Barrister and Solicitor
Legal Writing and Research
Torts - Negligence - Elements
J.J. v. C.C. (Ont CA, 2016)
In this case the Court of Appeal considers in depth the elements of negligence where a minor was injured after stealing a car left unlocked and unsecured, with keys available:
 The Canadian approach to establishing whether a duty of care arises in particular circumstances is based on the decision of the House of Lords in Anns v. Merton London Borough Council,  A.C. 728 (H.L.), as modified by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79 (CanLII),  3 S.C.R. 537, at paras. 30-31:
At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. It may be … that such considerations will not often prevail. However, we think it useful expressly to ask, before imposing a new duty of care, whether despite foreseeability and proximity of relationship, there are other policy reasons why the duty should not be imposed. Following the Anns-Cooper approach, the first question is whether this case is governed by a duty of care that has already been recognized in the case law, or falls within an analogous situation: Cooper, at para. 36. If not, it is necessary to complete the two-stage Anns-Cooper analysis in order to determine whether a duty should be recognized.
Has a duty already been recognized in prior cases?
 The trial judge concluded that a duty has already been recognized in the case law. In my view, the case law does not support her conclusion that the appellant owed a duty of care to J.J. The two cases cited by the trial judge concern injuries to third parties – people who were unconnected to the theft of the vehicle. The circumstances of this case are not analogous.
 In Spagnolo v. Margesson’s Sports Ltd (1983), 1983 CanLII 1904 (ON CA), 41 O.R. (2d) 65 (C.A.) the plaintiff was injured in an accident caused by a car that had been stolen from a parking lot several days earlier. The keys had been left in the car at the request of the defendant parking lot’s attendant.
 The court found no evidence to support the conclusion that a car driven by a thief was more likely to cause damage to others than a car driven by someone lawfully in possession, and noted the difficulty of establishing reasonable foreseeability given the passage of time since the theft in any event. However, the court added that the defendant’s position would have been different if damage had occurred in the course of the theft or in the course of flight from the theft of the car, suggesting that it might be easier to argue that damage to third parties in these circumstances was reasonably foreseeable given the nervousness and panic that might accompany the theft.
 Kalogeropoulos v. Ottawa,  O.J. No. 3449 (C.J.) is another case involving an injury to a third party in the context of the theft of a vehicle.
 The plaintiff was injured when the taxicab he was driving was hit by a stolen truck owned by the defendant city. A city employee had left a truck unlocked and idling in front of an all-night coffee shop in Ottawa in the early hours of the morning, shortly following the close of bars in nearby Hull, Quebec. The truck was stolen by an intoxicated 24 year-old man, who crashed it into the plaintiff’s vehicle while he was being chased by another truck owned by the city. The trial judge found that theft of the truck was foreseeable. He found, furthermore, that nervousness and panic might accompany the theft because many people would have seen it; that a nervous and panicked thief would have more difficulty keeping a large and loaded stolen truck under control than a motor vehicle; and, significantly, that it should have been foreseeable that if a chase were to ensue, it would add to the nervousness and panic of the thief.
 In my view, the trial judge erred in concluding that the appellant owed a duty of care on the basis of these cases. Not only are the circumstances of this case different, but the cases cited are not determinative of the duty of care even in the context of third parties.
 The finding that a duty of care is owed to a third party is relatively rare in cases arising out of the theft of a vehicle. A duty was found in Cairns v. General Accident Assurance Co. of Canada,  O.J. No. 1432 (C.J.). In that case, a pedestrian was killed by a vehicle stolen moments earlier from the defendant car dealership. The keys to the vehicle had been stolen from the dealership a few days earlier. The trial judge found that the dealership was negligent in leaving the keys in its cars and in failing to take precautions to secure the cars once the keys were stolen. Theft by young people with little experience in driving in these circumstances was reasonably foreseeable, and the accident occurred in the course of the theft (during the flight thereafter). The trial judge found that the dealership was 20% responsible for the plaintiff’s injuries.
 In most cases, however, a duty of care to a third party has not been found, usually because injury to the third party was not a reasonably foreseeable consequence of the theft: see e.g. Hollett v. Coca-Cola Ltd,  37 N.S.R. (2d) 695 (S.C); Canada (Attorney General) v. LaFlamme,  3 W.W.R. 350 (B.C. Co. Ct.); Moore v. Fanning, 1987 CanLII 4168 (ON SC),  O.J. No. 620 (H.C.); Norgard v. Asuchak,  A.J. No. 394 (Q.B.); Aldus v. Belair,  O.J. No. 3908 (H.C.); Werbeniuk v. Maynard,  7 W.W.R. 704 (Man. Q.B.); and Tong v. Bedwell, 2002 ABQB 213 (CanLII).
 It might be thought that the argument against liability in negligence is at least as strong, if not stronger, when injuries are incurred by someone involved in stealing the vehicle, as opposed to a third party injured by the vehicle. However, the only case cited by the appellant in support of the proposition that the owner of a stolen vehicle is not liable in these circumstances is Campiou Estate v. Gladue, 2002 ABQB 1037 (CanLII).
 In Campiou, the defendant’s stolen truck rolled, causing the death of the plaintiff, a passenger in the truck, who was found to be an active participant in its theft. On an application by the defendant for summary judgment dismissing a negligence action against him, the Master concluded that even if a prima facie duty of care to the plaintiff existed, policy considerations justified denying liability. The Master asserted that the stolen truck was not inherently dangerous, and that it would be “offensive to society’s standards” to hold the defendant liable for injuries to those who participated in the theft of his truck, “[h]owever careless [the defendant] might have been in securing the truck” (paras 43-44).
 The circumstances of Campiou and this case are significantly different. In Campiou, even assuming the keys were left in the truck (no finding was made in this regard), the defendant did not believe that the truck was operational, and the truck was stolen from the driveway of the defendant’s home. In this case, the stolen car was left unlocked with the keys in it; it was known to be operational; it was stolen from a business rather than a private owner; and it was stolen by minors, in the context of knowledge that unsecured vehicles were at risk of theft.
 Campiou is not authority for denying the existence of a duty of care in the circumstances of this case. This is a novel case and a full Anns-Cooper analysis is required.
The Anns-Cooper test
 The plaintiff bears the burden of establishing that the defendant owes a duty of care, but once the plaintiff establishes foreseeability and proximity, a prima facie duty arises and the burden shifts to the defendant to establish countervailing policy considerations to negate the duty.
 Given her conclusion that the case law supports the existence of a duty of care, the trial judge dealt with the Anns-Cooper test only briefly. She found that an unlocked car with the keys left in it is an inviting target to an impaired person looking for transportation. She found, further, that it was foreseeable that injury could occur if a vehicle were used by inebriated teenagers. The trial judge found no policy reasons to negate or limit the duty. She concluded that J.J.’s wrongful conduct was relevant to contributory negligence, but not to the existence of the duty of care itself.
 Although I agree with the trial judge’s conclusion, a fuller analysis is required. In my view, the requirements of foreseeability and proximity are established on the facts of this case, and the duty is not negated by residual policy concerns.
 The appellant emphasized the difference between possibility and probability in his submissions, arguing that although it was possible that minors would steal an unlocked car with the keys in it, it was not foreseeable that they would do so.
 Plainly, the mere possibility that something may occur is insufficient to establish reasonable foreseeability that it will occur: Mustapha v. Culligan Canada Ltd, 2008 SCC 27 (CanLII),  2 S.C.R. 114, at para. 13. But absolute foreseeability is not required. Reasonable foreseeability is the test, and we are concerned here not with anyone who may steal a vehicle, but with minors – young people who are relatively immature and cannot be expected to exercise the judgment an adult would, especially if, as in this case, alcohol and drugs are involved.
 Although the concept plays an important role in the Cooper analysis, proximity has fairly been described as an “elusive concept which provides little principled guidance as to when in novel cases a prima facie duty will be recognized”: Philip H. Osborne, The Law of Torts, 5th ed. (Toronto: Irwin Law, 2015), at p. 76. That is so because proximity is, in essence, a statement of a conclusion that a duty ought to be imposed in particular circumstances because it is fair and just to do so.
 This is not to say that proximity is an arbitrary conclusion. Whether it is fair and just to impose a duty of care depends on a number of considerations, including “expectations, representations, reliance, and the property or other interests involved”: Cooper, at para. 34. The court elaborated on the nature of proximity in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII),  3 S.C.R. 129, at para. 29:
The most basic factor upon which the proximity analysis fixes is whether there is a relationship between the alleged wrongdoer and the victim, usually described by the words “close and direct”. This factor is not concerned with how intimate the plaintiff and defendant were or with their physical proximity, so much as with whether the actions of the alleged wrongdoer have a close or direct effect on the victim, such that the wrongdoer ought to have had the victim in mind as a person potentially harmed. A sufficiently close and direct connection between the actions of the wrongdoer and the victim may exist where there is a personal relationship between alleged wrongdoer and victim. However, it may also exist where there is no personal relationship between the victim and wrongdoer. Thus, whether proximity is established in this case does not depend on whether the appellant knew J.J.; clearly, he did not. It depends, instead, on whether the appellant should have had minors like J.J. in mind when he considered security measures at Rankin’s Garage.
 In my view he should have. The appellant had care and control of many vehicles for commercial purposes, and with that comes the responsibility of securing them against minors, in whose hands they are potentially dangerous. He should have adverted to the risk that minors would be tempted to take a vehicle if it were made easily available to them.
 The appellant had his own reasons for securing the vehicles at Rankin’s Garage, not least because he either owned them or was responsible for them as bailee. Moreover, securing the vehicles was not an onerous obligation. It was a simple matter of locking the vehicles and storing the keys. Indeed, on the appellant’s account, he accepted the need to secure the vehicles and claimed to have done so.
 In my view, it is fair and just to impose a duty of care in these circumstances. Proximity is established.
Do residual policy concerns negate the existence of the duty?
 Foreseeability and proximity having been established, a prima facie duty of care arises and we move to the second stage in the Anns-Cooper analysis. The question is whether any residual policy considerations – real, not speculative concerns – negate the prima facie duty of care.
 The second stage of the analysis is concerned not with the impact of a duty on the defendant, but more broadly on other legal obligations, the legal system, and society in general. The court posed three questions in Cooper, at para. 37:
Does the law already provide a remedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the duty of care should not be recognized? I address each of these questions below.
 The law does not already provide a remedy in this case. Nevertheless, the appellant submits that existing legislation discourages the recognition of a duty in this case. He points to the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s 4(2), which provides that:
A person who is on premises with the intention of committing, or in the commission of, a criminal act shall be deemed to have willingly assumed all risks. The short answer to this submission is that the Occupiers’ Liability Act establishes public policy for the purposes of occupiers’ liability, which has nothing to do with the circumstances of this case, whether directly or by analogy. The accident in this case occurred on a public road after a vehicle was taken from the defendant’s business premises. There is no basis for the policy of the Act to limit the scope of the common law duty of care in this case.
The spectre of unlimited liability?
 Recognition of a duty of care in this case would not create the spectre of unlimited liability to an unlimited class of claimants. The duty in this case arises in the context of circumstances that strictly limit its application. There is no large class of claimants that will be able to take advantage of this decision, let alone a class that is potentially unlimited in size.
Broad policy concerns?
 The appellant submits that recognition of a duty of care in this case would have the effect of extending the concept of legal neighbourhood “so far as to render any form of relationship analysis meaningless”.
 In my view this submission overstates things considerably.
 It is important to emphasize the particular factors that make it appropriate to recognize a duty of care in this case, while limiting its application. This is not a case of a car owner carelessly leaving the keys in a car parked at his or her home. The appellant operated a commercial garage and had care and control of many vehicles on its premises on an ongoing basis. His business was an inviting target for theft and joyriding, especially by minors. The risk was real and knowable, yet there was virtually no security in place at Rankin’s Garage. On the contrary, theft of the car was facilitated by the appellant’s decision to leave it unlocked with the keys in it. The existence of a duty of care in these circumstances stems from the appellant’s responsibility to have the protection of minors in mind when he made decisions about security at his business.
 It is also important to emphasize that recognition of a duty in the circumstances of this case results in no hardship to the appellant. Indeed, the duty can be complied with simply by locking the vehicles and securing the keys. Not only was there evidence that this was standard practice in the industry, there was also evidence that it was a practice the appellant was willing to follow – and claimed to have followed in this case.
 The objection that establishing liability for the injuries of someone who participates in a theft is “offensive to society’s standards”, as was asserted in Campiou, at para. 44, has intuitive appeal. Underlying this sentiment is the notion that wrongdoers should be responsible for the damage they may cause to themselves by their wrongdoing.
 But sentiment is not principle. It is well established that the duty of care operates independently of the illegal or immoral conduct of an injured party: Hall v. Hebert, 1993 CanLII 141 (SCC),  2 S.C.R. 159; British Columbia v. Zastowny, 2008 SCC 4 (CanLII),  1 S.C.R. 27. The illegal or immoral conduct of a plaintiff operates as a defence to an action in tort only when the integrity of the legal system is at stake – “where a damage award in a civil suit would allow a person to profit from illegal or wrongful conduct or would permit evasion or rebate of a penalty prescribed by the criminal law”: Zastowny, at para. 20. That is not this case.
 Recognition of a duty of care regardless of the conduct of the injured party means only that wrongdoers may seek compensation for damages caused by a defendant’s negligence, not their own. Wrongdoers remain responsible for the damage caused by their wrongdoing even if a duty of care is recognized. Their wrongdoing is properly taken into account in determining contributory negligence, as occurred in this case.
 In summary, there are no residual policy considerations that operate to negate the prima facie duty of care. As a result, I conclude that the appellant owed a duty of care in the circumstances of this case.