Citation: Bridges v. Classic Sports Tours Ltd. Date: 20040930 2004 BCPC 0366 File No: 2003-84213 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: GREGORY FRANKLIN BRIDGES CLAIMANT AND: CLASSIC SPORTS TOURS LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H. DHILLON Counsel for the Claimant: A. Jorgenson, A.S. Appearing for the Defendant: M. Desharnais Place of Hearing: Vancouver, B.C. Date of Hearing: September 27, 2004 Date of Judgment: September 30, 2004 2004 BCPC 366 (CanLII) [1] The Claimant, Gregory Bridges, claims damages for breach of a golf holiday contract. The Defendant, Classic Sports Tours Ltd., denies the breach and alternatively argues that the Claimant has failed to mitigate his loss. [2] In 2001 the Claimant learned that the Defendant was promoting a golf holiday called the Pro Team Classic 2001 to take place in Isla Navidad, Manzanillo, Mexico from November 9 to 16, 2001. The Defendant was promoting the holiday package through brochures which were sent to golf professionals and fans of the game. The brochure listed the package prices, which included air fare return from Vancouver, hotel, golf rounds, golf tournament, a prize purse, evening functions, and all transfers. It also contained a limitation of liability and waiver clause. [3] Keith Westover, a golf pro known to the Claimant, urged the Claimant to take the package and join his foursome. The Claimant sent a cheque payable to Mr. Westover for $3,303.27 who then registered the Claimant for the holiday package. The Defendant acknowledged the payment on behalf of the Claimant by sending to the Claimant a confirmation that he was registered to travel to Mexico departing on November 9, 2001 and returning on November 16. The Claimant also purchased additional golf practice rounds for $442.75, for a total investment of $3,746.02. [4] Unfortunately for all concerned, on November 8, 2001 Canada 3000 obtained an order of the Ontario Superior Court of Justice granting it protection under the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36: see Re Canada 3000 Inc. 235 D.L.R. (4th) 618 for further details. The effect of this was a grounding of all Canada 3000 flights, including the flight on which the Claimant was booked to fly to Mexico on November 9, 2001. [5] Mr. Miles Desharnais, owner of the Defendant company, testified that he was at the airport when his party learned that the flight would not proceed. He urged the stranded travellers to rebook their flights to Mexico through other carriers, and about one half of the group managed to do that either that day or the following day. He testified that the air fare cost for alternative travel was about $550. In Exhibit 9, it is noted that the air and taxes sought to be refunded from Canada 3000 was $623. [6] Mr. Desharnais took a later flight via Los Angeles arriving at the Isla Navidad destination where the golf holiday took place, with some minor modifications. He said that he arranged for the resort to provide a hotel and golf credit to be used within one year for those who did not arrive by alternative travel arrangements. [7] Price Waterhouse was appointed to administer the claims of customers and creditors against Canada 3000's trust account. Mr. Desharnais testified that he took steps to file a group claim with the trustee on behalf of the stranded passengers, including the Claimant. He received partial compensation from Price Waterhouse which came to about $300 per claimant on a pro rata basis which he forwarded to the Claimant. The Claimant rejected this payment and sought full compensation. [8] As well, Mr. Desharnais urged the stranded passengers to file a claim with the Registrar of Travel who administers the B.C. Travel Assurance Fund. He states that the Claimant has filed such a claim, to his knowledge. [9] It is the position of the Claimant that he is entitled to be fully compensated for the amount paid to the Defendant for the golf holiday. The Defendant contends that it is not liable by reason of the printed waiver, and is not otherwise liable under the contract. 2004 BCPC 366 (CanLII) [10] A starting point in this case is to determine the nature of the contract and its fundamental terms which can be gleaned from the promotional brochure or pamphlet in evidence. It is my view that under the contract the Defendant agreed to organize a golf holiday by arranging with various suppliers to provide services to the registrants. [11] The express terms of the contract, printed on the promotional brochure, are as follows: Responsibility and Waiver: Pertaining to Classic Sports Tours Ltd. and Pro Team Classic, the passenger waives and releases Classic Sports Tours Ltd. and Pro Team Classic from any loss, damage, expense, cost or injury, from any clause (sic) except the gross negligence or wilful misconduct of Classic Sports Tours Ltd., incurred by the passenger on any part of the tour. Classic Sports Tours Ltd. shall not be responsible for any actions or inactions of its contracted suppliers. Classic Sports Tours reserves the right to cancel, or modify in its sole discretion any part of the tour and will, when it reasonably can do so, give notice to the passenger of any material change in the tour. In the event that the tour is cancelled, Classic Sports Tours Ltd. will repay to all passengers pro rata all monies returned to Classic Sports Tours Ltd. by contracted suppliers in respect of the cancelled tour Classic Sports Tours Ltd. reserves the right to charge for increases in land or air costs that arise due to currency fluctuations or airfare increases that occur between tariffs in effect as of January 31, 2001 and the final payment of the tour cost. [12] The above provision protects the Defendant from any liability for the acts or omissions of its contracted suppliers, one of which was Canada 3000 Inc. It also limits any compensation payable to a claimant to a pro rata share of monies returned to the Defendant by the defaulting supplier. [13] It is clear that the Claimant used Mr. Westover as his agent to carry out the purchase transaction. I accept and find that Mr. Westover, as a golf professional, would have received the promotional brochure on which the details of the package are stated, and on which the fees remitted by the Claimant are based. Mr. Westover did not testify at trial. I find that by using Mr. Westover as his agent, the Claimant relied on the agent to bring to his attention any provisions of the brochure which might affect the transaction. I find that the terms of the brochure were reasonably disclosed to the Claimant through his agent. [14] It is my further view that the decision of Lord Denning in Jarvis v. Swans Tours Ltd., [1973] Q.B. 233, [1973] 1 All E.R. 71 (C.A.) does not assist the Claimant. In Jarvis, the plaintiff was induced to purchase a holiday based on misrepresentations in the holiday brochure issued by the Defendant. The Defendant was found liable by reason of the misrepresentation, and the plaintiff was awarded damages for mental distress caused by a ruined holiday. [15] In this case, there was no misrepresentation in the brochure. Rather, the difficulty was that one of the contracted suppliers, Canada 3000, could not provide transportation to Mexico. In determining the contractual relationship between the Claimant and Defendant, I find that the Defendant agreed to put together a holiday package for golf enthusiasts by contracting as their agent with various suppliers. It is likely that the Defendant charged for this service which was incorporated in the price of the package. However, in doing so, the Defendant did not assume liability if the contractor defaulted in the provision of the goods and services. The limiting clause in the brochure supports this interpretation. [16] This analysis is further supported by the comments of the Ontario Court of Appeal in Craven et al v. Strand Holidays (Canada) Ltd. 142 D.L.R. (3d) 31. In that case, a jury found the 2004 BCPC 366 (CanLII) Defendant Strand liable for damages and injuries suffered by the plaintiffs when their bus overturned during a vacation in Colombia, South America which had been arranged by the Defendant as tour operator. The Court of Appeal, in remitting the matter for a new trial, commented as follows: If a person agrees to perform some work or services, he cannot escape contractual liability by delegating the performance to another. It is his contract. But if the contract is only to provide or arrange for the performance of services then he has fulfilled his contract if he has exercised due care in the selection of a competent contractor. He is not responsible if that contractor is negligent in the performance of the actual work or service, for the performance is not part of his contract. [17] I find that this analysis applies in the instant case. The Defendant did not agree to fly the Claimant to Mexico. It contracted on the Claimant's behalf with an air carrier, Canada 3000, for provision of transportation services. There is no evidence that the Defendant did not exercise due care in the selection of Canada 3000 as the carrier. I conclude that at the time the charter booking was made several months before departure, the Defendant reasonably believed that the airline was a competent contractor. I conclude therefore that the Defendant fulfilled its obligations to retain a competent carrier and is not responsible under contract law for the loss caused to the Claimant due to the grounding of Canada 3000 airplanes. [18] I am further satisfied on the evidence that the Defendant has forwarded to the Claimant his pro rata share of the monies received from Canada 3000's trustee, as required under the above limitation of liability. [19] In the alternative, I conclude that the Claimant did not act reasonably to mitigate his damages by finding alternative transportation to Mexico in order to use the lodging and golf component of the package. I find that it would have cost about $650 in airfare, and $100 in transfers and other costs for substitute travel to the destination. Deducting the $300 available from the Canada 3000 trustee, had the Claimant been successful in this action his recovery would have been limited to about $450. [20] In summary, the Claimant has not proved on a balance of probabilities that the Defendant breached a fundamental term of the contract. The claim is dismissed, with the Defendant's filing and service costs payable by the Claimant. What was the main issue in the case? (30 Marks) Explain the defence that Classic Sports made. (20 Marks) What are express terms and why did the judge refer to them. (30 Marks) What did the court say about the Plaintiff's conduct and why? (20 Marks)