A Bailor's Onus of Proof: More Specific Considerations

AuthorRobert H Tanha
Pages114-210
114
Chapter 3
A Bailor’s Onus of Proof: More Specic
Considerations
A. INTRODUCTION
Besides the more general considerations that were canvassed in the pre-
ceding chapter, several specic considerations or factors might arise on
any given set of facts, each of which requires specic treatment. While the
discussion in the following sections should not be considered exhaustive,
certainly these considerations should be looked at where a court is trying
to ascertain whether a bailor’s onus of proof has been met.
B. TO SUCCEED, A BAILOR MAY NEED TO SHOW THAT THE LOSS
OCCURRED WHILE THE PURPOSE OF BAILMENT REMAINED
TO BE COMPLETED
Where the purpose for which a bailment was created has been completed,
in the absence of special arrangements being made between the parties
with respect to the safekeeping of the subject property, or a reasonable
expectation that the bailment continues, the relationship can quickly
become one of licence, meaning that the bailee will have no duty what-
soever to safeguard the bailor’s property. In these circumstances, the
bailor, to succeed, will be required to show that the loss or damage to
its property occurred during the former period, when a bailment existed.
Alternatively, the bailor will be required to show that special arrange-
ments were made to extend the bailment relationship between the par-
ties—for example, to allow the bailor extra time to make the necessary
A Bailor’s Onus of Proof: More Specic Considerations • 115
arrangements to have its property picked up1—or that the bailee’s act of
redelivery was negligent such that the bailment should be viewed as con-
tinuing for a reasonable time following the act of negligence, or until the
property is properly redelivered to the bailor.
Furbank v Andersen2 is instructive. There, the plainti drove her
vehicle into the defendant car wash’s parking lot, leaving her vehicle in
one of the defendant’s marked parking spaces. She was about to depart
the premises with her son when she was stopped by the defendant and
asked if she wished to have her car washed. She indicated that she did and
then le immediately without paying for the wash in advance, as was the
defendant’s standard practice. She did not state when she would return,
or what was to be done with the vehicle aer it was washed.3
The defendant completed the wash and placed the plainti’s vehicle
on his premises, awaiting collection by the plainti. The defendant le
the keys in the ignition of the plainti’s car, stating in his evidence that
he had no facilities for storing such items, that it was not his practice to
assume responsibility for ignition keys, and that he expected cars to be
picked up immediately aer the washing process and removed om his
premises, as he has no space to store vehicles. Both the car wash and the
parking lot were unenclosed areas. The plainti did not return that day
to pick up her vehicle, and, during the night hours, her vehicle was stolen
by a thief and subsequently damaged by this person.4
The plainti sued in bailment, but Tyrwhitt-Drake Co Ct J of the
British Columbia County Court refused to nd that a bailment applied to
the parties at the time of the the, as the purpose for which the car was
bailed had been completed:
There is no doubt, I think, that the defendant, as operator of a car-wash,
is a bailee for hire of cars in his possession, while they are being washed,
and perhaps for a reasonable time before and aer the washing process.
It is simply a question of possession, and the duration of the bailment
would vary in each case. He is paid (though he was not in this instance)
for washing, and his liability as a bailee would be limited to the dur-
ation of his possession for this purpose. Once a car is washed, he has no
1 See, for example, Ritchie Bros Auctioneers Ltd v Chabot & Levesque Logging Ltd, [1982]
BCJ No 1415 at para 3 (Co Ct).
2 [1966] BCJ No 49 (Co Ct) [Furbank].
3 Ibid at paras 2–3.
4 Ibid at paras 4–5 and 8.
116 •    
further interest in it; unless special arrangements are made, he says, he
expects a washed car to be removed om his premises at once. He has
no room to store cars, and only does so by special arrangement. In my
view, once a car is washed and ready to be taken away, there is an end to
mandatum. There is not even simple depositum, for the purpose of the
defendant’s possession has been accomplished.5
In the result, only a licence was found to apply, and the plainti’s bail-
ment action failed accordingly.6 In the colourful words of Tyrwhitt-Drake
Co Ct J, “a person who loses an automobile (an article particularly attract-
ive to the idiot as well as to the criminal) le by him on premises, as open
to depredation as any public way[,] cannot attach blame for such negli-
gence to the owner of the premises who is not a bailee of the automobile.7
In circumstances such as those presenting in Furbank, where there
is no negligence in redelivery by the bailee, no special arrangements are
made for disposition of the bailed property once the work agreed upon
between the parties has been completed, no reasonable expectation exists
that the bailment is to continue, and it is clear that the damage occurred
during a period of time subsequent to the expiry of the bailment, a bailor
will not be able to meet its burden of proof and will likely be le without
a remedy for losses.
) ratuitous Bailments
A lesser standard should not be applied for gratuitous bailments. The court’s
holding in Odian v Capalla Holdings Ltd (cob Capalla Car & Truck Sales)8 is
therefore questionable. There, the plainti, Gordon Odian, relinquished
possession of his truck to the defendant Je Zachariuk, who was
employed by a car sales dealer, the defendant Capalla Holdings Ltd, for
sale by consignment. Odian had purchased the truck om an acquaintance
whom he trusted and therefore did not take any steps to conrm whether
or not the vehicle had sustained previous damage or whether there were
any liens against it. Aer using it for a few years and having no more use
for the vehicle, Odian decided to try to sell the vehicle and posted an
advertisement in the local paper accordingly. At that time, the truck had
5 Ibid at para 8.
6 Ibid at para 10.
7 Ibid at para 11.
8 [2009] BCJ No 2040 (Prov Ct).

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