Supreme Court of Canada Revisits the Duty of Care: Rankin (Rankin's Garage & Sales) v. J.J. (2018 SCC 19) by Dagmara Mroczkowska
May 22, 2018
In its recent decision in Rankin v. JJ, The Supreme Court of Canada faced the issue of whether a duty of care exists in circumstances of personal injury that results from the operation of vehicles stolen from a place of business. The Court applied classic tort doctrine and arrived at a split decision.
The 7 person majority decision written by Karakatsanis J, reversed lower court findings of duty of care between a commercial car garage owner and a catastrophically injured teen who was the passenger in a vehicle stolen from the garage; Brown and Gascon JJ disagreed and applied an existing category of duty of care to find the garage owner liable. The majority applied the Anns/Cooper ( A.C. 728; 2001 SCC 79) analysis for finding a novel duty of care to decide that a business will only owe a duty to someone who is injured following the theft of a vehicle when, in addition to the theft, the unsafe operation of the stolen vehicle was reasonably foreseeable. The majority did 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.”
The majority emphasized the importance of providing a sufficient factual basis to establish that the harm suffered was a reasonably foreseeable consequence of a defendant’s conduct in the context of a proximate relationship. The plaintiff failed to provide the necessary evidence to suggest that a vehicle, if stolen, would be operated in an unsafe manner and lead to personal injury. The majority commented that lower courts mistakenly relied on weak inferences and common sense to find a duty of care: “the fact that something is possible does not mean that it is reasonably foreseeable.” Reasonable foreseeability, as an objective legal test, has a higher threshold than mere possibility. The facts of this case highlighted 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.
The majority also noted that the fact that J was a minor did not automatically create an obligation to act, as duties of care toward children are imposed based on the relationship of care, supervision, and control, rather than the age of the child alone. Here it was not foreseeable that the injury would befall a minor. In addition, the court rejected the notion that illegal or immoral conduct would preclude the existence of a duty of care. Plaintiff wrongdoing is integrated in to the analysis through contributory negligence.
Brown J, writing for the dissent with Gascon J concurring, disagreed with the majority analysis in two respects: (1) the facts did not require a full Anns/Cooper analysis, and (2) the trial judge did not err in finding that physical injury to J was a reasonably foreseeable consequence of Rankin’s negligence. Using the Defendant’s testimony evidence, Brown J placed the case within the category of duty of care that is recognized where the defendant’s act foreseeably causes physical harm to the plaintiff. Foreseeability has a lower threshold than that attributed by the majority, and the restriction of the existing category unduly limits its overall application. Absent overriding and palpable error, the majority was not entitled to interfere with the findings of the trial judge and Court of Appeal with respect to reasonable foreseeability.