The case of Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, reminds us that judges can and do disagree about how to interpret and apply legal principles – even legal principles which have been well-established for many years.
In Rankin, the Supreme Court of Canada considered whether the owner of a garage owes a duty of care to someone who is injured after stealing a vehicle from the garage’s property.
Seven judges of the Supreme Court allowed the appeal and held that the defendant did not owe a duty of care. In so deciding, the Supreme Court overturned the trial judge and the Ontario Court of Appeal who held that a duty of care did exist. Two judges of the Supreme Court, in a dissenting opinion, agreed with the trial judge and the Ontario Court of Appeal and would have dismissed the appeal.
The plaintiff, J, and his friend, C, were at C’s mother’s house. Both boys were minors. They were drinking alcohol and smoking marijuana. At some time after midnight, J and C went for a walk around the neighbourhood, intending to steal valuables from unlocked vehicles. They went to Rankin’s Garage and checked for unlocked cars. C found an unlocked car with the keys in the vehicle. C did not have a driver’s license and had never driven a car before. Nonetheless, C stole the car and told J to get in. With J as his passenger, C drove the car onto the highway. He crashed the car and J suffered a catastrophic brain injury.
Justice Karakatsanis, writing for the majority, concluded that Rankin’s Garage did not owe a duty of care to J. She found that the Canadian jurisprudence was divided on whether a duty of care would be owed in the circumstances before her, and she therefore went on to consider whether a duty of care should be recognized under the legal test set out in Anns v. Merton London Borough Council, [1978] A.C. 728 and Cooper v. Hobart, 2001 SCC 79 (the Anns/Cooper test).
On the first stage of the Anns/Cooper test, the majority considered whether the risk of personal injury was reasonably foreseeable. Although there was evidence indicating a history of vehicle theft in the area around the defendant’s garage, Justice Karakatsanis concluded that such evidence was not sufficient to establish risk of personal injury. She rejected the notion that anyone who leaves a vehicle unlocked with the keys in it should always reasonably anticipate that someone could be injured if the vehicle were stolen. The evidence did not suggest that a vehicle would be stolen by a minor or that a vehicle, if stolen, would be operated in an unsafe manner. The majority concluded that bodily harm from the theft of a vehicle was therefore not reasonably foreseeable.
Justice Karakatsanis considered two other interesting issues in obiter.
First, she addressed the plaintiff’s argument that Rankin’s Garage, as a commercial establishment dealing with goods that are potentially dangerous, had a positive duty to minors to secure vehicles against theft. In rejecting this argument, the majority noted that vehicles are ubiquitous in our society. They are not like loaded guns that are inherently dangerous and need to be stored carefully to protect the public. Justice Karakatsanis distinguished other situations where courts have recognized a specific duty of care owed to children.
Second, although she concluded that foreseeability had not been established, Justice Karakatsanis went on to comment on the second stage of the Anns/Cooper test – whether there were any policy reasons why the duty should not be recognized. In this case, the defendant argued that a duty should not be recognized because of the plaintiff’s illegal conduct. The majority considered and rejected the argument that the plaintiff’s illegal conduct would sever proximity between the parties or negate the duty of care, noting that the Court had consistently rejected the argument in the past.
Justice Brown wrote the dissenting opinion. He concluded that the relationship between the defendant and the plaintiff was one in which the risk of harm was reasonably foreseeable, and therefore a duty of care existed. Justice Brown characterized reasonable foreseeability as having “a low threshold” which is “usually quite easy to overcome”. A plaintiff only has to show that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was harmed. He concluded that the risk of injury was foreseeable based on the evidence, and there was no basis on which to interfere with the trial judge’s decision.
In Rankin, the Supreme Court underscores that harm must be reasonably foreseeable before a duty of care will be found to exist. The reasonable foreseeability requirement plays an important role in limiting liability to cases where the defendant should have contemplated the type of harm suffered by the plaintiff. The proper question to be asked is whether the type of harm suffered – in this case personal injury – was reasonably foreseeable to the defendant. The decision also serves as a reminder that whether or not something is reasonably foreseeable is an objective test which focusses on whether the damage was foreseeable prior to the incident in question and not with the benefit of hindsight.
