty of care had already been recognized, and so conducted a full duty of care analysis following the test laid out in Anns v. Merton London Borough Council[3] and affirmed by the Supreme Court of Canada in Cooper v. Hobart:[4]
- Was the harm that occurred the reasonably foreseeable consequence of the Defendant’s Act?
- Are there reasons, notwithstanding the proximity between the parties established in the first part, that tort liability should not be recognized here?
The Court of Appeal held that Rankin’s Garage was easily accessible by anyone, and that the risk of theft was clear. In these circumstances, Huscroft JA held that it was foreseeable that minors might take a car from Rankin’s Garage and that it was “a matter of common sense” that minors might harm themselves while joyriding, especially if impaired by alcohol or drugs. The appellate Court decided to recognize this summary “novel” duty of care and in doing so upheld the trial decision for distinct reasons.
The Supreme Court Decision
The 7-2 majority decision held that there was no duty of care owed by Rankin to JJ in these circumstances. Writing for her six colleagues, Justice Karakatsanis stressed that determining whether something is “reasonably foreseeable” is an objective test, and that Courts must be vigorous in determining whether foreseeability is present prior to the incident occurring and not with the aid of hindsight.
We argued that the evidence proffered at Trial did not demonstrate that it was reasonably foreseeable that injuries would arise from the theft of the vehicle taken from Mr. Rankin’s establishment. There was no meaningful evidence to establish that other vehicles had been stolen, that minors in particular were known to steal vehicles in the area, or that anyone had been injured as a result of any thefts.
Justice Karakatsanis agreed and stated that:
“…I am not satisfied that the evidence here demonstrates that bodily harm resulting from the theft of the vehicle was reasonably foreseeable. I conclude that the plaintiff did not satisfy the onus to establish that the defendant ought to have contemplated the risk of personal injury when considering its security practices. The inferential chain of reasoning was too weak to support the establishment of reasonable foreseeability…For these reasons, the plaintiff has not met his burden of establishing a prima facie duty of care owed by Rankin’s Garage to him. Reasonable foreseeability could not be established on this record.”
In reaching its conclusion the Supreme Court reaffirmed that the Plaintiff’s criminal conduct was irrelevant in analyzing whether a duty of care existed. As found in the Court’s previous judgments, the Court held that a Plaintiff engaging in immoral or illegal conduct is not precluded from successfully claiming against tortfeasors. Such behaviour can, however, form a part of the contributory negligence analysis.
The majority decision of the Supreme Court also specifically rejects arguments made by the Plaintiff and several interveners (including OTLA) that Rankin’s Garage as a commercial enterprise had a positive, enhanced duty of care because vehicles are inherently dangerous and that JJ was a minor.
Justice Karakatsanis noted:
“Vehicles are ubiquitous in our society. They are not like loaded guns that are inherently dangerous and therefore must be stored carefully in order to protect the public…While cars can be dangerous in the hands of someone who does not know how to drive, this risk would only realistically exist in certain circumstances…Similarly, the fact that J. was a minor does not automatically create an obligation to act.”
The appeal was allowed and the claim dismissed against Mr. Rankin with costs in both the High Court and in the Courts below.
The Impact on Tort Law
- To establish a duty of care there must be clear evidence of the foreseeability of the consequences of the negligence.
- Cases involving injury arising from the theft of motor vehicles must be decided on their individual facts.
- The mere fact that the Plaintiff is a minor does not automatically create a duty of care, even in the case of a commercial enterprise.
- Vehicles are not inherently dangerous, and storing them (whether for commercial or personal reasons) will only create a reasonably foreseeable risk in special circumstances.
- The Plaintiff’s illegal or immoral conduct involving the theft of a vehicle does not operate as a complete bar to recovery. However, the conduct will be incorporated into a contributory negligence analysis.
[1] 2016 ONCA 718.
[2] 2018 SCC 19.
[3] [1978] AC 728
[4] 2001 SCC 79.