Rankin’s Garage – A Fresh Application of the Moral Glue of Tort (Reasonable Foreseeability Revisited)
In the recent decision of Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 (a 7-2 split), the Supreme Court of Canada revisited the legal framework for establishing a common law duty of care in negligence cases. While the majority described its decision as a “straightforward application of existing tort law principles”, its restatement of the law on reasonable foreseeability is a significant development.
In Rankin, the 15-year-old plaintiff was catastrophically injured when the vehicle he was a passenger in crashed on the highway. The plaintiff and his friend had earlier stolen the vehicle from a commercial garage, Rankin’s Garage & Sales. The primary issue in the case was whether Rankin’s Garage owed the plaintiff a duty of care.
The trial judge held that Rankin’s Garage owed the plaintiff a duty of care; the jury apportioned 37 percent responsibility to Rankin’s Garage, on several bases: (i) Rankin’s Garage left the car unlocked with a key in it; (ii) Rankin’s Garage knew or ought to have known the potential risk of theft; (iii) there was “[v]ery little security”; and (iv) “[t]estimony inconsistencies”.
The Court of Appeal upheld the trial judge’s decision that Rankin’s Garage owed a duty of care to the plaintiff, on the bases that: (i) it was reasonably foreseeable that minors would steal an unlocked car with keys in it; and (ii) it was a “matter of common sense that minors might harm themselves in joyriding, especially if they are impaired by alcohol or drugs”.
III. Reintroducing Analytical Rigour to the Reasonable Foreseeability Analysis
At the Supreme Court of Canada, the majority described the primary issue on appeal in the following manner:
 A vehicle is stolen from a commercial garage. The vehicle is crashed. Someone is injured. Does the business owe a duty of care to the injured party? The question in this appeal is whether the courts below erred in recognizing a duty of care owed by a business that stores vehicles to someone who is injured following the theft of a vehicle.
The majority found it easy to allow the appeal and dismiss the claim as against Rankin’s Garage. The majority held that there was insufficient evidence to find that Rankin’s Garage owed the plaintiff a duty of care. While the risk of theft was reasonably foreseeable, the evidence did not establish that it was foreseeable someone could be injured by the stolen vehicle. In particular, there was no evidence to support the inference that the stolen vehicle might be operated in an unsafe manner, causing injury. Because someone in the position of Rankin’s Garage would not have reasonably foreseen the risk of injury, no duty arose.
While the issue on appeal was a relatively narrow one, the Court went beyond the specific facts of the case to revisit the framework set out in Childs v. Desormeaux, 2006 SCC 18, and other cases applying the Anns/Cooper test. In canvassing that legal framework, the majority confirmed several general points which are helpful to any defence where a plaintiff is urging the court to recognize a “novel” duty of care:
- In order to meet its burden of establishing a cause of action, including the duty of care owed by the defendant, a plaintiff must provide “a sufficient factual basis to establish that the harm was a reasonably foreseeable consequence of the defendant’s conduct in the context of a proximate relationship”: para. 19.
- Reasonable foreseeability and proximity operate as “crucial limiting principles in the law of negligence”, by ensuring that liability will only be found when the defendant ought reasonably to have contemplated the type of harm the plaintiff suffered: para. 21.
- When determining whether reasonable foreseeability is established, the proper question to ask is whether the plaintiff has “offered facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged”: para. 24. In conducting this analysis, the question must be framed in a way that links the impugned act to the harm suffered by the plaintiff. Based on the majority’s treatment of the specific facts in Rankin, this question cannot be glossed over. The specific act should be connected to the specific harm.
- In that regard, to find a duty, “there must be some circumstance or evidence to suggest that a person in the position of the defendant ought to have reasonably foreseen the risk of injury”: para. 41 (original emphasis). For harm to be reasonably foreseeable, a higher threshold than mere possibility must be met: para. 46.
- Moreover, the majority said that there is no “broad category” of “foreseeable physical injury”. Rather, that category – and all categories, for that matter – “should be framed narrowly”: para. 28. The majority, at multiple points in the decision, expressed concern with extending tort liability “too far”.
- Finally, as a more general comment, the majority emphasized the need for a “vigilant” application of the reasonable foreseeability analysis, such that the focus remains on “whether someone in the defendant’s position ought reasonably to have foreseen the harm rather than whether the specific defendant did”: para. 53. That is, courts are to focus on whether foreseeability was present prior to the incident occurring and “not with the aid of 20/20 hindsight”: para. 53. Again, courts must apply the test with “analytical rigour” and must not simply impose liability because a risk which was “merely possible” came to fruition in actuality: para. 66.
Based on the foregoing, the majority in Rankin has provided a fundamental restatement of the law of negligence. The Court has expressly indicated, to litigants and courts alike, that a duty of care cannot simply be divined from a 20/20 hindsight analysis post hoc. Rather, as a “crucial limiting principle in the law of negligence”, the reasonable foreseeability analysis requires both analytical rigour and a proper evidentiary basis when a court imposes a novel duty of care. Accordingly, a duty of care does not arise just because someone is injured. To establish a duty of care, the plaintiff must adduce sufficient evidence to connect the specific act to the specific harm suffered by the plaintiff. Lastly, viewing the foreseeability of the harm from a time before the loss and from the perspective of a person in the position of the defendant, that specific harm must have been more than a mere possibility.
As a final and more general point about this case, one wonders whether this case is indicative of a policy shift by the Supreme Court of Canada, such that: (i) the Court is imposing more stringent requirements on plaintiffs to establish liability against defendants; but (ii) will allow damages to flow to plaintiffs once liability has been established (see: Saadati v. Moorhead, 2017 SCC 28). This approach protects against extending tort liability “too far”, while also ensuring the principle goal of tort law (full compensation to the victim of a tort) is achieved.