Clarification on the Reasonable Foreseeability of Injury or Harm Arising From the Theft of a Vehicle by Dakota Forster
Apr 20, 2020
The Court of Appeal for British Columbia in Provost v. Dueck Downtown Chevrolet Buick GMC Limited, 2020 BCCA 86 [Provost] reaffirmed the principle articulated in Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 [Rankin] that simply because the theft of a vehicle may be reasonably foreseeable as a result of a party’s negligence does not mean that damages or injuries arising from the thief’s negligent operation of the vehicle are reasonably foreseeable.
A pickup truck was stolen from the lot of the Dueck car dealership after having been left unlocked and unattended with the keys in the ignition and the engine running for over 40 minutes. Dueck was able to locate the vehicle over an hour later through the truck’s GPS tracking system. The police, contrary to policy and a direct order from their supervisor, subsequently attempted to arrest the thief in a high-speed chase with sirens and other emergency equipment activated. During the chase the thief rammed two police vehicles to evade capture and collided with two further civilian vehicles resulting in serious injury to those drivers.
At trial, Dueck was found to be at fault for all three collisions, with the Minister of Justice for British Columbia being found to be vicariously liable for the actions of the police officers which caused the final collision. The trial judge held that the injuries and damages caused were a reasonably foreseeable consequence of Dueck’s negligent storage of the truck, and thus Dueck owed a duty of care to those parties who had been injured as a result of the theft. In doing so, the trial judge relied on the reasoning of the Court of Appeal for Ontario which was overturned in Rankin following the conclusion of the trial.
Dueck appealed, arguing that the trial judge erred in holding that they owed a duty of care to the plaintiff drivers and in failing to hold that the actions of the police officers in confronting and pursuing the thief were not intervening acts sufficient to break the chain of causation. The Minister of Justice for British Columbia cross-appealed, arguing that the trial judge erred in finding that but for the police pursuit, the final collision would not have occurred.
Review & Analysis of the Case Law
Justice Butler begins his analysis by reviewing the Rankin decision. In Rankin, two intoxicated minor teenagers stole an unlocked car from a commercial parking garage. After exiting the garage, the driver crashed the vehicle causing serious injury to the minor passenger. The Supreme Court of Canada held that evidence of the reasonable foreseeability of the theft was not in and of itself sufficient to establish that it was reasonably foreseeable that the stolen vehicle would be operated in an unsafe manner causing injury. The Court held that there must be some specific evidence in the factual matrix that could connect the theft to the subsequent unsafe driving of the stolen vehicle so as to make the risk of personal injury foreseeable, such as in the cases of in Kalogeropoulos v. Ottawa (City) (1996), 35 M.P.L.R. (2d) 287 (Ont Gen Div) [Kalogeropoulos] and Cairns v. General Accident Assurance Co. of Canada,  O.J. No. 1432 (Gen Div) [Cairns].
Kalogeropoulos dealt with the theft of a commercial truck left running in front of an emptying bar by an inebriated patron and the subsequent chase of the thief by the truck driver’s colleague. The court in that case held that it was reasonably foreseeable that a chase would ensue and that injury or damage to others would occur as a result of the “nervousness and panic” on the part of the thief in such circumstances.
Cairns dealt with the theft of a vehicle from a car dealership by a minor who had never driven before. The minor and a group of his friends had previously stolen the keys for the vehicle in broad daylight. Because the thief had not driven before, he was in a state of panic when leaving the dealership and struck and killed a pedestrian immediately after leaving the car dealership lot. The court in that case held that as the accident occurred in the course of the theft and during the flight, harm to others as a result of the erratic driving of the nervous and panicked thief was reasonably foreseeable.
Conversely, in Spagnolo et al. v. Margesson’s Sports Ltd. et al. (1983), 41 O.R. (2d) 65, 145 D.L.R. (3d) 381 (ONCA) [Spagnolo] the Court of Appeal for Ontario held that it was not reasonably foreseeable that a stolen vehicle would be involved in a collision causing physical injury to the plaintiff six days after the vehicle was stolen.
Justice Butler notes that the difference between cases where no reasonable foreseeability was found, like in Spagnolo, and cases where reasonable foreseeability was found, like in Kalogeropoulos and Cairns, is the close temporal and physical proximity between the negligent acts of the torfeasor and the injury to the plaintiff. Justice Butler emphasizes that the proximity factors of expectation and reliance are key. Once a thief drives away, the tortfeasor has little knowledge about how the thief will drive, and thus a plaintiff cannot impute the same relationship of reliance between the tortfeasor and the thief as in a commercial host relationship. Justice Butler emphasizes this point by holding that the degree to which a user of the road can be said to rely on the proper storage of a vehicle diminishes as the stolen vehicle is driven further away from the scene of the theft. Likewise, once the thief has exited the premises, there is not necessarily any reason for the negligent owner to have a higher expectation that a thief will drive negligently compared to another driver.
Evidence Required to Establish Reasonable Foreseeability
Beyond identifying the proximity issues inherent in the reasonable foreseeability analysis, Justice Butler also comments on the evidence required to establish same. “Common sense” evidence in the form of news reports on the dangerous driving of thieves and the testimony of police officers as to driving patterns is not sufficient to establish reasonable foreseeability of harm where proximity factors are absent.
Application to the Facts
In applying the law to the facts, Justice Butler concludes that the reasonable foreseeability of injury or damage resulting from the negligent storage of the truck by Dueck is constrained by the time elapsed from the theft and the physical closeness of the vehicle to the scene of the theft. As a result, the duty of care owed is limited to injury or damage occurring in the course of the theft or in the immediate flight therefrom. The expected and reasonably foreseeable nervousness and panic accompanying the theft is reduced as the thief escapes from the scene of the theft without pursuit, as is the risk to other drivers. As the collisions in this case occurred over an hour after the theft, and only after police intervention, Dueck did not owe a duty of care to those injured by the thief’s negligent operation of the vehicle.
Takeaway from the Decision
While not binding in Ontario, Provost may be highly persuasive for its thorough analysis of the Rankin case and lower court jurisprudence on the issue of the reasonable foreseeability of injury or damage arising from the theft of a vehicle. The Provost decision supports the general proposition that absent specific evidence of a thief’s negligent operation of the stolen vehicle being reasonably foreseeable by the victim of a theft, no duty of care will extend from the victim to a party injured as a result. Provost articulates a stringent standard, in that once a thief has left the vicinity of the theft, absent any pursuit or other evidence to indicate nervousness and panic in the course of the theft, there is no reason to foresee that the thief will behave any differently than every other driver on the road. This will undoubtedly provide strong support for victims of car theft being sued by those injured or who have suffered damage as a result of the thief’s negligent operation of the stolen vehicle.
Provost also articulates a relatively high evidentiary standard to demonstrate reasonable foreseeability of a thief’s negligent operation of the stolen vehicle, holding that “common sense” evidence of same is not sufficient in and of itself to ground a new duty of care. This may make the evidentiary threshold of proving reasonable foreseeability that much more difficult to meet.
Dakota Forster is an articling student at the firm and the author of this blog. If you have a question about this decision or a similar case, please contact Dakota at 416-777-2811 ext. 7975 or at firstname.lastname@example.org