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Personal Injury

Garage owner owes duty of care in catastrophic injury case: OCA

A case heading to the Supreme Court of Canada may shed light on when a business owner should be held responsible for the injuries of trespassers, says Toronto personal injury lawyer Sharon Bauer.

The Ontario Court of Appeal (OCA) ruled a garage owner in rural Ontario owed a duty of care to a teenager who suffered a catastrophic brain injury in a car stolen from the premises. The Supreme Court has agreed to hear an appeal after the teen successfully sued the garage owner, a ruling upheld by the OCA.

Bauer, partner with Wolfe Lawyers, says when she first read the facts of the case, she thought proving negligence against the garage owner would be a tough sell, but after reading the panel’s reasons, she agrees the garage owner, who left the car unlocked with keys in the ashtray, had a duty of care. The appeal court decision also clarifies the difference between “sentiment” and "principle,” she says.

“It may seem offensive that someone steals a car and the person they stole from is now ultimately responsible for their actions,” Bauer tells “But we must look at the principle, not what people think is fair or unfair. The garage owner had a duty of care and you can't negate that because of the prevailing sentiment.”

In applying the Anns-Cooper test, which is used to help determine if a party owes a duty of care, the court asked whether harm was “a reasonably foreseeable consequence of the defendant’s act” and if there were reasons, “notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized,” according to the ruling.

As Bauer explains, proximity doesn’t mean the garage owner had to personally know the teens who went for the joyride.

“He just had to know there could be teenagers around who could do something like this and that's enough proximity to be foreseeable,” she says.

Considering a history of thefts in the area and the lack of security on the property, the appeal court judges said it was common sense that vehicles could be stolen.

“Based on past incidents, it was common sense that minors might take a joyride, and in doing so potentially harm themselves, so that is a foreseeable consequence of not locking the car,” Bauer says.

In addressing the second part of the test, the appellant argued the Occupiers’ Liability Act outlines that someone who trespasses and commits a criminal act takes on all risks, the decision says. However, the appeal judges said the Act has nothing to do with this case, which involved a crash on a public road after the vehicle was taken.

In response to the appellant’s argument that recognizing a duty of care makes the concept of legal neighbourhood “so far as to render any form of relationship analysis meaningless,” the judges said that interpretation was oversimplified.

“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,” the judges ruled.

The panel goes on to point out that “sentiment is not principle,” and a duty of care is independent of immoral conduct.

Bauer says it’s important to note the OCA dealt with a set of specific facts in the case, and she wonders how the test would apply in a more urban area — where issues such as proximity and foreseeability may be interpreted differently.

“It will be helpful when this case goes to Supreme Court if they shed more light on how this test would apply in other circumstances,” she says.

Bauer adds she was pleased to see the court admitted evidence of previous incidents of theft. Bauer indicates that she frequently gets pushback from defence to produce or admit into evidence past incidents similar to the one she works on. “Often, when I ask for any previous occurrences similar to the case I'm working on it is refused because it is deemed ‘irrelevant.’”

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