Daniel Watson & Allison Jurchuk (Watson) - v. -, 2014 SKPC 014

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 014 Date: January 24, 2014 File: 15/13 Location: Estevan _____________________________________________________________________________ Between: Daniel Watson & Allison Jurchuk (Watson) - and - Vega Line Moving & Storage Services Self Represented For the Plaintiff Self Represented For the Defendant _____________________________________________________________________________ JUDGMENT K. BAZIN, J _____________________________________________________________________________ [ 1 ] The Watson’s hired Vega Line to move their property from Ontario to Estevan, Saskatchewan. The contract was signed August 24, 2012.

[ 2 ] The first issue is what was the contract between the parties? Both agree that there was a contract to move items from Ontario to Estevan with a flexible delivery date. There is discussion as to the date, but the evidence is clear that it would be delivered late September or early October, 2012. It was actually delivered to storage in Estevan on September 18, 2012. [ 3 ] Exhibit P4, which is filed, was the only contracting document put forward. It is of note that it is not signed by Vega Line, the moving company who prepared the contract. It is also noted that Ms.

Watson did not sign the contract excepting the terms and conditions, but she simply signed warranting that there were no dangerous goods and that they own the goods. The clause she signed also acknowledges that there is a limitation on the carrier’s liability by a term or condition of carriage contained in the agreement. However, no one for Vega Line signed the alleged contract, not even the driver of the truck.

The contract prepared by Vega Line has numerous locations for parties to sign and the moving company, as well, consents it could be signed by agents being the truck drivers. [ 4 ] In addition, there are three out of four pages that were alleged to be an outline of the items transported and their condition upon pick up. This is signed by Ms. Watson acknowledging that the list is a true and a complete list of goods and their condition at the time of loading. It, however, is not acknowledged by the plaintiff or their agents. [ 5 ] As such, I find no written contract was entered into between the parties.

The parties ended up with what was a verbal contract. The terms of the contract where that they, Vega Line Enterprises Inc., would move the plaintiffs’ household goods from Ontario to Estevan, Saskatchewan in a commercially reasonable manner. [ 6 ] The plaintiffs declined insurance and packed the items themselves. From looking at the

schedule that outlines the condition of the property, where the items are listed, the goods are at the risk of the plaintiffs. I give this condition little weight as to an overall waiver of any liability of the defendant. It is a condition relating to the condition of property. Reading all the symbols of location and description I interpret item number seven, being owner’s risk, being specifically accredited to a specific item relating to its condition. From the

schedule filed, every item is marked as owner’s risk, owner packed and unknown condition. It is obvious that nobody put any attention to the condition of the property, as the property has in cases items that are not boxed and their condition could actually be determined if either party put their mind to it. [ 7 ] In addition, as the condition was not acknowledged by the defendant it is of little use to determine what the actual conditions of the items were. [ 8 ] Ms. Watson testified that she did pack all the items, and a number of items were to be bubble wrapped and packaged by the plaintiff.

No one who was physically at the loading of the property or its unloading in Toronto and the second loading and second unloading in Estevan testified for the defendants. Only the plaintiffs who were at the loading in Tillsonburg, Ontario, and who later physically examined the goods, and took pictures of the goods in Estevan testified. The defendants are relying on the wording of the contract to limit their liability. [ 9 ] I have no reason not to believe Ms.

Watson when she testified to specific items that were to be packaged by the plaintiff, being the mirror and the mattresses. [ 10 ] In her testimony and cross-examination she did acknowledge that she thought she had packed everything correctly and did not expect the goods to be handled the way they were handled as evidenced by the photographs that were taken at the Estevan storage facility. She marked items fragile that were fragile, but she did say that she did not individually wrap in packing paper the Angel Plates, which are a large part of the plaintiffs’ claim.

[ 11 ] Exhibit P5 is a series of emails whereby the goods with the weight of 6,570 lbs was to be delivered September 18-20, 2012. The Watsons’ replied that they had confirmed delivery for the 16th. They also advise they had booked off the 16th and they are unable to arrange to be off and in attendance from September 18 to the 20th. The email from Vega Line indicates that the credit card holder has to be present at the time of delivery if paying by credit card. Both sides testified that when discussing payment the Watsons could pay by credit card but Vega Line required that Mr.

Daniel Watson also had to sign an authorization. Daniel Watson testified that he was in the middle of a farmer’s field working in the oil industry and had no way to sign an authorization so that he could have given his credit card number for the defendants to use. Vega Line representatives testified that they also needed Mr. Watson to sign an authorization in addition to him giving his credit card number. [ 12 ] Exhibit D1 was filed, which was the form that was filled in online to Vega Line Moving.

It shows that the Watsons were flexible on the move date and they had put down August 25, 2012 and may need one month storage. The Watsons’ testified that after this email it was arranged to be September 16, 2012 and they did not need the one month storage. [ 13 ] Ms. Watson testified that she called Vega Line for the date and September 16 th was the delivery date verbally agreed upon. On September 18, 2012 she received a phone call from Vega Line’s truck driver that he would be in Estevan in the afternoon.

She called Sam at Vega Line to talk about options because they were advised that total payment must be on delivery. This could not be arranged for the 18 th as Mr. Watson was unable to sign and deliver the additional authorization requested by Vega Line. She then calls the morning of the 19th to arrange between September 24, 2012 and she says that Vega Line picked October 2, 2012 for delivery. [ 14 ] Allison Watson testified that on October 2, 2012 she was told by Sam at Vega Line that the shipment is coming.

Vega Line charges the Watson’s visa for the full amount being approximately $3,900. [ 15 ] Allison Watson called Sam around 1 o'clock as there was no delivery, and Sam tells her that he would get back to her, but there was no reply. Her third call to Sam and Vega Line is around 4 to 4:30 Pacific Time before their office closed and Sam told her he does not know where their load is but he would get back to her. [ 16 ] On October 3, 2012 Vega Line called back to the Watsons and advises them that their furniture is actually already in storage in Estevan and has been there since September 18, 2012.

This is the first time the Watsons learn that their property was already delivered and put in storage in Estevan. [ 17 ] The weeks that follow involve discussions between the parties as to the Watsons obtaining a local trucking company to move the items from storage to the Watson’s home. The Watsons hire Jay's Moving on November 13, 2012 and Daniel Watson testified that he and Jay's Moving were at the storage for about 5 to 6 hours, but Vega Line would not authorize the storage company to release the property to them.

Jay's Moving had to leave and charged the Watson’s only two hours minimum billing. [ 18 ] Nothing is resolved until February 20, 2013 when Vega Line’s truck was in Estevan to do the move but because of a blizzard they were unable to access the storage site. Daniel Watson testified that he would have had shoveled out the road so that the semi could get to the yard.

The storage company required advance notice to access the storage locker as it was snowed in and they did not have time to plough it out. [ 19 ] Solicitor Laurie Dunford testified that she acted for the Watsons in arranging release of their property from the storage locker. She testified that her understanding was that the Watsons would pay $1000 and it would be in settlement of any shipping bill, but the

Watsons would still have the option to bring any actions against Vega Line for any damaged or missing goods. Mr. Guzan testified for Vega Line that this was not the arrangement and that the $1000 payment was in full and final satisfaction of any issues arising out of the moving contract. He also testified that they, Vega Line, paid the Estevan Storage facility $1000 for storage of the goods for approximately five months. He stated this is why the $1000 was calculated which was basically to pay their out-of-pocket expenses for the storage. [ 20 ] From the testimony of Ms. Dunford as well as Mr.

Guzan, and the documents filed I'm not satisfied on a balance of probabilities that there actually was a settlement. This is in relation to the plaintiffs’ position that they settled the bill of $3,937.50 for the sum of $1000 and left open the option to sue for damages on the goods.

Equally, I do not find that there was a settlement agreement, as put forward by the defendants, that there was an agreement of $1000 payment and that was a full and final settlement of any claims by the Watsons that they had against the Defendants. [ 21 ] There simply was not a meeting of the minds in relation to any attempted settlements. This is clear from Exhibit P1 the letter from Ms. Dunford to Vega Line where she indicates that the $1000 is being paid to open up the locker. [ 22 ] Exhibit P2, which does not have the time that it was sent, reads like it was prior to Ms.

Dunford's February 12, 2013, 4:49 PM email, also indicates that they would reduce the bill to $1000 and would consider any damage reported on the goods if identified immediately. [ 23 ] Exhibit P3, which is correspondence from Vega Line to Liberty Law on March 1, 2012 does support the plaintiffs’ position that there was a settlement of $1000, but it is clear in the email that if Vega Line was going to entertain a claim for damaged goods they were not reducing the account to $1000.

Vega Line’s email indicated that if there was to be a reduced amount they were strict reporting periods, which were not complied with. [ 24 ] For all these reasons I find that there was no settlement agreement reached as there wasn’t a meeting of the minds as to what the settlement would be. Amount of the contract [ 25 ] The plaintiffs argue that the amount charged based on 6,570 lbs was inaccurate. The goods were never subsequently weighed. Daniel Watson stated that in previous moves their goods weighed less.

There is, however, no evidence to establish what the actual weight was other than Exhibit P5 which is an email from Vega Line indicating that the amount is $3,937.50. This is the agreed upon contract price as the parties had based the cost of moving on .50 cents/per lb. Missing items

[ 26 ] Firstly, there is a list of missing items put in by the plaintiffs, Exhibit P7, which were not contested by the defendants. The plaintiff stated that the prices they obtained were prices that Ms. Watson looked at online and they are new prices. The Burton Snow Board and bindings were just purchased 6 months previously and as such the plaintiffs will receive the cost of replacement. As to the other items there has been no evidence from either side as to the value of the goods other than the plaintiffs estimate based on internet research of new costs.

In addition, household items were in the 5 missing boxes of goods, which there is no further details as to what was in the boxes. There is a loss incurred and while the court is given no information as to actual value, I am estimating the value based on the costs given for the missing items on Exhibit P7. [ 27 ] The plaintiff is entitled to damages as follows: 1) snow board and bindings $970.00 2) tools of $305.95 at 33 % of claim being $100.96 3) five missing boxes claimed $500.00 at 33% of claim being $165.00 [ 28 ] As such the plaintiffs will have judgment as against the defendant for the lost goods.

This is based on the negligence of the defendant as the defendant gave no explanation what so ever as to where they ended up. The amount is $1,235.96. [ 29 ] In addition, I find that the defendant is responsible for the damage to the goods. The pictures and the testimony of the plaintiffs, which is by and large uncontested, is that the goods were handled in an improper manner as they arrived in Estevan in a significantly damaged condition. [ 30 ] This is evident from the pictures taken and testimony of the plaintiffs.

To a large part the goods were simply thrown into a storage unit that was not secure from the elements. The photographs as to how the glass lamps and mirrors are handled as well as the stacking of heavy metal objects on top of boxes marked fragile indicates the careless manner in which the goods were unloaded.

The damage could have occurred either when unloaded and reloaded in Toronto at the storage facility or when unloaded in Estevan, but at all times the goods were in the care of the defendant. [ 31 ] As such, I find that the defendant breached the verbal contract to move the plaintiffs’ goods in a commercially reasonable manner. [ 32 ] As a list of damaged items were identified in P7 and photographs had been submitted as to the items, the plaintiffs claim replacement cost as to items that they had to buy in light of the defendants not releasing their furniture. [ 33 ] I find that the value of the damaged items, after a reduction for their actual value from new is as follows: 1) All items other than the Angel collector plates and deep freeze total $2,292.87 at 33% totals $756.64. 2) As the Angel collector plates value is not supported by any information I am discounting the claim of $2,200 by 50% to take into consideration some liability of Ms.

Watson as to their packing considering there purported high value and as well a discount in light of

lack of supporting independent evidence as to the dollar amount. From this they will also be allowed at 33% for a total of $363.00. 3) As to the freezer, the damage to it was cosmetic and the plaintiffs threw it out. As such I am giving it a salvage value of $100.00.

The amount awarded is 33% of $859.99 -$100.00 for a total of $250.79. [ 34 ] The total for damaged goods is $1,370.43. [ 35 ] As to the items that had to be purchased so that the plaintiffs could live, as all their personal items were held by the defendant and would not be released until a resolution of all matters, I am discounting the amount claimed by 50% as the plaintiffs have the advantage of new purchased items, in replacement for used items, which will have a longer life of use.

The amount allowed for the necessaries purchased is 50% of $1988.00 being $944.00. [ 36 ] The plaintiffs dispute the weight of the items transported, while acknowledging that the parties agreed upon .50/cents per lb. Mr. Watson testified that in previous moves his weight of his household goods were closer to 5,000 lbs. The plaintiffs’ testified that the truck was weighed and the weight was 6,570 lbs. The plaintiffs did not have the opportunity to weigh the items when dropped off as they were not notified of the day when they were dropped off.

However, the plaintiffs could have weighed the items, if they chose to, when they unloaded the storage unit. As such I am not satisfied that the weight of the goods were anything other than the 6,570 lbs as put forward by the defendant. This puts the cost at $3,285.00. I will also accept that the costs as set out on page 1 of the unsigned contract of $390.00 would also have been known to the plaintiffs. As HST is illegible on the contract and not discussed in evidence I am not allowing a claim for HST.

The total cost for the move owed by the plaintiffs to the defendant is then set at $3,675.00. [ 37 ] The plaintiffs have paid $1,000 to the defendant and as such the amount owing by the plaintiff’s to the defendant is $2,675.00. [ 38 ] The defendant owes the plaintiffs by way of damages as follows: 1) lost goods $1,235.96 2) damaged goods $1,370.43 3) essentials replaced $944.00 4) costs $100.00 Total: $3,650.39 Offsetting what the parties owe to each other, the plaintiff will have judgment as against the defendant in the sum of $975.30. __________________________ K. Bazin, J