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J.J. v C.C. OCCUPIERS LIABILITY NIGHTMARE : inadequate theft deterrence for carthief's injury 2016/10/24 12:04  
( J.J. v C.C update at March 13 2017 : Canada's Supreme Court last week granted a right to appeal the youth-crime decision described below. "Occupiers" of all types - including condo governancers and any owner of a potential instrument of dangerous fun - would be well served to follow the outcome. )


Ontario's Court of Appeal has upheld a 2014 civil jury award imposing not only a share of liability, but the LARGEST share of liability - maybe ultimately for $ millions - against a Bruce County smalltown garage.

Overnight in July 2006 a customer's car was stolen for a joyride that ended miles away with one minor thief suffering a "catastrophic brain injury". Flash forward after NINE years of litigation. . . .

It's a decision that has provoked WILD HOWLS of public rage after being picked up on several Toronto radio call-in shows. ( Some called for immediate toxicology tests - fingernails, hair, bloodsamples - on not only the civil jury for its award. But also ONTO the judges who have failed to strike it down )

In a nutshell, the upheld civil jury award means that 'Occupiers' - in a condo/HOA context with legal, insurance and managerial professional help - maybe should look again at a bigger picture, particularly as to minors. Eg to ask . . . "As 'occupier(s) are we doing or tolerating something that could not only directly harm (mere) trespassers ( eg ). But even platform or facilitate possible later injuries miles away by 'criminal purpose' enterors like car thieves /joyriders ?" "Are we by omission attracting them or somehow inviting them to take up some sort of a weapon of destruction ?"

What's the duty to non-customer minors ? : ONCA cites Rankin's liability (sections 36, 56 &58) as breach of a "duty to have the protection of minors in mind when he made decisions about security at his business"

One non-involved lawyer's public warning to EVERYONE - in some respects also to condo/HOA or otherwise, individuals or Boards - about this decision :

"Imagine a freezing February morning. You go outside and start your car. Keys are inside. You go back in to grab a coffee or suitcase or your child so you can drop him/her off at daycare.

During those few seconds or minutes that your car is left unattended, a thief steals it and causes a collision, injuring or killing a third party.

Based on this recent decision, you could possibly be named as a defendant and, in fact, be found to be the most liable.

You could extrapolate this scenario to leaving a house unlocked or leaving keys inside your boat at your cottage or simply leaving a baseball bat on your front lawn, only to be picked up by someone looking to start or finish a fight. Where does it stop ?" - Oct 14/16 EMC Waterloo Region Record Kitchener “Garage found partly liable for brain injury might appeal to Supreme Court of Canada” appeal-to-supreme-court-of-canada/

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This civil jury award (and a previous Supreme Court analysis platforming its approach ) warn that Ontario's thirty five year old OLA Occupiers' Liability Act RSO 1990 Ch O.2 can sometimes be swept aside.

'Occupiers' property rights are shown dangerously exposed to arguably dubious negligent injury claims by minors - even those entering for flat-out criminal purposes with 'unclean hands'.

Ontario's OLA Occupiers' Liability Act had been thought to strip such 'criminal purpose' enterors personally from such right to compensation from the occupier.

To be fair and instead involving LAWFUL property enterors, certain special classes of occupiers - including 'bailees' like Rankin's Garage in Paisley - were legislated within that Act to be subject to ADDITIONAL higher/specialized levels of care ( see section 9(1) - "Preservation of higher obligations" )

In Paisley the upheld civil jury award hits this particular Occupier far heavier than the 15 year old teenage car thief himself & those who platformed the events. And right upfront, where were thief's uncited parent(s) or guardian(s) - non defendants in this ?

BUT back in the condo universe, condominium corporations are legislated to be 'statutory occupiers' ( albeit not 'owner' of the common elements ) by the Condominium Act 1998. If an occupier has a duty - comparable in principle to Rankin's - to secure with minor criminals in mind, then what ? Condo boards should now consider what a civil jury MAY DO when faced with a minor injured while trespassing or even entering for criminal purposes as here. Or even when a minor thief or other victims get injured off site by something stolen from the common elements or a car stolen from under control of a valet car-parking service. ( An owner's private car stolen from a private deeded space appears to NOT at all be that scenario for the condo corporation ).

The Only Deep Pockets in Sight ?

Crime or a mere non-criminal trespasser injury, BUT IN EITHER CASE without other 'deep-pocketed' or insured targets to sue. Here garage owner Rankin's & its insurers may be the only bucks in sight, just like a condo or HOA sometimes


The Oct 3/16 ONCA appeal decision arrives 9 years after the then 15 year old car thief & 16 year old buddy around midnight stole an allegedly unlocked car parked outside Rankin's Garage in the tiny village of Paisley in Bruce County east of Lake Huron. The Camry was amidst a repair process ( technically a form of bailment ).

( Informality : Google streetscape shows a smalltown, informal-looking rural business. There are thousands of such informal independent repair shops all over North America. )

Centrally disputed is whether the defendant Rankin's Garage had been in breach of some sort of WIDER DUTY to security-exclude or to deter minor theft. If so, was the occupier's legislated defence still available under the OLA Occupiers' Liability Act against a 'criminal purpose' enteror ?

( How could such jury-discovered 'wider duty of care' trump the literal, specified Occupier Liability legislation to the contrary ? No terminology such as the U.S. phrase 'Child attractive nuisance' even appears either in the laconic ONCA appeal text. This wasn't a 5 year old attracted to an under-fenced swimming pool or an abandoned ferris wheel. Nor was it an 8 year old who jumps into the driver's seat of an idling car at a day care parking lot. Or into some sort of idling delivery route vehicle or public works vehicle, none reaching 'criminality' if mischievously or adventurously attempted by a young child .

The joyriders at Paisley were old enough ( 15 & 16 ) to have probably lost most public 'gut' sympathy for criminality by minors. They took informed advantage of what their counsel may have successfully argued was an unsafe lax business practice, or of a management tolerance whose costs should not hit the injured minor.

But to the detriment of Rankin's Garage now, they were STILL minors, argued to have been attracted by an alleged pattern of laxity or breach of duty to secure. )

Included in original factual dispute was whether or not the car owner's car keys had been left after working hours in the stolen vehicle's ashtray as claimed by the thieves. If so, left by whom ? Would the thieves lie ?

Whatever, the Appeal Court decision states that the occupier Rankin's Garage itself had at least parked the vehicle onsite under a 'bailment' to repair its customer's car which the thieves scooped. It also claims a subsequent admission that Rankin's actually parked the vehicle unlocked with keys in ashtray.

The car thief's witnesses further claim the risk of such teenage joy-riding was hearsay-established ! If really so, would that doomed vehicle have been left unlocked at all ?

Miles away later the car thieves crashed the stolen Camry, leaving the plaintiff with "catastrophic brain injuries".

The bottom line :

Is 'occupier' Rankin's even in breach of some wider duty to security-exclude minor criminals, much less of a 37 % largest share of the still un-established costs of lifetime care for the injured car thief ?

The 'magic wand' 37 % award against the commercial bailee repair garage Rankin's Garage, even exceeds the 30 % awarded against the parent of one of the teenage thieves held to have supplied them with beer for a midnight rampage ! !

With likely millions at stake & arguably challengeable aspects in the award & both judicial decisions, the garage & its insurer(s) may now try to meet the VERY steep hurdle of an appeal (with leave) to Canada's Supreme Court.

J.J. v. C.C., 2016 ONCA 718 718 issued Oct 3 2016

(a shaky line of judicial reasoning : “Existing remedy ?" )

xcrpt quote : " . . . [63] The law does not already provide a remedy in this case.

Nevertheless, the appellant ( Rankin's Garage ) 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. . . “ unquote
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J.J. v C.C: some BIG gaps so far in this outcome : Has angry public reaction been correct ? 2016/10/26 11:09  
Could the public anger be correct?

Some disturbingly big gaps seem to loom in this judicial outcome so far :

1- How can an express statutory provision ( OLA Occupiers Liability Act RSO 1990 legislates that ‘criminal purpose’ enterors "accept all risks" ) be overridden or by-passed by a civil jury / by an Anns v Merton 1977 / Cooper v Hobart 2001 ?

Can non-Charter of Rights sociology trump what the Ontario Legislature has expressly legislated to deter crime & protect property rights ?

Is it critical to some sort of sociological by-pass attempt that ONCA purports to disqualify the onsite theft as an OLA scenario triggering the Occupier’s ‘criminal purpose defence’ ? Or allegedly so much wider & earlier in its sociological Genesis that the theft magically is no longer an OLA scenario ?

ie like : “the joyride was offsite & the crash happened miles away”. OR that ‘common law trumps an express legislative enactment with ‘public policy implications’. OR : “There was a causal connection EARLIER than the physical theft events onsite”

But factually how can the physical causal chain be broken or purported sociologically extended back in time earlier than the criminal entry & the crash ( not in immediate panicked flight ) some distance away ?

2 Critical huge gap in the plaintiff’s factual claims :

IF Rankin’s was a genuine known joyride risk area – as anecdotally claimed - why would Rankin’s or anyone dare to leave or store any vehicle outside unlocked with keys allegedly in its ashtray ?

If after hours vehicle transfers were occurring, wouldn't customers in the alleged High Theft Zone likelier usually throw keys into the vehicle exhaust ports of the garage doors IF there is no drop box !

What garage would likely release a car to an owner after repair without trading keys for payment ? Note : ONCA claims Rankins admitted (during trial )- did it really admit such ? - to leaving the Camry outside.

3 If courts want to sociologically wander wider than OLA, why not to victims’ rights & property owners’ rights ?

Pretty shaky to allow this sort of plaintiff argument :

‘I was tempted so it’s not my fault”. “It’s the fault of owners or authorities whose security levels didn’t stop me !” Sort of like : “Yes I am a rapist but the victim is at fault for dressing provocatively !”
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J.J. v C.C OCCUPIERS LIABILITY NIGHTMARE : duty owed to minor age criminals to deter them 2016/10/27 00:58  
A duty upheld to override specific occupier liability legislation.


Ist legal article appears :

Oct 28/16 The Lawyers Weekly p. 2 “Car dealer’s liability for injuries to teen who stole vehicle upheld” by Ann MACAULAY
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HARMLESS LOOKING activities can trigger OCCUPIERS LIABILITY claims . . . 2016/11/08 09:25  
( non condo/HOA : )

After NINE YEARS a non-condo commercial occupier escapes Occupiers Liability in Round #1 after an ADULT CUSTOMER loses a hand in a harmless looking annual TUG OF WAR.

In hindsight, would simply providing a playground rope & premises for a commercial hospitality venue's annual fun event, have looked so harmless if anyone had read the following ? Did the judge miss it ?

Undated : Priceonomics : “A History of Tug-of-War Fatalities” An Olympic sport 1900-20 & now with a competitive governance structure, has had some REALLY serious injuries. Think of all the happy Scout & Girl Guide camp tugs of wars . . .

The defendant owner’s adult son – uncertain legal connection - even supplied the defendant’s playground rope which (during tug of war) managed to snare the victim’s hand requiring amputation. . .

The summary TUG OF WAR INJURY dismissal upfront :

Bonello v Gores Landing Marina (1986) Limited, 2016 ONSC 5372 issued Aug 25/16
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Supreme Court : judgment awaited after Oct 5/17 HEARING (OCCUPIERS LIABILITY NIGHTMARE) 2017/10/24 00:17  
J.J.v RANKINS Garage & C.C

Deprived by ONCA of a shield under Ontario's Occupiers Liability Act, a smalltown garage owner awaits his civil liability fate after televised Hearing before a full bench in Canada's top court. 3 Supreme Court judges & Canada's Chief Justice rained questions down on counsels.

An obscure Ontario hamlet's 2006 cartheft & joyriding accident has brought close attention to an uneasy boundary.

That's the boundary between what the elected Legislature enacted should be sheltered from legislated Occupier Liability, and what jurisprudence so far says should be pragmatically worked out by judges.

Public input shows VERY little sympathy for injured car thieves, albeit minors. Child rights groups attack allegedly sloppy security by commercial businesses where a minor may have been allured by some sort of child-attractive danger. ( Is it like leaving a loaded shotgun standing propped up in the corner ? )

At both lower levels of civil justice, commercial garage owner Rankin had been held 37 % liable for a JUVENILE CAR THIEF'S 2006 injuries suffered later many miles away offsite. Had the injury been totally onsite, maybe NO duty of care nor liability owed to a criminal purposes enteror.

But that distant get-away cost garage owner Rankin the Occupiers Liability defence in Ontario's Court of Appeal. The Court of Appeal ruled that an Occupier's legislated shield against injuries to criminal purposes enterors, is remotely ineffective OUTSIDE the occupied boundary ! ( Forgets some waterfront diving injury decisions where the victim landed outside ).

It's as if the Court of Appeal in 2016 ZOOMED OUT from the smalltown garage site.

As if it then looked brand new at what it saw as a "bigger picture". That "bigger picture' seems to be that whatever the possible Occupiers Liability or legislatively NONE on the Rankins site, drunken minor car thieves are a group that Rankins should have "had regard to" in securing customers' cars.

Like a ginger beer bottler failing to strain out a famous mouse carcass found by a plaintiff soft drink buyer 85 years ago in a half-empty bottle.

The "bigger picture" apparently was extended to some duty of care under conventional negligence analysis to be met as to minor car thieves allegedly ATTRACTED OR ALLURED by allegedly unsecured instruments of injury or death . . . BUT

Upfront, how can the sole interaction between thieves & occupier somehow lose its "Risks Assumed" Occupier defence onsite, but magically ensnare the Occupier if the injury was later miles away ?

How and why didn't the 'defence' also travel along if there was a single liability-generating interaction ?

And so - dubiously - driving away at midnight the juvenile car thieves got held to have re-entered some sort of a Magical Negligence Universe where two lower courts have managed to rule that it could be conventionally negligent for a commercial vehicle repairer to fail to keep the thieves from behind the wheels of a customer's Camry . . .

With Rankins garage being stripped by ONCA of its "criminal purposes entry" shield, the injured thief's counsels' arguments sound like a form of allurement theory or child attractive nuisance where the crime was actually invited by the victim. 15 & 16 year olds are morally disabled by an allegedly unsecured vehicle.

If the carthief's claim wins, under Ontario's "joint & several" negligence award provisions, Rankin & his insurer may also have to suck up all but the victim's punishment share of blame .

How secure should a condo owner or corporation as occupier feel after all this ? Judgment awaited. . .

From the garage owner's legal brief :

63. A woman places her purse next to her on a bench . She’s distracted and a thief, taking the unattended purse as an “invitation”, snatches it and flees the scene. He trips over the purse strap , and suffers a catastrophic brain injury. Is the woman liable for the thief’s injury ?

b. A shopper leaves their scooter outside a store. A thief seizes the opportunity to steal the scooter. While riding way, the thief is struck by a car and suffers a catastrophic brain injury. Is the shopper liable for the thief’s injuries ?

c. A bike store leaves bicycles unlocked in its yard. Teens trespass, steal a bike and are later involved in an accident. Is the store liable for having left its bikes accessible ?

d. Garden shears are stolen from a hardware store and the thief is injured by the garden shears as he/she is running home ? Is the operator of the store liable for the thief’s injuries ?

One public commenter in 2016 :

“You leave a pie on the windowsill to cool, someone steals it, eats it, has allergic reaction and dies. The family of the deceased sues you ...” ( City )
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Injured Minor Joyrider Decision awaited 2017/11/22 21:55  
1 - At Nov 22 2017 Canada`s supreme Court has not yet rendered an online decision.

2 - The injured minor car thief decision ( J.J. v. C.C., 2016 ONCA 718) is cited in a stolen vehicle mayhem B.C. Supreme Court judgment of Sept 12 2017.

Hit universally for innocent victims` 15 % is a Vancouver GM dealership ( bailor).

Unlike the Ontario civil jury`s appealed award of THIRTY PER CENT ( 30 % ) to the minor age criminal purpose enteror against Rankin`s Garage, the B.C. judge imposes only 15 % contribution to injured third parties – not directly to the presumably ADULT thief in B.C.

( In a good career move he's dead. But the Uninsured Motor Vehicles Fund is chasing the dealer for the payouts it has had to make . . )

Employees outrageously at 9 a.m. left a just-sold truck idling & wide-openly vulnerable to a DOWNTOWN range of problematic lifestyles.

The now-deceased thief merrily hopped in and began a trail of wild offsite carnage, injuries & 3 collisions !

Wonder why sympathetic child plaintiffs may do better with civil juries ? Was the smalltown Ontario jury & civil process fair to Rankin`s Garage ?

Provost v Bolton, 2017 BCSC 1608
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Supreme Court of Canada TRUMPS victories of injured juvenile carthief - LIABILITY NIGHTMARE 2018/05/11 21:32  
May 11 2018 Seven months after televised Oct 5/17 Hearings & here re-citationed as

Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 issued May 11/18

"Occupiers" may have a little less to worry - including vicariously - about juvenile crime. But just how much less ?

S.C.C. Canada's Supreme Court - by a 7 :2 majority - overturns lower court victories for injured juvenile car thief. Reasons of the dissenting minority are always worth reading as possible future outcomes.

Despite what some would see as a crucial physical proximity aspect – literally WHERE the juvenile thieves interacted with and actually stole the allegedly under-secured Camry before later crashing 50 Km away, S.C.C. does not challenge nor much discuss one aspect.

That marginally treated aspect is that neither set of litigants were arguing here that this is or should be resolved as an Occupier Liability Act claim.

But rather that this is a conventional negligence claim ( like whether a 1930's soda pop bottler should have considered whether retail customers would be sickened by finding mouse remains in what they bought in a store - the landmark 1932 UK decision Donoghue v Stevenson etc ).

Such means that an Occupier's statutorily-lowered risk exposure ( for criminal purpose trespass under section 4 of Ontario's Occupiers Liability Act RSO 1990 ch O.2 ) was NOT how courts would chose to sort out Rankin's liability if any under these facts.

But for other future claims the Supremes' decision does address and confirm that Ontario’s Occupiers Liability Act R.S.O. 1990 ch O.2 DOES NOT TOTALLY RULE OUT A DUTY OF CARE – albeit reduced. It's still legislated being owed to injured criminal purposes enterors or at least where injured within the occupier’s boundary.

Despite what the Ontario civil jury concluded without being previously set aside by Ontario’s lower courts on the way up to Ottawa, Paisley Ontario garage owner Rankin may have been fortunate that the injury occurred many miles away.

xcrpted from the S.C.C. majority 7 ( incl former C-J McLachlin ) per Madam Justice Karakatsanis :

“ . . . [63] Rankin’s Garage submits that illegal acts by the plaintiff sever any proximate relationship between the parties or, alternately, operate as a residual policy basis on which to negate the duty of care.

The notion that illegal or immoral conduct by the plaintiff precludes the existence of a duty of care has consistently been rejected by this Court: see Hall v. Hebert, 1993 CanLII 141 (SCC), [1993] 2 S.C.R. 159; British Columbia v. Zastowny, 2008 SCC 4 (CanLII), [2008] 1 S.C.R. 27.

Tort law does not seek to punish wrongdoing in the abstract. Rather, private law is corrective and based on compensation for harm that results from the defendant’s unreasonable creation of the risk of that harm.

If the mere fact of illegal behaviour could eliminate a duty, this would effectively immunize negligent defendants from the consequences of their actions.

Seriously injured victims would be entirely denied recovery, even when the defendant bears most of the fault.

While illegality can operate as a defence to a tort action in limited circumstances when it is necessary to preserve the integrity of the legal system, this concern does not arise in the circumstances of this case: see Hall, at pp. 169 and 179-80.

Plaintiff wrongdoing is integrated into the analysis through contributory negligence, as occurred here.

[64] Thus, whether the personal injury caused by unsafe driving of the stolen car is suffered by the thief or a third party makes no analytical difference to the duty of care analysis.

Both are reasonably foreseeable when circumstances connect the theft of the car to the unsafe operation of the stolen vehicle.

In effect, it is the same problem which creates the risk to the third parties as creates the risk to the driver and “only chance” determines which party is injured: see Stewart, at para. 28.

[65] I acknowledge that the legislature has taken a different policy approach in Ontario regarding occupier’s liability.

Section 4(2) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, sets out that “[a] person who is on premises with the intention of committing, or in the commission of, a criminal act” is deemed to have “willingly assumed all risks”.

In such circumstances, the duty of care is not eliminated, but occupiers are held to a lower standard of care.

They are only required to “not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property” (s. 4(1)).

All agree that the Act does not apply here as the accident occurred on a public road.

The legislature did not opt to modify the common law for accidents occurring off the premises. . . . . .” - unquote
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RANKINS GARAGE injured carthief : ultimate appeal decision triggers articles 2018/05/11 22:42  
This "occupier's" close call immediately triggers a new round of articles.

Winning counsel David Young quoted in Canadian Lawyer : means commercial custody of a motor vehicle is not automatically like a loaded gun. . . . . “The risk needs to be assessed on a case-by-case basis” - May 11/18

Canadian Lawyer “Car garage does not owe duty to teenager injured in stolen car, says SCC” by Tim Wilbur teenager-injured-in-stolen-car-says-scc-15737/#tab_1
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RANKINS GARAGE DECISION/ carthief's injury - articles appear 2018/05/12 14:34  
and the articles start getting detailed . . .

May 11/18 Lawyers Daily : “SCC rules garage owner owed no duty of care to secure car from joyriding youth who crashed” by Cristin Schmitz
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RANKINS GARAGE DECISION/ carthief's injury - articles appear 2018/05/13 13:58  
Hotbutton youth crime & occupiers liability issues trigger lots of immediate comment including

May 11/18 “Supreme Court of Canada Discusses Negligence and Duty of Care in Stolen Car Case” by litigation lawyer Tamryn Jacobson ( Goodmans LLP) Supreme_Court_of_Canada_Discusses_Negligence_and_Duty_of_Care_in_Stolen_Car_Case

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SEE ALSO : Non-binding decision brief by unattributed SCC staff May 11/18 summary - staff “Case in Brief : Rankin (Rankin’s Garage & Sales) v. J.J.”
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RANKINS GARAGE DECISION / carthief's injury - articles appear 2018/05/14 22:18  
Its the lawyers - not managers & the public - who have jumped all over this.

May 13/18 Should the owner of a stolen car pay damages if the thief is injured ?” by lawyer Peter S Spiro

May 18/18 “Supreme Court of Canada Reinforces Reasonable Foreseeability of Harm as Critical Limiting Principle in the Law of Negligence” by lawyers David Elman & john Hunter Borden Ladner Gervais LLP (To)

May 13/18 “C’mon Join the Joyride” by Kathleen O’Hara LLB (Strigberger Brown Armstrong LLP)
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