CITATION: Mercury v. McKenzie and SRM Movers, 2016 ONSC 2494
COURT FILE NO.: DC-15-92
DATE: 2016 04 12
DIVISIONAL COURT - SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rosemarie Mercury v. Stanley McKenzie and SRM Movers
BEFORE: Tzimas, J.
COUNSEL: Rosemarie Mercury, in person Ken J. Berger, for the Respondents
HEARD: April 1, 2016
E N D O R S E M E N T
[1] The appeal is allowed. The trial judge made an error of law when he concluded that the action was statute-barred by s.12 of the Carriage of Good Regulation 643/05 before he heard any evidence from either side. He was correct to identify the question as to whether the dispute between the parties arose from a contract of carriage of goods or whether it was a bailment for reward. However, in the absence of hearing any evidence at all from the parties, he had no evidence to conclude that the contract amounted to the carriage of goods. He therefore erred in his conclusion that the contract was a carriage of goods and therefore statue-barred.
[2] Before a court can decide whether a claim is statute-barred, the court must decide whether it is bound by a particular legislative scheme that might include a limitation period. The determination of the nature of the contract is one of mixed fact and law. In this case, in the absence of a consideration of the particular facts concerning the interaction between the parties and the particulars of the contractual relationship, it is impossible to conclude that the relationship between Ms. Mercury and McKenzie amounted to a carriage of goods contract. While there are certain features in the parties’ interaction that would support such a conclusion, there are other aspects that could support the conclusion that the contract was a bailment.
[3] Given the parties’ respective submissions about what the evidence would be at trial, their situation may be distinguished from the facts in Solway et al v. Davis Moving and Storage Inc. (2002), 62 O.R. (3d) 522. In that case, Davis Moving was moving goods from one location to another with only interim storage. That was a situation where the Carriage of Goods regulations clearly applied. In this case, there are two aspects to the contractual relationship between Ms. Mercury and Stanley McKenzie and SRM Movers. The first is the move of Ms. Mercury’s goods from her place to McKenzie’s storage facilities. The second aspect is the storage. It is possible that the evidence will support a finding that these were discreet activities with discreet legal implications.
[4] The trial judge suggested that it was Stanley McKenzie who loaded Ms. Mercury’s goods onto the Rogers moving truck to conclude that the final destination of the goods was the Rogers truck, as opposed to the place of storage. It was on that basis that he drew the analogy to Solway. However, there was no evidence before the court to allow for that conclusion. The Court heard no evidence whatsoever about any of the alleged facts, much less that McKenzie loaded the Rogers’ moving truck. Absent evidence on the particular interaction between the parties it is impossible to conclude that the contract between Ms. Mercury and McKenzie reflected a carriage of goods contract.
[5] It may very well be that when the evidence is reviewed, the storage offered by McKenzie is found to shelter within the terms of the carriage of goods contract such that the Carriage of Goods regulations apply to all of McKenzie’s activities. But such a finding cannot be made in the absence of an evidentiary record. Following such a determination, the court would then be able to consider whether there is a limitation period that bars the claim from going forward.
[6] I also find that the trial judge erred in his conclusion that Ms. Mercury’s failure to examine her goods to determine whether everything was returned to her bolstered his overall conclusion that was statute barred. Apart from the fact that the court heard no evidence about what Ms. Mercury did or did not do when she received her goods, Ms. Mercury’s own conduct has no bearing on the determination of whether or not the contract between Ms. Mercury and McKenzie was for the carriage of goods or for bailment. It will be a question that will be relevant to her overall conduct within the contractual relationship but it is not relevant to the determination of the nature of the contract.
[7] In the circumstances, this appeal is allowed and the matter is sent back for a new trial before a different trial judge. The Court will have to determine the nature of the contract between Ms. Mercury and McKenzie before it can consider the applicable legislation and the possibility that the claim is statute-barred.
[8] On the subject of costs, the submissions by both sides, in the event of success were both extraordinarily out of proportion with the actual claim. The issue on the appeal was straightforward. While I have taken into account the appellant’s bill of costs, it is my view that an appropriate cost award for this appeal is $2,500 and I fix costs in favour of Ms. Mercury for that amount, which is inclusive of fees, disbursements and any applicable taxes.
[9] As a final observation, in light of my analysis, the parties are cautioned that today’s outcome may amount to a pyrrhic victory for Ms. Mercury if, at trial, the contract is held to be a carriage of goods contract. I raise the concern because it is evident that the parties have already spent legal fees far in excess of what is likely to be the judgment. I am further concerned that the parties have lost perspective on where they are going with the claim. The parties should take a long hard look at the damages component of the claim. This caution is not intended to make any pronouncement on the merits of the claim. However, given the expenses and outcomes to date, this would be an appropriate time considering the respective merits of their position and explore the possibility of an overall settlement.
Tzimas, J.
DATE: April 12, 2016
2016 ONSC 2494
COURT FILE NO.: DC-15-92
DATE: 2016 04 12
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE ONTARIO
RE: Rosemarie Mercury v. Stanley McKenzie and SRM Movers
BEFORE: Tzimas, J.
COUNSEL: Rosemarie Mercury, in person
Ken J. Berger, Counsel for the Respondents
ENDORSEMENT
Tzimas, J.
DATE: April 12, 2016