Gina McNamara-Tysick - v. -, 2015 SKPC 114

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 114 Date: July 27, 2015 File: SC#118 of 2014 Location: Saskatoon _____________________________________________________________________________ Between: Gina McNamara-Tysick - and - Troy Transportation Moving and Storage Service Inc. Self For the Plaintiff Kyle Jabs For the Defendant McDougall Gauley _____________________________________________________________________________ JUDGMENT R.D.

JACKSON , J _____________________________________________________________________________ I INTRODUCTION [ 1 ] The plaintiff brings suit against the defendant claiming $46,213.00 in damages which she has reduced to $20,000.00 as per this Court’s limit of monetary jurisdiction. The plaintiff’s claim arises from her move by the defendant from St. Catharine’s, Ontario to St. Denis, Saskatchewan, specifically that she was overcharged and that many of her belongings were missing or damaged.

[ 2 ] The contractual relationship between the parties is based upon the moving contract (the contract) entered into by the parties on May 30, 2012, Exhibit D-7. The contract is made up in a three-part form consisting of white (original), yellow and pink carbon copies. Also accompanying the contract is a two-part inventory list consisting of white (original) and yellow (carbon). [ 3 ] Upon pick-up of the shipment, the customer signs on the original and then is provided the bottom pink carbon copy.

Upon delivery, the customer then signs the original at the bottom acknowledging that the shipment was received in good condition.

The yellow carbon is then provided to the customer. [ 4 ] Similarly, the inventory lists are prepared in duplicate (in this case some six pages) at the time of pick-up by listing the goods that are loaded by number and then affixing corresponding labels to the items. [ 5 ] At the top of the inventory lists is a category headed “Condition Symbols” whereby numbers 1 through 28 are utilised to provide various descriptions of the items such as 1 - missing, 2 - broken, 3 - chipped, 4 - dented, 5 - gouged, 6 - scratched, 7 - owner’s risk, 8 - owners packed . . . and so on.

The condition of the goods is then noted as they are loaded. [ 6 ] In this case, the majority of items bear the codes 6 - 3 - 4 (scratched, chipped, dented) or 7 - 8 - 26 (owner’s risk, owners packed, unknown condition). Each page of the inventory list bears two signature boxes at the bottom, “At Origin” and “At Destination”, whereby the customer signs and acknowledges the list to be complete and accurate when picked up and similarly when delivered. [ 7 ] The evidence disclosed that the original contract was signed by the plaintiff both at the time of pick-up and at time of delivery.

The inventory lists also bear the plaintiff’s signature at the bottom of each page at the time of pick-up, however, no corresponding signature on these lists are evident at time of delivery. [ 8 ] Regarding her signatures on the contract and inventory lists, although acknowledging the signatures as her own, Ms. Tysick denied every knowingly signing either of these documents and insisted repeatedly that somehow the originals had been “slipped under” other documents in some surreptitious manner by the driver of the moving truck.

This testimony was strange to say the least since the originals are signed in ink and appear to have produced replica carbon copies. Further, Ms. Tysick’s own witness, Joy Gorman, confirmed in her evidence that Ms. Tysick read the contract over carefully on the moving day for a few minutes prior to executing it. [ 9 ] The Court is satisfied, on the evidence, that the contact and inventory lists, as noted, were executed by the Plaintiff on the dates indicated.

II DETERMINATION Overcharging [ 10 ] The plaintiff claims to have been significantly overcharged for her move from $2,390.00 originally quoted, to $8,263.00, which she was ultimately charged. [ 11 ] The evidence disclosed that shipping rates are based principally on the weight of the load to be shipped. To obtain a quote, the customer is required to provide a weight estimate according to the quantity and size of the goods. [ 12 ] A website known as Irelocate.com is available whereby information is submitted by potential customers in this regard.

Thereafter, Irelocate.com passes these leads along to prospective moving companies for a fee. The movers then send out information to such potential customers outlining their services. Although the plaintiff denied using this method and providing such information, e- mails entered into evidence as well as the testimony of Naomi Dell, sales representative at Troy Transportation (Troy) who initially dealt with Ms. Tysick, confirmed that this was the method employed.

Based upon information provided by the plaintiff, Troy ultimately replied with a quote of $2,390.00 subject to actual weight numbers being established upon the moving date. Thereafter, it was up to the plaintiff to reply, if interested. [ 13 ] On April 24, 2012 the plaintiff e-mailed Troy, followed by subsequent telephone calls between Naomi Dell and Ms. Tysick. Ms.

Dell testified that moving quotes are based upon client information always subject to actual verification on moving day which she apprised the plaintiff of and which is clearly stated on the e-mail as well as the moving contract itself. [ 14 ] The plaintiff testified she engaged another moving professional to do a walk through prior to finally settling on the services of Troy. This individual estimated her total goods to be moved to be approximately 5,000 pounds.

Apart from the hearsay difficulty such evidence entails, the Court is satisfied that the plaintiff was made well aware in any event that her final bill would be based upon actual weight and that any estimate given by Troy could only rely on accuracy of information as provided by her. [ 15 ] As far as determining the appropriate weight of the load is concerned, Paragraph 13 on the reverse side of the contract states: 13.

WEIGHT IT SHALL BE THE RESPONSIBILITY OF THE ORIGINAL CONTRACTING CARRIER OR HIS AGENT TO SHOW THE CORRECT TARE, GROSS, AND NET WEIGHTS ON THE BILL OF LADING BY USE OF CERTIFIED PUBLIC SCALE, AND ATTACH THE WEIGH SCALE TICKET TO HIS COPY OF THE BILL OF LADING.

IN CASES WHERE CERTIFIED PUBLIC SCALES ARE NOT AVAILABLE AT ORIGIN OR AT ANY POINT WITHIN A RADIUS OF 16 KILOMETERS THEREOF, A CONSTRUCTIVE WEIGHT BASED ON 112 KILOGRAMS PER CUBIC METER OF PROPERTY LOADED VAN SHALL BE USED. [ 16 ] The Court interprets that the rationale for utilising a “certified public scale” is undoubtedly to protect the interests of the customer by providing an arms length objectively verifiable means of establishing the weight load. The fact that any scale employed is “certified” is important, however, it must also be a public scale in order to achieve the desired result of impartiality.

Unfortunately, in this instance, the goods were weighed at the defendant’s place of business, rather than a public weigh scale facility. No evidence was in fact tendered as to the availability of such a scale or its location, if available, in relation to the defendant’s premises. [ 17 ] Also, somewhat troubling was the evidence of the plaintiff and her witness, Joy Gorman, that certain goods were already on the truck when it arrived at the plaintiff’s residence on moving day. Both the plaintiff and Ms. Gorman were advised that these items belonged to an employee of Troy who was also moving that day.

Elena Balduk, President of Troy Transportation and Moving, testified as to the procedures and practices utilised by her company. She confirmed that on occasion, the company did permit its employees to utilise company trucks for their personal moves.

Further, the driver was not called by the defendant so the Court was left only with the plaintiff’s evidence in this regard. [ 18 ] Given the potential for inaccuracy in the recorded weight by virtue of some goods not belonging to the plaintiff, but more importantly, since a public weigh scale was not utilised as per the terms of the contract, the Court must endeavour to determine a constructive weight based upon the formula as provided for in Clause 13. [ 19 ] The defendant testified that the length of the truck used for the move was 24 feet (7.27 meters approximately).

Upon viewing the diagram depiction of the type of truck utilised at pick up, Exhibit P-3, the Court estimates that the height of the truck box would be roughly 8 feet (2.42 meters) and the width again roughly 8 feet (2.42 meters). Multiplying these numbers together the Court arrives at 42.57 cubic meters for the capacity of the truck used in the move. [1] Applying the formula, the Court multiplies this number by 112 kilograms to arrive at 4,768.5 kilograms in total for the weight of the goods. To arrive at a weight in pounds, this number is then multiplied by 2.2 for a total of 10,490.73 pounds.

Based upon the contract calculation of $.50 per pound, this would amount to $5,245.00

for the moving fee. [ 20 ] The plaintiff was charged $7,060.00 based upon a recorded weight of 14,120 pounds and accordingly is entitled to a refund from the defendant in the amount of $1,815.00 ($7,060.00 minus the calculated amount of $5,245.00). Damaged items [ 21 ] The plaintiff stated numerous times that the defendant had destroyed and ruined everything that she owned and that all of her furniture was new or nearly new.

Unfortunately, the evidence fell far short of establishing either. [ 22 ] Photographs entered into evidence by the plaintiff were difficult, if not impossible, to distinguish anything other than minor nicks or dents. For example, a small dent could be seen on the back of the tv, which was not visible from the front and did not affect its ability to work properly according to the plaintiff.

Another example was of a “completely smashed table” which in actuality was a small wood brace on the underside of a leg that appears to be something that could be easily remedied. [ 23 ] Several photographs of broken dishes, pictures, lampshades and so forth were tendered. However, these items were contained in boxes packed by the plaintiff according to her own evidence.

Paragraph 3 under Terms and Conditions on the face of the moving contract and Paragraph 5e) on the reverse “Exceptions from Liability”, clearly exempts Troy from any liability regarding items packed by the customer. [2] [ 24 ] Further, the inventory lists signed by the plaintiff at time of pick-up show that, almost without exception, the items loaded that were not in boxes bear the condition codes of 6 - 3 -4 being, scratched, chipped and dented.

In such circumstances, the Court is unable to conclude that the damage to such items would have occurred during the move, particularly since the complaints were largely of that variety i.e. scratched, chipped and dented. [ 25 ] The plaintiff testified that apart from her possessions being damaged in transit, other damage occurred by the manner in which the goods were being loaded and unloaded. One specific example was the air compressor, which the plaintiff as well as Ms. Gorman, who was present during the loading process, both testified was dropped and damaged prior to loading.

Another item was the antique desk which the plaintiff testified was forced through a too narrow door space when it was unloaded in St. Denis. The photographs of the broken items set out in paragraph 21, above, however demonstrate that very little or no packing material was utilised, which, according to the moving contract was the responsibility of the plaintiff to provide.

Accordingly in these circumstances, it cannot be determined that the damages would have occurred in transit by reason of deficient packing, or at the time of unloading. [ 26 ] The damage to the air compressor, which was dropped, is a compensable loss for which the Court assesses the sum of $200.00. Further, the damage to the desk appears consistent with the explanation of the plaintiff, for which the Court awards $200.00 for its repair and restoration. On this point, the plaintiff testified it was a total loss, however, such does not appear to be the case from the photographic evidence.

Nor was any satisfactory evidence tendered concerning reasonable repair costs of the air compressor or desk, and accordingly, the Court is left to ascribe somewhat arbitrary amounts in this regard. [ 27 ] For the reasons stated, no other amounts are awarded to the plaintiff for any of the other damaged property, as claimed. Missing Items [ 28 ] The plaintiff claims that a large number of items were missing from the shipment consisting of thousands of dollars in losses (Exhibits D-31 and D-32). The list is extensive, comprised of personal memorabilia, clothing and household items.

[ 29 ] No reference is made by the plaintiff however as to which boxes, according to the inventory list, were not delivered. The plaintiff in fact denied that any numbering and corresponding labels were used in this regard. However, photographs of boxes of items delivered appear to show white labels on boxes matching the description of Ms. Balduk of such forms of labelling utilised. According to Ms. Balduk, the customer would be responsible to ensure that the delivered items matched the original inventory lists.

Indeed, if not done at this time, it would be nearly impossible for the mover to subsequently verify the accuracy of any claim for missing goods. [ 30 ] It is also noted that although the inventory lists were not signed by the plaintiff verifying delivery, she did sign the moving contract once the goods were unloaded under the heading “DELIVERY ACKNOWLEDGMENT, SHIPMENT WAS RECEIVED IN GOOD CONDITION EXCEPT AS NOTED ON INVENTORY, AND SERVICES ORDERED WERE PERFORMED”. [ 31 ] On this latter point, the plaintiff testified that she was coerced into signing the contract.

This explanation is specifically rejected by the Court (see paras. 34 - 38, infra ). [ 32 ] Further, the items claimed missing were in boxes packed by the plaintiff rather than the defendant. Paragraph 5(

e) of the moving contract, as indicated, specifically exempts liability for any such items, presumably since the mover would have no way of ascertaining or verifying contents of such packed boxes. [ 33 ] One way to ensure protection on the part of the customer would be to take out added insurance specifying the actual property and documenting its value.

The plaintiff declined to obtain such insurance, however, as evidenced on the moving contract. [ 34 ] Finally, even if the missing items were not packed by the plaintiff, the defendant’s liability (absent any added insurance) would be limited according to paragraph 1 under TERMS AND CONDITIONS on the face of the contract, and paragraph 9 on the reverse, of the moving contract to $.60/lb of missing items. [3] In the present case, no evidence was presented by the plaintiff even when specifically queried by the Court on this point or by defence counsel in cross-examination, as to an estimation of the weight of any items declared missing. [ 35 ] For all of these reasons, no damages can be awarded for any items claimed missing.

Coercion to accept and sign for goods at point of delivery [ 36 ] The plaintiff maintained that she was forced or coerced into accepting and signing for her goods at the point of delivery in St. Denis.

It is certainly clear on the evidence that the loading process devolved into a complicated drawn out affair lasting several hours more than necessary and involving the RCMP’s attendance at the behest of the plaintiff. [ 37 ] The course of what transpired appears to have been set in motion by the plaintiff when she attempted to make payment by way of a personal cheque, which method was declined by the driver in accordance with the clause on the face of the contract headed “ PAYMENT TERMS - DRIVER MUST COLLECT CERTIFIED CHEQUE MONEY ORDER OR CASH BEFORE TRUCK IS UNLOADED . . .”. [ 38 ] The plaintiff testified the truck had already been unloaded and that the driver was threatening to load it all back up and return it to Ontario.

This, like a good deal of the plaintiff’s other explanations, did not make any sense to the Court. Rather, as testified to by Elena Balduk, the Court is satisfied that no unloading would have occurred until the issue of payment had been resolved. This, of course, would be the only manner in which payment could be guaranteed while the mover still had control of the goods. As related by Ms. Balduk, if such type of payment would not be forthcoming, the mover would then have the ability to store and distrain the goods until satisfactory payment was arranged, or ultimately dispose of the items to achieve payment.

[ 39 ] It was only after several hours of telephone negotiations with the defendant company and trips back and forth to nearby Saskatoon to obtain funds and secure payment assistance from relatives that the truck could actually be unloaded. During the process Ms. Tysick took it upon herself to contact local RCMP officers to attend because, in her mind, she was being defrauded by the moving company.

As such, two officers attended including Constable Faubert who was called by the plaintiff at trial to verify that the driver was coercing her to sign for the load and that it was the RCMP who instructed her to sign the contract. Constable Faubert gave no such evidence at trial, stating rather, that they attended to keep the peace, that no fraud or coercion appeared to be happening, and that if Ms.

Tysick was unhappy she could always pursue her civil remedies. [ 40 ] It is indeed unfortunate that the completion of the trial had to be delayed several months to permit Constable Faubert to attend, as her evidence in no way whatsoever supported the allegations made by the plaintiff as to the circumstances which unfolded on this date. In all respects, the Court finds that the plaintiff was the author of her own misfortune for the delay or inconvenience suffered regarding the unloading process.

It was also at this time that the plaintiff insisted that the driver had unknowingly slipped the original moving contract under the yellow copy of the contract which then somehow produced her original inked signature on the white copy of the agreement. As discussed, this evidence is totally rejected by the Court. Ancillary Issues [ 41 ] Two further issues came about at the conclusion of the trial which bear comment.

The first related to the plaintiff’s attempt to introduce “evidence” of online testimonials from “hundreds of individuals” who apparently were unhappy with the defendant company’s services or who would verify that the company was involved in underhanded or illegal activities. According to the plaintiff, the defendant company had to be stopped from carrying on its business or ruining other potential customers lives.

The Court denied the plaintiff the opportunity to raise this however as it was clearly hearsay and not relevant to the issues at hand before the Court on this trial. [ 42 ] During argument, the plaintiff also produced a sheaf of purported receipts for missing and damaged items. The Court declined to accept same for the following reasons:

a) they were not tendered properly as evidence in court;

b) throughout the plaintiff’s evidence in examination-in-chief and cross-examination the plaintiff continually asserted that she had no receipts for any of her items. In fact, the Court finally intervened during cross-examination to advise that no further questions were required concerning specific receipts since the plaintiff had stated over and again that she had no such receipts;

c) the plaintiff was given the opportunity prior to closing her case to retake the stand to clarify certain matters, during which evidence, no mention was made of having possession now of any receipts;

d) even if receipts had been available and presented at the appropriate time during the trial proceedings, the plaintiff would have either been unable to advance a claim of loss due to the contract exemptions or alternatively, because no insurance had been taken out, she would have been limited to a claim based on the weight of the goods rather than with respect to any acquisition cost. III CONCLUSION [ 43 ] For the reasons set out herein, the plaintiff is entitled to judgment in the amount of $2,215.00 plus pre-judgment interest on that amount from September 1, 2012 to the date of judgment.

She is also awarded her costs of issuing the claim of $100.00 and service fees in the amount of$20.00. No costs are awarded in regard to the subpoena and attendance of Constable Faubert.

____________________ R.D. Jackson, J [1] No reduction in this calculation is made for the goods that belong to the employee since quantity description was vague and as well, there was no clear evidence that such goods would have still been on the truck when the weight was recorded. [2] 3. ITEMS PACKED BY THE OWNER WILL NOT BE COVERED FOR DAMAGES . . . 5 EXCEPTIONS FROM LIABILITY

e) CARRIER IS NOT RESPONSIBLE FOR BOXES PACKED BY OWNER . . . [3] 1. If the shipper has not declared a value, the liability of the carrier is $0.60 for all losses . . . 9. VALUATION 2) The actual loss or damage not exceeding sixty (60) cents per pound of the weight of any lost or damaged

article when the shipper has released the shipment to carrier, in writing, with liability limited to sixty (60) cents pound per article.