Barrister and Solicitor
Legal Writing and Research
Torts - Negligence - Duty of Care
Torts - Negligent Entrustment
Graham v. Lemay (Ont CA, 2016)
In this case the Court of Appeal considered whether the tort of 'negligent entrustment' existed in Ontario law, and when a duty of care arises in a negligence consideration:
 The parties and the motions judge proceeded on the basis that the tort of negligent entrustment exists in Ontario and in that regard relied on Cella. While the tort exists in the United States and arguably in British Columbia (Schulz, at p. 105) and has been advanced in Ontario (Vynckier v. Brown and State Farm, 2015 ONSC 376 (CanLII); Persaud v. Bratanov and Unifund Assurance Co., 2012 ONSC 5232 (CanLII), 96 C.C.L.T. (3d) 147; Ladouceur v. Zimmerman,  O.J. No. 4777; and Ahmetspasic v. Love, 2002 CarswellOnt 4475), no definitive statement on the existence of the tort has been enunciated by either the Supreme Court of Canada or by this court. As the appeal was not argued on the basis that the tort does not exist, I propose to address this ground of appeal assuming, without deciding, that such a tort does exist.
 In my view, the appellants’ argument must be rejected. It was open to the motions judge to find on the record before him that the rejection of Mario as a co-lessee had to do with his financial status. This conclusion was based on Luciano’s testimony. More significantly, the appellants’ argument fails due to the absence of any duty of care between the appellants and Daimler Financial.
 The test for a duty of care is well-established in Canadian law. As noted in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII),  3 S.C.R. 45, at para. 41, a duty of care requires both foreseeability and “a relationship of sufficient closeness, or proximity, to make it just and reasonable to impose an obligation on one party to take reasonable care not to injure the other.” In particular, when the claim at issue alleges a failure to act, foreseeability alone cannot be enough and the facts must disclose a justification for imposing on a defendant a positive duty to act: Childs v. Desormeaux, 2006 SCC 18 (CanLII),  1 S.C.R. 643, at para. 31. In Childs, at para. 31, the court noted that “[generally], the mere fact that a person faces danger, or has become a danger to others, does not itself impose any kind of duty on those in a position to become involved.”
 In Cella, a decision the appellants rely upon, this court stated, at p. 331, that “[liability] for a negligent act or omission will be imposed in situations where there is a sufficient relationship between the injured party and another person, which makes it reasonable to conclude that the other person owed a duty towards the injured party”.
 In the case under appeal, the vehicle was leased not to Mario but to West End Tile Limited and Luciano. The motions judge concluded that a duty on Daimler Financial to ascertain the competency of the driver of the vehicle was too remote. It was reasonable for the lessors to rely on the insurance that had been obtained by the lessees. On this basis, the motions judge correctly concluded that there was no genuine issue requiring a trial on the issue of negligent entrustment. He wrote:
Moreover the vehicle was not leased directly to the driver; it was leased to the company [West End Tile Limited] for whom the driver worked. It would seem, therefore, that a duty to inquire about the eventual driver would be one that would be far too remote. Indeed, the lessors would have no ability to ascertain who the driver was at a particular time even if the driving record of the eventual driver was suspect. It would be entirely reasonable for them to be satisfied with regard to the fact that insurance had been granted. As noted by the motions judge, in the present case, Daimler Financial leased the Pietrantonio vehicle to Luciano and West End Tile Limited. Finding a duty of care in the present case would lead to the conclusion that the lessor had an obligation to inquire into who would be driving it. The relationship between the appellants and Daimler Financial does not disclose proximity sufficient to justify imposing a duty. The motions judge properly concluded that Daimler Financial had met its evidentiary burden and that there was no genuine issue requiring a trial on the claim of negligent entrustment.