Barristers and Solicitors	German Spanish

Counsel:
 

G. Hodder, for the appellant plaintiff.  T. Monti, for the respondent defendant.

¶ 1   CALLAGHAN A.C.J.H.C. (endorsement):— This is an appeal by the plaintiff from the judgment of the Honourable Judge Sigurdson dated March 27, 1986 in the Provincial Court Civil Division.  The plaintiff asks that the order of the learned trial judge be varied and that the plaintiff recover from the defendant $2,987.

¶ 2      The trial judge awarded judgment in favour of the plaintiff in the amount of $2.00 plus costs.  That judgment arises in the following circumstances.

¶ 3      The plaintiff had plans to travel to Cuba for a week's vacation.  She made travel arrangements with a particular travel company and paid them the sum of $516 to cover air fare and room and board while in Cuba.  The plaintiff was intending to depart on April 27, 1985.  In order to make the trip to a foreign land she had to obtain a passport and she was advised on April 23rd that her passport was available.  The plaintiff, through a co-worker in her place of employment, called the defendant and arranged to have the defendant pick up the passport in Ottawa for delivery to the plaintiff in Toronto.  The plaintiff, either herself or through her co-worker, advised the defendant of the need of the passport for use on April 27.  The arrangement between the plaintiff and the defendant was oral.  The defendant picked up the passport and as a result of the defendant's negligence, so found by the trial judge, failed to deliver the same until April 29, 1985.  On April 27th the plaintiff boarded the plane without her passport, flew to Cuba, was denied entry and returned to Toronto.

¶ 4      The bill of lading issued by the defendant appears at page 31 of the Appeal Book.  It appears from that document that the Passport Office in Ottawa signed as shipper. Engrossed on the front of the bill of lading is a limitation of liability which restricted the liability of the defendant to the sum of $2.00 per pound "unless declared valuation states otherwise or as provided by special agreement in condition 2".  Immediately above that provision is a box on the bill of lading wherein the shipper can indicate to the defendant a declared value for the item to be shipped.  In the instant case, no declared value is indicated therein, yet the box is initialled, presumably by the shipper.  The clause limiting liability covers both loss as a result of delay in delivery and a loss or damage as a result of failure to deliver, amongst other things.

¶ 5      The learned trial judge, in her decision in this matter, considered the applicability of the limitation clause and concluded:
 

I have reluctantly and distastefully come to the conclusion that this contract (sic) applies.  It specifically addresses the damages to flow from fundamental breach.  (See Appeal Book, p. 9.)

¶ 6      In the result, the learned trial judge granted judgment for the plaintiff in the sum of $2.00 together with costs.

¶ 7      On this application the plaintiff asks this Court to find that the trial judge erred in applying the limitation of liability clause because it was an error to hold that the clause was a contractual term of the arrangement between the parties or, in the alternative, it was an error to hold the clause bound the plaintiff when it was not specifically drawn to her attention or, in the alternative, the contract was unconscionable and was induced as a result of a representation of the defendant and therefore constituted a violation of the Business Practices Act, R.S.O. 1980, c. 55, ss. 2 and 4.

¶ 8      I am of the view that the Business Practices Act is inapplicable in the circumstances of this case as there is no evidence of an act of inducement on the part of the defendant.  In the circumstances, the plaintiff sought out the defendant for delivery of the passport and the evidence does not warrant an inference that the defendant in any way induced the plaintiff to enter into the agreement.

¶ 9      Initially, I was concerned about this matter from the prospective that the clause relied upon by the defendant was one which should have been drawn to the attention of the plaintiff, particularly in the circumstances of an oral contract between the plaintiff and the defendant.  When one takes into consideration the nature of the contract of carriage herein, and the reason for which the plaintiff sought the services of the defendant, it appeared to me that there was a similarity between that situation and the situation dealt with by the Court of Appeal in Tilden Rent-A-Car Company v. Clendenning (1978), 18 O.R. (2d) 601.  However, upon a further consideration of the form of the bill of lading herein, and in particular the nature of the clause in issue, I have concluded that, in the circumstances, it would be inappropriate to infer an obligation on the part of the defendant to advise the plaintiff of that particular clause.

¶ 10        It appears from the material that the plaintiff had in the past dealt with the defendant.  The clause in issue is not an exclusion of liability but a clause determining a limitation on liability.  The distinction, in my view, is important.  While such a clause is to be construed contra proferentum, it is still to be given its natural and plain meaning.  (See Ailsa Craig v. Malvern Fishing Co. Ltd., [1983] 1 All E.R. 101 per Lord Wilberforce at p. 102 and Lord Fraser at pp. 105-106).  The plaintiff acceded to the situation where the Passport Office would in fact have to act as shipper and it is clear that the plaintiff gave the shipper no instructions as to the value of the document which could have been inserted in the space provided on the bill of lading thereby establishing a range of liability for the defendant. In my view, therefore, the clause itself was a part of the agreement and covered the situation herein.

¶ 11      In the result therefore, I am of the view that the learned trial judge did not err in applying that provision and limiting the plaintiff's claim to damages to the amount specified in the clause.

¶ 12      In the result therefore, the appeal must be dismissed with costs.

CALLAGHAN A.C.J.H.C.