A recent case issued by the British Columbia Court of Appeal provides guidance regarding the duty of care owed by business owners and confirmed the principles with respect to the determination of a novel duty of care.
A GM Sierra pickup truck was stolen from the premises owned and operated by Dueck Downtown Chevrolet Buick GMC Limited (“Dueck”). Prior to the theft, the truck was left unattended by an employee of Dueck, Kyle Katerenchuk, with the motor running and the keys in the ignition. The truck was then stolen by the respondent David Bolton.
After activating the OnStar online navigation system in the truck the police were able to locate the vehicle and attempted to arrest Mr. Bolton. Mr. Bolton evaded arrest and, over an hour after the theft of the vehicle, was involved in three motor vehicle collisions, which resulted in serious personal injury to two other motorists: Constable Quinn Provost and Brandy Brundige.
This incident led to three actions in which Dueck and its employee Mr. Katerenchuck (collectively, the “Dueck Appellants”) were found liable to Constable Provost, Ms. Brundige and the Attorney General (“AG”).
The Dueck Appellants appealed on the basis that the judge erred in law in concluding that they owed a duty of care to Constable Provost, Ms. Brundige, and the AG.
The trial judge relied on the 2016 decision of the Ontario Court of Appeal in J.J. v. C.C. in concluding the Dueck Appellants owed a duty of care. That decision was subsequently overturned after a 2018 decision by the Supreme Court of Canada in Rankin (Rankin’s Garage & Sales) v. J.J..
The SCC in Rankin stated that “[a] business will only owe a duty of care to someone who is injured following the theft of a vehicle when, in addition to the theft, the unsafe operation of the stolen vehicle was reasonably foreseeable.” That is, in addition to the foreseeability that the truck would have been stolen, in order to find a duty of care was owed by the Dueck Appellants it must also have been reasonably foreseeable that Mr. Bolton would drive the truck in a way that would make him a danger to others. In Rankin, there was not sufficient evidence to determine that such a duty of care was owed.
The parties agreed at trial that this was a novel circumstance to impose a duty of care, therefore requiring an Anns/Cooper analysis to determine whether one should be imposed. An Anns/Cooper analysis requires that the harm be reasonably foreseeable, that a sufficient proximity exist between the parties to warrant imposing a duty of care and that no policy reasons exist to prevent finding of a duty of care.
Foreseeability
The trial judge held that the theft was clearly reasonably foreseeable since it had been left unattended, running and with the keys in the ignition. The more difficult determination was whether the injuries to Constable Provost and Ms. Brundige and the damage to the RCMP vehicles were reasonably foreseeable.
The trial judge relied on four key pieces of evidence in determining that the harm was reasonably foreseeable: (1) news reports on the risk of injury to the public from thieves driving stolen vehicles erratically; (2) three press releases from the Canadian Automobile Dealers Association; (3) the transcript of a 2007 meeting of the Standing Committee on Justice and Human Rights; and (4) police testimony about the erratic driving of car thieves.
The court mentioned that in Rankin, aside from evidence that established a risk of theft in general, there was nothing that showed a connection between the risk of theft to the risk of someone being physically injured. If there had been a history of theft by minors, who were unable to drive properly, this may have raised the foreseeability of a risk of injury.
The Court of Appeal found that there was no evidence to establish that the Dueck Appellants would, or ought to, have been aware of the content of the news reports. However, they did provide some support for the proposition it was widely reported that car theft created a risk of injury to the public.
The Court of Appeal noted that the evidence used by the trial judge to conclude on foreseeability did not take into account the existence of the OnStar system. The technology had an ability to track, and in some circumstances even disable, a stolen vehicle. This led the court to conclude that someone in the position of the Dueck Appellants, who were aware of the technology, could expect public safety to be of paramount importance to the police when they approached a stolen vehicle.
In concluding on foreseeability, the court stated that it would not extend foreseeability to include a risk of injury and damage arising out of an active police pursuit of a stolen vehicle. To do so would mean ignoring the existence of the OnStar technology and the fact that Dueck was aware of that technology. In addition, it was relevant that the injury and damage from the collisions occurred more than an hour after the thief safely drove away from the location of the theft.
Proximity
With regards to the proximity between the Dueck Appellants and the Respondents, it was just and fair to limit the duty to the damage that occurred in the course of theft or immediate escape. Once the thief had escaped from the location of theft without pursuit, it was reasonable to conclude that the panic accompanying the crime would be reduced, making the thief less of a danger to the public.
Conclusion
This decision provides guidance for businesses to be alert to any indication that their individual circumstances could lead to a reasonably foreseeable outcome of harm. The court will take into account the evidence which speaks to whether a business in the position of the defendant should have reasonably foreseen that negligently allowing a theft could lead to injury to the public.
The court in this case, and in Rankin specifically, left the duty open to potentially be applied where there is evidence to support a wider duty to the public or specific persons who may be injured in the course of thefts from those businesses.
