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Does an owner of a garage owe a duty of care to teenagers who steal and drive the garage’s serviced cars? On October 5, 2017, the Supreme Court of Canada (“SCC”) heard submissions on this unusual question in the case of James Chadwick Rankin cob Rankin’s Garage & Sales v JJ by his Litigation Guardian, JAJ et al, Docket 37323 [Rankin].
While reasons have yet to be released, Rankin grapples with a significant issue: whether the respondent’s illegal behavior, namely, stealing and crashing a car taken from the garage, negates Mr. Rankin’s duty of care as the garage owner. It is expected that the SCC’s decision will impact the defense of illegality (also known as ex turpi causa) and what role illegality should play in the duty of care analysis for future tort cases.
On July 8, 2006, the respondent, J.J., and his friends, C.C. and T.T., were spending time together at a dam in Paisley, Ontario. At the time, all three friends were between 15-16 years of age. At around 8:30 PM, the friends returned to C.C.’s house to drink beer that C.C.’s mother had bought for them. After C.C.’s mother went to bed, the friends drank vodka with orange juice and smoked a marijuana cigarette.
What happened next was a tragic set of circumstances. J.J. and C.C. decided to leave the house. They went to Rankin’s Garage, the dealership and garage owned by the appellant, James “Chad” Rankin. In the garage’s storage lot, J.J. and C.C. found an unlocked Toyota Camry with the keys in the ashtray. The two teenagers decided to go for a joyride. C.C. was the driver, though it was his first time driving and he did not have a driver’s licence, while J.J. was in the passenger seat. While driving to a neighboring town, C.C. got into a serious car accident. J.J. suffered catastrophic brain injuries as a result. C.C. was charged with several offences, including theft and driving with over 0.08% blood alcohol concentration, and pled guilty to some of them. J.J. was not charged.
Superior Court of Justice
J.J., through his litigation guardian, sued Rankin’s Garage, claiming that Mr. Rankin owed a duty of care to J.J. to secure his garage’s vehicles when they came to his garage to be serviced. The trial was held on September 25, 2014, before a jury.
At trial, the jury heard testimony about the security of Rankin’s Garage from other witnesses, including Mr. Rankin himself. Several witnesses testified that when they brought their cars in to Rankin’s Garage to be serviced, Mr. Rankin instructed the customers to leave the keys in unsecured places, including under mats or in the car. Mr. Rankin denied this, stating he asked customers to leave their keys in a locked drop box, and would ensure that the cars were locked every single night after closing.
The jury was not strongly swayed by Mr. Rankin’s testimony. Nor was J.J.’s engagement of criminal activity by participating in the stealing of the vehicle prior to the accident particularly persuasive to the jury. At the end of the trial, the jury found that Mr. Rankin indeed owed a duty of care, and bore largest portion of liability at 37%. C.C.’s mother, C.C., and J.J. bore 30%, 23%, and 10% of the liability, respectively.
Ontario Court of Appeal
Mr. Rankin appealed. The Ontario Court of Appeal (“ONCA”) upheld the trial judge’s decision that a duty of care existed, but came to that conclusion after a full analysis under the tests laid out in the British case Anns v Merton London Borough Council, as used in the Canadian context by the SCC in Cooper v Hobart, 2001 SCC 79 [Anns-Cooper test].
Huscroft JA, writing for a unanimous bench, rejected Mr. Rankin’s argument that the defence of illegality applied here, as J.J. had been a willing participant in taking the Camry and was trying to claim damages from the resulting accident (JJ v CC, 2016 ONCA 718 [JJ v CC]). Citing from British Columbia v Zastowny, 2008 SCC 4 [Zastowny], Huscroft JA stated that J.J.’s civil suit was not “profit[ing] from illegal or wrong conduct or would permit evasion or rebate of a penalty prescribed by the criminal law” (JJ v CC, para 71).
Huscroft also rejected the appellant’s argument that J.J.’s behavior was enough to negate the duty of care under public policy considerations in the second part of the Anns-Cooper test, stating: “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” (JJ v CC, para 72). In other words, the duty of care analysis should not consider the plaintiff’s criminal activity, but merely goes towards assigning liability amongst relevant parties.
Commentary: Considerations of Illegal Behavior
Will the SCC uphold the ONCA’s decision to reject the defence of illegality? It is very likely. It is not an issue discussed at length in either the ONCA decision, nor in Rankin’s factum to the SCC. Indeed, the defence of illegality has been narrowly construed by the SCC in the leading case of Hall v Hebert,  2 SCR 159 [Hebert]. McLachlin J (as she was at the time) states the defence only applies when recovery under tort law would “allow for recovery for what is illegal” (Hebert, 176). The defence is to prevent inconsistency in the judicial system, where the “law is giving with one hand what it takes away with the other” (Hebert, 178). For example, in Zastowny, the SCC refused to grant wage compensation for the plaintiff, Mr. Zastowny, for time lost serving a prison sentence. Since Mr. Zastowny was responsible for criminal acts that resulted in a prison sentence, recovering lost wages would be compensating him for those acts. The defence of illegality applied.
Given the rigidity of the defence of illegality, it is not surprising that Mr. Rankin has taken a different route in his appeal to the SCC. Starting at paragraph 108 of his factum to the SCC (found here), Mr. Rankin argues that J.J.’s criminal activity should negate the duty of care under public policy considerations of the Anns-Cooper test.
As mentioned earlier, the Anns-Cooper test is a two-part test that determines whether a duty of care exists from the defendant. The second part of the test looks at public policy considerations, where courts consider potentially unacceptable negative impacts if they were to find a duty of care exists in that particular relationship. Therefore, arguing that illegal conduct should be recognized under public policy considerations when grounding a duty of care is more flexible than trying to meet the higher threshold of the defence of illegality.
The current case presents persuasive public policy arguments against finding a duty of care in situations where those who are victims of criminal activity could be held liable for future civil suits. It is not a stretch to wonder whether holding Rankin liable could incentivize criminal acts by taking advantage of an individual’s lapse in keeping their property secured.
With that being said, the SCC has considered, and rejected, the idea that illegal activity negates the duty of care. In Hebert, McLachlin J separately considered the plaintiff’s illegal behavior in the duty of care analysis:
“The relationship between plaintiff and defendant which gives rise to their respective entitlement and liability arises from a duty predicated on foreseeable consequences of harm…. the legality or morality of the plaintiff’s conduct is an extrinsic consideration.” (Hebert, 161).
Should the SCC find Mr. Rankin’s arguments persuasive, it would go against their reasoning in Hebert, and subsequently broaden public policy considerations under the Anns-Cooper test. Weighing the plaintiff’s criminal behavior will not only impact the defences of contributory negligence and illegality, but be considered as a factor in determining the existence of a duty of care.
Mr. Rankin presents another public policy consideration related to criminal behavior. In the ONCA decision, Huscroft JA uses testimonial evidence that a duty of care exists given that there had been a history of vehicle theft with the garage (JJ v CC, para 48). Should the SCC find a duty of care, Mr. Rankin argues that the duty of care would be influenced by perceptions of crime rate, which can be inaccurate. As a result, there would be varying standards across different areas, leading to unacceptable inconsistency in future duty of care analyses. It would be interesting to see whether the SCC will weigh this public policy consideration. Considering that the Anns-Cooper test relies heavily on the facts of the case, it may be that the SCC could narrow the scope of their analysis, considering the garage’s history of theft as a factor relevant only to the current case.
While Rankin will determine whether garage owners owe a duty of care to people who steal their cars, the SCC will also provide guidance in considering criminal activity in the duty of care analysis. While the appellant provides interesting and persuasive public policy considerations, it depends whether the SCC will distinguish the current case from their previous leading cases in Hebert and Zastowny.