ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
STEVEN M. BOOKMAN and GILLIAN BOOKMAN
Mr. Steven M. Bookman, In Person
Plaintiffs (Respondents in Appeal)
- and -
U-HAUL CO.(CANADA) LTD.
Mr. Bruce Cook, counsel for the Appellant.
Defendant (Appellant in Appeal)
HEARD: September 10, 2007
FEDAK J.
1The Appellant, U-Haul Co. (Canada) Ltd., appeals from the judgment of Deputy Judge Karen Cimba, at the Superior Court of Justice (Small Claims Court) in Hamilton, Ontario dated November 28, 2006.
2Deputy Judge Cimba found the Appellant in breach of a contract and liable for the damages claimed by the Plaintiff. The Appellant was ordered to pay $8,696.62 in damages to the Plaintiff plus costs in the amount of $750.00 together with disbursements in the amount of $259.84 inclusive of G.S.T.
The Facts
3There is no dispute between the parties as to the following facts:
(1) This action was commenced following events that transpired in July 2004, after the Plaintiffs rented a truck owned by the Appellant for the purposes of moving furniture and other belongings from Florida to Ontario;
(2) The Plaintiffs had reserved a 24 foot van from the Appellant in West Palm Beach, Florida;
(3) The Plaintiffs attended at the premises of the Appellant on July 7, 2004 and picked up a 24 foot moving van number 6H5557B;
(4) The Plaintiffs purchased “Safemove and Safetow Protection” from the Appellant;
(5) The Plaintiffs testified that upon the truck’s arrival in Toronto and subsequent unloading, it became apparent that items had been damaged or broken during the trip;
(6) The Plaintiffs’ did not have receipts for the hurricane lamp;
(7) The Plaintiffs’ evidence regarding the stone bases as to the cost of repairs based on a quote, which he no longer has in his possession;
(8) The Plaintiffs gave evidence as to the original receipt for the patio chairs purchased on November 17, 1997, but not delivered to the Plaintiffs until the middle of 1998;
(9) The Plaintiffs gave evidence with respect to the bed frame that they had a receipt for, it showing an anticipated delivery date of September 15, 1997;
(10) The Plaintiffs gave evidence that the couch as purchased in 1997;
(11) The Plaintiffs in their testimony indicated that in some instances the Plaintiffs are claiming repair costs as paid by them, and in other instances are claiming repairs costs.
The Issues
4The following issues arise in this appeal;
(1) Did Deputy Judge Cimba err in awarding the Plaintiffs damages for which there was insufficient or no evidence to support?
(2) Did Deputy Judge Cimba err in awarding damages to the Plaintiffs without giving consideration to depreciation and awarding damages in accordance with actual cash value?
(3) Did Deputy Judge Cimba err in awarding the Plaintiffs the cost of the U-Haul rental and the cost of the “Safemove and Safetow Protection”, and thus put the Plaintiffs in a position of betterment?
First Issue – Did Deputy Judge Cimba err in awarding the Plaintiffs damages for which there was insufficient or no evidence to support?
5With respect to this issue, it is well-established that a claimant seeking damages must prove his case. (See McGregor on Damages (London: Sweet Maxwell, 2003) at p.297, 8-001)
6The Plaintiffs have the burden of proving both the fact that they had suffered damage and the quantum of such damage. (See McGregor (supra) at page 1593, 44-007)
7Where damages are proved, but no evidence is given as to its amount, the court will generally permit only an award of nominal damages. (See McGregor (supra) at page 297, 8-001)
8In addition, damages must be proven with reasonable certainty. It is up to the trial judge to determine whether damages have been proven with reasonable certainty. (See McGregor (supra) at page 298, 8-003)
9Where precise evidence is obtainable, the court will expect to have it. Difficulty of proof does not dispense with the necessity of proof. (See McGregor (supra) at page 297, 8-002)
10The Appellants submit that the Plaintiffs in this action failed to produce proof of the damages they claimed. Specifically, the Plaintiffs according to the Appellants failed to produce receipts, invoices, quotes for repair or photographs of the items claimed as damaged.
11The Appellants further submit that the Plaintiffs’ damages were absolutely certain at the date of the trial and precise evidence was obtainable. However, the Plaintiffs failed to produce the evidence.
12The Appellants therefore submit that Deputy Judge Cimba erred in awarding the Plaintiffs damages for items which they failed to prove were damaged and/or had failed to prove their repair cost or value.
13It is clear from the reasons for judgment of Deputy Judge Cimba that she accepted the Plaintiffs’ evidence with respect to the damages. Some of the damages were proved by way of receipts, repair bills, photographs and invoices and memory of the price of purchase.
14Likewise, it is clear from the reasons that Deputy Judge Cimba found the damage was caused by breach of contract.
15The Plaintiffs were entitled to recover as damages, such sums as will place them in as good a position as they would have been had the incident not occurred insofar as can be done by compensation in money. (See Jurconi v. Kol-Yad Investments Ltd. 1997 Carswell BC 229 at paras. 125 and 132)
16Accordingly, this appeal fails on this issue.
Second Issue - Did Deputy Judge Cimba err in awarding damages to the Plaintiffs without giving consideration to depreciation and awarding damages in accordance with actual cash value?
17The Appellants submit that if the Plaintiffs are entitled to damages, these should have been awarded on the basis of actual cash value. Actual cash value refers to what it would cost to replace an item at the time of loss after subtracting depreciation.
18Whether it is a reflection of depreciation, the betterment principle or other relevant factors, actual cash value has unusually involved a deduction factor. (See Feist v. Gore Mutual Insurance Co. [1991] O.J. 67)
19Where replacement cost is determined to be the proper basis for an award of damages, the usual principle should be applied and depreciation should be taken into account. (See Jens v. Mannix Co. (1979) 30 DLR(4th))
20Where the damaged article is repaired, the cost of the repair must be reasonable, both in the work must be necessary and changes must not be extravagant. (See McGregor (supra) at page 1032, 32-003 and 32-006)
21Most specifically, the proper measure of damages is the reasonable cost of repair less any enhancement if the repaired article is more valuable than it was before the accident. (See Waddams, The Law of Damages (Toronto: Canada Law Book, 1997) at 1.2760)
22The Appellants submit that the Plaintiffs owned and used many of the items which they claim were damaged since 1997 or 1998. The loss did not occur until 2004. Thus, an award of damages should reflect depreciation over the 6-7 year period and betterment that the Plaintiffs will now receive with replaced or refinished items.
23It is clear from the reasons for judgment that Deputy Judge Cimba did not consider either depreciation or betterment in her award of damages. In all fairness neither counsel for the Plaintiffs or Defendants raised the issue with her.
24The law however, is clear that depreciation or betterment is a necessary factor to consider in awarding damages.
25Accordingly, this court finds that the Deputy Judge erred on this issue.
26At the appeal, Mr. Cook argued that the amount claimed for lawn chairs and patio table and umbrella should be depreciated by 20% and all other items should be depreciated by 35% to 50%. Mr. Bookman did not comment on the rate of depreciation.
27This court therefore accepts that the damaged lawn chairs, patio table and umbrella to be depreciated as recommended by Mr. Cook at 20% or $294.18 and all other items be discounted at 35% for $1,763.16.
Third Issue - Did Deputy Judge Cimba err in awarding the Plaintiffs the cost of the U-Haul rental and the cost of the “Safemove and Safetow Protection”, and thus put the Plaintiffs in a position of betterment?
28It is the Appellant’s position that Deputy Judge erred in law in awarding to the Plaintiffs the price of the rental of the truck as it amounts to unjust enrichment.
29Where a breach of contract is found, a Plaintiff is only entitled to be put in the position that he or she would have been in, had the contract not been breached. (See Sally Wertheim v. Chicoutimi Pulp Co. (supra))
30Where property is adversely affected, such as where a carrier damages goods in transit, the basic loss is the diminution in the value of the property. Where a carrier has lost the goods or failed to deliver them at all, then the contract price is recoverable. (See McGregor (supra) at page 32, 2-012)
31If the claimant recovers for the loss of his bargain, it will be inconsistent that he should also recover for expenses which were necessarily incurred by him for its attainment. (See McGregor (supra) page 34, 2-018)
32Deputy Judge Cimba awarded the Plaintiffs the cost of the truck rental in the amount of $1,523.60 (Canadian), and a further $160.50 paid for additional mileage.
33Unjust enrichment occurs where there is an enrichment, a corresponding deprivation and absence of any juristic reason for the enrichment. (See Petkus v. Becker, [1980] 2 S.C.R. 834)
34By awarding the Plaintiffs the cost of the truck rental and mileage, they have been unjustly enriched and put in a position of betterment. Once the Plaintiff’s damages are made whole by having the items repaired or replaced, there is no juristic reason to award such costs.
35For the above reason, Deputy Judge Cimba erred in awarding the cost of that truck rental and the mileage. The sum of those two items amounting to $1,688.10 is to be also deducted from the final judgment.
36In summary then the judgment of Deputy Judge Cimba is set aside and judgment is granted in the amount of $4,951.18, which is made up as follows:
Original Judgment $8,696.62
Less depreciation on lawn chairs, table and umbrella 294.18
Less depreciation on all other items 1,763.16
Less cost of the truck rental 1,527.60
Less cost of additional mileage 160.50 _________
Total deduction $3,745.44
Balance $4,951.18
37The original costs awarded in the amount of $750.00 are to remain unchanged. Disbursements of $259.84, inclusive of GST to remain the same.
38If the parties cannot resolve the problem of costs on appeal, short written submissions are to be made within 20 days.
FEDAK J.
Released: September 13, 2007
COURT FILE NO.: DC-06-375
DATE: 20070913
SUPERIOR COURT OF JUSTICE OF ONTARIO (DIVISIONAL COURT)
RE: STEVEN M. BOOKMAN and GILLIAN BOOKMAN U-HAUL CO. (CANADA) LTD.
BEFORE: The Honourable Mr. Justice E. Fedak
COUNSEL: Mr. Steven M. Bookman, In Person Mr. Bruce Cook, counsel for Respondent
JUDGMENT
Mr. Justice E. Fedak
DATE: September 13, 2007