Walkinshaw and Yu v., 2022 BCPC 244

Citation: Walkinshaw and Yu v. 0852575 B.C. Ltd. 2022 BCPC 244 Date: 20221028 File No: 2067096 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: KEITH WALKINSHAW and CHRISTINE YU CLAIMANTS AND: 0853575 B.C. LTD., doing business as The Permanent DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. P. HARRIS Appearing on his own behalf: K. Walkinshaw Appearing on behalf of C. Yu: K. Walkinshaw Counsel for the Defendant: B. Folarin Place of Hearing: Vancouver, B.C. Dates of Hearing: April 19, 20, 21, 22 and 26, 2022 Date of Judgment: October 28, 2022 INTRODUCTION

INTRODUCTION [ 1 ] The claimants and the defendant entered into a rental contract whereby the claimants rented the defendant’s building for their wedding reception. The reception occurred in 2018, and one of the guests severed her finger on a vault door located at the venue. The claimant, Ms. Yu, did not witness the accident; rather, she saw the immediate aftermath; a severed finger on the floor. Ms. Yu claims she suffered emotional injury and she is seeking compensation. [ 2 ] Additionally, Ms. Yu and Mr. Walkinshaw, seek damages for breach of contract of the rental contract.

They allege the defendant breached an implied term of the rental contract by renting premises that were unsafe and, in support, they allege the vault door was unsafe. The defendant argues there is no evidence that the vault door was unsafe, and therefore, the claim for breach of contract should be dismissed. In terms of the claim for emotional injury, the defendant argues the waiver of liability clause contained in the contract binds the parties and provides a complete defence and bars recovery.

THE EVIDENCE The Building [ 3 ] This case involves a building called The Permanent and it is held and operated by the defendant numbered company. The building was built in 1907, with BC Permanent Savings and Loan originally occupying the space. In 1935, the Bank of Canada assumed occupancy and remained there for several decades. Thereafter, the building was renovated and used for wedding receptions, special events and movie shoots. [ 4 ] It is believed that the original building contained a large vault and it has remained throughout the years and is the subject of this litigation.

At some point the entire rear wall of the vault was removed, thereby, rendering the vault insecure. On the front, is a large door that is floor to ceiling in height and approximately 5 feet wide with external locking mechanisms and hinges. The door to the vault is impressive and a focal point where several photographs have been taken. Events before the Reception [ 5 ] In early 2017, Ms. Yu started looking for a location to host her and her future husband, Mr. Walkinshaw’s, wedding reception. Ms. Yu located The Permanent as a possible site and she contacted them arranging a visit. [ 6 ] During the visit, Ms.

Yu met with Ms. Cohen, the general manager, and the two walked through the site. At that time, there were discussions regarding the premises history, the number of anticipated guests and the fact that The Permanent had a list of accepted vendors. As for the vault door, Ms. Yu recalls some discussions in that it was heavy and that it had to be either open or closed throughout the reception. Ms. Yu liked the site and she decided to rent it for her wedding reception. [ 7 ] After the original visit, Ms. Yu attended the site on two other occasions. According to Ms.

Yu, she was never informed that the vault door was dangerous, nor was she told that the guests could not touch the door. She never saw signs on the vault door indicating that it was dangerous or that people should not touch it. Some photos were filed in evidence showing that the vault door had do not touch signs attached on other occasions. [ 8 ] During cross-examination, Ms. Yu acknowledged that the passage of time made it difficult for her to recall things. She also agreed it was possible she received instructions regarding the vault door and that she no longer remembers this.

She also agreed with the suggestion that it was possible that Ms. Cohen told her that was her responsibility to ensure that her guests did not operate the vault door. Despite there being a possibility of this being said, Ms. Yu feels it is unlikely because she believes she would recall this type of instruction. [ 9 ] Ms. Cohen recalls informing Ms. Yu that the vault door stays shut, that no one should play with it and that it was Ms. Yu’s responsibility to control her guests. Ms. Cohen is certain she spoke to Ms. Yu about the vault door and she has a clear recollection of doing so. Ms.

Cohen also stated that when speaking with prospective clients comments about the vault door she always instructs them that no one should touch the door and the client is responsible for their guests. As for the concern with others operating the door, Ms. Cohen explained the door is heavy and when opened it can generate momentum and if not properly controlled it can swing into the wall damaging the drywall. [ 10 ] Where the evidence conflicts between Ms. Cohen and Ms. Yu, I find Ms. Cohen’s evidence to be more reliable and I accept it. This is because Ms.

Cohen has a specific recollection of what she said and because her comments are what she says to all of her clients. In contrast, Ms. Yu acknowledged that the passage of time impacted her memory and she acknowledged the possibility that Ms. Cohen told her the guests were not to touch the door and that she was responsible for her guests. [ 11 ] Ultimately, Ms. Yu informed Ms. Cohen that she wished to rent The Permanent for her wedding reception. Ms. Cohen forwarded a rental contract to Ms. Yu who read the entire contract. She does not recall if she showed the contract to her fiancé, Mr.

Walkinshaw, who is a practicing lawyer. I am satisfied that she showed the contract to Mr. Walkinshaw. My conclusion is based on Mr. Walkinshaw’s profession, as well as his financial and personal interest in the wedding reception given he was the groom. [ 12 ] The contract contains a waiver of liability clause that reads: 11 (

b) Licensee hereby waives any and all claims that Licensee may have now or in the future, and releases from all liability and agrees not to sue, The Permanent or any or all of its affiliates, shareholders, directors, officers, employees, agents and representatives for and from any personal injury, death property damage or any other loss suffered, sustained or incurred by Licensee resulting from or in connection with the Event (other than as a direct result of The Permanent’s willful misconduct or gross negligence) and Licensee shall not seek to commence any action against The Permanent with respect thereto. [ 13 ] The above waiver was read to Ms.

Yu during cross-examination and she confirmed she understood it. Specifically, she understood that she could not sue the defendant for any reason except for wilful misconduct or gross negligence. From this evidence, and

after reading the clause, I am satisfied the claimants were aware of the waiver of liability, that they understood the effect of the waiver and they agreed to be contractually bound by the waiver. The Reception and the Accident [ 14 ] On May 12, 2018 at approximately 6:20 p.m., the claimants arrived at the venue and they started taking photos with family and friends. At this time, the venue was decorated and the vault door was closed. The reception started at 7:00 p.m. and it involved food, drinks, dancing, speeches and an open bar with the defendant providing service. [ 15 ] Around 10:00 – 10:30 p.m., Ms.

Yu was standing a few feet away from the closed vault door. Her back was to the door and she was facing the front of the room when she heard her girlfriend say, “I have to leave right now.” Ms. Yu turned to see her close friend holding her hand up and near to her body. Ms. Yu noticed that her friend’s face was white and she heard someone say, “You don’t understand it fell on the ground.” Ms. Yu looked down to see blood and a portion of her friend’s finger on the ground. The severed finger was picked up and transported with the injured party to the hospital.

After the Accident [ 16 ] The reception continued to its scheduled conclusion with people drinking, socializing and dancing. Despite this, Ms. Yu testified the guests were occupied with what had happened. She states the emotion of the event resulted in the wrong song being played for the first dance and that her enjoyment of the evening had been compromised by the accident and her worry for her friend. Expert Examination of the Vault [ 17 ] Mr. Falez was qualified as an expert capable of giving an opinion on the functioning and the locking mechanisms of vaults.

In October of 2021, he attended The Permanent and examined the vault. He testified that the vault door, the hinges and the handle were all in good working condition. During his examination of the vault, Mr. Falez discovered a build-up of foreign material on the edge top of the vault door and this prevented the door from completely recessing into the frame of the vault leaving approximately 1/8 of an inch of the door protruding. Mr. Falez could not state when the material appeared on the door.

Accordingly, it is unknown if the material was present at the time of the reception or if it was deposited in the years after. Mr. Falez’s examination also revealed that the vault had been modified so that it could not be locked. [ 18 ] Mr. Falez was shown a picture of the vault and he testified that he could not see anything that was unsafe with the door. He then elaborated with the observation that the door was heavy and if a smaller person opened it and were not paying attention that they could be knocked by the door.

FINDINGS REGARDING THE CAUSE OF THE ACCIDENT [ 19 ] The injured party and witnesses to the accident were not called to testify. Accordingly, there is no direct evidence on how the accident happened. In light of Mr. Falez’s evidence, I accept that there was nothing about the door or the vault that was unsafe. This leads to the conclusion that the injured party or others were being reckless and unsafe with the door. In this regard, the door was opened at least wide enough for the injured party’s finger to somehow come to be between the frame and the door.

Additionally, and while the injured party had her finger in or near the door opening someone closed the door. Simply, the accident was caused by a guest or guests dangerously and recklessly interacting with the vault door. DID THE DEFENDANT BREACH AN IMPLIED TERM OF THE CONTRACT? [ 20 ] It is not disputed that an implied term of the rental contract was that safety of the venue was suitable for a wedding reception.

With this in mind, the key issue is whether the accident supports a conclusion that The Permanent, specifically the vault door, was unsafe and therefore in breach of an implied term of the contract that the venue was safe for the intended purpose of a wedding reception. In my view, the evidence falls markedly short of establishing that the vault door was unsafe.

If I am incorrect regarding the safety of the vault door, there is no evidence to support a finding that the venue was so unsafe it was therefore unsuitable for wedding reception. [ 21 ] On the issue of the venue being unsafe, the claimants’ expert confirmed the door was opening and closing properly and that he could not identify anything that was unsafe. I also observe, even if the vault door was unsafe, there is no evidence suggesting the door was so dangerous that the intended purpose of using of a wedding reception was frustrated. In fact, there is ample evidence to the contrary.

In this regard, the reception continued after the accident with the guests drinking, socializing, dancing, eating and making speeches. Moreover, the functioning of the vault door was not central to the contract, rather, the central purpose was to rent a venue capable of hosting a wedding reception and despite the accident that is what happened. [ 22 ] For the above reasons, I find that the vault door was safe and therefore the defendant did not breach an implied term of the contract. WAIVER OF LIABILITY CLAUSE [ 23 ] In order to recover damages and as per the waiver of liability clause, Ms.

Yu must prove that the defendant was grossly negligent. With this in mind, I turn to consider if the waiver of liability clause is binding on the parties and, if so, whether the evidence establishes gross negligence. Lastly, I must consider as per the claimants’ argument, whether public policy suggests that the clause should not be enforced. Is the Waiver of Liability Clause Binding? [ 24 ] In Apps v.

Grouse Mountain Resorts Ltd., 2020 BCCA 78 , the court had an opportunity to highlight principles related to waiver of liability clauses and although the case considers the clause in the context of occupiers liability and appropriate notice, I rely on the general principles; the claimant must have reasonable notice of the clause, including an awareness of the risks that they were

undertaking. [25] In considering if the clause is binding, I observe, Ms. Yu, an intelligent, educated person, walked through The Permanent prior toreceiving the contract and therefore had the opportunity to observe the obvious risks such as doors, stairs, electrical sockets, etc. [26] Then and after visiting The Permanent, Ms. Yu read the entire contract and she understood it. In this regard, she knew that but forwilful conduct or gross negligence on behalf of the defendant, she was barred from suing for damages. Then, and while fully aware ofthe clause and its impact, Ms.

Yu signed the contract thereby binding herself to all of the terms and conditions. [27] In considering all of the above, I find that the waiver of liability clause in the contract is binding on the parties. Gross Negligence [28] I now turn to consider if the evidence establishes that the defendant was grossly negligent. [29] The meaning of gross negligence was discussed in Aville Enterprises Ltd. v.

Colliers Macaulay Nicolls Inc., 2011 BCPC 334 atparas. 22-24: [22] Gross negligence is a well-defined legal standard and has been applied in cases alleging breach of contract, breach of a statutorystandard, or negligence. [23] The test for “gross negligence” is whether the Claimants can show by a preponderance of the evidence that Colliers’ acts oromissions were a “marked departure from the ordinary standards by which reasonable and competent people generally governthemselves”: Goulas v.

Restoule (1974) (SCC), 48 D.L.R. (3d) 285 at 287 (S.C.C.). [24] A comprehensive definition of gross negligence can be found in Law Society of B.C. v. Martin 2005 LSBC 16at para. 157: Black's Law Dictionary defines gross negligence as: “Gross negligence. The intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life orproperty of another. It is materially more want of care than constitutes simple inadvertence. It is

an act or omission respecting legal duty of an aggravatedcharacter as distinguished from a mere failure to exercise ordinary care. It amounts to indifference to present legal duty and to utterforgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respectingthe rights of others.

The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree ascompared with that present in ordinary negligence.” [30] With the above authority in mind, it is clear that gross negligence involves a marked departure from the standards by whichreasonable and competent persons generally govern themselves. Clearly, the expected standard of conduct will vary depending on thecircumstances.

Thus, more than ordinary care is required where it is clear that a heightened degree of risk exits such that if a misstep ormistake occurs then the loss of life or serious injury is almost inevitable. In such circumstances, failure to take care commensurate withthe obvious risk would be grossly negligent. Does the Evidence Establish Gross Negligence? [31] In my view, the claimants have failed to prove that the defendant was grossly negligent.

Specifically, I cannot conclude thatleaving the vault door unlocked or failing to display a “do not touch sign” was a marked departure from how an ordinary person wouldgovern themselves. [32] In terms of not locking the vault door, there is no evidence indicating how the accident occurred and therefore it is difficult todetermine if the standard of care required the door to be locked.

The fact that locking the door may have prevented the accident does leadto the automatic conclusion that the standard of care was a marked departure from an ordinary competent person. [33] With respect to the absence of a sign, I conclude that the failure to put up a sign was not a breach of a standard of care. In thisregard, common sense informs that caution signs would be required in circumstances where there is a reasonable potential of significantharm. Examples include: electrical wires, cages containing dangerous animals or loaded firearms.

All of these items have a reasonablepotential of harm if handled and thus a warning is required. In the instant case, there is no evidence that the vault door was inherentlydangerous or that it presented a reasonable potential of significant harm, thus, demanding a high degree of care. The only risk attributedto the door was it being heavy and it might knock a person if it got away from them.

In light of the low risk in terms of harm and theharm not being obvious, I am unable to conclude that failing to post signs was a marked departure from what a reasonable and ordinaryperson in the defendant’s position would have done. [34] Further to the above, I recognize signs have been used in the past; however, as I understand, the reason for the previous signs wasto prevent people from swinging the door open and damaging the wall. Simply, the signs were not because of a potential of harm comingto persons using the vault door; rather, the signs were to prevent people from recklessly opening the door.

Lastly, I appreciate that allitems in our environment (including vault doors) may present some risk and therefore some care is required, with this in mind, I find thatMs. Cohen’s direction to Ms. Yu that the guests were not to touch the door and by informing her that she was responsible for the guestsas being reasonable and commensurate to the risk. Public Policy [35] Finally, the claimant argues the court should, on the basis of public policy, decline to enforce the waiver of liability clause. [36] In Tercon Contractors Ltd. v.

British Columbia (Ministry of Transportation and Highways), 2010 SCC 4, the court commented

on the inquiry relevant to considering whether to decline enforcement based on public policy: [ 123 ] If the exclusion clause is held to be valid and applicable, the Court may undertake a third enquiry, namely whether the Court should nevertheless refuse to enforce the valid exclusion clause because of the existence of an overriding public policy, proof of which lies on the party seeking to avoid enforcement of the clause, that outweighs the very strong public interest in the enforcement of contracts. [ 37 ] In the instant matter, the claimant argues a principle of our legal system is to provide remedies for wrongfully caused loss and that it would be contrary to public policy to deny the claimants a remedy in circumstances where they entered into the contract without the knowledge that the vault door could be opened by pulling on it. [ 38 ] In my view, the claimants’ argument fails.

First, it is unreasonable to expect that every rental contract requires steps being taken to inform the renting party about the operation of all fixtures and items contained in the rental property in circumstances where the fixture or items do not present a reasonable foreseeable risk. Second, given my conclusion that the vault door was not a risk or unsafe, an expectation that the claimants should have been informed that the door could be pulled open ignores my conclusion.

For these reasons, I am not satisfied that the claimant’s lack of knowledge regarding the vault door outweighs the strong public interest in the enforcement of contracts.

SUMMARY AND RESULT [ 39 ] In

summary, and based on the above reasons, I conclude: 1. The claimants have failed to establish that the defendant breached an implied term of the contract. 2. The waiver of liability clause binds the parties. 3. The claimants have failed to establish that the defendant was grossly negligent. 4. The evidence fails to show that there is a valid public policy reason warranting a refusal to enforce the waiver clause. [39] Accordingly, the claim is dismissed. _____________________________ The Honourable Judge R. P. Harris Provincial Court of British Columbia