Belgardt v. Harris & Wick Goldsmiths Ltd. Date:, 2013 BCPC 191

Citation: Belgardt v. Harris & Wick Goldsmiths Ltd. Date: 20130705 2013 BCPC 0191 File No: SCD 8535 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: GERALD BELGARDT CLAIMANT AND: HARRIS & WICK GOLDSMITHS LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE HERMAN J. SEIDEMANN III Counsel for the Claimant: G. Gould Counsel for the Defendant: S. Narbonne Place of Hearing: Prince Rupert , B.C. Date of Hearing: April 29, 2013 Date of Judgment: July 5, 2013

[ 1 ] The Claimant in this case seeks to recover the value of a ring which was left with the Defendant for sale on consignment in 1995. The issue for determination by me now is a preliminary issue of whether or not the Claimant’s claim is barred by the provisions of the Limitations Act . I had directed that this issue be tried separately, in the thought that it would require limited evidence and would save time if it was determinative of the matter.

In fact, for purposes of determining this issue I have been required to hear almost all of the evidence which would have been required on the entire trial of the matter. [ 2 ] It is common ground between the parties that this action would be subject to a limitation period of six years. They take different views of when that period should commence. The Claimant commenced this action on July 12, 2011. The Claimant’s position is that the limitation period commenced in 2008 and the action is well in time.

The Defendant’s position is that the limitation period commenced in 1995 or, at the latest, in approximately 2001, and the action is far out of time. [ 3 ] The Claimant is a medical doctor who practices in Prince Rupert. The ring in question is an engagement ring from an engagement which was broken off. In 1995, the ring was valued by the Defendant at $17,400. [ 4 ] The Defendant is a firm of jewelers carrying on business in Prince Rupert.

In the time since the ring was left with them, they have occupied three different business premises in this city. [ 5 ] The ring was delivered to the Defendant by a solicitor acting on behalf of the Claimant. Although I was given no details, I infer that the solicitor was involved in obtaining the return of the ring to the Claimant after the engagement was broken off. The Defendant was requested to do an appraisal of the value of the ring. They did so. [ 6 ] The Claimant was then advised by his solicitor that he should attend at the premises of the Defendant and complete a consignment sale contract.

He did so and the contract was signed by him and the Defendant and is dated May 16, 1995. It authorizes the sale of the ring by the Defendant for a price not less than 75% of the appraised value and for the Defendant to retain a commission of 30% of the selling price. [ 7 ] The Claimant is not sure that he actually saw the ring when he signed the consignment contract. If he did, he says it was certainly the last time he saw it.

He says that he made no inquiries about the ring or the proceeds of its sale until some time in the early 2000’s. [ 8 ] The Claimant says that he heard on the local radio station that the Defendant’s shop had been broken into, and that he called to determine whether his ring was among the items stolen. He says that the woman to whom he spoke assured him that items like his ring were kept in a different area of the shop and would not have been stolen.

He interpreted what was said to him as confirmation that his ring was still there. [ 9 ] He could not say exactly when it was that he called, but recalls that it was after he had moved his practice to a new office premises. That had occurred in 2000. Although he could not be certain, he believed that the call was made while the Defendant was still in the same premises where he had signed the contract. Brian Wick, a principal of the Defendant, gave evidence that they had moved from those premises in 2001. [ 10 ] The Defendant moved their shop again in 2007.

The Claimant says that he went by the old premises and saw that they were vacant. He says he called the Defendant to inquire about his ring. He says that the person to whom he spoke said that they had just moved and would check on his ring after they were settled in to their new premises. The Claimant says that he waited and, after several months with no further information, inquired again. He says that he was asked to bring in his contract and he did so. He says that he waited for several further months and, when he inquired again, was told that the ring was not there.

That was in 2008. [ 11 ] The Defendant says that they have a standard practice when items are brought to them for work or for sale. The item is put into a job envelope and the customer is given a numbered tag, which is ripped off of the top of the job envelope, which bears an identical number. The tag, described as a claim slip, has printed on it certain terms. They include that items are left at the risk of the owner. The Defendant says that the claim slip must be presented to obtain the return of the item.

It is common ground that the Claimant does not have a claim slip for the ring. [ 12 ] The position of the Defendant is that the ring was returned to the Claimant long ago. They say that they have, as permitted by Revenue Canada, destroyed all of their records from more than seven years ago, which would include all records of the receipt and re- delivery of the ring. Brian Wick says that he can specifically recall the ring in question, as it was a much more expensive item than the shop commonly dealt in at that time.

He can not say exactly when the ring was returned, but says that it was not kept by the shop for very long, as there simply was not any real interest expressed for such a valuable item. [ 13 ] Brian Wick says that all consignment sale agreements were made on the basis that the item to be sold would be left with the shop for a period of 90 days. He says that this was always clearly explained to the consignor. He says that, if the item was unsold after 90 days, the consignor would be contacted and the item would either be returned or a new sales agreement would be entered into.

The store currently has a form contract which contains those terms, which is printed off and signed by the parties when an item is left for sale. At the time this ring was left with the Defendant, a simple agreement which contained only the details of the price and commission was typed up. Mr. Wick says, however, that the 90 day term was always explicitly explained. [ 14 ] In this case, because of the interposition of the Claimant’s solicitor, it is possible that the normal procedures were not followed. The ring was delivered to the Defendant by the Claimant’s solicitor.

It was for the purpose of getting an appraisal. If anyone was given the claim slip, it was likely the Claimant’s solicitor. What she did with it is anyone’s guess, at this time. The Claimant says he has no recollection of ever seeing it. Since it was expected that the ring would eventually be sold and the ring not reclaimed, it may still reside in the solicitor’s file, if that has not also been destroyed because of the passage of time. [ 15 ] The Claimant says that he was told by his solicitor to attend at the Defendant’s shop to sign the consignment sale contract. One

might infer from that that there were prior discussions between the solicitor and the Defendant regarding the sale. The Claimant does notrecall giving his solicitor instructions to arrange the sale, but it is unlikely that she would have taken that step without instructions andthat the Claimant would have signed the contract if it did not accord with his intentions.

If those prior discussions did occur between theDefendant and the Claimant’s solicitor, it is entirely possible that any discussions regarding the 90 day term were with the solicitor andnot directly with the Claimant. [16] Brian Wick says that, when an item is returned, the claim slip is to be produced. If the claim slip cannot be produced, theywould require ID from the person to whom an item is returned and would keep a signed receipt. He does not know which procedure wasfollowed in this case, but in either event the documents were destroyed long ago.

He says that, when he first spoke to the Claimant uponthe Claimant’s inquiry in 2008, he told the Claimant unequivocally that the ring had been returned. [17] Brian Wick says that the Defendant’s shop was never the victim of a break-in until 2009, well after the Claimant had alreadybeen told his ring was not there. Mr. Wick believed that another jeweler in Prince Rupert had suffered a break-in about 20 years ago. He was not aware of any jeweler in the area being broken into in the early 2000’s. [18] It is clear that this ring was not on the top of the Claimant’s mind.

If the Claimant had heard of a break-in at a jeweler, withoutpaying particular attention to the location, it might have prompted an inquiry. The Claimant, on his own evidence, only made inquiriesabout the ring on two occasions over 13 years, albeit on his view of matters the second occasion involved several calls over a period ofseveral months. [19] The position of the Claimant is that a cause of action does not arise in these circumstances until the Defendant tells theClaimant that it takes the position that the ring has already been returned and will not now return the ring or the proceeds of its sale.

That occurred in 2008 and the action, being commenced in 2011, is well within time. [20] The Defendant’s position is that the cause of action arises when the Claimant should reasonably have requested either the returnof the ring or the proceeds of its sale. If there was a discussion regarding the 90 day term, that would be when the 90 day term expired,in August, 1995.

If there was no discussion regarding the 90 day term, the Claimant could have requested return of the ring immediately,and the cause of action would commence on the day of the contract. [21] Alternatively, although the Defendant does not admit that the Claimant’s call after hearing of a break-in occurred, if it did occurand the Claimant reasonably believed that the ring was still in the possession of the Defendant at that time, the cause of action wouldarise at the latest at that time. Although not specific, that time could have been no later than 2001. [22] I simply cannot accept the Claimant’s position.

It is tantamount to saying that there is no limitation at all. If their position wascorrect, a person could leave something for sale, make an inquiry after thirty years, and no limitation would commence to run until theymade their inquiry and were told that the seller did not have the item. In that circumstance, the seller could not reasonably be expected tobe in a position to document a prior return of the item or its proceeds. To permit such an action to proceed would be clearly unfair.

If itis unfair for thirty years, what distinguishes the thirteen years in this case? [23] There are many similarities between the contract in this case and a demand promissory note. On the face of the contract, theClaimant was entitled at any time to require the Defendant to deliver the ring or the proceeds of its sale. The Claimant concedes that thelaw is established that the cause of action arises and the limitation commences to run on the date a demand note is made. The Claimantsays that that is a special rule, applicable to bills of exchange only. I do not agree with that position.

It is my view that that is simply anapplication of the rules of contract to that specific type of agreement. The cause of action arises and the limitation period commenceswhen the Claimant is entitled to insist on performance, whether or not the Claimant does then insist on performance, unless somehowextended by operation of law. [24] If there was discussion regarding the 90 day term for consignment sales, then the Claimant could have insisted upon the returnof the ring or payment of the sale proceeds on the expiration of the 90 days. The limitation period would then have commenced to run.

Ifthere was no discussion of the 90 day term, the limitation period would have commenced immediately. [25] Alternatively, this could be seen as a form of bailment for work and labour. The original receipt of the ring for the performanceof an appraisal clearly falls within this description. Leaving the ring for sale on consignment could also be seen as such a bailment,where the labour to be expended is the display of and attempt to sell the ring. Pursuant to Davis v.

Henry Birks & Sons Ltd., (BC CA), 142 D.L.R. (3d) 356, such a contract implies a reasonable time to complete the service before the item is to be recovered. In that case, a brooch left for appraisal which was completed in May, 1973, was, according to the plaintiff, not requested to be returneduntil February, 1980. The Court of Appeal in that case concluded that one month after the service was to be performed was a reasonabletime to imply for the plaintiff to re-take possession of the item. In this case, if there was discussion of the 90 day term, then that monthwould commence at the end of the 90 day term.

If there was no such discussion with the Claimant, then the month would commence onthe date of the contract. [26] Accordingly, I conclude that, at the latest, the limitation period would have commenced to run by September 14, 1995. That isone month after 90 days from the date of the consignment contract.

Unless extended by some other factor, this action would have had tohave been commenced by September 14, 2001. [27] If I accept the Claimant’s position that he made the call after hearing the report of a break-in and received confirmation that thering was still there, that could possibly have the effect of extending the limitation period. By section 5 (1) of the Limitations Act, if,before the expiration of the limitation period, the person against whom an action lies confirms the cause of action, the time up until suchconfirmation does not count as part of the limitation period.

By section 5(2)(a)(i), a cause of action is confirmed if a personacknowledges a right or title of another. As applied to this case, it could be argued that the acknowledgement that the Claimant’s ringwas still in the possession of the Defendant was an acknowledgement of the Claimant’s right or title to the ring. [28] Without determining whether or not the conversation occurred, or whether or not it should have the effect referred to in thepreceding paragraph, it could only have the effect of extending the limitation period if it occurred on or before September 14, 2001. A

confirmation of a cause of action or an acknowledgement of a debt has no effect to extend a limitation period if made after the limitation period has already expired. [ 29 ] If the limitation period was extended by the call made by the Claimant, the limitation period would have been extended, at the maximum, to six years after September 14, 2001. That would be September 14, 2007. The Defendant moved their business again some time in 2007. It was at that time that the Claimant made further inquiries.

Even on the Claimant’s description of the Defendant’s response to those inquiries, there was never a confirmation of his cause of action or an acknowledgement that they still possessed property of his. [ 30 ] This action was not commenced until July of 2011. By that time, even taking the view of events most favourable to the Claimant, the limitation period had expired by almost four years. Pursuant to the provisions of the Limitations Act , the Claimant may not bring this action against the Defendant. [ 31 ] After drafting this Judgment, but before it was released, the Limitation Act [SBC 2012]

Chapter 13 came into effect. It replaced the Limitations Act in effect at the time these proceedings were commenced. I have reviewed the transitional provisions of that new legislation to determine what, if any, effect it might have on these proceedings. I am satisfied that the proper

interpretation of that Act is that it has no application to proceedings that have already been commenced. They are governed by the legislation in effect at the time they were commenced. In any event, although for a different reason, this action would have been commenced out of time if the new legislation had applied. [ 32 ] The claim is dismissed. The Defendant is entitled to the cost of filing the Reply. _____________________________ Herman J. Seidemann III, PCJ