A garage was found not liable for injuries caused by the thief of one of its vehicles because the fact that it was reasonably foreseeable that vehicles might be stolen from its premises does not make it reasonably foreseeable that the stolen vehicle would be operated unsafely so as to injure the plaintiff.
Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19
FACTS AND ISSUES:
In July 2006 in the village of Paisley Ontario, the 15-year-old Plaintiff J and his 16-year-old friend C became intoxicated at C’s home when they drank alcohol (some provided by C's mother) and smoked cannabis. After midnight, they went out walking around town, looking to steal valuables from unlocked cars. They found the Defendant Rankin’s Garage property not secured. The boys walked around the lot until they found an unlocked vehicle with its keys in the ashtray. The Defendant C (who did not have a driver’s license and had never driven a car on the road before) decided to steal the car and instructed his friend J to “get in”. While driving the vehicle, C became involved in an accident in which J suffered catastrophic brain injury.
The Garage’s personnel testified that before closing the business each day, they would physically check to make sure that all vehicles on the premises were locked and that the keys were stored in a locked safe. However, there was evidence from several witnesses that Rankins had a practice of leaving cars unlocked with keys in them. There was also evidence that a few years previously a vehicle had been stolen from Rankin’s Garage after midnight and taken on a joyride. Furthermore, police testified that vehicle theft or mischief was commonplace in the area, such that police would routinely advertise to warn drivers to lock their vehicles.
J sued Rankin’s Garage, his friend C and C’s mother in negligence.
At trial, the trial judge held that Rankin’s Garage owed a duty of care to J, based on previous cases that the trial judge felt had established the necessary duty of care. She concluded that the risk of harm to J was reasonably foreseeable to the garage owner because the garage knew that he had an obligation to secure vehicles on his property and that it “ought to be foreseeable that injury could occur if a vehicle were used by inebriated teenagers”. The trial judge found that there were no policy reasons to negate that duty of care.
The jury found all parties (including J) negligent and apportioned damages 37% to the Garage, 23% to C, 30% to C's mother and 10% to J. The jury relied on the following particulars of negligence: the vehicle was left unlocked with the keys in it where the Garage knew or ought to have known of the potential risk of theft, the Garage had provided very little security and there were testimonial inconsistencies on the part of the Garage personnel as to their policies and practices.
The Ontario Court of Appeal upheld the decision but concluded that the trial judge had erred in concluding that the duty of care had already been recognized in law. Thus, the Ontario Court of Appeal treated this as a novel theory of negligence and applied the two-part test set out in Anns v. Merton London Borough Counsel  AC 728, and Cooper v. Hobart, 2001 SCC 79. The Court of Appeal held that there were sufficient foreseeability of harm and proximity between J and the Garage to support a duty of care. The Court of Appeal reasoned that since the business commercially stored many vehicles, it had a responsibility to secure them against theft by minors, in whose hands they would be dangerous. The Court of Appeal concluded that a general risk of theft includes a risk of theft by minors.
Rankin’s Garage appealed.
HELD: For Rankin’s Garage; appeal allowed and case dismissed as against the Garage.
This was a split decision with the Majority decision written by Karakatsanis, J. (concurred in by McLachlin C. J. and Abella, Moldaver, Wagner, Cote and Rowe, JJ) and the Dissent written to by Brown, J (Gascon, J. concurring).
The Majority summarized the law with respect to the two-part Anns/Cooper analysis.
a. The Majority summarized the overall principal as follows:
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,  2 S.C.R. 114 (S.C.C.), at paras. 5-6; Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63,  2 S.C.R. 855 (S.C.C.), 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: Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42,  3 S.C.R. 45 (S.C.C.), at para. 39; see also Childs v. Desormeaux, 2006 SCC 18,  1 S.C.R. 643 (S.C.C.), 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,  1 S.C.R. 670 (S.C.C.) , 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.
b. The Majority went on to note that the first part of the test involved “dual concerns”, being (1) reasonable foreseeability of harm; and (2) proximity, keeping in mind that in personal injury cases where there is no relationship between the parties, proximity will often (but not always) be established solely on basis of establishment of reasonable foreseeability:
21 Since Donoghue [v. Stevenson  A.C. 562 (U.K.H.L.], 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.
. . .
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 Management Ltd. v. Ernst & Young,  2 S.C.R. 165 (S.C.C.) , 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 J (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 J 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 Garage when considering the security of the vehicles stored at the garage.
The Majority concluded that there was no existing consensus in Canadian law as to whether a business owner owes a duty of care to an injured party following the theft of a vehicle of the businesses premises. In particular, the Majority disagreed with the position of the Dissent that there was pre-existing category of such cases, broadly defined and characterized as cases involving “foreseeable physical injury”:
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 (N.S. T.D.) ; Tong v. Bedwell, 2002 ABQB 213, 311 A.R. 174 (Alta. Q.B.) ; Moore v. Fanning (1987), 60 O.R. (2d) 225 (Ont. H.C.) ; Werbeniuk v. Maynard (1994), 93 Man. R. (2d) 318 (Man. Q.B.) ; and Norgard v. Asuchak,  A.J. No. 394 (Alta. Q.B.) ; but see Kalogeropoulos v. Ottawa (City) (1996), 35 M.P.L.R. (2d) 287 (Ont. Gen. Div.) ; Cairns v. General Accident Assurance Co. of Canada,  O.J. No. 1432 (Ont. Gen. Div.) ; and Provost v. Bolton, 2017 BCSC 1608, 100 B.C.L.R. (5th) 362 (B.C. S.C.). 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; Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41,  3 S.C.R. 129 (S.C.C.), 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.
The Majority held that the risk of injury to J was not reasonably foreseeable to the Garage in this case. Although the risk of theft was foreseeable, the risk of injury subsequent to that theft was not. A risk of theft does not automatically include a risk of injury thereafter.
a. What is reasonably foreseeable is an objective test, “focused on whether someone in the defendant’s position ought reasonably have foreseen the harm rather than whether the specific defendant did” (para. 53)
b. The Majority held:
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 Garage 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.
. . .
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.
. . .
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.
46 The fact that something is possible does not mean that it is reasonably foreseeable. Obviously, any harm that has occurred was by definition possible. Thus, for harm to be reasonably foreseeable, a higher threshold than mere possibility must be met: Childs, at para. 29. Some evidentiary basis is required before a court can conclude that the risk of theft includes the risk of theft by minors. Otherwise theft by a minor would always be foreseeable — even without any evidence to suggest that this risk was more than a mere possibility. This would fundamentally change tort law and could result in a significant expansion of liability.
c. The Majority held that in this case the Court of Appeal “could only rely on speculation to connect the risk of theft to the risk of personal injury” (para. 50):
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.
56 As was the case in many similar decisions by trial courts, 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 J did not satisfy the onus to establish that the Garage 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: see Childs, at para. 29. For these reasons, J 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.
d. The Majority rejected J’s argument that this situation was analogous to a commercial bar over serving a patron. The personal relationship between the bar and the patron is missing in most personal injury cases:'
60 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. Commercial garages, unlike an individual who leaves a car unlocked with the keys accessible, have care and control of many vehicles and necessarily have to turn their mind to the security of those vehicles, especially after hours, to prevent theft of the vehicles. Having many vehicles, however, does not necessarily create a risk of personal injury. 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.
e. Indeed, the Majority rejected that the fact that J was a minor created an obligation on the Garage to act because “[t]he rationale for imposing such duties is not based solely on the age of the plaintiff, but rather the relationship of control, responsibility, and supervision” and “[n]o similar relationship exists here” It was held that “the mere fact that the plaintiff was a minor is insufficient to establish a positive duty to act” in that “[t]ort law does not make everyone responsible for the safety of children at all times”. (para. 61)
f. The Majority recognized that in some factual situations a party in the shoes of the Garage might be found liable:
67 This is not to say that a duty of care will never exist when a car is stolen from a commercial establishment and involved in an accident. Another plaintiff may establish that circumstances were such that the business ought to have foreseen the risk of personal injury. However, on this record, I conclude that the courts below erred in holding that Rankin’s Garage owed a duty of care to J. . .
The Majority commented in obiter that the illegal acts of J would not eliminate any duty of care owed by the Garage as argued by the Defence:
63 Rankin’s Garage submits that illegal acts by J 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 J precludes the existence of a duty of care has consistently been rejected by this Court: see Hall v. Hebert,  2 S.C.R. 159 (S.C.C.) ; British Columbia v. Zastowny, 2008 SCC 4,  1 S.C.R. 27 (S.C.C.) . Tort law does not seek to punish wrongdoing in the abstract. Rather, private law is corrective and based on compensation for harm that results from the defendant’s unreasonable creation of the risk of that harm. If the mere fact of illegal behaviour could eliminate a duty, this would effectively immunize negligent defendants from the consequences of their actions. Seriously injured victims would be entirely denied recovery, even when the defendant bears most of the fault. 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.
In dissent, Brown J. held that since the risk of theft by minors was foreseeable, the resulting injury was also foreseeable and thus compensable. “[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” (para. 73) and that recognized category of cases imposing a duty is such that the broad “category of foreseeable physical injury as sufficient to establish a duty of care without any word of concern that such a category would “subsume” others” (para. 74). “[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’” (emphasis by the Dissent). The Dissent held that while not every theft qualifies, on the facts case, “a reasonable person in Rankin’s circumstances should have foreseen the risk of injury resulting from the negligent storage of vehicles” (para. 81)
This case is the latest Supreme Court interpretation of the law of reasonable foreseeability and proximity in tort law in general and thus has ramifications above and beyond a stolen vehicle case. The bottom line is that the mere fact that the first in a series of consequences is foreseeable to a defendant as arising from his/her/its negligence does not mean that subsequent consequences in the chain of causation will be.