Providing a point-form summary for each case

CASE 1 -

Supreme Court ofCanada

Lambert v. Lastoplex Chemicals, [1972] S.C.R. 569

Date: 1971-12-20

Edison Howard Lambert and Elizabeth Helen Lambert(Plaintiffs) Appellants;

And Lastoplex Chemicals Co. Limited and Barwood Sales (Ontario) Limited(Defendants) Respondents.

1971: November 8, 9; 1971: December 20.- ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

APPEAL from a judgment of the Court of Appeal for Ontario, allowing an appeal from a judgment of Morand J. Appeal allowed.

W.G. Dutton and B.J.E. Brock, for the plaintiffs, appellants.

P.B.C. Pepper, Q.C., and J.L. McDougall, for the defendants, respondents.

The judgment of the Court was delivered by

LASKIN J.The issue in this case is whether a manufacturer of aninflammable (burn easily) product, namely, a fast-drying lacquer sealer,is liable in tort to a user of the product, who is aware of certain caution notices on the labels on the container cans, for personal injuries and property damage sustained as a result of a fire and explosion which occurredduring the use of the product in the circumstances hereinafter set out.

Themale appellant, aconsulting engineer who graduated in mechanical engineering, purchased from a flooring firmtwo one-gallon cans of Supremo W-200, a fast-drying lacquer sealer manufactured by the respondent. He proposed to use itto seal a parquet floorwhich he was installing in the recreation room of his home, owned jointly by him and his wife, the coappellant.The recreation room was in the basement of the house, with stairs at the southwest leading up to the next level. The basement consisted of the recreation room, which was600 square feet in area, anda furnace and utility roomto the east whichwas separated from the recreation room in part by a plywood wall and in part by a fireplace. There wasa door opening at the northerly end between the two rooms, but no door. In the furnace and utility room there wasa warm-air natural gas furnace, witha pilot light near its front, hidden behind a panel, and also a natural gas water heater with a pilot light inside the jacket of the heater and also hidden from view. That roomalso contained laundry facilities.

On themorning of June 3, 1967, themale appellant prepared to apply the lacquer sealer. Heleft open the door at the head of the stairway leading to the recreation room, he took out all furniture in that room and other articles and put them in the adjoining furnace and utility room, he swept the recreation room floor, and heopened a window to the northwestof the recreation roomand one at the southeast end. There was abasement window in the furnace and utility roomwhich he leftclosedand he didnot extinguish the pilot lightsin the furnace and water heater. Theday was a warmone (the records showed the temperature to be 71 degrees when the male appellant began his preparatory clean-up at about 9 a.m., and it rose to 76 degrees by 10 a.m. and to 80 degrees by 11 a.m.) and,unlikely as it was that theautomatic furnace would go on, henone the less turned down the thermostat.

He began to apply the sealer about 10 a.m., working from east to west where he had egress at the stairway.Before starting the application, he read the labels; and although in his evidence he stated that he had no recollection of reading one of the three that were on each can, it was not contended that his legal position was better on that account. After an hour's work, when he had done about five-sixths of the floor, hesaw a line of flame advancingtowards him from the east side of the recreation room. He dropped his roller applicator and ran up the stairs but an explosion occurred before he reached the top.The explosion caused burns to his body and, of course, property damage. Quantum was agreed upon and only the issue of liability was litigated.

The trial before Morand J. and the hearing in the Ontario Court of Appeal, which reversed the judgment against the present respondent, proceeded on the concurrence of counsel for the parties that the immediate cause of the fire which preceded the explosion was the contact of the fumes or vapours from the lacquer sealer with one or other or both of the pilot lights in the furnace and utility room. On the evidence, the explosion occurred when the line of fire reached one of the cans of lacquer sealer which was open and still half-filled (the second can was then empty) and was on the part of the recreation room floor not yet sealed. It appears that the furnace and water heater were about five feet from the wall partition which separated the recreation room from the furnace and utility room and that the distance from the furnace unit to the open door leading to the recreation room was not over eighteen feet and probably closer to twelve feet.

Supremo W-200, the respondent's product, has a low flash point, almost as low as that of gasoline, and itsinflammability accordingly spells great danger. The danger resides in the likely ignition of its fumes or vapours which, given a favourable ambient temperature, could result even from a spark when turning on a light switch and, certainly, from an open flame and from a gas pilot light. A low flash point means greater vaporization, and although this speeds up the drying time,

the spread of fumes increases the hazard according to sources of ignition in the surrounding area.The largest of the three labels on the cans of Supremo W-200 contained, under the heading "Drying Time", the following inscription: "Approximately 30-60 minutes depends upon temperature".A higher room temperature will improve drying time because it increases the volatility of the lacquer sealer.

The three labels on the cans of the respondent's product contained, respectively, the following cautions: (1) The largest label, rectangular in shape, which bore the name and description of the product, contained on its end panel, in addition to drying time information, the words "Caution inflammable! Keep away from open flame!". Along the side of this panel, vertically and in small type, were the words "Dangerharmful if swallowed, avoid prolonged skin contact, use with adequate ventilation, keep out of reach of children".(2) A diamondshaped red label with black lettering, issued in conformity with packing and marking regulations of the then Board of Transport Commissioners for Canada and having shipping in view, had on it in large letters the following:"KEEP AWAY FROM FIRE, HEAT AND OPENFLAME LIGHTS", "CAUTION", "LEAKING Packages Must be Removed to a Safe Place", "DO NOT DROP". (3) A third label, rectangular in shape, contained a four language caution, which was in the following English version: "CAUTION, INFLAMMABLEDo not use near open flame or while smoking. Ventilate room while using."

The evidence disclosed that alacquer sealersold by a competitor of the respondent contained on its label amore explicit warning of danger in the following terms: "DANGERFLAMMABLE", "DO NOT SMOKE. ADEQUATE VENTILATION TO THE OUTSIDE MUST BE PROVIDED. ALL SPARK PRODUCING DEVICES AND OPEN FLAMES (FURNACES,

ALL PILOT LIGHTS, SPARK-PRODUCING SWITCHES, ETC.), MUST BE ELIMINATED, IN OR NEAR WORKING AREA."

A comparison of the cautions on the two competing products shows thatthe labels of the respondent did not warn against sparks, or specifically againstleaving pilot lights on in or near the working area. In neither case was any point made of the rapid spread of vapours from the products.

The appellants founded their action against the respondent on negligence, including in the specifications thereof failure to give adequate warning of the volatility of the product, and it was argued throughout on that basis and on the defence,inter alia,that the male appellant was the author of his own misfortune. The hazard of fire was known to the manufacturer, and there is hence no need here to consider whether any other basis of liability would be justified if the manufacturer was unaware or could not reasonably be expected to know (if that be conceivable) of particular dangers which its product in fact had for the public at large or for a particular class of users.

Manufacturers owe a duty to consumers of their products to see that there are no defects in manufacture which are likely to give rise to injury in the ordinary course of use. Their duty does not, however, end if the product, although suitable for the purpose for which it is manufactured and marketed, is at the same time dangerous to use; and if they are aware of its dangerous character they cannot, without more, pass the risk of injury to the consumer.

The applicable principle of law according to which the positions of the parties in this case should be assessed may be stated as follows. Where manufactured products are put on the market for ultimate purchase and use by the general public and carry danger (in this case, by reason of high inflammability), although put to the use for which they are intended, the manufacturer, knowing of their hazardous nature, has a duty to specify the attendant dangers, which it must be taken to appreciate in a detail not known to the ordinary consumer or user.A general warning, as for example, thatthe product is inflammable, willnot suffice where the likelihood of fire may be increasedaccording to the surroundings in which it may reasonably be expected that the product will be used. The required explicitness of the warning will, of course, vary with the danger likely to be encountered in the ordinary use of the product.

In my opinion,the cautions on the labels affixed to the container cans of Supremo W-200 lacked the explicitness which the degree of danger in its use in a gas-serviced residence demanded. A home owner preparing to use that lacquer sealer could not reasonably be expected to realize by reading the three cautions that the product when applied as directed gives off vapours to such a degree as likely to create risk of fire from a spark or from a pilot light in another part of the basement area. This was the view of the trial judge, who also concluded thatany special knowledge possessed by the male appellant did not make the cautions sufficient vis--vis him. The Court of Appeal expressly differed from the trial judge in this latter respect, holding (in its words) that "having regard to the plaintiff's knowledge as to the dangers inherent in the application of this product in an enclosed space the warning given by the [manufacturer] was equal to the requirements of the situation", and that his failure to turn off the pilot lights after having turned down the thermostat was an error of judgment, exonerating the manufacturer from liability.

The question of special knowledge of the male appellant was argued in this Court as going to the duty of the respondent to him and not to his contributory negligence. What was relied on by the respondent as special knowledge was the fact that the male appellant had qualified as a professional engineer, he knew from his experience that a lacquer sealer was inflammable and gave off vapours, and hence knew that it was dangerous to work with the product near a flame. This,however, does not go far enough to warrant a conclusion that the respondent, having regard to the cautions on the labels, had discharged its duty to the male appellant.

I do not think that the duty resting on the respondent in this case can be excluded as against the male appellant, or anyone else injured in like circumstances, unless it be shown that there was avoluntary assumption of the risk of injury. That can only be in this case if there was proof that the male appellant appreciated the risk involved in leaving the pilot lights on and willingly took it. The record here does not support the defence ofvolenti.On the evidence, there wasno conscious choice to leave the pilot lights on; rather, itdid not enter the male appellant's mind that there was a probable risk of fire when the pilot lights were in another room. There is thus no basis in the record for attributing an error of judgment to the male appellant. Nor do I think there is any warrant for findingand this would go only to contributory negligencethatheought to have known or foreseenthat failure to turn off the pilot lights would probably result in harm to himself or his property from his use of the lacquer sealer in the adjoining area.

I would, therefore, allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of Morand J. in favour of the appellants. They should have their costs throughout.

Appeal allowed with costs.

Solicitors for the plaintiffs, appellants: Montgomery, Cassels, Mitchell, Somers, Dutton & Winkler, Toronto.

Solicitor for the defendants, respondents: G.E. Vickers, Toronto.

CASE 2 -

SUPREME COURT OF CANADA

Citation:Rankin (Rankin's Garage & Sales)v.J.J., 2018 SCC 19, [2018] 1 S.C.R. 587

Appeal Heard:October 5, 2017 Judgment Rendered:May 11, 2018 Docket:37323

Between:

James Chadwick Rankin, carrying on business as Rankin's Garage & Sales

Appellant

and

J.J. by his Litigation Guardian, J.A.J., J.A.J., A.J. and C.C.

Respondents

- and -

Ontario Trial Lawyers Association and Justice for Children and Youth

Interveners

Coram:McLachlinC.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Ct, Brown and RoweJJ.

Reasons for Judgment: (paras. 1 to 67)	Karakatsanis J. (McLachlin C.J. and Abella, Moldaver, Wagner, Ct and Rowe JJ. concurring)
Dissenting Reasons: (paras. 68 to 85)	Brown J. (Gascon J. concurring)

Rankin (Rankin's Garage & Sales)v.J.J.,2018 SCC19, [2018] 1 S.C.R. 587

James Chadwick Rankin,

carrying on business as Rankin's Garage & Sales Appellant

v.

J.J. by his Litigation Guardian, J.A.J.,

J.A.J.,

A.J. and

C.C. Respondents

and

Ontario Trial Lawyers Association and

Justice for Children and Youth Interveners

Indexed as:Rankin(Rankin's Garage & Sales)v.J.J.

2018 SCC19 File No.: 37323. 2017:October5; 2018:May11.

Present: McLachlinC.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Ct, Brown and RoweJJ.

on appeal from the court of appeal for ontario

APPEAL from a judgment of the Ontario Court of Appeal (StrathyC.J. and Brown and HuscroftJJ.A.),2016 ONCA 718, 403 D.L.R. (4th) 408, 32 C.C.L.T. (4th) 245, [2016] O.J. No.5082 (QL), 2016 CarswellOnt 15069 (WL Can.), affirming a judgment of MorissetteJ., sitting with a jury, dated September25, 2014, on the issue of the duty of care, and the jury verdict on the issue of liability. Appeal allowed, Gascon and BrownJJ. dissenting.

DavidS. Young,KevinR. Bridel,Cory GiordanoandMarieFrance Major, for the appellant.

Maia Bent,CynthiaB. KuehlandAlfonsoE. Campos Reales, for the respondentsJ.J. by his Litigation Guardian, J.A.J., J.A.J. and A.J.

Jennifer ChapmanandJohn Friendly, for the respondent C.C.

The judgment of McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Ct and Rowe JJ. was delivered by

[1] Karakatsanis J. A vehicle is stolen from a commercial garage. The vehicle is crashed. Someone is injured. Does the business owe a duty of care to the injured party? The question in this appeal is whether the courts below erred in recognizing a duty of care owed by a business that stores vehicles to someone who is injured following the theft of a vehicle.

[2] In my view, this case is easily resolved based on a straightforward application of existing tort law principles. This requires analytical rigour and a proper evidentiary basis. The plaintiff did not provide sufficient evidence to support the establishment of a duty of care in these circumstances. While the risk of theft was reasonably foreseeable, the evidence did not establish that it was foreseeable that someone could be injured by the stolen vehicle. Here, there was no evidence to support the inference that the stolen vehicle might be operated in an unsafe manner, causing injury. When considering the security of the automobiles stored at the garage, there was no reason upon this record for someone in the position of the defendant garage owner to foresee the risk of injury. I would allow the appeal. A business will only owe a duty to someone who is injured following the theft of a vehicle when, in addition to theft, the unsafe operation of the stolen vehicle was reasonably foreseeable.

I. Background

A. Facts

[3] This case emerges from a tragic set of events. On an evening in July 2006, in the small village of Paisley, Ontario, the plaintiff J. (then 15 years old) and his friend C. (then 16 years old) were at the house of C.'s mother. The boys drank alcohol (some of which was provided by the mother) and smoked marijuana.

[4] Sometime after midnight, the boys left the house to walk around Paisley, with the intention of stealing valuables from unlocked cars. Eventually they made their way to Rankin's Garage & Sales, a car garage located near the main intersection in Paisley that was owned by James Chadwick Rankin. The garage property was not secured, and the boys began walking around the lot checking for unlocked cars. C. found an unlocked Toyota Camry parked behind the garage. He opened the Camry and found its keys in the ashtray. Though he did not have a driver's licence and had never driven a car on the road before, C. decided to steal the car so that he could go and pick up a friend in nearby Walkerton, Ontario. C. told J. to "get in", which he did.

[5] The 16-year-old C. drove the car out of the garage and around Paisley before starting toward Walkerton. On the highway, the car crashed. J. suffered a catastrophic brain injury.

[6] Through his litigation guardian, J. sued Rankin's Garage, his friend C. and his friend's mother for negligence. The issue in this appeal is whether Rankin's Garage owed the plaintiff a duty of care.

B. Judicial History

[7] At trial, Morissette J. held that Rankin's Garage owed a duty of care to the plaintiff: Ontario Superior Court of Justice, September 25, 2014. The trial judge concluded that previous cases had already established the existence of this duty. She nonetheless conducted an analysis to determine whether the duty should be recognized. The trial judge held that the risk of harm to J. was reasonably foreseeable. She based this ruling, in part, on the fact that Mr.Rankin knew he had an obligation to secure his vehicles on his property, and that "[i]t certainly ought to be foreseeable that injury could occur if a vehicle were used by inebriated teenagers". The trial judge further held there were no policy reasons to negate the duty of care.

[8] The jury found that all parties (including J. himself) had been negligent and made the following apportionment of liability: Rankin's Garage, 37percent liable; the friend (C.), 23percent liable; C.'s mother, 30percent liable; and the plaintiff (J.), 10percent liable. With respect to Rankin's Garage, the jury set out the particulars of the negligence finding as follows:

- Left car unlocked;

- Key in it;

- Knew or ought to have known the potential risk of theft;

- Very little security; and

- Testimony inconsistencies.

[9] The Ontario Court of Appeal upheld the trial judge's holding that Rankin's Garage owed a duty of care to the plaintiff.Writing for the court, Huscroft J.A. held that the trial judge erred in concluding that a duty of care had already been recognized. The Court of Appeal therefore conducted a full duty of care analysis, following the test laid out inAnns v. Merton London Borough Council, [1978] A.C. 728, as affirmed and explained inCooper v. Hobart,2001 SCC 79, [2001] 3 S.C.R. 537 (Anns/Coopertest).

[10] The Court of Appeal concluded that there was sufficient foreseeability of harm and proximity between the parties to impose a duty of care. There was "ample evidence to support the conclusion of foreseeability in this case":2016 ONCA 718, 403 D.L.R. (4th) 408, at para.39. The court reasoned that Rankin's Garage "had care and control of many vehicles for commercial purposes"; with that "comes the responsibility of securing them against minors, in whose hands they are potentially dangerous" (para. 57). As such, the court concluded that "it is fair and just to impose a duty of care in these circumstances" (para. 59).

[11] Moving to the second stageof theAnns/Coopertest, Huscroft J.A. concluded there were no residual policy considerations that negated theprima facieduty of care (para. 73). The law does not already provide a remedy in this case (para.63); the recognition of a duty in these circumstances would not create the spectre of unlimited liability(para. 65); and there are no other policy considerations (such as the illegality of the plaintiff's conduct) that negated the duty (paras. 68-73).

[12] The Court of Appeal dismissed the appeal.

II. Issues

[13] Before this Court, Rankin's Garage submits that it was not reasonably foreseeable that an individual would steal a car from the garage and operate it in an unsafe manner.In any event, J.'s illegal conduct would sever any proximate relationship between the parties or operate as a residual policy basis upon which to negate a duty of care.

[14] In response, J. argues that the foreseeability component of theAnns/Coopertest does not impose a high threshold and it is a matter of common sense that vehicle theft is carried out by inexperienced youth. Further, Rankin's Garage had a positive duty to guard against the risk of theft because it was storing goods that are potentially dangerous in the hands of minors. Rankin's Garage had a special duty to protect minors who might steal a car and suffer injuries in a subsequent accident.

[15] This appeal raises the issue of whether a duty of care exists in these circumstances:

A. Was the risk of personal injury reasonably foreseeable in this case?

B. Did the commercial garage have a positive duty to guard against the risk of theft by minors?

C. Could illegal conduct sever any proximity between the parties or negate aprimafacieduty of care?

III. TheAnns/CooperTest

[16] Perhaps the most famous negligence case in history also occurred in a town called Paisley Paisley, Scotland. That decision,Donoghue v. Stevenson,1932 CanLII 536 (FOREP), [1932] A.C. 562 (H.L.), revolutionized tort law by defining a principled approach to the development of the tort of negligence. Lord Atkin's famous achievement in this regard was his articulation of the "neighbour principle", under whichparties owe a duty of care to those whom they ought reasonably to have in contemplation as being at risk when they act:Stewart v. Pettie,1995 CanLII 147 (SCC), [1995] 1 S.C.R. 131, at para.25.

[17] The modern law of negligence remains based on the foundations set out inDonoghue. It is still the case today that "[t]he law takes no cognizance of carelessness in the abstract":Donoghue, at p. 618, per Lord Macmillan. Unless a duty of care is found, no liability will follow. Similarly, the neighbour principle continues to animate theAnns/Coopertest that Canadian courts use to determine whether a duty of care exists.

[18] It is not necessary to conduct a fullAnns/Cooperanalysis if a previous case has already established that the duty of care in question (or an analogous duty) exists:Cooper, at para.36;Mustapha v. Culligan of Canada Ltd.,2008 SCC 27, [2008] 2 S.C.R. 114, at paras.5-6;Deloitte & Touche v. Livent Inc. (Receiver of),2017 SCC 63, [2017] 2 S.C.R. 855, at para.26. If it is necessary to determine whether a novel duty exists, the first stage of theAnns/Coopertest asks whether there is a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff:R.v. Imperial Tobacco Canada Ltd.,2011 SCC 42, [2011] 3 S.C.R. 45, at para.39; see alsoChilds v. Desormeaux,2006 SCC 18, [2006] 1 S.C.R. 643, at para.12;Cooper, at para.30. Once foreseeability and proximity are made out, aprima facieduty of care is established.

[19] Whether or not a duty of care exists is a question of law and I proceed on that basis:Galaske v. O'Donnell,1994 CanLII 128 (SCC), [1994] 1 S.C.R. 670, at p. 690. The plaintiff bears the legal burden of establishing a cause of action, and thus the existence of aprima facieduty of care:Childs, at para.13. In order to meet this burden, the plaintiff must provide a sufficient factual basis to establish that the harm was a reasonably foreseeable consequence of the defendant's conduct in the context of a proximate relationship. In the absence of such evidence, the claim may fail: see, e.g.,Childs,at para.30.

[20] Once the plaintiff has demonstrated that aprima facieduty of care exists, the evidentiary burden then shifts to the defendant to establish that there are residual policy reasons why this duty should not be recognized:Childs, at para.13;Imperial Tobacco, at para. 39.

Reasonable Foreseeability and Proximity

[21] SinceDonoghue, the "neighbour principle" has been the cornerstone of the law of negligence. Lord Atkin's famous quote respecting how far a legal neighbourhood extends incorporates the dual concerns of reasonable foreseeability of harm and proximity:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. [p.580]

Reasonable foreseeability of harm and proximity operate as crucial limiting principles in the law of negligence. They ensure that liability will only be found when the defendant ought reasonably to have contemplated the type of harm the plaintiff suffered.

[22] The rationale underlying this approach is self-evident. It would simply not be just to impose liability in cases where there was no reason for defendants to have contemplated that their conduct could result in the harm complained of. Through the neighbour principle, the defendant, as creator of an unreasonable risk, is connected to the plaintiff, the party whose endangerment made the risk unreasonable: E. J. Weinrib, "The Disintegration of Duty", in M. S. Madden, ed.,Exploring Tort Law(2005), 143, at p. 151. The wrongdoing relates to the harm caused. Thus, foreseeability operates as the "fundamental moral glue of tort", shaping the legal obligations we owe to one another, and defining the boundaries of our individual liability: D. G. Owen, "Figuring Foreseeability" (2009), 44Wake Forest L. Rev.1277, at p. 1278.

[23] In addition to foreseeability of harm, proximity between the parties is also required:Cooper, at para.31. The proximity analysis determines whether the parties are sufficiently "close and direct" such that the defendant is under an obligation to be mindful of the plaintiff's interests:Cooper, at para.32;Hercules Managements Ltd. v. Ernst & Young,1997 CanLII 345 (SCC), [1997] 2 S.C.R. 165, at para.24. This is what makes it just and fair to impose a duty:Cooper, at para.34. The proximity inquiry considers the "expectations, representations, reliance, and the property or other interests involved" as between the parties:Cooper, at para.34. In cases of personal injury, when there is no relationship between the parties, proximity will often (though not always) be established solely on the basis of reasonable foreseeability: seeChilds, at para.31.

[24] When determining whether reasonable foreseeability is established, the proper question to ask is whether the plaintiff has "offer[ed] facts to persuade the court that the risk ofthe type of damagethat occurred was reasonably foreseeable tothe class of plaintiffthat was damaged": A. M. Linden and B. Feldthusen,Canadian Tort Law(10th ed. 2015), at p. 322 (emphasis added). This approach ensures that the inquiry considers both the defendant who committed the act as well as the plaintiff, whose harm allegedly makes the act wrongful. As Professor Weinrib notes, the duty of care analysis is a search for the connection between the wrong and the injury suffered by the plaintiff: p. 150; see alsoAnns, at pp. 751-52;Childs, at para.25.

[25] The facts of this case highlight the importance of framing the question of whether harm is foreseeable with sufficient analytical rigour to connect the failure to take care to the type of harm caused to persons in the plaintiff's situation. Here, the claim is brought by an individual who was physically injured following the theft of the car from Rankin's Garage. The foreseeability question must therefore be framed in a way that links the impugned act (leaving the vehicle unsecured) to the harm suffered by the plaintiff (physical injury).

[26] Thus, in this context, it is not enough to determine simply whether the theft of the vehicle was reasonably foreseeable. The claim is not brought by the owner of the car for the loss of the property interest in the car; if that were the case, a risk of theft in general would suffice. Characterizing the nature of the risk-taking as the risk of theft does not illuminate why the impugned act is wrongful in this case since creating a risk of theft would not necessarily expose the plaintiff to a risk of physical injury. Instead, further evidence is needed to create connection between the theft and the unsafe operation of the stolen vehicle.The proper question to be asked in this context is whether the type of harm suffered personal injury was reasonably foreseeable to someone in the position of the defendant when considering the security of the vehicles stored at the garage.

IV. Analysis

[27] There is no clear guidance in Canadian case law on whether a business owes a duty of care to someone who is injured following the theft of a vehicle from its premises. The lower court jurisprudence is divided and there is no consensus: see, e.g.,Hollett v. Coca-Cola Ltd.(1980), 37 N.S.R. (2d) 695 (S.C.T.D.);Tong v. Bedwell,2002 ABQB 213, 311 A.R. 174;Moore v. Fanning(1987),1987 CanLII 4168 (ON SC), 60 O.R. (2d) 225 (H.C.J.);Werbeniuk v. Maynard(1994),1994 CanLII 16666 (MB QB), 93 Man. R. (2d) 318 (Q.B.); andNorgard v. Asuchak, [1984] A.J. No. 394 (QL) (Q.B.); but seeKalogeropoulos v. Ottawa (City)(1996), 35 M.P.L.R. (2d) 287 (Ont. C.J. (Gen. Div.));Cairns v. General Accident Assurance Co. of Canada, [1992] O.J. No. 1432 (QL) (Gen. Div.); andProvost v. Bolton, 2017 BCSC 1608,100 B.C.L.R. (5th) 362. The courts below disagreed on whether a duty had been established in the jurisprudence, but both conducted anAnns/Cooperanalysis. This Court has never addressed the issue. Like the courts below, I turn to theAnns/Cooperanalysis.

[28] I cannot agree with my colleague's position that this case is captured by a broad category defined simply as foreseeable physical injury: seeCooper;Childs. Such an approach would be contrary to recent guidance from this Court that categories should be framed narrowly (seeDeloitte, at para. 28); indeed, even inDeloitte, the "broad" categories discussed were narrower than foreseeable physical injury (e.g. the duty of care owed by a motorist to other users of the highway; the duty of care owed by a doctor to a patient) (see para. 27). Moreover, in a case like this, applying such a broad category would ignore any distinction between a business and a residential defendant that may be relevant to proximity and/or policy considerations. The application of my colleague's proposed category to the facts in this case would signal an expansion of that category in a manner that would subsume many of the categories recognized in tort law, rendering them redundant in cases of physical injury (e.g. the duty of a motorist to users of the highway (Hill v. Hamilton-Wentworth Regional Police Services Board,2007 SCC 41, [2007] 3 S.C.R. 129, at para.25); the duty of a manufacturer to consumers (Mustapha, at para.6)). Neither the courts below nor the parties articulated the issue in this case so broadly. Finally, foreseeability of injury is built into the category that my colleague identifies and, as discussed below, foreseeability of injury is not present in the instant case.

A. Was the Risk of Personal Injury Reasonably Foreseeable in This Case?

[29] The trial judge, in brief oral reasons on foreseeability, found that "Mr. Chad Rankin knew he had an obligation to secure his vehicles on his property". She went on to note that "[i]t certainly ought to be foreseeable that injury could occur if a vehicle were used by inebriated teenagers".

[30] The Court of Appeal conducted a more robust analysis on this point, and found that there was "ample evidence to support the conclusion of foreseeability in this case". However, its analysis of the evidence was related only to the risk of theft in general.

[31] The Court of Appeal noted that Rankin's Garage was a commercial establishment with care and control of many vehicles on an ongoing basis and that several witnesses testified that Rankin's Garage had a practice of leaving cars unlocked with keys in them. In addition, it relied upon evidence of two witnesses respecting a prior history of vehicle theft from Rankin's Garage and the area in general. C.'s older sister testified that between 9 and 11 years prior to this incident, she witnessed a stolen vehicle being returned to Rankin's Garage sometime after midnight, and overheard unknown individuals discussing how they had taken the vehicle to McDonald's.

[32] In addition, a police officer gave evidence that vehicle theft and/or mischief people rummaging through vehicles was a common occurrence in the detachment area prior to this incident occurring. He further testified that local detachments would place articles in newspapers and use radio advertising to remind people to lock their vehicles. In 2007 after the accident occurred a "Lock It or Lose It" program was established. Through this program, auxiliary police members would check to see if vehicles were locked and notify owners if they were not.

[33] All the evidence respecting the practices of Rankin's Garage or the history of theft in the area, such as it was, concerns the risk of theft. The evidence did not suggest that a vehicle, if stolen, would be operated in an unsafe manner.This evidence did not address the risk of theft by a minor, or the risk of theft leading to an accident causing personal injury. Indeed, the jury noted that it found liability based on the foreseeability of theft.

[34] I accept that the evidence could establish, as the jury found, that the defendant ought to have known of the risk of theft. However, it does not automatically flow from evidence of the risk of theft in general that a garage owner should have considered the risk of physical injury. I do not accept that anyone that leaves a vehicle unlocked with the keys in it should always reasonably anticipate that someone could be injured if the vehicle were stolen. This would extend tort liability too far. Physical injury is only foreseeable when there is something in the facts to suggest that there is not only a risk of theft, but that the stolen vehicle might be operated in a dangerous manner.

[35] This approach is consistent with the weight of lower court jurisprudence. In most of the cases we were referred to and which were cited by the courts below, the courts concluded that subsequent harm (to a third party) was not reasonably foreseeable. The rationale is often that while theft may have been foreseeable, injury, loss, and damage arising from the subsequent negligent operation of the motor vehicle was not: see, e.g.,Hollett;Tong;Moore;Werbeniuk; andNorgard. See alsoCanada (Attorney General) v. LaFlamme,1982 CanLII 3972 (BC CC), [1983] 3 W.W.R. 350 (B.C. Co. Ct.);Aldus v. Belair(1992), 41 M.V.R. (2d) 129 (Ont. C.J. (Gen. Div.));Campiou Estate v. Gladue,2002 ABQB 1037, 332 A.R. 109; andCanadian Pacific Ltd. v. Swift Current No. 137 (Rural Municipality)(1991),1991 CanLII 7750 (SK QB), 88 Sask. R. 281 (Q.B.), aff'd (1992),1992 CanLII 8323 (SK CA), 109 Sask. R. 33 (C.A.).

[36] We were referred to only three trial court decisions where the subsequent injury to a third party was found to be foreseeable:Kalogeropoulos(relied on by the trial judge);Cairns; andProvost.

[37] InKalogeropoulos, a defendant left a vehicle running in an area with bars nearby just after closing time (paras. 50-52). A man returning from an evening of drinking stole the vehicle. The defendant's colleagues chased the thief and the stolen vehicle was crashed into a taxi cab.

[38] InCairns, a group of high school students stole the keys for six cars from a car dealership and returned to the car dealership a few days later to steal two cars in broad daylight. One of the youth, who had never driven before, drove through a red light and struck and killed a pedestrian. The trial judge found as a fact that the dealership was aware that young people without driving experience were the most likely perpetrators of the theft of the keys (p. 4). In these circumstances, it was foreseeable that they would return to steal the cars. This connected the risk of theft to a risk of harm from an inexperienced driver fleeing the scene of the theft.

[39] InProvost, a duty of care on the part of an automobile dealership was found based on the Court of Appeal's decision in the present case.Provostconcerned the theft of a truck left running for 40 minutes in public view in an open area frequented by many. The accident occurred while fleeing the scene of the crime. Without determining whether this evidence was sufficient to establish a duty of care, I note that there was specific evidence led about the risk of erratic driving that flows from fleeing the police in a stolen vehicle (paras. 142-45).

[40] In each of these cases, there was something in the factual matrix that could connect the theft and the subsequent unsafe driving of the stolen car and thus make personal injury foreseeable.

[41] I agree with the weight of the case law that the risk of theft does notautomaticallyinclude the risk of injury from the subsequent operation of the stolen vehicle. It is a step removed. To find a duty, there must besomecircumstance or evidence to suggest that a person in the position of the defendant ought to have reasonably foreseen the risk of injurythat the stolen vehicle could be operated unsafely. That evidence need not be related to the characteristics of the particular thief who stole the vehicle or the way in which the injury occurred, but the court must determine whether reasonable foreseeability of the risk of injury was established on the evidence before it.

[42] In the circumstances of this case, the courts below relied upon the risk of theft by minors (who could well be inexperienced or reckless drivers) to connect the failure to secure the vehicles with the nature of the harm suffered, personal injury.

[43] Despite the fact that all of the evidence went to the risk of theft in general, the Court of Appeal nonetheless found the harm in this case personal injury to be reasonably foreseeable. In doing so, the court relied on a number of assumptions. It reasoned that because the business stored many vehicles, it had a responsibility to secure them against minors, in whose hands they are potentially dangerous. It accepted that a general risk of theft includes a risk of theft by minors (paras. 53 and 57); storing the cars created an "inviting target" for theft and joyriding by minors (para. 68); and that minors might harm themselves in joyriding, especially if they are impaired by alcohol or drugs (para. 53). Thus, the Court of Appeal determined that the garage "should have had minors . . . in mind when [it] considered security measures" (para. 56).

[44] The Court of Appeal summarized its decision on foreseeability as follows:

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.

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. [paras. 52-53]

[45] However, the risk of theft in general does not automatically include the risk of theft by minors. I cannot agree with my colleague's suggestion that because minors are reckless, "minors are no less likely to steal a car than any other individual" and therefore, theft by a minor is reasonably foreseeable (para. 83). The inferential chain of reasoning is too weakit is not enough to say that it is possible that unsupervised minors would be roaming the lot looking for unlocked vehicles.

[46] The fact that something ispossibledoes not mean that it is reasonably foreseeable. Obviously, any harm that has occurred was by definition possible. Thus, for harm to be reasonably foreseeable, a higher threshold than mere possibility must be met:Childs, at para.29. Some evidentiary basis is required before a court can conclude that the risk of theft includes the risk of theft byminors. Otherwise theft by a minor would always be foreseeableeven without any evidence to suggest that this risk was more than a mere possibility. This would fundamentally change tort law and could result in a significant expansion of liability.

[47] J. relies on the case ofHolian v. United Grain Growers Ltd.(1980),1980 CanLII 2724 (MB QB), 112 D.L.R. (3d) 611 (Man. Q.B.), rev'd on other grounds (1980),1980 CanLII 2654 (MB CA), 114 D.L.R. (3d) 449 (Man. C.A.), for the proposition that a commercial enterprise ought to have regard for possible injury if there is a theft by a minor. In that case, the plaintiff was injured after a group of boys, aged 8 to 13, stole some insecticide from the defendant's unlocked storage shed to use as "stink bombs". They then threw the insecticide into the plaintiff's car and the plaintiff was injured after inhaling the poisonous gas. The court concluded that the defendant's employees knew that children used the area near the storage shed as a shortcut. This made it reasonably foreseeable that minors may have stolen from the storage shed.

[48] Here, there is nothing about the circumstances of cars stored in a garage lot after hours in the main intersection of this town that was intended or known to attract minors. Indeed, there is no evidence that J. or his friend were targeting Rankin's Garage in particular; they were looking all over town for unlocked cars. Unlike an ice cream truck, vehicles are not designed to attract children: seeArnold v. Teno,1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287, at pp. 300-302. The witnesses who discussed the history of car thefts in the area did not suggest that minors were responsible for the thefts. Thus, there was insufficient evidence to suggest that minors would frequent the premises at night, or be involved in joyriding or theft.

[49] The only evidence that is relevant to the issue of whether it was reasonably foreseeable thatminorsmight steal the car was testimony from J.'s father that Rankin's Garage is located across the street from a gas station or variety store. He had been to the variety store once before the accident when he was picking up J. From this one visit, he concluded that the variety store was a youth hangout because other kids were there, it was open later at night, and it sold pop and chips. On its own, this evidence does not establish that it was reasonably foreseeable that minors might steal a car and cause injury. It is not a sufficient basis upon which to found a duty of care.

[50] Given the absence of compelling evidence on this point, the Court of Appeal could only rely on speculation to connect the risk of theft to the risk of personal injury. This was inappropriate. Courts need to ensure that "common sense" is tied to the specific circumstances of the case and not to general notions of responsibility to minors.

[51] Finally, despite this dearth of evidence, J. relies upon the testimony of Mr. Rankin to suggest that personal injury was reasonably foreseeable. During the cross-examination of Mr. Rankin, the following exchange occurred:

Q. Do you agree that security is important, because you'd like to ensure that anybody who takes a vehicle won't get hurt?

A. How would they get hurt?

Q. Let me ask you the question again.

A. Right.

Q. Okay. Would you agree security is important to ensure that anyone who takes a vehicle doesn't get hurt?

A. Yes, I guess so.

On re-examination by defence counsel, Mr. Rankin was asked the following:

Q. Did you anticipate that somebody that was drunk would take your car?

A. No.

[52] This evidence cannot provide the foundation for a legal duty of care. On cross-examination, Mr. Rankin was asked a general question that was answered with the benefit of hindsight. As a general question about whether, in his opinion at the time of the trial, "security is important" to prevent physical injury, the question does not relate to the relevant issue: whether physical injury was reasonably foreseeablepriorto the occurrence of the accident, an objective inquiry. When Mr. Rankinwasasked a question regarding foreseeability during re-examination, he answered it in the negative.

[53] Whether or not something is "reasonably foreseeable" is an objective test. The analysis is focussed on whether someone in the defendant's position ought reasonably to have foreseen the harm rather than whether the specific defendant did. Courts should be vigilant in ensuring that the analysis is not clouded by the fact that the event in question actually did occur. The question is properly focussed on whether foreseeability was presentpriorto the incident occurring and not with the aid of 20/20 hindsight: L. N. Klar and C.S.G. Jefferies,Tort Law(6th ed. 2017), at p. 212.

[54] I have the same concerns respecting my colleague's reliance on Mr. Rankin's testimony. My colleague suggests that foreseeability is made out here because Mr. Rankin testified that he always locked his vehicles. (This self-serving testimony was rejected by the jury.) In my view, this evidence is not determinative of whether foreseeability wasobjectivelypresent here. Moreover, this testimony only suggests that Mr. Rankin thought that theft, rather than personal injury, was foreseeable.

[55] To summarize, the evidence did not provide specific circumstances to make it reasonably foreseeable that the stolen car might be driven in a way that would cause personal injury. The evidence did not, for example, establish that the risk of theft included the risk of theft by minors. While in this case, it was argued that it was the risk of theft by minors that could make the risk of the unsafe operation of the stolen vehicle foreseeable, had there been other evidence or circumstances making the risk of personal injury reasonably foreseeable, a duty of care would exist.

[56] As was the case in many similar decisions by trial courts, I am not satisfied that the evidence here demonstrates that bodily harm resulting from the theft of the vehicle was reasonably foreseeable. I conclude that the plaintiff did not satisfy the onus to establish that the defendant ought to have contemplated the risk of personal injury when considering its security practices. The inferential chain of reasoning was too weak to support the establishment of reasonable foreseeability: seeChilds, at para.29. For these reasons, the plaintiff has not met his burden of establishing aprima facieduty of care owed by Rankin's Garage to him. Reasonable foreseeability could not be established on this record.

B. Did the Commercial Garage Have a Positive Duty to Guard Against the Risk of Theft by Minors?

[57] In this case, the plaintiff J. and interveners made additional arguments that proximity was established because Rankin's Garage had a positive duty to act. While there is no need to address this issue given my conclusion that the injury was not reasonably foreseeable, the parties made extensive submissions in this regard.

[58] J. submits that Rankin's Garage had a positive duty to secure the vehicles. His position is that as a commercial establishment dealing with goods that are potentially dangerous, Rankin's Garage owed a duty to children to secure the vehicles against theft. The intervener the Ontario Trial Lawyers Association supports this analysis and suggests that businesses that introduce a danger into their communities have a duty to individuals who are injured as a result of those dangers.Since these businesses benefit from the sale or storage of dangerous goods, they have an implied responsibility to the public to reduce the risks associated with the goods. J.and the intervener argue that in this way, a car garage is analogous to a commercial vendor of alcohol, who has a duty to those who may be harmed by damage caused by an intoxicated patron: seeStewart.

[59] In my view, this analogy is misguided. Bar owners have a positive duty to take steps to prevent potential harm caused by intoxicated patrons: seeChilds;Stewart;Jordan House Ltd. v. Menow,1973 CanLII 16 (SCC), [1974] S.C.R. 239. The existence of this duty is based on a number of considerations specific to that relationship, including the regulatory context surrounding alcohol sales (Childs,at paras.19-21), the contractual relationship between the bar and the customer, and the fact that bars have a commercial incentive to over-serve alcohol, thus increasing the risk to the public (Childs, at para.22). WhileChildscontemplated that other types of commercial entities may also have positive duties to act (para. 37), in my view, commercial garages do not universally fall within this category. The context simply does not warrant it. While a garage benefits financially from servicing cars, they have no commercial relationship with, and do not profit from or encourage the persons who might steal the cars.

[60] Vehicles are ubiquitous in our society. They are not like loaded guns that are inherently dangerous and therefore must be stored carefully in order to protect the public. Commercial garages, unlike an individual who leaves a car unlocked with the keys accessible, have care and control of many vehicles and necessarily have to turn their mind to the security of those vehicles, especially after hours, to prevent theft of the vehicles. Having many vehicles, however, does not necessarily create risk of personal injury. While cars can be dangerous in the hands of someone who does not know how to drive, this risk would only realistically exist in certain circumstances.

[61] Similarly, the fact that J. was a minor does not automatically create an obligation to act. There are circumstances where courts recognize a specific duty of care owed to children. However, these duties are imposed based on the relationship of care, supervision, and control, rather than the age of the child alone. These specific duties include the obligation on school authorities to adequately supervise and protect students (Myers v. Peel County Board of Education,1981 CanLII 27 (SCC), [1981] 2 S.C.R. 21), on drivers to ensure that child passengers wear seatbelts (Galaske), and on parents and those exercising a similar form of control over children (K.L.B. v. British Columbia,2003 SCC 51, [2003] 2 S.C.R. 403, at para.14). The rationale for imposing such duties is not based solely on the age of the plaintiff, but rather the relationship of control, responsibility, and supervision:Childs, at para.36. No similar relationship exists here. Thus, the mere fact that the plaintiff was a minor is insufficient to establish a positive duty to act. Tort law does not make everyone responsible for the safety of children at all times.

C. Could Illegal Conduct Sever Any Proximity Between the Parties or Negate a Prima Facie Duty of Care?

[62] Given my conclusions above, it is not necessary to consider whether illegal conduct could sever the proximate relationship between the parties or negate aprima facieduty of care. However, since this was the focus of the submissions before this Court, I offer the following comments.

[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: seeHall 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. 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: seeHall, 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: seeStewart, 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 theOccupiers' 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 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.

V. Conclusion

[66] Under tort law, liability is only imposed when a defendant breaches a duty of care. TheAnns/Coopertest ensures that a duty of care will only be recognized when it is fair and just to do so. As such, it is necessary to approach each step in the test with analytical rigour. While common sense can play a useful role in assessing reasonable foreseeability, it is not enough, on its own, to ground the recognition of a new duty of care in this case. Aside from evidence that could establish a risk of theft in general, there was nothing else to connect the risk of theft of the car to the risk of someone being physically injured. For example, Rankin's Garage had been in operation for many years and no evidence was presented to suggest that there was ever a risk of theft by minors at any point in its history.

[67] This is not to say that a duty of care will never exist when a car is stolen from a commercial establishment and involved in an accident. Another plaintiff may establish that circumstances were such that the business ought to have foreseen the risk of personal injury. However, on this record, I conclude that the courts below erred in holding that Rankin's Garage owed a duty of care to the plaintiff.I would allow the appeal and dismiss the claim against the appellant with costs in this Court and in the courts below.

Appealallowed with costs,GasconandBrownJJ.dissenting.

Solicitors for the appellant:Benson Percival Brown, Toronto; Supreme Advocacy, Ottawa.

Solicitors for the respondentsJ.J. by his Litigation Guardian, J.A.J., J.A.J. and A.J.:Lerners, London, Ontario.

Solicitors for the respondent C.C.:Brown Beattie O'Donovan, London, Ontario; Ministry of the Attorney General, Civil Law Division, FSCO Branch, Toronto.

Solicitors for the intervener the Ontario Trial Lawyers Association:MacKenzie Barristers, Toronto.

Solicitors for the intervener Justice for Children and Youth:McCarthy Ttrault, Toronto; Justice for Children and Youth, Toronto.

[1] Anns v. Merton London Borough Council, [1978] A.C. 728;Cooper v. Hobart,2001 SCC 79, [2001] 3 S.C.R. 537.

[2] Cooper,at para.36.

[3]Mustapha v. Culligan of Canada Ltd.,2008 SCC 27, [2008] 2 S.C.R. 114, at para.3;Saadati v. Moorhead,2017 SCC 28, [2017] 1 S.C.R. 543, at para.13;Deloitte & Touche v. Livent Inc. (Receiver of),2017 SCC 63, [2017] 2 S.C.R. 855, at para.77.

[4] Edwards v. Law Society of Upper Canada,2001 SCC 80, [2001] 3 S.C.R. 562, at para.9; see alsoCooper,at para.31;Livent, at para. 23.

[5] Cooper,at paras.36 and 39;Edwards, at paras.9-10;Childs v. Desormeaux,2006 SCC 18, [2006] 1 S.C.R. 643, at para.15;Mustapha,at para.6;Livent, at para. 26.

[6] Ibid.

[7] Cooper, at para.39;Edwards, at para.10;Childs, at para.23;Livent, at para. 29.

[8] Childs,at para.31. See also A.M. Linden and B. Feldthusen,Canadian Tort Law(10th ed. 2015), at 9.57.

[9] At para. 28 (emphasis added).

[10] At paras. 23 and 55.

[11] Cooper,at paras.36 and 39;Edwards, at paras.9-10;Childs, at para.15;Mustapha,at para.6;Livent, at para. 26.

[12] At para. 28.

[13] Ibid.

[14] At para. 27.

[15] At paras. 23 and 55.

[16] Cooper, at para.36;Childs, at para.31.

[17] L.N. Klar and C.S.G. Jefferies,Tort Law(6th ed. 2017), at pp. 210-11, and fn. 60.

[18] Linden and Feldthusen, at 9.57.

[19] At para. 27.

[20] Livent, at para. 28.

[21] 1932 CanLII 536 (FOREP), [1932] A.C. 562 (H.L.).

[22] S. R. Perry, "Protected Interests and Undertakings in the Law of Negligence" (1992), 42U.T.L.J.247, at p. 252.

[23] Linden and Feldthusen, at 9.59; Klar and Jefferies, at pp. 211-12; P.H. Osborne,The Law of Torts(5th ed. 2015), at p. 75;Clerk & Lindsell on Torts(21st ed. 2014), by M.A. Jones, at para. 8-08.

[24] Hill v. Hamilton-Wentworth Regional Police Services Board,2007 SCC 41, [2007] 3 S.C.R. 129, at para.22(emphasis deleted), citingDonoghue, at p. 580, per Lord Atkin.

[25] Klar and Jefferies, at pp. 212-13; see alsoFullowkav. Pinkerton's of Canada Ltd.,2010 SCC 5, [2010] 1 S.C.R. 132, at para.22.

[26] Linden and Feldthusen, at 9.59; see alsoE. J. Weinrib, "The Disintegration of Duty" (2006), 31Adv. Q.212, at p. 237.

[27] Linden and Feldthusen, at 9.59 (emphasis added).

[28] Klar and Jefferies, at pp. 210 and 212; Osborne, at p. 75.

[29]Linden and Feldthusen, at 9.59.

[30] Clerk & Lindsell, at para. 8-08.

[31] Ibid., at para. 8-09; Klar and Jefferies, at pp. 211-12;Livent, at paras. 35, 39 and 55; see alsoHercules Managements Ltd. v. Ernst & Young,1997 CanLII 345 (SCC), [1997] 2 S.C.R. 165, at paras.27 and 40, referred to at para. 39 ofLivent.

[32] At para. 31.

[33] Ontario Superior Court of Justice, September 25, 2014.

[34] 2016 ONCA 718, 403 D.L.R. (4th) 408.

[35] At para. 34.

[36] Fullowka, at para.22.

[37] At para. 34.

[38]At para. 41.

[39]At para. 42.

[40]At para. 45 (emphasis added).

[41]At paras. 46-50.

[42] At para. 41.

[43] Livent, at para. 78; see also Klar and Jefferies, at p. 5

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