Brennan v. Burrow Date:, 2016 BCPC 78

Citation: Brennan v. Burrow Date: 20160401 2016 BCPC 0078 File No: 107496 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA SMALL CLAIMS COURT BETWEEN: PATRICK BRENNAN AND TRACY BRENNAN CLAIMANTS AND: JOHN H. BURROW AND JOHN H. BURROW FINE ART (2007) INC. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.V. HOGAN Appearing on their own behalf: Patrick and Tracy Brennan Appearing on their own behalf: John H. Burrow Place of Hearing: Kelowna , B.C.

Date of Hearing: March 18, 2016 Date of Judgment: April 1, 2016 [ 1 ] Tracy and Patrick Brennan, the claimants, live in Calgary but have a summer home on the west side of Lake Okanagan, in West Kelowna. They volunteer at the Calgary Stampede each summer and in 2011 they met the defendant, John Burrow at the art show, which is held on the Stampede grounds each year. It is a well-known art show in western Canada. John Burrow is a full time artist who lives in Salmon Arm. The Brennans liked his work and by 2013 had bought three paintings from him.

John Burrow does commission work, and the Brennans asked him to create an original work of art for the living room wall of their home in West Kelowna. [ 2 ] In August 2013 John Burrow drove down to West Kelowna, discussed the project with the Brennans. They wanted him to recreate the feeling of their flower garden incorporating a small rock face carving of ‘Mary, Mother of Jesus’ which was in a separate part of the yard. John Burrows took photographs of the subjects as well as going in the ‘cottage’, and measured the wall where the painting would hang.

A smaller piece was simultaneously commissioned, paid for, and is not the subject of this dispute as the Brennans were pleased with it. The claimants paid approximately $9,000.00 to John Burrows limited company for the painting, but for the purpose of the decision I treat the two defendants as one. [ 3 ] The Brennans were consulted as the project moved forward and made suggestions which were incorporated into the painting. After the smaller piece arrived in March 2014, they were looking forward to the arrival of the painting which is the subject of this dispute.

When the painting arrived the Brennans said that they immediately realized there was a problem. They say that there is sheen on the painting, in which a glare comes off the center of the picture, making it difficult to focus on the painting. They brought along photographs of the painting to the trial which they say confirms their view. They agree that if you stand off to one side of the painting it is fine, but face on in the living room there is a distortion.

They have taken it down, and hung it in another room. [ 4 ] They are very disappointed, not with the content of the picture, but with the glare which means it cannot be hung in the living room they intended it for. [ 5 ] When John Burrow learned of this he was surprised but agreed to come to West Kelowna in August 2014 and look at the painting. He met with Pat Brennan at the house, as Tracey Brennan had to return to Calgary for a family matter. John Burrow took a color photograph of the painting, from an entrance to the living room, which confirms his general view that the painting is fine.

He saw no such glare on the painting in his studio. He says that all five paintings of his that the Brennans own all have the same gloss. [ 6 ] There is a little bit of a dispute between Pat Brennan and John Burrow what was said at that meeting, but it doesn’t significantly affect the outcome. John Burrow says he made some form of offer involving destroying the painting, not returning the fee but giving the Brennans a substantial discount on any future paintings they had. He said he suggested using a matte varnish to correct the problem.

He testified that Pat Brennan said something about the Brennans seeing a new artist whose floral paintings they liked, and they were considering purchasing a replacement painting from her. Pat Brennan denies saying anything about a new relationship with another artist, and testified that nothing was said by John Burrow about a matte varnish. [ 7 ] John Burrow drove home to Salmon Arm, and began to wonder what Pat Brennan meant about another artist.

He testified that he thought they must be leaving him for a new artist, and accordingly he sent them an extensive outline of what they could do to correct the situation, including using a matte varnish. He made it clear that this was his last involvement with the painting. In his last communication, John Burrow suggested some redecorating changes to the living room, using drapes or repainting the walls. He said “I resign from this project”. [ 8 ] The suggestions offended the Brennans. However, they too replied in a lengthy written e-mail, being “blown away by your final thoughts”.

They apologized to John Burrow if they had “done something which has hurt you”. They concluded that “our ‘final thoughts’ will come after we have calmed down, considered our options and determined what God intends us to do when faced with adversity such as this.” [ 9 ] Litigation followed. The Brennans want their money back. The Positions of the Parties [ 10 ] The claimants rely on s.18 of the B.C.

Sale of Goods Act which I will summarize as follows: If a buyer expressly makes known to the seller the particular purpose for which the goods are required, and the buyer relies on the seller’s skill or judgment, there is an implied condition that the goods are reasonably fit for that purpose.

The Brennans are of the opinion that the defendant saw the lighting conditions in the living room where the painting was to be displayed, they relied on his skill and judgment as a professional artist, and that the glare which shines off the painting and distorts it, means the painting is not reasonably fit for the purpose that that it was intended to achieve. Therefore John Burrow should return their $9,000.00. [ 11 ] John Burrow is of the opinion that any glare or distortion which occurs off the painting, in fact does not exist, or only exists in the mind of the Brennans.

He has held to the opinion throughout this contest, incorrectly, that the Brennans had found a new painter and that they wished to buy another painting instead. In

summary his view is they really wanted him to discount the cost of the painting, or have their money returned. He is adamant that the painting is of no value to him, because of the theme of ‘Mary, Mother of Jesus’, is so unique that it cannot be resold. He feels that any glare that the Brennans see in the painting is actually just the result of the visual potpourri of images caused by their demands for additions in the painting. He repeats his view that the visual shine could be cured with a matte varnish. What is to be done? [ 12 ] I accept that the Brennans are genuinely disappointed with the painting, which they had such high hopes for. I accept their

explanation that they had no desire to start a relationship with a new painter, and it was long after this dispute that they eventually found a painting for their living room wall, nor were they angling at any time for a discounted price. [ 13 ] The B.C. Sale of Goods Act however does not apply to original paintings. Since the case of Robinson v Graves 1935 English Court of Appeal, original paintings have been regarded in our law as contracts for work and labor, and not for the sale of goods. The materials involved, paint and canvas are only ancillary. The general approach as demonstrated in Robinson v.

Graves , abandoning a 19 th Century view that an original painting was a sale of goods, is the one followed in British Columbia in determining at the most basic level whether there is a sale of goods or a contract for work: see Hollis v. Birch 1990 Supreme Court of British Columbia C891761. Robinson v. Graves is taught at law school in B.C. to alert students to this basic distinction between contracts for labor or contracts for goods. In another case, an original painting, commissioned for a specific room in a house started cracking and discoloring. It was held on appeal in Borek v.

Hooper 1994 18 OR (2d) to be a dispute over services and not sale of goods. The claimant in that case succeeds ultimately on an implied condition of merchantability. Merchantability is however not the issue here. This general topic of what constitutes contracts for labor or sale of goods occupies four pages of discussion in the legal text Fridman: Sale of Goods in Canada . Even restaurant meals may fall into the same category as original paintings.

Accordingly there is no presumption or implied condition of ‘fitness for a particular purpose’ in this case. [ 14 ] Then there is no express term to assist the claimants in the initial correspondence between the parties that the painting had to perfectly reflect the natural light in the Brennans living room. In a general agreement to have a painting commissioned it could be possible to include a term that the painting ‘perfectly reflect the natural light available in a specific room’.

Here the court should not imply such a specific term when it’s clear that he parties did not consider it at the time. [ 15 ] Natural light is of course something that varies. It depends on the height of the sun at any particular moment, cloud conditions, humidity, and even whether it is being diffused by thick smoke, which sadly is a periodic summer problem in the Okanagan Valley. As well there is an inherent risk in commissioning original paintings, which may provide a great pleasure or a great disappointment. One only need follow the public controversies which surround the commissioned portraits of Elizabeth 2.

Combined with the fact that the painting may be successfully viewed elsewhere--as it is in the nature of paintings to be moved--I do not think the claimants can succeed. [ 16 ] I dismiss the claim; both parties shall bear their own costs. THE HONOURABLE JUDGE P.V. HOGAN