Ching v. Ethier, 2020 BCPC 229

Citation: Ching v. Ethier 2020 BCPC 229 Date: 20201112 File No: 23875 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (SMALL CLAIMS COURT) BETWEEN: JODY CHING CLAIMANT AND: ROBERT LEO ETHIER, carrying on business as DESI'S MOVING DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: J. Ching Appearing in person: R. L. Ethier Place of Hearing: Abbotsford , B.C. Date of Hearing: November 2, 2020 Date of Judgment: November 12, 2020 Introduction

[ 1 ] The Claimant, Jody Ching, brings this Claim against the Defendant, Robert Leo Ethier (doing business as Desi Moving), for damages to personal belongings of hers that were damaged in a move performed by the Defendant. Everyone agrees that some (but not all) of the property was damaged during the course of the move. What is disputed is who is at fault for that damage.

The Claimant says that the property was damaged by the carelessness of the Defendant’s employees, but the Defendant says that the Claimant prevented the Defendant from unloading the items properly, resulting in the damage that was caused. [ 2 ] The Claimant also seeks damages for lost income because she alleges that the Defendant was in breach of its contract with her to attend on time to commence the move.

The Defendant says that this was never a term of the moving contract and states that the Claimant was told that the start of the move would begin as soon as an earlier move was completed. [ 3 ] At the trial of this matter both of the parties testified, as well as two of the Defendant’s employees who actually moved the Claimant’s furniture. Following is a

summary of the evidence, a

summary of the law applicable to this Claim, and the reasons for making the order that will be made.

Summary of Evidence [ 4 ] In May of 2018 the Claimant was looking for a mover to move some personal furniture from a townhouse in Abbotsford into the garage of a home in Chilliwack. She researched a number of movers online, and was impressed by the Defendant’s website, which made a number of representations about the quality of service that the Defendant provided. Among other claims, the website described the Defendant’s movers as “reliable” and said “we’ve never been late for a job.” The website said that the Defendant offered “disassembly and assembly service”.

In the portion of the website concerning commercial moving, the website said: “we understand time is money and you can count on us to arrive as scheduled and to work efficiently.

In order to keep your office furniture and other belongings protected, we always use shrink wrap and blankets when loading.” [ 5 ] On the residential portion of the website, the Defendant represented to his potential customers that he offered disassembly and assembly service and “placement of items at your new location.” [ 6 ] In reliance on these representations, the Claimant contacted the Defendant on May 8, 2018 by text message, asking if the Defendant was “available to help with a house move on May 17 in the afternoon around 3:00 p.m.” She added that she was asking for help moving “a few heavy items (table and coffee table) into a truck that we have rented already.” The Defendant quoted his rate and told the Defendant that he did not rent his trucks.

The Claimant told the Defendant that the move was from a three bedroom townhouse, but that everything was consolidated into two rooms. She described the move as involving a “small to moderate amount of stuff.” [ 7 ] The Defendant quoted a rate of $100 per hour for a minimum of two hours, plus a half an hour of travel time. The time began on arrival and ended a half an hour after the last piece of furniture was unloaded. The rate quoted was for two movers and a truck.

The Claimant responded “okay that sounds good.” [ 8 ] The Defendant did not attend at the home prior to the move to assess what would be required for the move. Specifically, although the Claimant had informed him that the move would involve a heavy table and coffee table, no steps were taken to assess how heavy the table actually was (it turned out to be estimated at 400 pounds) and whether this was a job for two men or required more labour. [ 9 ] The text messages do not contain any express agreement as to the time that the move would begin.

The Claimant texted “If you started at 2:00 p.m. on Thursday, it would probably take about five hours I think?” She added that there was no disassembly or assembly required. The Defendant did not respond to this text message. [ 10 ] No formal written contract was ever entered into between the parties concerning the move. The only document signed was a “start work order”, setting out the addresses of the move, and the billing rate of $100 per hour for two men and a truck, plus travel time. It also contained a waiver by the Claimant for certain items (none of which are relevant to this Claim).

The total cost of the move was $918 and the Claimant paid this by credit card. [ 11 ] On May 16 th the Claimant text messaged the Defendant to confirm that a moving crew was coming to her residence the following day in the afternoon, and she was told that they would do so. No specific start time was mentioned. [ 12 ] On the moving day, the Claimant texted the Defendant to confirm that the movers would call a half an hour before their arrival. The Defendant responded that they would do so. He told the Claimant that their first job of the day was going longer than expected.

It was not until 3:30 p.m. that the Claimant text messaged the Defendant stating that it was her expectation that the movers would have arrived at 2:00 p.m. The subsequent text messages suggest that there was a delay due to an earlier move taking longer than expected, traffic delays due to this being the Thursday before the Victoria Day long weekend. The Claimant texted back saying “I understand. Thanks for your attention.” [ 13 ] At 6:38 p.m. the move was in progress. The Claimant once again text messaged the Defendant to complain that the movers were wearing their shoes in the house without any covering.

The Defendant apologized for this and said that he had called and reminded his movers to wear covering over their shoes. [ 14 ] It appears that the move was not completed until sometime after 1:00 a.m. the following day. At 1:15 a.m. the Claimant text messaged the Defendant to complain about the poor quality of the move. Her text message reads: “Despite the fact that it’s 1 in the morning, your crew only just finished the move.

I must say, I have moved many times and never have I experienced such a lack of care for my home or my belongings.” Then at 1:18 a.m. she added in a subsequent message, “It’s absolutely appalling. Despite having left an entire room open on the main floor, they opted to only move belongings into a one car garage because it was less work. This is what we’ve been left with.” [ 15 ] The message attached a photograph of her belongings stacked haphazardly into a garage. The photographs show chairs tipped upside down, left on top of other belongings.

Leather furniture is resting on top of other furniture, and also has furniture resting on top of

it. There does not appear to be any order or system as to how the furniture was unloaded. A fabric chair is stacked on top of a dirty fire pit. [ 16 ] The Claimant has also produced photographs showing a further apparent lack of care in the move. There are deep scratches shown in dark hardwood floor, as well as deep gouges in walls. [ 17 ] There are five main pieces of high end furniture that the Claimant says have been badly damaged in the move. These are the following:

(1) A butterscotch coloured leather chair and ottoman: These are shown in photographs stacked carelessly amidst other furniture in the garage. As a result, the leather on the chair was gouged, scratched and dimpled in a number of places. The Claimant has obtained a number of quotes to repair this furniture, with the most reasonable estimate being $3,600.

(2) A Bradley leather armchair: this is shown in photographs carelessly stacked in such a manner as to cause pressure on one of the arms leaving the leather stretched and damaged. The estimate to repair the chair exceeds the cost of a new chair of comparable quality, a value of $1,499.

(3) A glass side table: This is shown in a photograph to be stacked in such a manner that the metal legs on one side have been bent in, making the table unusable. The replacement cost of this item is $729.99.

(4) A concrete table: A photo of the table taken shortly before the move shows the table to be in good condition. Photos of the same table taken after the move show it to be cracked, chipped and having a white staining on it in multiple places. The cost to replace the table us $1,629.99.

(5) A concrete fire pit: This item was damaged in the move such that it no longer rests in a level condition. The connection for a propane tank has been damaged and the item is no longer operational. The cost of replacement of this item is $589.99. [ 18 ] The Claimant also provided evidence of further damages for which she is not claiming compensation, but which she asserts is further evidence of how carelessly the move was conducted by the Defendant’s employees.

These include damage to the edge of a dining room table in which the wood was scuffed, a broken edge on an antique tea cart that was a family heirloom, a chipped edge of a wooden footboard on a bed frame, broken planters that were stacked upside down in the pile of furniture in the garage, and other minor items such as a broken picture frame. [ 19 ] The Defendant defends the poor quality of the move, blaming in the Claimant. He says that the items were stacked in this fashion because the Claimant would not let the movers into the house.

Both of the movers claim that they were not allowed to enter the house and that if they had been permitted to do so, they would have been able to unload the furniture in a more careful way. [ 20 ] The Claimant denies this, and in fact says that an entire room inside the house was made available for the movers. To support her recollection, she points to her text message to the Defendant in which she complains about the movers refusing to unload furniture into that room.

In cross examination of the two movers, she also showed them photographs of boxes that she says they had in fact moved inside the house, in contradiction of their assertion that they were not allowed entry into the house. When shown these photos, one mover said that he could not recall putting boxes inside the house, but that he was not too sure about this.

The second mover said “I don’t remember putting boxes in the house.” [ 21 ] When each of the movers were asked to show on the photographs where they had unloaded the boxed items from the move, they said that the boxes were not visible because they were hidden by the other items stacked in the photographs. The Claimant testified that the boxes were not visible in the photographs because the movers had in fact been allowed to move them into the house.

She said that the movers had chosen to stack the remaining furniture in the garage so carelessly because it was easier for them and not because they were not allowed inside the house. [ 22 ] In his testimony, Mr. Ethier agreed that no cardboard or pads were provided to prevent damage to the furniture when it was stacked. He said that this was the Claimant’s responsibility to ask for this. He acknowledged that some of the minor damage in the move “might be our fault.” He said that his movers “just did the best they could”.

He said, “If we had pads, it would have made a difference, but I was told she didn’t have any.” [ 23 ] The Claimant is also seeking damages of $1,350 because she left her office earlier than usual, in anticipation that her move would begin at 2:00 p.m. She testified that if she had known that the move would not commence as she had expected, she would have carried on in her medical practice and would have earned her institutional sessional fee for another 3.5 hours. Analysis 1.

Claim for Loss of Income [ 24 ] In a civil trial such as this one, the party who alleges a fact has the burden of proving that fact to be true on a standard known as a balance of probabilities. What this means is that that party must show that there is evidence which supports the conclusion that the fact they are alleging is more likely to be true than not true. This is unlike a criminal case in which all elements of a criminal offence must be proven beyond a reasonable doubt. [ 25 ] The Claimant has the burden of proving, on a balance of probabilities, that the Defendant breached its contract with her.

Specifically, she alleges that it was a term of her contract with the Defendant that the Defendant’s movers would arrive to commence the move at 2:00 p.m. The Defendant denies that there was any such agreement. He says that the Claimant was told that his movers had a move in the morning and that they expected that they would be there in the afternoon, but that things did not turn out as expected because the first move of that day took longer than planned.

The Defendant testified that he would not have promised that the move would begin at 2:00 p.m. because he was committed to completing the first move before beginning the Claimant’s move.

[ 26 ] Every contract has a number of elements that include: 1. A valid offer and acceptance in which both parties agree to the same terms and conditions. 2. An exchange of consideration (in this case the Defendant agreed to move the Claimant’s goods in return for $850 plus GST). 3. Both parties have the capacity to enter into a contract (both are of sufficient age to enter into a contract and not under any legal disability). 4.

Certainty of terms (both parties have expressed agreement to the terms of the contract and are clear what those terms are). [ 27 ] There is no dispute in this case that the parties had entered into a contract in which the Defendant had agreed to move the Claimant’s belongings for the agreed upon price. What is not clear is whether or not both parties had agreed that the move would commence at 2:00 p.m. on May 17, 2018. The Defendant denies that this was a term of the contract.

Clearly, no such term was included in the only written document entered into between the parties, that being the invoice on which the Claimant signed a form of waiver and agreed to the stipulated rate. That document shows a start time of 5:00 p.m., a time that was inserted onto the document when the movers arrived. [ 28 ] The Claimant also produced a series of text messages she exchanged with the Defendant. Nowhere in these messages is any such agreement about a start time for the move ever confirmed.

The messages show that this was what the Claimant had hoped would happen, but there is no corresponding acknowledgement of agreement on the part of the Defendant. For example, on May 8, 2018, the Claimant sends this message: “If you started at 2:00 p.m. on Thursday, it would probably take about 5 hours I think?” But the Defendant never responded to this at all, let alone agree to begin at 2:00 p.m.

On May 16 th , the Claimant messaged the Defendant asking if the movers would be coming to her home the following day “in the afternoon?” The Defendant replies that they will do so, but no specific time was either requested or promised. [ 29 ] On the actual moving day, the Claimant messaged the Defendant and the two had the following exchange of messages: Claimant (1:44 p.m.): Did you say that the guys would call about an hour before they came? Defendant (1:58 p.m.): Yes. The first job is running a bit longer. My driver says he has called you to let you know. Can you confirm this via text? Thank you.

Claimant (3:11 p.m.): Yes. He called me just after I texted you. Claimant (3:30 p.m.): He said he’d likely be closer to 4, but still no one has called me? I did cancel an afternoon of patients in anticipation that they would be here at 2:00 p.m. [ 30 ] This message exchange supports the conclusion that the start time was not something that the parties had agreed on as a term of the contract, but rather something that the Claimant had, by her own admission, anticipated. She herself states that patients were cancelled because of her anticipation, not because this was something that the Defendant had ever promised.

The evidence does not support the conclusion that the parties ever expressly agreed as a term of their contract that the move would begin at 2:00 p.m. The Claimant may have assumed this, but without express agreement to this term by the Defendant it does not become a term of the contract and therefore the Claimant is not entitled to any damages that flow from this. [ 31 ] The Claimant relies on a statement that appears on the Defendant’s website in which the Defendant advertises, under the heading “Why choose us?” that he is “Reliable – we’ve never been late for a job.” There are a number of problems with this.

Firstly statements made in advertisements do not become terms of a contract. They are considered at law to be part of an invitation to commence bargaining (sometimes called an “invitation to treat”) and do not form a part of any contract subsequently made between the parties unless the party making the statement agrees to include the representation as a part of the contract. Secondly, in this case the representation is only a statement of what has occurred in the past. It does not contain a promise that the Defendant will never be late in future.

Finally, even if this has been a part of the contract in this case, since no start time was ever expressly agreed upon, the Claimant has not proven that the Defendant was late for the start of this job. [ 32 ] For these reasons, that portion of the claim for loss of income must fail. 2. Claim for Damaged Property [ 33 ] The Claimant has proven that a number of items of her personal property were damaged in the course of this move. They were delivered in worse condition than they were picked up in.

Even the Defendant agreed that someone who had paid his company for a move would understandably be upset if their goods were picked up by a mover in the condition that his movers found them in, and delivered to the same customer in the condition that the Claimant has provided photographic evidence of receiving them in. He acknowledges that most of this damage was caused by the manner in which his employees stacked the goods in the Claimant’s garage. However the Defendant places the blame for this on the Claimant.

He says that his movers were not allowed inside the house, and they were given only a small area inside the garage to stack all of the furniture, which meant that they had to stack it as best as they could, and such that the damage that occurred was unavoidable. [ 34 ] In response the Claimant says firstly that the movers were allowed inside the house, and in fact an empty space was provided for furniture to be unloaded. The Claimant’s credibility on this point is bolstered by the fact that she sent a text message to the Defendant at the time informing him of this, but he failed to respond to this.

Her version of events is also made more likely from the fact that she has photographs of boxes that were in fact moved into the house. When these were presented to the movers during cross-examination, one of the movers replied that he was no longer sure about being denied entry into the house, and the other mover simply stated that he did not remember.

[ 35 ] These things make it more likely that the Claimant’s recollection on this point is correct, and that the movers did have the option of unloading the items from the move more carefully, utilizing more of the space that was available inside the house, but chose not to do so. [ 36 ] In this case, even if the movers had been denied access the room provided inside the house, (a conclusion that runs contrary to the bulk of the evidence in this case), they would still be required to return the property undamaged, exercising care to stack it in place such that it would not incur damage simply from the manner in which it was unloaded.

For example, the Defendant’s movers cannot be excused from placing considerable weighted objects on top of valuable leather furniture, as shown in the photographs tendered in evidence, or from bending table legs, or from chipping and scratching wooden surfaces. The Claimant has not included many of these items in her claim for damages, but they add supporting evidence to her assertion that her furniture was unloaded carelessly and contrary to the Defendant’s obligations as a bailee. [ 37 ] The Defendant’s claim that damages to a concrete table belonging to the claimant are the result of bird droppings.

This conclusion is difficult to reconcile with a recent photograph of the table that shows the table in good condition prior to the move, as well as the Claimant’s photographs that are more consistent in appearance with some sort of corrosive material. The Defendant’s explanation certainly does not explain chipping to the concrete that appears in the photographs. [ 38 ] When a mover is paid to take possession of a customer’s goods, the law creates what is known as a relationship of bailment.

While the goods are in the possession of the mover, the mover becomes the custodian of the property and as a result of this becomes a bailee. As the bailee, the mover is responsible for returning the property in their possession that they were given. While in possession of the goods, the bailee will be held responsible for any loss or damage to the property. [ 39 ] As a bailee for hire, the Defendant is responsible for any damages to the Claimant’s property while it was in his care.

The Claimant was careful to keep a photographic record of the state of the property before and after it was in the possession of the Defendant, and has established that the property was damaged while in the Defendant’s care.

Under the law of bailment, the Defendant is responsible for any loss or damage to the property. [ 40 ] Because the property was damaged while in his care, the Defendant is required to compensate the Claimant, in so far as money can do so, by placing her in the same position as if her goods had been delivered to her in the same condition that they were when she placed them in the Defendant’s care. If the damages can be repaired, the Defendant is responsible for the cost of repair.

If the cost of repair exceeds the cost of replacement, then the Defendant is responsible to the Claimant for the cost of replacement of the goods. [ 41 ] The Claimant has provided estimates for the cost of repair of each of the items that she has claimed for. Aside from denying liability generally, the Defendant has not taken issue with any of these individually. These items total $8,048.97 plus sales taxes ($965.88) for a total of $9,014.85. The Claimant is entitled to judgment for this sum. 3. Claim for Return of Moving Cost [ 42 ] Lastly, the Claimant seeks the return of the cost of the move.

She is not entitled to this amount. The measure of damages is that amount that will place her in the same position as if the move had taken place as agreed, in which case she would have had her property delivered in good condition, but would still have paid for the move. She is either entitled to compensation for the damaged property or return of her money for the cost of the move, but not both. In this case her damages are limited to the cost of repairing or replacing the damaged property ($9,014.85).

Order [ 43 ] For the foregoing reasons, the Claimant will have judgment against the Defendant for the sum of $9,014.85, plus costs of $197.50 (composed of filing fees of $156, service fees of $30 and company search fee of $11.50.) ________________________________ The Honourable Judge K. D. Skilnick Provincial Court of British Columbia