OF CAR THIEVES, OPTICAL ILLUSIONS, AND SOCIAL HOSTS

HOW RANKIN’S GARAGE IS CHANGING CANADIAN DUTY ANALYSES

Abstract

This article assesses the impact of the Supreme Court of Canada’s decision in Rankin (Rankin’s Garage & Sales) v JJ on subsequent analyses of the duty of care. The majority’s decision, while purporting to apply a “rigorous” analysis of foreseeability, conflates the duty and remoteness elements of the negligence tort and arguably applies a subjective test of what the particular defendant would have foreseen. Subsequently, this has led some appellate courts to apply highly granular tests of foreseeability at the duty stage, concluding that the factual scenarios were “rare” when they are, in fact, relatively common. Should this tendency continue, both the normative role of the duty of care and the precedential value of prior duty decisions will be eroded. Ultimately, this has the potential to prolong litigation, as each new case will provide an opportunity to distinguish the facts as being rare and unforeseeable.