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Civil and Administrative
Litigation Opinions
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Bailment - Negligence

. Letwin v. Camp Mart

In Letwin v. Camp Mart (Ont CA, 2022) the Court of Appeal considered the negligence standard of care of bailees:
[4] The trial judge found that the respondents were gratuitous bailees and consequently the standard of gross negligence applied. He concluded that the respondents met the standard of care.
. Enofe v. Capreit Limited Partnership

In Enofe v. Capreit Limited Partnership (Div Ct, 2020) the Divisional Court considered the standard of care in negligence for a gratutious bailee:
[26] The trial judge went on to determine whether Capreit was a bailee for hire or a gratuitous bailee. She found that it was the latter. As a result, she applied the standard of care applicable to a gratuitous bailee, namely gross negligence: Grafstein v. Home & Freeman, 1958 CanLII 97 (ON CA), [1958] O.R. 296 (C.A.). ...
. Ferguson v. Birchmount Boarding Kennels Ltd.

In Ferguson v. Birchmount Boarding Kennels Ltd. (Div Ct, 2006) the Divisional Court considered the issue of bailment in relation to a dog in a boarding kennel (when it had not been considered in the Small Claims Court below):
[12] There are several problems with the position taken by the appellant on the appeal. Firstly, the issue of bailment was not argued by the appellants (the defendants) in the statement of defence or at trial. They relied upon and pleaded waiver based on the contract and the provisions of the Negligence Act, R.S.O. 1990, c. N.1. An appellate court will permit a new argument to be raised on appeal where the record in the court below is as complete as if the issue had been raised squarely at trial, and provided there is no prejudice to the other party (Braber Equipment Ltd. v. Fraser Surrey Docks Ltd., 1999 BCCA 579 (CanLII), [1999] B.C.J. No. 2360, 130 B.C.A.C. 307 (C.A.), at para. 3). In this case, the prejudice to the respondents in their not having done so, is manifest.

[13] In any event, in my view, the appellants have in their arguments misconstrued the law of bailment. The question to be determined is what care a prudent owner would have exercised for the [page685] safety of the article entrusted to him, under similar circumstances. But the law of bailment also imposes on the bailee an onus to prove that he took the appropriate care or that his failure to do so did not contribute to the loss; that is, the burden is on the bailee to show that the damage occurred without any neglect, default or misconduct on the part of himself or his servants. See, for example, Punch v. Savoy's Jewellers Ltd. (1986), 1986 CanLII 2759 (ON CA), 54 O.R. (2d) 383, 26 D.L.R. (4th) 546 (C.A.). Moreover, in cases where bailment is at issue, the courts have recognized that the precautions required of a bailee for reward "may be more exacting than those required of a gratuitous depository" (Painter v. Waddington, McLean & Co. Ltd., [2003] O.J. No. 5458, [2003] O.T.C. 1152 (S.C.J.), at para. 34, citing Halsbury's Laws of England, 4th ed., vol. 2, p. 856, para. 1839).

[14] In this case, the court specifically found that the defendant did not take reasonable steps to ensure the entire fence was secure so as to prevent Harley's escape. Moreover, if the gardener struck the fence board with his "ride on" lawn mower and Dr. Barrett could foresee that happening, the court found it would have been prudent for the defendant to inspect the fence board. Because of his failure to do so, the court found it was reasonably foreseeable that Harley would be able to escape through the fence.

[15] In all the circumstances, the court found the defendant negligent in its standard of care and boarding of Harley. In a bailment situation, it is clear that the defendant failed to show that the damage would have occurred or the dog would have escaped, without neglect; or in other words, Birchmount failed to discharge the onus to prove it took appropriate care of the dog.

[16] The decision of the learned judge was well supported by the evidence. Despite her failure to use "bailment language", the evidence and the law would likely have led to the same conclusion. I can find no error of law in the standard of care the court applied or in its application of the facts to the relevant legal principles, as alleged.
. Punch v. Savoy's Jewellers Ltd. et al.

In Punch v. Savoy's Jewellers Ltd. et al. (Ont CA, 1986) the Court of Appeal considered causes of action for breach of bailment duties:
Should an action in bailment be looked upon as a cause of action in contract or in tort, or do unique obligations and duties arise in bailment? While it is true in modern times that liability in tort and contract have overlapped to an ever greater extent, some distinctions remain and this may be particularly true of an agreement for bailment. It may be said that bailment is, in essence, a consensual matter whereby the bailee consents to receive goods for a specific purpose. If it is consensual, limitation of liability for the loss of the goods is a fundamental aspect of that consent and the arrangement is basically contractual. On this view, C.N. should be entitled to rely on the limitation clause.

If a bailment action is tortious in nature so that a claim can be based on negligence alone, then C.N. would be liable to Savoy and to Lenore Punch for its negligence in the unexplained failure to deliver the ring. One can be sympathetic to this position as well, where neither the owner Punch nor the original bailee Savoy consented to the terms of the sub- bailment to C.N., particularly the clause limiting liability.

The relationship of bailment combines elements of both contract and tort. For example, if a sub-bailee carrier is aware when it enters into a contract of the existence of an owner who is not a party to the contract, it would owe a duty of care to such an owner. If that owner did not give express or implied consent to the terms of carriage, then the owner might not be bound by any terms exempting or limiting liability.


What is the relationship between the owner of the ring, Lenore Punch, and C.N.? What duty, if any, did C.N. owe to the owner in the circumstances of this case? Clearly there was no contractual relationship between them. It is unlikely that Mrs. Punch was aware of the existence of Rapidex and still less likely that C.N. knew of Lenore Punch. However, the possibility of someone claiming through Savoy is clearly contemplated in cl. 1(b) of the contract of carriage which states that the provisions pertaining to the limitation of liability are to be binding upon all persons claiming any right to the ownership or possession of the shipment. In light of this clause, it can be said that the carrier contemplated the loss or damage which the ultimate owner would suffer as a result of the disappearance of the ring. Thus, such a loss could not be considered too remote a risk to form the basis of a claim in negligence.

Can such a concept apply to bailment? At least one author, Palmer on Bailment (1979), at p. 801, considers that the reasons in the Morris case widened the scope of liability of sub-bailees to include someone in the position of Lenore Punch. There, the learned author states:
The decision ... marks the final stage in the emancipation of bailment from contract, for it enables the former relation to arise not only without consideration but without communication or agreement of any kind.


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Last modified: 29-12-22
By: admin