Faith Allyson Michele Bernard - v. -, 2015 SKPC 44

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 044 Date: March 31, 2015 File: 80/13 Location: Moose Jaw _____________________________________________________________________________ Between: Faith Allyson Michele Bernard - and - Stuart Bozyk o/a Stuart Bozyk Goldsmith Self-Represented For the Plaintiff Self-Represented For the Defendant _____________________________________________________________________________ JUDGMENT D.

KOVATCH , J _____________________________________________________________________________ BACKGROUND [ 1 ] The plaintiff took her sapphire engagement ring to the defendant to repair and size the band. The sapphire stone was heat treated. When the defendant used heat on the band, the stone was damaged. The plaintiff brought this action. The real issue relates to the assessment of the damages.

THE EVIDENCE [ 2 ] The plaintiff’s boyfriend purchased the sapphire ring from a jeweler in Missoula, Montana. She said the ring cost $5,000.00 US. However, there is no evidence to support that claim. The invoice that was entered as Exhibit P-1 appears to say the ring cost $2,885.00. There is nothing on the invoice or material that came with the ring to indicate that the stone was fire or heat treated or enhanced. Under cross-examination, the plaintiff admitted that for a significant period of time she maintained that there was no heat treatment or enhancement of the stone, and it was a true gem.

She indicated that prior to trial, she did learn that this stone, and indeed most sapphires, are heat treated. She testified that when she instructed the defendant to size the ring, there was no discussion between them as to whether the stone had been heat treated. [ 3 ] After the defendant did the work and the ring was returned to her, she noticed that there was a black spot in the middle of the stone.

Further investigation revealed, in fact it was admitted by the defendant that this black spot, or burning, occurred as a result of heat damage incurred when the defendant repaired the band. [ 4 ] The plaintiff demanded damages from the defendant. She said that she was claiming sufficient damages to replace the stone in the ring. However, it would appear to me that she was seeking sufficient damages to replace the entire ring by the same jeweler from Missoula, Montana. [ 5 ] The defendant testified.

He testified that in approximately 40 years in this business, he never had a problem like this when dealing with a true or genuine gem. The true or genuine gem is not damaged by heat on the band. (This appears to be somewhat disputed in some of the literature that was filed with the Court.) He testified that according to the jewelry industry code of ethics and requirements, that an invoice for jewelry is supposed to disclose if there is any treatment or enhancement of the stone.

There was no indication of any enhancement of this stone, so he assumed there was no such enhancement, and did not take any precautions he might have otherwise taken. He did agree that it was his work that caused damage to the stone. [ 6 ] He testified that he wanted to work with the plaintiff to address this situation, and wanted to refer the matter to the organization that deals with jewelers and jewelry dealers. However, the plaintiff became angry and belligerent and refused to work with him in that regard. Rather, she simply demanded that he bear the full and entire cost of replacement.

He was not prepared to do that. [ 7 ] He agreed that the stone in this ring is now practically worthless, and the stone must be replaced. He testified that the retail cost of a replacement stone of the same size and quality would be approximately $2,000.00. The wholesale cost of such a stone would be approximately $1,000.00. ANALYSIS AND DECISION [ 8 ] As mentioned above, the defendant admits some liability. The real issue here is what are the plaintiff’s damages? As in any civil action, the plaintiff bears the burden of proof. She has presented no evidence to quantify or prove her damages.

In her closing argument, she indicated that the defendant should pay to replace the stone. If he breaks or ruins it, then he should pay to fix or replace it. She did file a handwritten letter from Mr. Adar, the Montana jewelry dealer from which the original ring was purchased. This letter indicates that it would cost approximately $2,500.00 US to replace the sapphire. [ 9 ] The plaintiff’s view of the situation and her damages simply do not represent the law.

For a number of reasons, I cannot and would not award damages in the amount of $2,500.00 US. [ 10 ] Firstly, in completing the questionnaire for the commencement of the action, the plaintiff stated that the amount she was claiming was: “$2,000.00 US for replacement of exact stone plus insurance to mail ring to the US.” A claim for $2,000.00 US was then prepared, executed and issued. No attempt was ever made to amend the claim. In my view, I cannot award damages in an amount greater than what is claimed in the action.

[ 11 ] Secondly, the plaintiff is not entitled to “replacement at whatever cost”. The defendant is not obligated to pay sufficient funds to allow the plaintiff to return to the US to purchase from the same US dealer a ring that she regards as equivalent at full retail price. The plaintiff has suffered financial loss by reason of the damage to this sapphire. She is entitled to receive the fair market value of the damaged stone, and the reasonable cost to reset that stone on the band.

The plaintiff has not led the slightest evidence as to the fair market value of this ring in Saskatchewan, the fair market value of a used ring like this in Saskatchewan, the fair market value of the band or the stone in this ring. I am left to speculate regarding these numbers. [ 12 ] I do have a little bit of such evidence from the defendant. As mentioned above, he indicated the retail cost of a replacement stone would be approximately $2,000.00, and the wholesale cost would be approximately $1,000.00. For a number of reasons, these numbers sound somewhat reasonable to me.

Firstly, the invoice on file indicates that the initial cost of the ring was $2,885.00. It would seem likely that the major portion of this cost was the cost of the stone. However, a portion of that cost would also be related to the band. The band remains and is not damaged. Secondly, almost all retail goods are significantly depreciated in value as soon as they are removed from the store.

People simply do not pay the same amount to an independent individual selling a used item, as they would pay to a store selling that item new. [ 13 ] Also, I am of the view that the plaintiff must bear some degree of responsibility for not being in a position to advise that the stone was heat treated or enhanced. [ 14 ] Given all of these factors, I am of the view that damages in the amount of $1,500.00 would be fair.

The plaintiff shall have judgment in the amount of $1,500.00, plus costs in the amount of $20.00 for issuance of the claim. [ 15 ] Dated at the City of Moose Jaw, Saskatchewan this 31 st day of March 2015. D. Kovatch, J