COURT OF APPEAL FOR ONTARIO
CITATION: J.J. v. C.C., 2016 ONCA 718
DATE: 20161003
DOCKET: C59523
Strathy C.J.O, Brown and Huscroft JJ.A.
BETWEEN
J.J. by his Litigation Guardian, J.A.J., J.A.J. and A.J.[^1]
Plaintiff (Respondent)
and
C.C., James Chadwick Rankin, carrying on business as Rankin's Garage & Sales, ING Insurance Company of Canada, and D.C.
Defendants (Appellant)
David S. Young and Kevin R. Bridel, for the appellant, James Chadwick Rankin
Maia L. Bent, Jasmine T. Akbarali, and Alfonso E. Campos Reales, for the respondent
Jennifer Chapman, for the respondent, C.C. (Motor Vehicle Accident Claims Fund)
Heard: June 27, 2016
On appeal from the judgment of Justice Johanne N. Morissette of the Superior Court of Justice, sitting with a jury, dated September 25, 2014.
Huscroft J.A.:
[1] The principal question in this appeal is whether the appellant owed a duty of care to a minor involved in stealing a car from his garage and car dealership.
[2] A jury found the appellant, James Chadwick Rankin (“Chad Rankin”), carrying on business as Rankin’s Garage & Sales (“Rankin’s Garage”), partly liable for injuries suffered by the respondent, J.J. who, along with his friend C.C., stole a Toyota Camry from Rankin’s Garage and took it for a joyride. The car had been left unlocked on an unsecured lot, with the keys in the ashtray.
[3] J.J. was a passenger in the car, driven by C.C., when it crashed. He suffered a catastrophic brain injury.
[4] In my view, the trial judge’s conclusion that Rankin’s Garage owed J.J. a duty of care is correct, but I reach that conclusion for different reasons. The trial judge made no errors in her conduct of the trial or her charge to the jury, and the jury’s verdict is not unreasonable.
[5] I would dismiss the appeal.
Background
[6] On July 8, 2006 J.J., then 15 years of age, met with his friends C.C., age 16, and T.T., age 16, at the dam in Paisley, Ontario. C.C. and T.T. shared eight beers T.T. had brought with him. C.C. testified that J.J. did not have any of the beer, as he did not like beer. The three boys walked to C.C.’s house around 8:30 p.m., where C.C. and T.T. continued to drink beer. C.C.’s mother, D.C., had purchased a case of beer (24) for the boys to drink.
[7] D.C. went to bed prior to 11:00 p.m. and the boys were left unsupervised. C.C. found a bottle of vodka later that evening and the boys drank vodka mixed with orange juice. C.C. testified that J.J. might have had some of it, but he did not recall clearly. C.C. testified, further, that the three boys shared a single marijuana cigarette. T.T. went home later that evening and C.C. and J.J. left the house at that time, setting in motion a series of events that ended with the crash and the injury to J.J.
[8] J.J. was unable to testify at trial, so the only evidence of the theft and accident comes from C.C.
[9] According to C.C., the two boys walked around Paisley with the intention of stealing things from unlocked cars. They attempted to break into several cars and found that a few of them were unlocked. They ended up at Rankin’s Garage, which services and sells cars and trucks. The garage property was not secured. C.C. testified that he remembered checking two cars on the lot and finding an unlocked Toyota Camry parked in an area behind the garage. The keys to the Camry were in the ashtray. C.C. decided to steal the car even though he did not have a driver’s license and had never driven a car.
[10] J.J. got into the car as passenger. C.C. decided to drive to the nearby town of Walkerton to pick up a friend. The car crashed on the way there.
[11] C.C. pleaded guilty to theft under $5,000, dangerous operation of a motor vehicle causing bodily harm, and possession of stolen property obtained by theft. A charge of driving with over eighty milligrams of alcohol in his blood was dropped. D.C. pleaded guilty to a charge of supplying alcohol to minors. J.J. was not charged with any criminal offences.
The trial
[12] J.J. sued C.C., Rankin’s Garage, and D.C. for negligence. He conceded, through his parents, that he was partially responsible for his injuries.
[13] The trial judge instructed the jury that Rankin’s Garage owed J.J. a duty of care, among other things “because people who [are] entrusted with the possession of motor vehicles must assure themselves that the youth in their community are not able to take possession of such dangerous objects.”
[14] The jury returned a verdict finding C.C., D.C., and Rankin’s Garage negligent. J.J. was found contributorily negligent. The jury listed the following particulars:
• Rankin’s Garage’s negligence arose out of leaving the car unlocked; leaving the key in the car; knowing or ought to have known of the potential risk of theft; having very little security; and testimony inconsistencies.
• D.C.’s negligence arose out of providing alcohol to minors; failing to supervise minors, and failing to secure personal alcohol.
• C.C.’s negligence arose out of drinking underage; not having a driver’s license; stealing a car; impaired operation of the car; and trespassing.
• J.J.’s contributory negligence arose out of willingly getting into a stolen car; knowing C.C. did not have a driver’s license; knowing that C.C. was impaired; knowing that C.C. was an inexperienced driver; and participating in stealing the car.
[15] The jury apportioned liability as follows:
Rankin’s Garage 37%
D.C. 30%
C.C. 23%
J.J. 10%
Issues
[16] The appellant raises the following issues on appeal:
Did the trial judge err in concluding that Rankin’s Garage owed a duty of care to J.J.?
Did the trial judge correctly charge the jury regarding an enhanced duty owed to J.J.?
Did the trial judge err in admitting irrelevant evidence that was highly prejudicial to Rankin’s Garage and of little probative value?
Is the verdict of the jury unsustainable given all of the evidence and findings, including that C.C. and J.J. both participated in the theft of the vehicle?
[17] D.C. did not participate in the appeal. C.C. adopted the position of the respondent.
[18] I address each of these issues in turn.
Did Rankin’s Garage owe a duty of care to J.J.?
[19] This is the principal question in this appeal. Did the appellant owe a duty of care to J.J., who participated in stealing the Camry? On the face of things, the notion that an innocent party could owe a duty of care to someone who steals from him seems extravagant. But matters are not so simple.
[20] 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, [1978] A.C. 728 (H.L.), as modified by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 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.
[21] 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?
[22] 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.
[23] 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.
[24] 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.
[25] Kalogeropoulos v. Ottawa, [1996] 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.
[26] 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.
[27] 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.
[28] 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, [1992] 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.
[29] 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, 1980 CanLII 4452 (NS SC), [1980] 37 N.S.R. (2d) 695 (S.C); Canada (Attorney General) v. LaFlamme, [1983] 3 W.W.R. 350 (B.C. Co. Ct.); Moore v. Fanning, 1987 CanLII 4168 (ON SC), [1987] O.J. No. 620 (H.C.); Norgard v. Asuchak, [1984] A.J. No. 394 (Q.B.); Aldus v. Belair, [1992] O.J. No. 3908 (H.C.); Werbeniuk v. Maynard, 1994 CanLII 16666 (MB QB), [1994] 7 W.W.R. 704 (Man. Q.B.); and Tong v. Bedwell, 2002 ABQB 213.
[30] 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.
[31] 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).
[32] 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.
[33] 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
[34] 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.
[35] 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.
[36] 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.
Foreseeability
[37] 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.
[38] 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, [2008] 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.
[39] There was ample evidence to support the conclusion of foreseeability in this case. It came from the practices at Rankin’s Garage as well as the history of theft in the area.
Rankin’s Garage practices
[40] Several witnesses testified that Rankin’s Garage had a practice of leaving cars unlocked with keys in them.
[41] A.J., J.J.’s father, an auto parts salesmen, testified that over the course of many visits to Rankin’s Garage over the years, he had seen car keys left unsecured on the desk and in a bucket on top of the safe, and that customers dropping off cars were sometimes instructed by the appellant to leave car keys under floor mats, in the ashtray, or over the visor. He testified, further, that the practice of other garages is to provide drop boxes or locked boxes for their customers’ keys.
[42] D.C. testified that the appellant had instructed her to leave the keys to her car in the ashtray when she dropped it off for service at the garage. She testified, further, that on one occasion the appellant had returned her car to the wrong address and left it unlocked with the keys in the ashtray.
[43] J.C., C.C.’s sister, confirmed her mother D.C.’s testimony, as did D.C.’s other daughter, C.L.C. C.L.C. testified that she received similar instructions from the appellant when she was a customer, and was informed that she could drop her keys into an exhaust tube at the side of the building only when she inquired about security.
[44] James MacNamara, another customer of Rankin’s Garage, testified that the appellant might leave the keys to his car under the mat to allow him to pick up his car if the garage was closed. John Campbell, a former employee of Rankin’s Garage, gave similar evidence.
[45] Glen Charban owned the stolen Camry. He testified that his vehicles were serviced by Rankin’s Garage and that he would leave the keys in them when he dropped them off in front of the garage. He did not think that his cars were always locked when he returned to pick them up. Glen Charban testified, further, that the appellant called him after the theft and requested that he drop off another key to the Camry, which he did. He said he lied to Officer Pittman of the Ontario Provincial Police (“OPP”) when he told him that he had locked the Camry and left the key under the floor mat and that the appellant had a second key, and that he had lied in order to help the appellant.
[46] Chad Rankin testified that the witnesses who testified that he left keys in cars were lying. He said that he kept car keys in a safe. Customers dropping off cars after business hours were instructed to leave the keys at his home or to drop them into an exhaust hole at the garage, and he would collect them and put them into the safe. The appellant testified, further, that he checked every car every night to make sure that they were locked, and that he specifically recalled checking the Camry to ensure that it was locked shortly before it was stolen. He said that he obtained the key to the stolen Camry when Glenn Charban dropped the car off for servicing, not at a later date.
[47] Chad Rankin’s evidence was inconsistent with the evidence of all of the other witnesses and it was rejected by the jury. The jury found that he left the car unlocked, left the key in the car, and that he had very little security.
[48] Two witnesses testified as to a prior history of vehicle theft, both in general and from Rankin’s Garage in particular. Although the appellant challenged the admissibility of this evidence, as discussed below it was properly admitted.
[49] C.L.C. testified that when she was between 13 and 15 years of age, she witnessed a stolen vehicle that had been taken from Rankin’s Garage being returned at midnight, and overheard unknown individuals stating that they had taken the truck to McDonald’s.
[50] Officer Pittman gave evidence that vehicle theft and mischief – rummaging through vehicles – was a common occurrence within the detachment area and that the OPP encouraged residents to lock their vehicles. Newspaper and radio messages were used, along with a project involving auxiliary police checking vehicles and notifying owners if they were found unlocked. A “Lock It or Lose It” program was established in 2007.
[51] The jury found that Chad Rankin knew, or ought to have known, of the potential risk of theft.
Conclusion on foreseeability
[52] In summary, Rankin’s Garage was easily accessible by anyone. There was no evidence of any security measures designed to keep people off the property when the business was not open. Cars were left unlocked with the keys in them. The risk of theft was clear.
[53] In these circumstances, it was foreseeable that minors might take a car from Rankin’s Garage that was made easily available to them. Evidence that a vehicle had been stolen from Rankin’s Garage years earlier for joyriding, and that vehicle theft and mischief were common occurrences in the area, reinforces this conclusion. It is a matter of common sense that minors might harm themselves in joyriding, especially if they are impaired by alcohol or drugs.
Proximity
[54] 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.
[55] 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, [2007] 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.
[56] 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.
[57] 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.
[58] 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.
[59] 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?
[60] 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.
[61] 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?
[62] I address each of these questions below.
Existing remedy?
[63] 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.
[64] 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?
[65] 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?
[66] 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”.
[67] In my view this submission overstates things considerably.
[68] 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.
[69] 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.
[70] 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.
[71] 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), [1993] 2 S.C.R. 159; British Columbia v. Zastowny, 2008 SCC 4, [2008] 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.
[72] 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.
[73] 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.
Did the trial judge charge the jury correctly?
[74] The appellant argues that the trial judge erred in charging the jury as follows:
Under Canadian law children under the age of 16, although they may protest against it, require guidance and direction from parents and older persons. Society has always recognized how important it is to promote the safety of children under the age of 16 to ensure their reasonable safety.
[75] The appellant submits that J.J. and C.C. engaged in adult activities – drinking alcohol, smoking marijuana, stealing valuables and a vehicle, driving without a license, and driving while impaired – and, as a result, should have been judged by adult standards.
[76] I disagree.
[77] As the trial judge concluded in reviewing the charge with trial counsel, the short answer to this submission is that this case is concerned with the duty of care owed by adults to minors, not with the duty of care owed by minors who participate in adult activities.
[78] Read as a whole, the trial judge’s charge is fair and balanced. There are no errors that require appellate intervention.
Did the trial judge err in admitting irrelevant evidence?
[79] The appellant takes issue with the admission of evidence from C.C.’s sister, C.L.C., as to a previous theft from Rankin’s Garage, and from Officer Pittman concerning the establishment of a theft-prevention program.
[80] As noted above, C.L.C. testified that she saw a vehicle that had been taken from Rankin’s Garage for a joyride being returned to the garage at midnight. She said that she overheard a conversation in which it was said that the vehicle had been taken to McDonald’s, but she offered no further information as to the identity of the individuals in question.
[81] The appellant submits that this evidence was irrelevant and prejudicial, and had little, if any, probative value. I disagree. Although there was no evidence concerning the way in which the prior theft occurred, and in particular whether the keys were left in the vehicle, the evidence concerned the history of theft of vehicles and joyriding in the area, and from Rankin’s Garage in particular. It was clearly relevant to the question of foreseeability and no prejudice was caused by its admission.
[82] The objection to Officer Pittman’s evidence concerning the establishment of the “Lock it or Lose it” program was, essentially, that the program commenced in 2007 – that is, subsequent to the theft of the Camry from Rankin’s Garage. But this misses the point. Officer Pittman’s evidence indicated that the program was established in response to a theft problem in the area that existed at the relevant time. His evidence was clearly relevant to the issues in this case and its admission caused no prejudice.
Is the verdict of the jury unsustainable?
[83] It is not easy to overturn a jury verdict, whether on the question of liability or the apportionment of liability between multiple defendants.
[84] As this court put it in El Dali v. Panjalingham, 2013 ONCA 24, at para. 15, citing McConnell v McLean, 1937 CanLII 1 (SCC), 1937 S.C.R. 341, at p. 343:
Where the trial judge’s charge is fair and accurate, the jury’s verdict will be set aside only where it is “so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it”.
[85] A jury’s decision concerning the apportionment of liability is entitled to the same deference: McIntyre v. Grigg, (2006) 2006 CanLII 37326 (ON CA), 83 O.R. (3d) 161 (C.A.), at para. 38; Marcoccia v. Ford Credit Canada Limited, 2009 ONCA 317, at para. 20.
[86] The appellant submits that it was plainly unreasonable and unjust for the jury to find Rankin’s Garage responsible to a passenger in a car that had been stolen from it, given that the passenger was an active participant in the theft and the vehicle was driven by an underaged, unlicensed, and intoxicated driver.
[87] This submission must be rejected. It largely reiterates the appellant’s objection to the imposition of a duty of care in the circumstances.
[88] At the end of the day, the appellant had not only an interest in securing the vehicles on his property, both as owner of some vehicles and as bailee of others, but also a responsibility. He could easily have met the standard of care simply by ensuring that all of his vehicles were locked and that their keys were protected – precautions he testified that he was willing to take and claimed to have taken.
[89] It was open to the jury to reject the appellant’s evidence and to find that the appellant: (1) knew or ought to have known of the potential risk of theft; (2) failed to lock the Camry and left the keys in the car (a finding that the appellant conceded on appeal); and (3) had very little security at the garage. In these circumstances, there is no basis to interfere with the jury’s decision finding Rankin’s Garage partly liable.
[90] There is, of course, room for reasonable disagreement in the apportionment of liability; another jury might well have apportioned liability between D.C., Rankin’s Garage, C.C., and J.J. differently. However, it cannot be said that the jury’s decision is “so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it”. Accordingly, there is no basis for the court to interfere with the jury’s decision.
Disposition
[91] I would dismiss the appeal.
[92] I would order the appellant to pay costs to the respondent of $30,000, inclusive of taxes and disbursements. I would make no order as to costs for C.C., who was represented by the Motor Vehicle Accident Claims Fund.
“Grant Huscroft”
“I agree G.R. Strathy C.J.O.”
“I agree David Brown J.A.”
Released: October 3, 2016 “GRS”
[^1]: Note: The names of the parties in this case have been initialized in order to comply with ss. 110 and 111 of the Youth Criminal Justice Act, S.C. 2002, c. 1.