The British Columbia Court of Appeal held that while a car dealership which failed to secure a vehicle on its lot may be liable for an accident which occurs as the thief drives out of the dealership, it was not liable where the thief drives away from the dealership in a safe manner and an accident occurs over an hour later when the thief drives erratically in response to a police chase.
Provost v Dueck Downtown Chevrolet Buick GMC Limited, 2020 BCCA 86, per Butler, J.
Facts and Issues
This decision deals with claims of negligence arising out of multiple motor vehicle collisions that occurred during the police pursuit of a vehicle stolen from a car dealership.
Katerenchuk was the lot manager of the car dealership, Dueck Downtown Chevrolet Buick GMC Limited (both referred to as the “Dueck Appellants”). The dealership was located on Terminal Avenue in Vancouver.
Katerenchuk left the truck in question (the “Truck”) unlocked and running with the keys in the ignition for approximately 40 minutes in an area of the dealership lot which was in view and accessible to the public. Bolton stole the Truck. He was then seen getting into the Truck and driving away from the dealership in a normal fashion.
An employee of the dealership reported the theft to both police and OnStar (“a remote services system that includes GPS (Global Positioning System) tracking” and was built into the Truck). OnStar was able to activate the GPS tracking system regarding the Truck which enabled police with locating it. Police members were dispatched to follow the Truck. Police were following the Truck in unmarked police vehicles and Bolton was seen driving normally. Police approached the Truck when it was observed as being parked and unoccupied. However, Bolton was still in the Truck at this point and evaded police by backing into one of the police cruisers.
A pursuit followed this interaction, during which Bolton was driving at high speeds, dangerously and erratically. Mr. Bolton collided with an unmarked police vehicle, injuring Cst. Provost, but was able to drive away. It was around this time that the police officers were directed to disengage from the pursuit. However, on hearing that an officer had been injured, multiple police officers continued to engage in the pursuit of the Truck, albeit without their emergency equipment activated.
During this final pursuit the Truck made a sharp turn and subsequently collided with Brundige’s vehicle (the “Brundige collision”). This collision occurred about 1 hour and 18 minutes after the Truck was initially stolen.
There were no prior incidents of vehicle theft at the Dueck dealership and there had been no heightened security concerns due to the nature of individuals who frequented the area of the dealership
At the trial of this matter, it was determined that the Dueck Appellants were liable for the collisions on the basis that they had breached their standard of care by leaving the Truck unlocked. It was held that but for their actions the collisions would not have occurred. The Dueck Appellants were held to have owed a duty of care to the Plaintiffs as the theft of the Truck and resulting harms were reasonably foreseeable, there was sufficient proximity between the parties to justify the imposition of the duty of care and the resulting injuries were consistent with the type of damages that would arise from a motor vehicle collision. Finally, the trial judge found that there was no break in the chain of causation. The trial judge further found the police officers were negligent in their actions. The trial judge relied on the following evidence:
- News reports of the risk of injury to the public from thieves driving stolen vehicles erratically;
- Three press releases from CADA;
- The transcript of a 2007 meeting of the Standing Committee on Justice and Human Rights at which the Committee and witnesses discussed amending the sentencing provisions for the offence of a motor vehicle theft; and
- Police testimony about the erratic driving of car thieves.
The trial judge’s decision was appealed by the Dueck Appellants and cross-appealed by the Respondents. The issues the Court considered for both appeals were:
- Did the trial judge err in finding that the Dueck Appellants owed a duty of care to the Plaintiffs?
- Did the trial judge err in failing to hold that the actions of the police officers in confronting and pursuing Mr. Bolton were not intervening acts sufficient to break the chain of causation?
- Did the trial judge err in finding that but for the police pursuit, the Brundige Collision would not have occurred.
HELD: For the Appellant Dueck Defendants; appeal allowed and cross-appeal dismissed
The Court relied heavily on the decision in Rankin (Rankin’s Garage & Sales) v JJ, 2018 SCC 19 in reviewing the trial judge’s decision.
(a) The Court in Rankin conducted an Anns/Cooper analysis, as there was no clearly recognized duty of care in situations where someone is injured after the theft of a vehicle from the premises of a business.
(b) In conducting the Anns/Cooper test, the Court in Rankin made the following key findings, which were relied on by the Court in this matter to conclude as follows:
(i) The “reasonable foreseeability of theft of a vehicle, alone, does not suggest that a commercial garage operator should also consider the risk of personal injury”. (para 42)
(ii) “Even where theft was foreseeable, the risk of injury or damage arising from subsequent negligent operation of the stolen vehicle was not”. (para 43, citing Rankin)
(iii) “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.” (para 45)
(iv) Garage keepers differ from commercial hosts in that they do not have a positive duty to act because, while garage keepers “benefit financially from servicing cars, they have no commercial relationship with, and do not profit from or encourage the persons who might steal the cars” (para 48, citing Rankin).
(c) In Rankin, the Court concluded:
 . . . [T]hat a garage business that negligently stored vehicles by leaving them unlocked with the keys in the ashtray did not owe a duty of care to the Plaintiff who was seriously injured by the negligent driving of a minor who stole the vehicle. In arriving at that conclusion, Justice Karakatsanis determined that while the risk of theft was reasonably foreseeable, the Plaintiff presented insufficient evidence to establish that it was foreseeable that someone could be injured by negligent operation of the stolen vehicle subsequent to the theft.
The Court found that the trial judge erred in finding that the Dueck Appellants owed a duty of care to the Plaintiffs and that the Dueck Appellants did not owe a duty of care in the circumstances.
(d) The Court noted that when determining if a duty of care exists the standard of review is a question of law.
(e) While the Court accepted that there was some evidence to support the establishment of a duty of care, it did not extend foreseeability to include the foreseeability of risk of injury or damage occurring due to either the active police pursuit of a stolen vehicle or a collision taking place more than an hour after the thief safely drove the stolen vehicle away from the location of theft.
(i) Per the decision in Rankin, the Court noted that the first step in the Anns/Cooper test asks if the act can be linked to the damages or injuries suffered and if “the risk of the type of damage that occurred was reasonably foreseeable to the class of Plaintiff that was damaged or injured.” (para 72)
(ii) The Court held that a duty of care owed by a business to someone injured by the unsafe operation of a stolen motor vehicle was not generally recognized but that decision in Rankin changed this and found that it is possible for a business to owe a duty of care to someone who is injured as a result of an accident involving a vehicle stolen from that business in some circumstances:
 Our Anns/Cooper analysis must start by acknowledging that existing authorities have not generally recognized the existence of a duty of care owed by a business to someone injured by the unsafe operation of a stolen motor vehicle. A critical principle from Rankin is that it is possible for a business to owe a duty of care to someone injured (or who suffers property damage) in an accident involving a vehicle stolen from the business. For a duty of care to exist, a Plaintiff must present sufficient evidence to establish that the circumstances present at the relevant time were such that the business ought to have foreseen the unsafe operation of the stolen vehicle and its attendant risk of personal injury, as well as the risk of theft. In Rankin, the Plaintiff failed to establish a duty of care because the record was insufficient. The question in this case is whether the evidentiary record was sufficient for the trial judge to find that the unsafe operation of a stolen vehicle and its resultant personal injury was reasonably foreseeable to someone in the position of the Dueck Appellants.
(iii) The Court found that the only evidence that supported the reasonable foreseeability of the damages and injuries arising from the accidents was the police testimony, which supported a common sense assessment of foreseeability.
 The four categories of evidence relied on by the judge provide modest support to the argument that the harm was reasonably foreseeable by the Dueck Appellants. The News Evidence confirms that there had been a number of media reports about the erratic driving of car thieves. The CADA press releases are of no help in the analysis, nor is the Committee Evidence. The Police Evidence merely supports the common sense notion that a thief being arrested may try to flee the police.
(iv) In discussing the usefulness of the common sense police testimony to the foreseeability analysis, the Court noted the following:
 . . . As stated in Rankin, common sense can be useful in assessing reasonable foreseeability but is not sufficient on its own to ground a new duty of care: at para 66. Here, the police evidence provides support for the common sense idea that it is foreseeable that thieves fleeing in vehicles will attempt to “ram their way to escape” or evade police officers who are attempting to arrest them. It cannot be controversial that those occurrences could give rise to a risk of harm. However, what is missing in this case is evidence of a connection between the fact of a theft and one or both of those scenarios occurring more than an hour after the theft in response to active police engagement with the thief.
 . . . “[F]oreseeability 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”: at para 23. It would be unfair to conclude that a dealership ought reasonably to foresee that harm would result from the behavior of a car thief long after the thief quietly drove away with the stolen car, whether that behavior is influenced by police actions or other circumstances. Rankin also reminds us that just because something is possible, does not mean that it is reasonably foreseeable.
(v) The Court then turned to the evidence introduced but not relied on by the trial judge, which included:
1. Dueck testimony that there were no prior incidents of vehicle theft at the dealership and there were no heightened security concerns due to the nature of individuals who frequented the area of the dealership; and
2. Implications of the OnStar system in the Truck.
(vi) The Court noted that the Dueck testimony was not mentioned in the trial judge’s analysis, but do “weight against a finding of reasonable foreseeability.”
(vii) The Court also noted that the OnStar capabilities in the Truck should have been considered by the trial judge. It was noted that this technology makes it easier to track and locate a stolen vehicle and would make “it less likely that an active police pursuit would ensue following a theft”.
 . . . In my view someone in the position of the Dueck Appellants would understand and expect public safety to be of paramount importance to the police when carrying out their duties, and that the police would govern themselves accordingly, including by adhering to any police policies that might be in place to ameliorate the safety risk. It is reasonable to assume that the police would not aggravate the risk to public safety when recovering a stolen vehicle. Since OnStar can track the location of a stolen vehicle, it is reasonable to assume that the police would approach the Truck when it appears safe to do so. Indeed, that is what happened in this case. In other words, the fact that a vehicle can be tracked by OnStar should not lead to a greater likelihood of a police pursuit or a greater possibility of risk of harm to other motorists.
 The existence of the OnStar technology alters the foreseeability analysis in only a minor way. To the extent that it changes the analysis, I am of the view that the presence of the OnStar technology would lead persons in the position of the Dueck Appellants to believe that once a vehicle has been unlawfully removed from its premises, it is more likely that the Truck would be recovered without a real risk of injury to third party motorists.
(f) Citing Rankin, the Court noted that determining the duty of care also requires a proximity analysis “to consider “whether the parties are sufficiently ‘close and direct’ such that the defendant is under an obligation to be mindful of the plaintiff’s interests” and whether it is just and fair to impose a duty”. This proximity analysis “focuses on factors arising from the relationship between the plaintiff and defendant”.
(1) The factors typically taken into consideration during a proximity analysis to determine the closeness of the relationship include: expectations, representations, reliance and the property or other interests involved.
(ii) The Court noted 4 different cases that dealt with a similar factual situation. The decision in two of those cases found that a duty of care existed whereas there was no duty of care in the other two.
(1) The Court noted that the difference between the cases where a duty was found and the cases where no duty was found “appears to rest on the circumstances of the theft including the close temporal and physical proximity between the negligent acts of the tortfeasor and the injury to the motorist or pedestrian.” This is a difference in the legal proximity issues in each case.
 . . . In Spagnolo, Justice Zuber limited the foreseeability of the risk of harm to the damage or injury that might occur in the course of a theft or in the immediate flight of the thief from the location of the theft. He associated this risk with the nervousness and panic that the tortfeasor could reasonably expect the thief to experience. The decisions in the other three cases, whether or not a duty of care was found, was based on similar reasoning about the foreseeability of a risk of harm. Foreseeability was established where the collision occurred at the time of the theft or in the immediate aftermath when the thief would be nervous and panicked: see Kalogeropoulos; Cairns. No duty of care was found when the collision occurred hours or days later. In my view, these decisions were based on an analysis that draws on proximity considerations about the nature of the relationship between the tortfeasors and the plaintiffs.
(iii) In undertaking the proximity analysis the Court found that car dealerships typically do not have commercial relationships with thieves, “nor do they profit from or encourage behaviours or a state of being that could result in the type of harm at issue in this case, namely: … unsafe driving, generally, or unsafe driving in response to police attempts at apprehension or pursuit.” This is key to distinguish car dealerships from commercial hosts, who do have a positive duty to act.
(1) The expectation here is that the dealership will likely expect that a thief will drive as most adults do, safely most of the time.
 . . . Negligently storing a vehicle such that it may be stolen does not mean that the Truck will necessarily be driven dangerously.
(iv) Finally, the Court found that the relationship between the Plaintiffs and Dueck Appellants were close or direct only if the Plaintiffs were “in close physical proximity to the location of the theft”, which was not the case here. It was held that the Plaintiff and Dueck Appellants did not have a close or direct relationship at the time of the applicable collisions.
 . . . Once the thief has driven away, the relationship lacks the same kind of proximity that is recognized in commercial host relationships because the tortfeasor has little knowledge about how the thief will drive. When Mr. Bolton leaves Dueck driving without incident, the proximate relationship between the Plaintiffs and the Dueck Appellants is lacking. Moreover, once a car thief has safely escaped the premises of the business owner of a stolen vehicle, it is not possible to say that the owner should have a higher expectation that a car thief would drive negligently compared to another driver. Further, the degree to which a user of the road could be said to rely on how a car dealership stores its vehicles must diminish as the stolen vehicle is driven further away from the scene of the theft. The Plaintiff’s reliance on the Dueck Appellants decrease as more time elapses from Mr. Bolton’s theft and as Mr. Bolton drives farther away from Dueck.
(g) The Court concluded that the Dueck Appellants did not owe a duty of care to the Plaintiffs as the collisions did not occur immediately after the theft of the Truck or as Bolton was leaving the dealership.
 As explained above, I would conclude that the Plaintiffs presented sufficient evidence to establish that it was reasonably foreseeable by the Dueck Appellants that a thief could cause injury or damage to other motorists while being pursued in the course of the theft of a vehicle from the dealership or in the immediate flight therefrom. However, I would not extend that foreseeability to include a risk of harm arising from police actions, including active pursuit, involving a stolen vehicle more than an hour after the theft. In arising at this conclusion, I have considered the Dueck Appellants’ lack of any history of car theft or security problems with persons frequenting the nearby area. I have also considered the reasonable expectation that police actions, after initial attempts to apprehend the thief at the scene of the crime, would not aggravate the risk. As I have indicated, the OnStar technology provides some support for that expectation.
 I would thus conclude that the reasonable foreseeable risk of injury or damage from the negligent storage of the Truck by the Dueck Appellants is not open-ended. It is constrained by time and by physical closeness to the location of the theft. This is consistent with the conclusions reached in those cases that have found the risk of physical injury and property damage to be reasonably foreseeable by a business that negligently stores vehicles. I am of the view that the proximity analysis required by the first stage of Anns/Cooper supports this conclusion. In other words, the foreseeability analysis is properly tempered by factors relevant to proximity.
The Court did not consider if the pursuit of Mr. Bolton by police was sufficient to break the chain of causation, as there was no duty of care owed to the Plaintiffs.
The Court found that the trial judge did not make a palpable or overriding error in finding that “but for the police pursuit, the collision with Ms. Brundige would not have occurred” and there was sufficient evidence on the record for the trial judge to make the necessary findings of facts and inferences to come to this decision.
(a) The standard of review for challenging a trial judge’s findings of fact and inference, as is the case in this matter, is deferential and the reviewing court will not intervene unless there is a palpable or overriding error.
(b) The Court found that the findings as to the speed of the police vehicles were findings of fact, not inferences as the police had argued, and the trial judge was not “palpably incorrect” in making the finding that the police vehicles were “proceeding quickly”.
(i) The trial judge considered the evidence as to the manner and apparent speed of the police vehicles and the circumstances of the traffic at the time of the pursuit. The final moments of the pursuit occurred on an urban road that was busy with traffic at the time.
(ii) The Court noted that it was acceptable for the trial judge to prefer the evidence of lay witnesses over the evidence of the police officers.
(c) The Court found the inferences the trial judge made were reasonable, based on the evidence:
 The remaining three inferences challenged by the Minister are that Mr. Bolton was aware of the police pursuit, that he turned the corner at a high speed because of the pursuit, and that his awareness of the pursuit and high speed caused the collision with Ms. Brundige. In my view, these are reasonable inferences based on all of the evidence. The findings of fact and inferences reasonably lead to the conclusion that the police pursuit was a cause of the Brundige collision.
 The judge’s reasoning on the inferences is worth reproducing in its entirety:
 The RCMP argue, however, that the pursuit had ended approximately 45 seconds before the collision with Ms. Brundige, referencing Corporal Peters broadcast over the radio to “shut [the pursuit] down”. At that time, Constable Whitney de-activated his lights and siren.
 I do not accept this submission. Although the lights and siren came to an end, the pursuit continued. Both Constable Hartigan and Mr. Laughlin describe the police vehicles as driving at high speeds. They passed Mr. Laughlin near the intersection with No. 5 Road. If there had not been a pursuit going on, there was no reason to pass.
 I conclude that the actions of Constable Whitney and Constable Lee constituted a pursuit. I further find that Corporal Waldron was also engaged in the pursuit. He also did not pull over when the command to stop came down.
 Here, I conclude that the breach of the standard of care by RCMP officers is on the part of Constable Whitney, Constable Lee and Corporal Waldron. All three officers engaged in a high speed pursuit of the Truck in an urban area in the middle of the day. Moreover, they did not appropriately comply with an order to terminate the pursuit when it was made by Staff Sergeant Stark and repeated by Corporal Peters.
 Constable Whitney heard the order to discontinue the pursuit. His duty was to deactivate his lights and sirens (which he did) and to stop the Truck at the side of the road and state his location. He did not stop and do that. Instead, he continued following the Truck on River Road.
 Corporal Peters confirmed that members do not have discretion to ignore an order to terminate a pursuit. The decision not to obey the order was contrary to the EVO Policy. Had he pulled over and stopped when he heard the order, I find that the sense of danger in the mind of Mr. Bolton would have been significantly reduced. Instead, Constable Whitney’s continual visual contact and close proximity to the Truck maintained the atmosphere of a pursuit and influenced Mr. Bolton’s driving.
 Of course, the Court does not have the benefit of Mr. Bolton’s evidence. However, Constable Lee testified that “the thief would have been aware that he was being pursued”.
 Although Constables Lee and Whitney stated that they slowed down to the speed limit; this is not consistent with the observation of Mr. Laughlin.
 Finally, the RCMP argues that it did not cause the collision. The RCMP submits it was the action of Mr. Bolton and Dueck who caused the collision and not the pursing policer officers.
 I respectfully disagree. I am satisfied there is a causal link between the breach by the officers of the EVO and the collision. There was little reason for Mr. Bolton to enter the turn at No. 5 Road at such a high speed other than the fact that he was being pursued.
 Constables Lee and Whitney and Corporal Waldron proceeded to follow the Truck. I find that they were, as Mr. Laughlin and Constable Hartigan testified, proceeding quickly. Their actions, on a balance of probabilities, caused Mr. Bolton to continue to drive at a high rate of speed. On the evidence, but for their pursuit, the accident with Ms. Brundige would not have occurred.
(i) The Court found that the trial judge’s inferences as to Bolton’s awareness of and concern with the police pursuit before and after the police vehicles’ emergency equipment was turned off were supported by the evidence on record.
 . . . However, the suggestion that the judge could not infer that Mr. Bolton would have been aware of a “continued pursuit” in the 30 seconds after the police turned off their emergency equipment is entirely without merit.
(1) The Court found that it would be reasonable for the trial judge to make an inference that Bolton was aware of the pursuit and was driving in a way that was influenced by the pursuit.
(2) Witness evidence indicated that the police vehicles were not far behind the Truck and that Bolton was seen leaning out of the window and appeared to be looking to see if he was being followed.
(ii) Finally, the Court found that the trial judge did not err in making the inference that the Brundige collision was caused Mr. Bolton making a sharp turn at high speed because of the pursuit.
(1) The Court noted the test for determining causation is the “but for” test:
 . . . The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. . . . Evidence that connects the breach of duty to the injury suffered may permit a judge, depending on the circumstances, to infer that the negligence probably caused the loss: Clements v Clements, 2012 SCC 32 at paras. 8-11.
 There is no need for a plaintiff to show that the defendant’s negligence was the sole cause of the loss. It is sufficient if the defendant’s breach is part of the cause of the injury: Athey v Leonati,  3 SCR 458 at para 17.
(2) The Court found that there was considerable evidence to support the trial judges’ “common sense conclusion”, including the evidence of the speeds of the police vehicle and vehicle, Mr. Bolton’s awareness of the pursuit, witness testimony about the circumstances of the collision. Finally, there was evidence indicating that “Mr. Bolton was a danger to the public only when he was avoiding the police.”
 In summary, the evidence was sufficient to allow the judge to conclude that the police acted negligently by carrying out a pursuit of Mr. Bolton that was contrary to the EVO Policy, contrary to the command to shut down, and dangerous in the surrounding circumstances. The judge’s findings of fact about the speed of the Truck and the relative speed of the police vehicles was based on evidence that he was entitled to accept. The Minister has failed to establish that the judge made any error in arriving at those findings, let alone a palpable error. Further, the judge was able to draw the common sense inference that Mr. Bolton’s negligent driving at the time of the Brundige collision was caused in part by the police pursuit. In arriving at that conclusion, the judge’s inference that Mr. Bolton was aware of the police pursuit and that his driving was influenced by that pursuit at the time of the Brundige collision was also reasonable. This Court is not permitted on appeal to reweigh the evidence to draw a different inference as suggested by the Minister. Indeed, it would be unreasonable to infer that Mr. Bolton’s driving was not influenced by the police pursuit when he collided with Ms. Brundige’s vehicle.