Mackay v. Scott Packing and Warehousing Co.
T-2015-89
Gibson J.
31/3/94
54 pp.
Limitation of liability clause -- Statement of claim seeking damages, interest and costs of action arising out of alleged gross negligence and contractual breaches in relation to performance of contract to inventory, number, pack, crate, transport and deliver certain belongings on full "door to door" basis from residence in Toronto to new residence in London, England -- Plaintiff, expert in valuation and appraisal of antiques and decorative arts, relocated in England -- Belongings, including works of art and valuable antiques, transported in two separate shipments by sea -- Plaintiff insured belongings himself but not to full value -- Number of plaintiff's belongings not delivered at new residence in England and others damaged when arrived in London -- Plaintiff submitted conditions found on back of proposed contract cannot form part of contract between plaintiff and defendant since preamble to conditions in formal quotation stated contracting party to which conditions applied was Scotpac Scotland -- Defendant submitted there was no fundamental breach or gross negligence since plaintiff was aware of limitation of liability clause and because of his personal experiences -- Whether terms of contract compromised -- Although Scotpac Scotland referred to in promotional material and preamble to conditions on reverse of contract, contract between plaintiff and defendant -- Case of mistake or misdescription as opposed to interpreting contract contra proferentem -- Plaintiff in no way misled as to whom contracting with -- No evidence container used to transport plaintiff's belongings was sealed or even present and loaded at plaintiff's apartment building in Toronto -- Defendant failed to fulfill its obligations to plaintiff in performance with respect to plaintiff's belongings -- Preparation and completion of inventory lists woefully inadequate -- Storage and packing of belongings haphazard and left to chance some of belongings would arrive at plaintiff's residence in London -- Container ordered not even close to being of size necessary to accommodate all of plaintiff's belongings -- Actions of defendant played significant part in object's disappearance and damage -- Well established that limitation clause of no effect if party against whom limitation clause would take effect not made aware of limitation clause when contract signed -- On facts, limitation clause properly brought to attention of plaintiff -- Negotiation process with respect to insurance demonstrating certain awareness on behalf of plaintiff than persons less experienced in such matters -- Notice given to plaintiff of limitation of liability clause adequate, reasonable for defendant to conclude true assent given to limitation of liability clause on reverse of proposed contract and limitation of liability clause formed part of contract between plaintiff and defendant -- To determine whether agreement can be read to include limitation for negligence, focus should be on terms of conditions themselves -- Herein, clause wide enough to limit liability arising from defendant's negligence -- Exclusion (or limitation) clauses should, prima facie be enforced according to their true meaning, even in case of fundamental breach; however, relief can be granted where clause found "unconscionable" or where "unfair or unreasonable" to give effect to it -- Plaintiff not dealing with defendant from position of weakness or unequal bargaining power -- Not at all unconscionable or unreasonable to allow defendant to rely on limitation of liability clause herein -- Plaintiff should receive damages, but, payable by defendant calculated in accordance with limitation of liability clause in contract.