A Bailor's Onus of Proof: General Considerations

• Author: Robert H Tanha
• Pages: 86-113

86

Chapter 2

A Bailor’s Onus of Proof: General Considerations

A. INTRODUCTION

In order for a bailor to x liability against a bailee, the bailor must dem-

onstrate that possession (not ownership) of its goods were transferred to

the bailee for safekeeping, either actually or constructively, and that its

property was damaged or lost during the course of the bailment. Zi aptly

calls these the “triggering facts”—that is, the facts that engage the pre-

sumption of negligence against the defendant bailee—signiing the fact

that, in a bailment action, a plainti does not need to prove all elements

of liability on a balance of probabilities. Where the bailor alleges that the

goods were damaged during the subsistence of the bailment relationship,

it must also prove the good condition of the goods when bailed and the

unsatisfactory condition of the goods when returned.1 An unsatisfactory

condition can include a total loss of goods or, alternatively, lesser dam-

age to goods.2 Where the bailor fails to overcome its burden, the burden

1 See, generally, Bruce Zi, Principles of Property Law, 4th ed (Toronto: Thomson Car-

swell, 2006) at 303–4. As a practical matter, this means that a bailor must call evi-

dence rst, before a bailee is called upon to do so, to meet its burden of proof, since

there are certain “elements” in a bailment case that must be proven by the plainti

(bailor) before the reverse onus of proof will be thrown upon the bailee to disprove

that its negligence caused the losses at issue: see Hogarth v Archibald Moving and

Storage Ltd, [1991] BCJ No 609 (CA) for relevant discussion.

2 In Commercial Bakeries Corp v Frasier Transport Corp, [2000] OJ No 1119 (SCJ), the

plainti (bailor) succeeded in meeting its burden even though the cookies redeliv-

ered to the plainti were not a total loss, since the plainti had provided no expert

evidence to show that they had become inedible. However, given the several months

A Bailor’s Onus of Proof: General Considerations • 87

of disproving negligence is not placed on the bailee, and the bailor must

establish negligence against the bailee in the ordinary way.3

The requirement that the bailor prove that the loss or damage of

property occurred during the term of the bailment is inextricably tied to

the absolute duty placed on the bailee, in an ordinary bailment arrange-

ment, to redeliver the bailor’s goods at the conclusion of the bailment in

either their original or altered form.4 Even though this requirement is

usually easily met and not at all contentious,5 it has been the subject of

some contention and uncertainty in the harder cases.

Much of the uncertainty involves the relative importance, if any, to

be given to the requirement that a bailor prove that its goods were lost or

damaged during the course of the bailment in order for the bailor to dis-

charge its onus of proof, thereby shiing the onus to the bailee to disprove

that its negligence caused the loss of or damage to the goods in question.

As a starting point, clearly a more stringent requirement means that a

bailor will have a more dicult time xing liability against the bailee;

conversely, a looser interpretation of the words “during the course or

term of the bailment” means that the presumption of negligence against

the bailee will be more easily triggered and therefore the liability of the

bailee more easily established by the bailor.

In cases where the question of whether the loss or damage occurred

during the course of the bailment relationship is a live issue in assessing

the bailor’s burden of proof, which to be sure will be a small minority of

bailment cases, the nding made in this regard by the trial judge will almost

always be dispositive of liability as between the bailor and the bailee. As a

the cookies were stored without being delivered to the plainti’s customer, the

cookies were clearly in a deteriorated and undesirable condition, which made them

unsaleable: at paras 18–29.

3 Andrew James, CED (Ont 3d), Supplement vol 2, title 13, Bailment at 39. Where

there is an inexplicable injurious event, the doctrine of res ipsa loquitur, however,

can ease a plainti’s ordinary burden in negligence and require a defendant to put

forth an innocent cause for the injury that, on the evidence, neutralizes the infer-

ence of negligence otherwise shown by the evidence: see, for example, Cogar Estate v

Central Mountain Air Services Ltd (1992), 65 BCLR (2d) 345 (CA).

4 Admittedly, certain kinds of bailment do not place an absolute duty on the bailee to

return the goods to the bailor. The bailment agreement, for instance, may provide

that the bailee is to deliver the goods to a third party or that the goods may be le

with a bailee for sale on consignment, requiring the bailee to return the goods only if

they cannot be sold: Zi, above note 1 at 297.

5 See, for example, Van Geel v Warrington (1928), 63 OLR 143 (SCAD); 627360 Sas-

katchewan Ltd v Bellrose, 2007 SKQB 14.