Solway and Akler contracted with Davis Moving to pack, store and deliver their household goods to their new house. The goods included rare and valuable artifacts and antiques, and had been viewed by a member of Davis' sales staff. The goods were stored in a trailer which was parked overnight, unattended, on a public street to enable snowploughing to be done on Davis' lot. The trailer was stolen. Solway and Akler claimed replacement cost of their possessions, and the corporate respondents (owned by Solway and Akler) claimed income loss resulting from lost services. Davis' admitted liability for the loss of the goods, but only to the extent of the terms of the bill of lading and regulation 1088 of the Truck Transportation Act, which it claimed limited liability to $.60 per pound, for a total of $7,089.
At trial, Solway and Akler testified that Davis represented that it would provide safekeeping of their goods by parking the trailer in its moving yard, removing its loading gear, locking it and locking the air brakes. The trial judge found for the respondants, which Davis appealed.
- Is liability restricted to the limit in the bill of lading, or are the respondents entitled to damages due to the unconscionability doctrine?
Appeal allowed in part.
Labrosse, writing for the majority, looked back to the precedent of Fraser Jewellers (1982) Ltd. v Dominion Electric Protection Co. where the court concluded that relief should be granted only if the clause, seen in the light of the agreement, was unconscionable or unfair or unreasonable. Here, the respondents' goods were highly valuable, both in monetary and sentimental terms. Despite Davis' assurances to the contrary, they were not kept in secure conditions and Davis should have anticipated that a theft might occur. He held that on the facts to limit the loss to $7,089 would be "unconscionable" or "unfair or unreasonable," and this is one of those cases where relief should be granted. He also agreed with the trial judge's finding that the requirement of sufficient proximity between the corporations and Davis was not met and they were not therefore entitled to damages arising out of the breach of contract.
Limitations clauses implied by statute can be overridden by unconscionability.