IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SUPER SAVE GAS DISPOSAL INC. CLAIMANT AND: MR. RENT-A-CAR (DOWNTOWN) LTD.

Transcription

1 Page 1 HP258.2 Private.Law SSGas Disposal Inc. v. Mr. Rent. A. Car (Downtown) Ltd BCPC 0392 File No: Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SUPER SAVE GAS DISPOSAL INC. CLAIMANT AND: MR. RENT-A-CAR (DOWNTOWN) LTD. DEFENDANT [1] The Claimant is in the business of renting disposal bins. The Claimant and the Defendant entered into a contract for bin rentals dated April 28, The terms of the contract are unclear. The Claimant seeks to recover from the Defendant $ , being monthly rental for the period June 2007 to December 2007, when the bins were removed by the Claimant from the Defendantʼs premises, plus additional amount of $563.10, which it characterizes as liquidated damages for wrongful contract termination, based on the premise that the contract was automatically renewing if not terminated within an identified period of time prior to the end of the term. [2] The Defendant testified as follows: Mr. Vincent Li is the owner of the Defendant and one of the persons who testified at the trial. English is not Mr. Liʼs first language. Mr. Li attended at the Claimantʼs business premises to enquire about a bin rental contract. The Defendant wanted a contract for one year. He met with Ms. Mia Chan, the Claimantʼs sales representative. The Defendant understood that the contract they executed was a one year contract for bin rental. The Defendant became dissatisfied with the service provided. Mr. Li and Mr. Madar on behalf of the Defendant

2 Page 2 HP258.2 Private.Law SSGas Disposal Inc. v. Mr. Rent. A. Car (Downtown) Ltd. testified that the bins were not being properly maintained and as a result they had unauthorized persons accessing the bins. The Defendant stated that they raised complaints with the Claimant and did not get any satisfactory response. As a result the Defendant states that it cause a communication to be sent by facsimile to the Claimant well prior to April 28, 2007, which confirmed the Defendantʼs intention that the contract for bin rental be terminated at the conclusion of the one year term. The Defendant produced a facsimile transmission which is stamped as sent, showing the date of transmission. [3] The Claimantʼs sales representative that dealt with the Defendant, Ms. Chan, is no longer with the Claimant and was not called to testify. Claimantʼs representative, Ms. Sampert, stated that facsimile transmissions come in to their office at a central area and should have been directed to her attention. She had nothing in her file indicating that she had seen the Defendantʼs facsimile transmission. Ms. Sampert stated that had she seen this transmission, no action would have been commenced, as the Claimant would have considered that the Defendant had properly terminated the contract within the required period before the end of the one year term. At the conclusion of one year the Claimant did not remove the bins, notwithstanding that Defendant had ceased making any payments. [4] The bins were allowed to remain in place despite non payment for some 7 months. The non payment would not have immediately come to Ms. Sampertʼs attention as apparently, although Ms. Sampert acknowledged that there is nothing in the contract between the parties permitting this practice, the Claimant invoices one month ahead, so that although Defendant thought they had paid to the end of April, they had actually paid to the end of May, making the first default the June payment. That notwithstanding, despite non payment the Claimant allowed the bins to remain in place until they finally removed them on December 12, Although in its mind according to Ms. Sampert it was at this time terminating the contract for non payment, the Claimant did not communicate this purported termination to he Defendant in writing or verbally, it simply removed the bins. [5] The Defendants stated that they contacted the Claimant on several occasions asking if the Claimant had received the facsimile and asking

3 Page 3 HP258.2 Private.Law SSGas Disposal Inc. v. Mr. Rent. A. Car (Downtown) Ltd. again for the bins to be removed. And in fact as stated, they were not paying. The Defendant testified that they got no satisfactory response to what they refer to as their numerous telephone calls to the Claimant. The Claimant had an internal note of a telephone call from Mr. Li, which note is dated October 16, That note said that Mr. Li called in to cancel, that the bins were not required and they were in the way. The note said that Ms. Chan was to call Mr. Li. There was no evidence that that call was made. Given Mr. Liʼs facility with English, this note was not inconsistent with the Defendantʼs evidence that they transmitted notice of termination and then made follow up calls to the Claimant when the bins were not being removed. Notwithstanding this statement from Mr. Li that the bins were interfering with his business interests, the Claimant allowed the bins to remain in place until December 12, [6] The claim then has two components: (a) Additional months of bin rental up to the date that the Claimant eventually removed the bins; (b) Compensation for failure to terminate based on contractual language that provides for automatically renewing terms if notice of termination is not provided within a pre-defined period prior to the end of the term. [7] Addressing first the second aspect of the Claimantʼs claim: The contract in question is the Claimantʼs standard form contract. The terms and conditions are found at the bottom of the contract in very small print. They include a provision that states that the initial term of the contract will be five (5) years and automatically renewing thereafter in successive five year periods unless notice of termination is given not less than 60 days prior to the end of a five year term. Written in handwriting over top of and partially obscuring the terms and conditions are the words 1 yr terms. This was apparently written by the Claimantʼs sales representative Ms. Chan at the time of execution of the contract. The Claimantʼs representatives proposes that this handwriting be interpreted as changing the references to 5 year terms in the terms and conditions to one year terms, including the automatically renewing periods. The Defendantʼs representatives, says that he understood this writing to mean that the contract was a one year term as he had requested and says that this was the explanation provided to them at the time of execution of the contract. The Defendantʼs representatives say they did not have information

4 Page 4 HP258.2 Private.Law SSGas Disposal Inc. v. Mr. Rent. A. Car (Downtown) Ltd. regarding automatically renewing terms and would not have agreed to such a contract. [8] An automatically renewing term is an onerous contractual obligation. In this case it would have been clear that the contracting Defendant does not have English as first language. The contractual print is small. And the parties clearly intended to effect some modification to the written terms of the contract. In my view there were circumstances that ought to have required the Claimant to bring these clauses to the attention of the Defendants. As stated in Tilden Rent-A-Car Co. v. Clendenning, [1978] O.J. No (C.A.) In modern commercial practice, many standard form printed documents are signed without being read or understood. In many cases the parties seeking to rely on the terms of the contract know or ought to know that the signature of a party to the contract does not represent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standard form contains. Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party, and, in the absence of such reasonable measures, it is not necessary for the party denying knowledge of such terms to prove either fraud, misrepresentation or non est factum (Dubin 32 33) [9] On the facts of this case I decline to enforce the automatically renewing provisions and hold that the term of this contract was one year from execution and concluded April 28, [10] On the first point, the claim for bin rentals from the period after the first year, I accept the evidence of the Defendants and find that they sent notice to the Claimant of their desire to have the bins removed at the conclusion of the first year and of the intended termination of the contract and I accept their evidence that they followed up with the Claimant and were unable to get any acceptable response. I also find that it was not reasonable for the Claimant to allow the bins to remain in place for a period of their choosing in circumstances where they knew the Defendants were not making payment and then expect the Defendant to be liable to make

5 Page 5 HP258.2 Private.Law SSGas Disposal Inc. v. Mr. Rent. A. Car (Downtown) Ltd. payment for that period. The Claimant had an obligation to mitigate its loss by removing the bins when payment was not made. [11] Accordingly the claim is dismissed. Marina Pratchett, Q.C. Adjudicator