Not the Ontario Court of Appeal in JJ vs. CC, 2016 ONCA 718 a Decision released October 3, 2016.

The facts in this case were that the Plaintiff, JJ and the Defendant, CC stole a car from the Defendant, Rankin’s Garage.

JJ and CC, both minors, decided to steal a car after they had a few drinks. CC chose to drive even though he not only did not have a license, but had never driven a car before. JJ decided that he would go along for the ride.

Not surprisingly there was a car accident which resulted in JJ having significant injuries.

The case proceeded to Trial where a Jury apportioned 37% liability on Rankin’s Garage.

On Appeal it was argued that the Trial Judge erred in concluding that Rankin’s Garage owed a duty of care to JJ.

The Trial Judge held that such a duty of care had already been recognised in law. The Court of Appeal disagreed, but then proceeded to recognise one. The Court held that the Canadian approach with respect to the establishment of the duty of care was to be found in the British House of Lords Decision and approach in Anns vs. Merton London Bureau Counsel [1978] A.C. 728 (H.L.) [Editorial Note: I knew that the tort course I took in law school would come in handy one day].

Assuming that there was a no prior duty of care recognised the court was to apply the “Ens-Cooper Test”. According to that test the onus was on the Plaintiff to prove that the Defendant owed a duty of care. If the Plaintiff establishes a duty of care the onus shifts to the Defendant to prove “policy considerations” to negate the duty.

A duty of care required both forseeability and proximity.

With respect to foreseeability the test was “reasonable” foreseeability.

On the facts of this case it was reasonably foreseeable that a minor might steal a car from Rankin’s Garage when minors were involved, theft in the area was common and the vehicle was accessible having been left unlocked with the keys in it.

Proximity was made out because it was “fair and just” in circumstances where the Plaintiff was a minor. Rankin’s had the vehicle for commercial purposes and chose not to secure same.

Having established this novel, duty of care, the Court then turned its mind to whether or not there were any “real” policy considerations which would negate the prima facie duty of care that it had just established.

Once again the Court turned to Cooper to ask three questions:

1. Does the law already provide a remedy?

2. Would recognition of the duty of care create the spectra of unlimited liability to an unlimited class? and

3. Are there any other reasons of broad policy that suggest that the duty of care should not be recognised?

With respect to other broad policy concerns, it was suggested that the Plaintiff should not benefit from a theft that he participated in. That wrong doers should be responsible for the damage they cause to themselves.

The court suggested that had intuitive appeal [Editorial Note: it certainly appealed to this writer], but ultimately held that this was a sentiment not principle.

That a duty of care operated independently of the illegal conduct of an injured party. It was open and appropriate for wrong doers to receive compensation for damages caused by a Defendant’s negligence. His or her wrong doer only went to the issue of contributory negligence. Illegal conduct on the part of the Plaintiff only operated as a complete defence:

“where a damage award in a civil suit would allow a person to profit from the legal or wrongful conduct or would permit evasion or rebate of a penalty prescribed by the criminal law”.

Clearly, the Plaintiff in this case was involved in illegal conduct. Stealing a car is contrary to both public policy and the law. Equally clearly, as a result of the Court’s decision in this case he has “profited”, in that he has had the benefit of being able to sue for recovery of damages. While it can be argued that his profit was permissible in these circumstances because he did not profit solely as a result of his conduct but rather partially because of the negligent conduct of the Defendants, but for his initial illegal act, he would not have been in the situation in the first place.