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From the Bench: SCC Rules Injuries Sustained During Car Theft Not Foreseeable

This decision will likely result in increased litigation with respect to the duty of care and foreseeability of harm.

Rankin (Rankin’s garage & Sales) v JJ, 2018 SCC 19

Case Facts

This matter arises from a single motor vehicle collision. J, the Plaintiff, and his friend C were 15 and 16 years old, respectively, at the time of the collision. Prior to the accident, the two minors consumed alcohol and smoked marijuana. The minors left their home to walk around with the intention of stealing valuables from unlocked vehicles. They came across Rankin’s Garage & Sales, the Defendant, a car garage whose property was not secured. The minors found an unlocked Toyota Camry (the “Vehicle”) with its keys in the ashtray. Neither minor had their driver’s license and had not driven a vehicle before. C operated the Vehicle and, while on the highway, crashed the Vehicle. The Plaintiff suffered catastrophic brain injuries.

At trial, the Trial Judge found the Defendant owed a duty of care to the Plaintiff. Furthermore, the Trial Judge found the risk of harm to the Plaintiff was reasonably foreseeable. The Ontario Court of Appeal upheld this decision. They found there was sufficient foreseeability of harm and proximity to impose a duty of care as the Defendant had control of vehicles for a commercial purpose coming with it the responsibility to secure them against minors where they are potentially dangerous.

At issue before the Supreme Court of Canada was to determine whether the risk of personal injury was foreseeable; whether a commercial garage has a positive duty to guard against the risk of theft by minors; and whether illegal conduct severs proximity or negates a prima facie duty of care. Ultimately Justice Karakatsanis, writing for the majority, found there was no reasonable foreseeability and allowed the appeal.

Analysis

Reasonable Foreseeability and Proximity

Reasonable foreseeability is established by considering whether the risk of a type of damage that occurred was reasonably foreseeable to the class of plaintiff damaged.

The Plaintiff was physically injured following the theft of the Vehicle. The claim was not brought by the owner of the car for property damage; rather, it was brought by the Plaintiff who suffered personal injuries. The Court had to consider whether the type of harm suffered, the personal injury, was reasonably foreseeable to the Defendant when considering the security of the vehicles stored on his premises, not simply whether the theft was reasonably foreseeable.

The Majority disagreed with the lower courts characterization the duty of care is owed by virtue of this situation being as foreseeable physical injury. They were concerned about applying this broad category as it would have ignored the distinction between a business and residential defendant. Additionally, the Majority did not find the injury was foreseeable:

[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. … 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. … 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.

Justice Karakatsanis recognized the Trial Judge and Court of Appeal found evidence to support the conclusion there were concerns with respect to the risk of theft; however, this evidence did not suggest the Vehicle would be operated in an unsafe manner causing the risk of personal injury. Risk of physical injury does not automatically arise due to a risk of theft. There must be something more to suggest the stolen vehicle might be operated in a dangerous manner:

[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.

The Majority rejected the notion the Defendants should have considered minors when contemplating their security measures. Unless there is evidence to suggest otherwise, the risk of theft in general does not automatically include the risk of theft by minors:

[45] However, the risk of theft in general does not automatically include the risk of theft by minors. I cannot agree with my colleague’s suggestion that because minors are reckless, “minors are no less likely to steal a car than any other individual” and therefore, theft by a minor is reasonably foreseeable (para. 83). The inferential chain of reasoning is too weak — it is not enough to say that it is possible that unsupervised minors would be roaming the lot looking for unlocked vehicles.

In the circumstances at hand, there was nothing to suggest the Defendant’s premises was intended or known to attract minors. There was insufficient evidence to find minors would be involved in the theft of vehicles. On that basis, personal injury was not reasonably foreseeable:

[55] To summarize, 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 evidence did not, for example, establish that the risk of theft included the risk of theft by minors. While in this case, it was argued that it was the risk of theft by minors that could make the risk of the unsafe operation of the stolen vehicle foreseeable, had there been other evidence or circumstances making the risk of personal injury reasonably foreseeable, a duty of care would exist.

As a result of the foregoing, the Supreme Court of Canada was not satisfied the bodily harm resulting from the theft of the Vehicle was reasonably foreseeable. The Plaintiff failed to prove the Defendant should have contemplated the risk of personal injury in its security practices. Therefore, the Plaintiff failed to prove a duty of care was owed to him by the Defendant.

Did the Commercial Garage Have a Positive Duty to Guard Against the Risk of Theft by Minors?

Although the Majority determined the injury was not reasonably foreseeable, they commented on whether commercial garages have a positive duty to guard against the risk of theft by minors.

The Majority rejected the idea a commercial garage is akin to a bar. In the relationship between the bar and customer, the establishments have commercial incentives to over-serve alcohol increasing the risk to the public. Commercial garages are distinguished on the basis they have no commercial relationship nor do they profit or encourage any person who might steal the vehicles:

[59] In my view, this analogy is misguided. Bar owners have a positive duty to take steps to prevent potential harm caused by intoxicated patrons … The existence of this duty is based on a number of considerations specific to that relationship, including the regulatory context surrounding alcohol sales (Childs, at paras. 19-21), the contractual relationship between the bar and the customer, and the fact that bars have a commercial incentive to over-serve alcohol, thus increasing the risk to the public (Childs, at para. 22). While Childs contemplated that other types of commercial entities may also have positive duties to act (para. 37), in my view, commercial garages do not universally fall within this category. The context simply does not warrant it. While a garage benefits financially from servicing cars, they have no commercial relationship with, and do not profit from or encourage the persons who might steal the cars.

The fact the Plaintiff was a minor was irrelevant. Although the Courts have recognized a duty of care owed to children, these duties are based on the relationship of care, supervision and control. The duty of care is not based on the age of the child alone. The fact the Plaintiff was a minor was insufficient to establish a positive duty to act:

[61] Similarly, the fact that J. was a minor does not automatically create an obligation to act. There are circumstances where courts recognize a specific duty of care owed to children. However, these duties are imposed based on the relationship of care, supervision, and control, rather than the age of the child alone. … The rationale for imposing such duties is not based solely on the age of the plaintiff, but rather the relationship of control, responsibility, and supervision: Childs, at para. 36. No similar relationship exists here. Thus, the mere fact that the plaintiff was a minor is insufficient to establish a positive duty to act. Tort law does not make everyone responsible for the safety of children at all times.

Could Illegal Conduct Sever any Proximity Between the Parties or Negate a Prima Facie Duty of Care?

The Court commented on whether the illegal conduct of the Plaintiff was sufficient to sever the proximate relationship between the parties or negate a prima facie duty of care.

Historically, the idea illegal or immoral conduct precludes the existence of a duty of care was rejected. Although illegality can act as a defence in limited circumstances, Justice Karakatsanis did not find the circumstances warranted its applicability. It is irrelevant whether the personal injury was caused by the unsafe driving or a third party:

[63] Rankin’s Garage submits that illegal acts by the plaintiff sever any proximate relationship between the parties or, alternately, operate as a residual policy basis on which to negate the duty of care. The notion that illegal or immoral conduct by the plaintiff precludes the existence of a duty of care has consistently been rejected by this Court … 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: see Hall, at pp. 169 and 179-80. Plaintiff wrongdoing is integrated into the analysis through contributory negligence, as occurred here.

[64] Thus, 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. In effect, it is the same problem which creates the risk to the third parties as creates the risk to the driver and “only chance” determines which party is injured: see Stewart, at para. 28.

Dissent

Justice Gascon and Brown disagreed with the Majority finding the Defendant did in fact owe a duty of care to the Plaintiff and the appeal should be dismissed.

Justice Brown, writing for the dissent, agreed with the majority the duty of care is established through the application of the Anns/Cooper framework. He noted a duty of care is owed where the defendant’s act foreseeably causes physical harm to the plaintiff. As such, the Plaintiff need only show the physical injury was a reasonably foreseeable consequence of the Defendant’s negligence:

[73]… In Cooper v. Hobart, this Court identified the first category of relationships in which a duty of care has been previously recognized as being that “where the defendant’s act foreseeably causes physical harm to the plaintiff”. To show that the circumstances of a case fall within this category, a plaintiff need only demonstrate that physical injury to him or her was a reasonably foreseeable consequence of a defendant’s overt act of negligence … And, in cases of foreseeable physical injury, the “factor” which justifies the establishment of a proximate relationship and a duty of care is the foreseeability of injury alone. Indeed, the majority appears to agree that this will “often” be the case. Where foreseeability of physical injury is shown, proximity is established by analogy to those cases where reasonably foreseeable physical injury had previously prompted a court to recognize a duty of care. …

The Dissent was highly critical of the Majority. Justice Brown noted the Majority did not explain why applying the category of foreseeable physical injury resulted in an expansion of this category. In rejecting this approach, the Dissent opined the Majority rejected extensive precedent. Additionally, the Dissent was concerned with the fact the Majority did not explain when the category of foreseeable physical injury would ever apply.

After establishing the category of foreseeable physical injury was applicable, the Dissent turned their mind to whether the injury was reasonably foreseeable. The Dissent noted reasonable foreseeability is a relatively low threshold:

[78] Reasonable foreseeability represents a low threshold and is “usually quite easy to overcome”. At this point, 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”. Where a plaintiff has already sustained injury, it is rare for a court to find that a duty of care is not established for a lack of reasonably foreseeable harm. … The Dissent found the physical injury to the Plaintiff was foreseeable. They rejected the notion the risk of theft does not include the risk of theft by minors unless there is further evidence to support this conclusion.

The Dissent found no authority to support this conclusion; instead finding a minor was no less likely to steal a vehicle than any other individual. There was sufficient evidence to support the trial judge’s conclusion physical injury to the Plaintiff was reasonably foreseeable and the Dissent would have dismissed the appeal.

In Conclusion

This decision reinforces the importance of considering the facts of each and every case. Simply because there is a risk of theft does not automatically translate into the risk of harm. There must be information in the situation at hand which suggests a stolen vehicle will be operated dangerously. Furthermore, there is no onus to onus to protect against the risk of theft by minors unless there is evidence to suggest the Defendant’s premises was known to attract minors. As such, personal injury was not the foreseeable result of a minor following theft of a vehicle.

Moving forward, this decision will likely result in increased litigation with respect to the duty of care and foreseeability of harm. The Supreme Court of Canada has concluded the previously accepted categories for establishing the duty of care, such as the foreseeability of physical injury, may not be applicable in certain situations. As such, this will likely lead to greater litigation in cases where counsel attempt to rely on traditionally accepted categories for establishing the duty of care.