In Canadian tort law, a duty of care requires a relationship of sufficient proximity. That relationship is informed by the foreseeability of an adverse consequence of one’s actions, subject to policy reasons that a duty of care should not be recognized. As such, Canadian law continues to follow the principles established by the UK House of Lords in its 1977 decision Anns v. Merton London Borough Council.[1]
In an important decision, the Supreme Court of Canada (“SCC”) has revisited the question of foreseeability in establishing a duty of care. In Rankin’s Garage & Sales v. J.J., 2018 SCC 19 (“Rankin’s”), a garage owner left keys in the ashtray of an unlocked car. Two youths, intoxicated by alcohol and marijuana, were prowling in an effort to steal from unlocked cars, and they found the keys in the ashtray. Despite an absence of either driving experience or a driver’s licence, they went on an ill-fated joy-ride resulting in a crash that left one of the youths with a catastrophic brain injury. Lower courts found the garage owner contributorily negligent. The SCC ruled that the garage owner owed no duty of care to the injured youth.
The majority of the SCC reasoned that “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 — that the stolen vehicle could be operated unsafely.” By the SCC’s reasoning, while it was foreseeable that the car might be stolen, it was not foreseeable that it would be stolen by intoxicated youths lacking driving experience and that they would drive recklessly resulting in a catastrophic injury.
The SCC has not changed the legal test for a duty of care. The test continues to involve an analysis of both reasonable foreseeability and proximity. The first question is whether the harm that occurred was the reasonably foreseeable consequence of the defendant’s act. The second question is whether there is a relationship of such a nature that the defendant may be said to be under an obligation to be mindful of the plaintiff’s legitimate interests in conducting his or her affairs.
The decision in Rankin’s, however, is a clear signal from the SCC that a car is not to be treated in the same manner as a ‘loaded gun’ and that it is not an inherently dangerous object. Risk needs to be assessed on a case-by-case basis, and a duty of care must be based on a reasonably foreseeable risk of harm rather than just a mere possibility of one.
We are of the view that the SCC has placed an important limit on the breadth of foreseeability in establishing a duty of care. For the underwriting industry, this decision is an important one as it indicates that the responsibility of companies and professionals in general is not so broad that it would include reasonably foreseeable acts that are not directly connected to the facts and circumstances before the court.
Underwriters for professionals should still be wary of the potential liability that may arise in any line of business but they can take some assurance that the SCC is not willing to broaden the scope of liability to circumstances where the facts do not clearly indicate a link of reasonable foreseeability. We are hopeful that this decision will operate to extinguish a duty of care alleged to be owed by insured professionals and others.
[1] [1978] AC 728.
