Belanger v. 2 Burley Men Moving Ltd., 2021 BCPC 270

Citation: Belanger v. 2 Burley Men Moving Ltd. 2021 BCPC 270 Date: 20211116 File No: 7490 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: BONNY JEAN BELANGER CLAIMANT AND: 2 BURLEY MEN MOVING LTD DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: Ms. Belanger Appearing for the Defendant: Ms. Alvarez Place of Hearing: Colwood , B.C. Date of Hearing: November 5, 2021

Date of Judgment: November 16, 2021 The Dispute [ 1 ] Ms. Belanger retained the Defendant to move some of her furniture, including a leather couch and loveseat, from a storage locker to an apartment which she had rented. She made arrangements for the move in a telephone conversation with the Defendant’s office manager, Mr. Burley. The date of the telephone conversation is not in evidence. However, the furniture was picked up from the storage locker and delivered to the apartment on February 14, 2020, so the telephone conversation must have been some days before that date. [ 2 ] Ms.

Belanger says, and the Defendant does not dispute, that the couch and loveseat were in like-new condition when the Defendant’s staff picked them up at the storage locker. [ 3 ] Ms. Belanger was present when the couch and loveseat were unloaded at the apartment building. She observed the efforts of the Defendant’s staff to get them into the apartment. Their initial attempt consisted of holding the couch horizontal and trying to turn it through the doorway. The couch was too long for that manoeuvre, so the Defendant’s staff tried a number of alternatives before they succeeded in getting it through the door.

In the course of those efforts, the door frame was damaged and several holes and tears were caused to the leather cover of the couch. [ 4 ] Ms. Belanger’s landlord has charged her $55 for the damage to the door frame. The Defendant admits liability for that amount, but denies liability for the damage to the couch, relying upon an alleged limitation of liability clause in the contract between the Defendant and Ms. Belanger. In the alternative, the Defendant says that Ms. Belanger could have had the couch repaired or recovered at a cost less than the full value of the couch, as claimed by Ms. Belanger.

The Contract [ 5 ] Ms. Belanger says that the only contractual document which she received before the couch was delivered to her apartment (and damaged during delivery) was one entitled “Appointment Confirmation”, which was sent to her by the Defendant via e-mail after her telephone conversation with Mr. Burley. [ 6 ] Under the heading “Our Coverage Does Not Apply To”, the “Appointment Confirmation” lists a number of types of items (e.g. “Press Board Furniture”). Couches are not among the items listed.

Under the heading “Protection Plan Coverage and Payment”, it says: Any Damage or loss sustained during move and identified at that time does not release client from obligation to pay all related charges for move, products, and services at time of completion. 2 Burley Men reserve the right to ask for and then receive payment in full before move is completed. Under the heading “Submitting a Claim”, the document says: A $50 deductible charge/payment applies to all claims. All claims must be submitted in writing within 30-days of move completion. [ 7 ] Mr.

Burley says that the Defendant’s computer system is programmed to send the customer a second document with the “Appointment Confirmation”, and that he believes that the second document would have been sent to Ms. Belanger with the “Appointment Confirmation”. The second document is entitled “Client Disclaimer”. It is an appalling example of poor legal drafting. Ms. Belanger says that she did not receive a copy of the “Client Disclaimer” until the couch was in her apartment, having been damaged as it was pushed through the door.

She says that the Defendant’s employees handed her the document and asked her to sign it. I accept Ms. Belanger’s evidence on the point, because: a. Mr. Burley does not say, and cannot say, that he sent her a copy of the document. He can only say that the Defendant’s computer was programmed to send her a copy with the “Appointment Confirmation”; b. I found Ms. Belanger to be an honest witness, with an accurate memory of the events in issue; c.

The space for the client’s signature on the “Client Disclaimer” appears immediately below a paragraph in which the client is asked to acknowledge that the goods have been successfully delivered in good condition. Obviously, the client could not be asked to sign an acknowledgement to that effect until after the contract had been performed by delivery of the goods.

It appears to be a document intended by the draftsman to be submitted to, and signed by, the client after the contract had been fully performed by the Defendant. [ 8 ] The second page of the “Client Disclaimer” bears the heading “Protection Plans – Terms & Conditions”. As will become apparent, the heading is misleading. The provisions which follow have nothing to do with protection of the customer’s goods or interests. Rather, when deciphered, they are designed to shield the Defendant from customers’ claims.

Under the heading appears the sentence: We do not and can not sell insurance Immediately below that, the client is offered three options, one at $0.60 per pound, the second at $2.00 per pound and the third at $4.00 per pound, each with a $50 deductible. The document provides that the first option is free, the second option is available at a price of $94.50 and the third at a price of $174.95. The document does not expressly provide that these are intended to be limits on the amount of compensation payable by the Defendant in the event of damage to the objects to be moved.

One can draw that inference only after a careful reading of the document and some thought about what the document was intended to mean. There is a space beside each option for the customer’s signature. Ms. Belanger did not sign in any of those spaces. Below that is a list of items to which the “Protection

Plan” does not apply. That list is the same as the list on the “Appointment Confirmation”. [ 9 ] The following provisions appear under the heading “Payment and Protection Plan”: The protection plans available are based on price per lbs. and will not exceed their maximums. I understand that any damage to my belongings or any surrounding structures resulting from the move are the sole responsibility of the undersigned customer. If I do not choose a plan, the carriers ( sic ) liability is $0.60 per lb./item or $60.00 maximum repair per 100 lbs.

Your signature acknowledges that services offered were performed satisfactorily and the shipment has been received in good condition unless noted on this bill. Below that appear Ms. Belanger’s signature and the date February 14, 2020. The heading “Payment and Protection Plan” is misleading. The objective of the provision is to limit the Defendant’s common-law obligations. [ 10 ] Ms. Alvarez, who appeared as the Defendant’s representative at the trial, said that I should construe the “Client Disclaimer” to mean that, in the event of damage to Ms.

Belanger’s furniture, the liability of the Defendant would be limited to $0.60 per pound, not to exceed $60 in total, unless Ms. Belanger chose and paid for one of the second and third options. Because Ms. Belanger did not choose one of the second and third options, she says that the Defendant’s liability is limited to $60.

Legal Principles [ 11 ] A limitation of liability clause is not effective or enforceable unless it is brought to the attention of the party whose rights it purports to limit at the time that the contract is made: Apps v Grouse Mountain Resorts Ltd 2020 BCCA 78 ; [2020] BCJ No. 324 ; 33 BCLR (6 th ) 342 ; 445 DLR (4 th ) 615 @ paragraphs 41 – 44. [ 12 ] It might be argued that the “Client Disclaimer” sets out the terms of an agreed variation to the oral agreement made between Ms. Belanger and Mr. Burley.

Until recently, such an argument would have been precluded by the rule that an agreement to vary a contract is enforceable only if new consideration was provided by the party seeking to rely on the variation at the time the variation was agreed: Still v Myrick [1809] EWHC KB J58. However, that rule has recently changed: Rosas v Toca [2018] BCJ No. 938 ; 2018 BCCA 191 ; 9 BCLR (6 th ) 293; 422 DLR (4 th ) 351.

At paragraph 183 of that decision, Chief Justice Bauman said: When parties to a contract agree to vary its terms, the variation should be enforceable without fresh consideration, absent duress, unconscionability, or other public policy concerns, which would render an otherwise valid term unenforceable. A variation supported by valid consideration may continue to be enforceable for that reason, but a lack of fresh consideration will no longer be determinative. [ 13 ] The present case differs from Rosas and the authorities referred to in that decision.

In those cases, the contract remained wholly or partly executory when the amendment was agreed. The parties were considering amendments to their future rights and obligations under the contract. In this case, the contract was fully executed before Ms. Belanger was asked to sign the “Client Disclaimer”.

It seems to me that such a difference in circumstances should mandate the application of different principles. [ 14 ] Absent an effective limitation of liability clause, the Defendant was subject to the duties of a bailee for reward, as described in Emberley v Capital Crane Ltd [2017] NJ No. 146 , and would carry the onus of proving that any damage to the furniture was not caused by the Defendant’s negligence. That onus is undischarged in this case. On the contrary, Ms.

Belanger’s uncontradicted evidence demonstrates the remarkable carelessness of the Defendant’s employees, which caused the damage complained of. [ 15 ] The Defendant seeks to escape liability for that damage by relying on a contractual limit of liability to which it says Ms. Belanger agreed after the damage was done. Such a contractual term was described by Lord Denning as: … so wide and so destructive of rights that the Court should not hold any man bound by it unless it is drawn to his attention in the most explicit way. It is an instance of what I had in mind in J. Spurling Ltd. v.

Brads haw, [1956] 1 W.L.R., 466 . In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.” That passage was quoted with approval in Apps @ paragraph 30 . [ 16 ] It was not suggested to Ms. Belanger during her cross-examination that, by signing the “Client Disclaimer”, she understood that she agreed to accept a $60 limit on the compensation which she could recover for the damage to the couch (which had already occurred). It is reasonable to wonder why anyone would do that. The document is anything but clear.

It is capable of bearing the construction urged by Ms. Alvarez, but it would take a sophisticated reader some time to discern such an intention. Ms. Belanger signed it at the request of the Defendant’s employees in a moment of some distress. Lord Denning’s “red hand” was remarkably absent. [ 17 ] Prior to the decision in Rosas , the limitation of liability provision would have been unenforceable for want of fresh consideration. Applying Apps and Rosas together, I conclude that the limitation does not apply to Ms. Belanger’s claim.

This is not a case, like Rosas , in which there was a discussion between the parties with a view to renegotiation of an ongoing business relationship. Rather, it is a case in which one party attempted to unilaterally impose an additional term of the contract without discussion of the new term and without the consent of the other party. Mitigation [ 18 ] Ms. Alvarez submits that it is not necessary to replace the couch, and that Ms.

Belanger could and should have had it repaired at a cost less than the replacement cost. [ 19 ] After the couch was delivered and the damage discovered, there ensued an exchange of correspondence between Ms. Belanger and Ms. Alvarez. In an e-mail dated February 23, 2020, Ms. Alvarez wrote:

Unfortunately, the damage is far too extreme to repair There is no other evidence of the possibility of repair, or of the repair cost if repair is possible. [20] The governing principle was stated in Southcott Estates Inc v Toronto Catholic School Board 2012 SCC 51 , [2012] 2 SCR 675; [2012] SCJ No. 51; 351 DLR (4th) 476 @ paragraph 476: Where it is alleged that the plaintiff has failed to mitigate, the burden of proof is on the defendant, who needs to prove both that theplaintiff has failed to make reasonable efforts to mitigate and that mitigation was possible.

That onus is undischarged in this case, with the consequence that Ms. Belanger is entitled to recover the full replacement cost of thecouch. Ms. Alvarez did not challenge Ms. Belanger’s estimate of that cost at $3700. The “Deductible” [21] Provision for a $50 “deductible” is made in the “Appointment Confirmation” (see paragraph 6, above). There is no evidence thatthat provision was discussed in the telephone conversation between Ms. Belanger and Mr. Burley. Ms. Belanger was not asked about itduring her cross-examination. Ms.

Belanger acknowledges receipt of the “Appointment Confirmation”, but only after the contract wasmade during the telephone confirmation. The deductible provision is unenforceable for the same reason as the limitation of liabilityprovision, discussed above. Disposition [22] Ms. Belanger will have judgment for $3700 (the value of the couch), plus $55 (the damage to the door frame), plus interest at theRegistrar’s rate pursuant to the Court Order Interest Act RSBC 1996, c 79 from February 14, 2020 to November 10, 2021 and servicefees of $20. November 12, 2021 ____________________________ T. Gouge, PCJ