Anderson v. Kasey Beauty Inc., 2023 BCPC 166

Citation: Anderson v. Kasey Beauty Inc. 2023 BCPC 166 Date: 20230707 File No: C-19228 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA SMALL CLAIMS COURT BETWEEN: NANCI ANDERSON CLAIMANT AND: KASEY BEAUTY INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Appearing in person: N. Anderson Appearing for the Defendant: S. Nguyen Place of Hearing: Port Coquitlam , B.C. Date of Hearing: June 29, 2023 Date of Judgment: July 7, 2023

Introduction [ 1 ] This is a claim by Nanci L. Anderson against Kasey Beauty Inc. (“Kasey Beauty”) concerning a pair of diamond solitaire earrings and a gold necklace that Ms. Anderson left at the defendant’s place of business and which were subsequently lost. At issue is whether Kasey Beauty is liable for the loss and if so, the amount of damages due to the claimant. [ 2 ] Ms. Anderson also claims a refund of $514.50 for facial treatments that were never used. Kasey Beauty has not taken issue with this claim. Evidence [ 3 ] On behalf of the claimant, I heard evidence from Ms.

Anderson and Patrick Robinson [ 4 ] On behalf of the defendant, I heard evidence from Ada Au. Ms. Au’s mother is the owner of Kasey Beauty. [ 5 ] At the start of the trial, both parties intended to call as a witness Cindy Li. It was decided that Kasey Beauty would call Ms. Li as a witness allowing Ms. Anderson to then cross-examine her. However, when Ms. Li was called to the stand, she did not understand the question when she was asked if she would affirm to tell the truth. It was apparent Ms. Li did not understand English sufficiently to testify without the use of an interpreter.

Counsel for Kasey Beauty advised that he did not have instructions to retain an interpreter and so Kasey Beauty would not call Ms. Li as a witness. I then gave Ms. Anderson the option to call Ms. Li as a witness. If she chose to do so, Ms. Anderson would have to pay the costs for an interpreter. Ms. Anderson elected not to call Ms. Li as a witness. [ 6 ] The facts are not in dispute. [ 7 ] Before June 2021, Ms. Anderson had been going to Kasey Beauty for some 10 years for salon treatments. [ 8 ] On June 6, 2021, Ms. Anderson attended Kasey Beauty for a facial, which was scheduled for 10:00 a.m. to 11:30 a.m. Ms.

Anderson also had a pedicure appointment booked for noon at a nearby salon. [ 9 ] The facial service was provided by Cindy Li. Just before the facial, Ms. Anderson removed her earrings and necklace, placing them on the table beside her. When the facial was completed, Ms. Anderson got dressed but forgot to retrieve her earrings and necklace. [ 10 ] Ms. Anderson went on to purchase five additional treatments for $514.50. [ 11 ] After Ms. Anderson went to her pedicure appointment, Cindy Li phoned her. Ms. Li told Ms. Anderson that her earrings and necklace were still at Kasey Beauty. Ms.

Anderson could not immediately return to Kasey Beauty because of her pedicure appointment. [ 12 ] Ms. Anderson said she would come back to Kacey Beauty later that day to get the jewellery. However, Ms. Li was closing the salon for the day so Ms. Anderson could not return to get her jewellery. [ 13 ] Ms. Anderson told Ms. Li she had another appointment at Kasey Beauty in two weeks and she would retrieve the jewellery then. [ 14 ] Ms. Anderson did not return to Kacey Beauty before her next appointment. Due to the COVID-19 pandemic, Kacey Beauty was not open for drop-in clients and all visits had to be pre-booked.

Ms. Anderson also said she did not want to force Ms. Li to come to the business simply to allow Ms. Anderson to retrieve the jewellery. [ 15 ] Two weeks later, Ms. Anderson returned for her appointment. Ms. Li looked for the jewellery and could not find them. Ms. Anderson spoke to the owner of Kasey Jewellery, Rebecca Au, who suggested that Ms. Anderson make a claim on her home insurance. Ms. Anderson said the jewellery was not covered by her home insurance. She also felt she should not have to make a claim as it was not her fault for the loss. [ 16 ] Because of the dispute about the lost jewellery, Ms.

Anderson never used any of the pre-paid facial treatments. [ 17 ] As Ms. Li did not testify at trial, I do not have any evidence of what she may have done with the jewellery. I also do not have any evidence to contradict Ms. Anderson’s description of the incident or her discussion with Ms. Li. Burden of Proof [ 18 ] In any civil action, the burden of proof lies with the party asserting a claim to prove their case on the balance of probabilities: Vista Leadership Inc. v. Pilon , 2021 BCPC 320 at para. 10 . In this case, that burden falls on Ms. Anderson to satisfy me that she has proven her case.

In doing so I will look at all the evidence, whether it came from the claimant or the defendant. If Ms. Anderson fails to meet the burden, the claim will be dismissed. Analysis [ 19 ] Ms. Anderson submits that Kacey Beauty was acting as a bailee holding possession of her jewellery and that Kacey Beauty breached their duty of care when the jewellery was lost. [ 20 ] Kacey Beauty argues that it granted Ms. Anderson a licence to leave the jewellery at the premises and that no bailment was created.

[21] In the decision MacAulay v. Meise, 2020 BCPC 135, Judge Malfair defined a bailment as follows: [73] A person who possesses or stores items for another is often referred to as a “bailee.” A Bailee has a duty of care towards theitems they are storing for someone else, but those duties are different for bailees who are paid (“bailees for reward”), and bailees whoare not. Parties who agree to store someone’s goods but are not paid are “gratuitous bailees,” while parties who have someone else’sgoods on their property against their will are “involuntary bailees.” [22] The decision Robertson v. Stang, (BC SC) discussed the difference between bailment and licence:

(2) Bailment v. License [57] A bailment may be defined as the delivery or transfer of possession of a chattel with a specific mandate which requires it to bereturned or dealt with in a particular way by the bailee: Bata v. City Parking Canada Ltd. (1973), (ON CA), 2 O.R.(2d) 446 (C.A.); Palmer, supra. The distinction between a bailment and a license has been discussed in: Palmer, supra; Withers, EvansLtd. (Trustee of) v. Sterling Circuits Inc. (1988), (BC SC), 47 D.L.R. (4th) 614 (B.C.S.C.); and Zweeres v.Thibault, 23 A.2d 529 (Vt. S.C. 1942); … [62] N.E.

Palmer, in Bailment, 2nd ed (Sydney: The Law Book Company Ltd., 1991) at 382, describes the distinction betweenbailments and licenses as follows: The law has repeatedly drawn a distinction between bailments and licences; the former requiring a transfer of possession and a voluntaryacceptance of the common law duty of safekeeping, the latter amounting to no more than a grant of permission to the user of a chattel toleave it upon the licensor's land on the understanding that neither possession shall be transferred nor responsibility for guarding thechattel accepted. [63] The significance of the distinction between bailments and licenses is discussed by Schroeder J.A. in Bata v.

City Parking CanadaLtd. (1973), (ON CA), 2 O.R. (2d) 446 at 448 (C.A.): There is a very wide divergence between the relationship of bailor and bailee and that of licensor and licensee in that the latter, in theabsence of some special contractual provision, carries no obligation on the part of the licensor towards the licensee with respect to thechattel subject to the licence. [64] These cases establish the principle that control over the subject chattels is the key to distinguishing between bailments andlicenses.

In the present case, the facts suggest that the plaintiff surrendered control of her goods to the defendants and a bailmentrelationship was created: it was the defendants who moved the plaintiff's goods into storage; the plaintiff did not have a key to thestorage rooms; the plaintiff was told by Mr. Stang that her goods would be safe; and the plaintiff was uncertain as to where exactly thegoods were stored. In addition, it was the defendants who determined that the goods would be moved and did so with full knowledge ofthe plaintiff's emotional condition at the time.

While it may be true that the plaintiff could remove her goods at any time she wished, thisis not unusual where there is a bailment of indeterminate length, and in Zweeres, supra, was held to not necessarily be indicative of alicense relationship. [23] In

summary, a bailment is where a bailee stores goods on behalf of another (the “bailor”). A licence is where one person (the“licensor”) allows another (the “licensee”) to use their space. One example is where the owner of a parking lot, the licensor, providespermission for a vehicle owner, the licensee, to park their vehicle. The licensor provides permission for the licensee vehicle owner to usethe parking space. Absent a specific agreement otherwise, the licensor does not promise to safeguard the vehicle. [24] Kasey Beauty submits that it was a licensor and only agreed to provide a space for Ms.

Anderson, as a licensee, to store herjewellery. [25] I do not accept this submission. Ms. Anderson’s evidence was that Cindy Li agreed to hold onto the jewellery. There was nodiscussion about the use of the store premises as a place to store the jewellery. [26] Absent a licence for the holding of the jewellery, I am satisfied that Kacey Beauty was acting as a bailee of the jewellery. [27] As was described in MacAulay v Meise, which I referred to earlier, there are different types of bailees and different levels of dutyof care.

The MacAulay case referred to bailees for reward, gratuitous bailees and involuntary bailees. [28] A bailee for reward is paid to store someone’s goods. That was not the case here. [29] A gratuitous bailee exists where someone agrees to store someone’s goods but is not paid to do so. [30] An involuntary bailee exists where the bailor’s goods are on the bailee’s property against the wishes of the bailee. Aninvoluntary bailee may exist whether the bailee is paid or not. [31] Based on Ms. Anderson’s evidence, it appears that Ms.

Li agreed that Kacey Beauty would keep the jewellery until Ms.Anderson could retrieve them. As such, I find that Kacey Beauty was a gratuitous bailee. [32] In MacAulay v Meise at para. 80, Judge Malfair described the requisite standard of care as follows: [80] The characterization of the bailment as gratuitous or for reward is extremely important. At common law the standard of careimposed upon a bailee, as well as the location of the onus of proof, depends upon the proper characterization of the relationship.

Wherethe bailment is involuntary or gratuitous the bailee generally has been held liable for only reckless or intentional damage and the burdenof proof rests with the bailor. Where the bailment is for reward, the bailee is liable for negligence or the failure to exercise due care and

diligence. [33] In Lund v. Dey, 2015 BCSC 953 , the Court described the standard of care as follows: [46] If Mr. Dey was a bailee, he was a gratuitous bailee, because he did not receive any consideration. A gratuitous bailee is held to alower standard of care than a bailee for reward. Traditionally, it was said that a gratuitous bailee does not breach his standard of careexcept where there is gross negligence, but in more recent cases the standard of care of a gratuitous bailee has been described as the dutyto take reasonable care in light of all the circumstances: Robertson v.

Stang, (BC SC) at para. 67. [34] In Robertson v. Stang, which I referred to earlier, the court described the standard of care as follows: [66] Traditionally, the standard of care imposed upon a bailee has been governed by the existence and location of any benefit or awardarising out of the bailment. Where the bailment is a gratuitous one solely for the bailor's benefit, then the bailee has generally only beenheld liable for "gross negligence": Brewer v. Calori (1921), 29 B.C.R. 457 (C.A.).

Where the bailment is for reward, the standard issomewhat higher, the bailee being held liable for "negligence", or a failure to exercise due care and diligence: Zweeres, supra; Davis v.Henry Birks & Sons Ltd., (BC SC), [1981] 5 W.W.R. 559 (B.C.S.C.), appeal dismissed (1983), 41 B.C.L.R. 138(C.A.); Thieven v. Southmark Vancouver Corporation (29 June 1990) Vancouver Registry No. 996/89 (B.C.S.C.). [35] What we know from the evidence is that Kacey Beauty held onto the jewellery for Ms. Anderson. We also know that two weekslater, when Ms.

Anderson returned to Kacey Beauty, the jewellery could not be found. [36] Because Ms. Li did not testify, we do not know what was done with the jewellery. We do not know if it was placed in somesecure location or what steps were taken to safeguard the jewellery. [37] Even though the jewellery went missing, I cannot presume that there was negligence involved in the loss of the jewellery.

Toarrive at that conclusion, I would be speculating without any supporting evidence. [38] This is not a case where a rebuttable presumption of negligence has been established such that Kasey Beauty has to prove it wasnot negligent. [39] The onus is on Ms. Anderson as the claimant to prove on the balance of probabilities that Kacey Beauty was grossly negligent orfailed to take reasonable care in light of all the circumstances. As there is no evidence to support such a finding, the onus has not beenmet. I find that Ms.

Anderson has not proven her claim on the balance of probabilities that Kacey Beauty was liable for the loss of thejewellery and that the claim must be dismissed. [40] Because I did not find Kasey Beauty liable for the lost jewellery, I do not have to consider the issues of contributory negligenceor failure to mitigate, as raised by Kasey Beauty. I also do not need to assess the value of the lost jewellery. [41] There remains a claim for a refund of $514.50 for the unused facial treatments. The Reply filed by Kasey Beauty acknowledgesthis claim and so there will be judgment in this regard.

Order [42] Kasey Beauty Inc. will pay Nanci L. Anderson the sum of $514.50 plus the filing fee of $156 and additional fees of $75. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia