International Institute of Management Inc.
v.
Edmonton Co-Operative Association Ltd.,
2003 ABQB 502
Date: 20030605
Action No. 9003 16223
IN THE COURT OF QUEEN’S BENCH OF ALBERTA
JUDICIAL DISTRICT OF EDMONTON
BETWEEN:
INTERNATIONAL INSTITUTE OF MANAGEMENT INC.,
OPERATING AS GROSVENOR STAMP CO.
Plaintiffs
– and –
–
EDMONTON CO-OPERATIVE ASSOC’N LTD. AND
FEDERATED CO-OPERATIVES LTD.
Defendants
_______________________________________________________
REASONS FOR JUDGMENT
of the
HONOURABLE MR. JUSTICE T.D. CLACKSON
_______________________________________________________
APPEARANCES:
Mr. Grosvenor for the Plaintiffs
Mr. Vaughn Cox
Chatwin, Cox for the Defendants
I. SUMMARY
II. INTRODUCTION
[1] The Plaintiff has suffered two losses to its business.
These losses occurred on April 2, 1990 and July 3, 1990. The
Plaintiff carried on business as Grosvenor Stamp Co. in leased
premises at 12725 82 Street in Edmonton, Alberta. The Plaintiff’s
business was located in the basement of the building at that address.
The building was owned and operated by the Defendants and known
locally as the Delton Co-op. The main floor of the building was the
Defendant’s grocery store.
[2] The Plaintiff alleges that his inventory of philatelic
materials was extensively damaged on April 2, 1990 as a result of
ongoing renovations to the main floor of the Delton Co-op store. The
Plaintiff alleges that holes were drilled in the cement
ceiling above its premises which resulted in the concrete dust
permeating its premises. The nature and concentration of the dust is
the alleged cause of the Plaintiff’s loss. In a 24 page list,
the Plaintiff itemizes the materials damaged and their value.
[3] The Plaintiff attempted to enter a letter from a
purported stamp dealer to support its claim, which I refused to allow.
However, the directing mind and will of the Plaintiff,
William Grosvenor was tendered by the Plaintiff as an expert in the
purchase, sale and valuation of stamps and I accepted him as
such. In result, Mr. Grosvenor wore three hats. He was
officer of the Plaintiff, counsel for the Plaintiff in the sense
that the Plaintiff had no lawyer and philatelic expert.
[4] The Plaintiff alleges that after the disaster of April
2, 1990 it obtained substitute materials only to be visited by
a second calamity in the form of a flood/sewer back-up on July
3, 1990. That event is alleged to have caused further extensive
damage as particularized in the Plaintiff’s Amended Amended
Statement of Claim. The Plaintiff alleges that the flood
ultimately destroyed its business. The Plaintiff alleges
that the Defendants knew or ought to have known that a
flood/sewage back-up was likely and having failed to take steps to
prevent those occurrences is liable for the damage and loss which
was suffered by the Plaintiff, its tenant.
III. FACTS AND EVIDENCE
[5] The Plaintiff commenced operations in early 1989 and
ceased operations in late 1991. The Plaintiff claims it held
its lease until 1993 when its landlord went bankrupt but its
business licence expired in late 1991. The business was
designed around obtaining, valuing, cataloguing and selling
philatelic materials. The sales were to be conducted by auction mail
bid. Mr. Grosvenor testified that he opened the business
expecting to conduct a bid auction or mail sale about every three
months. He also expected some minimal walk-in retail trade. He felt
the business would be viable based upon the result of a bid
auction sale he says he conducted in 1987 and other auctions he had
assisted the Edmonton Stamp Club in conducting.
[6] Mr. Grosvenor did produce a copy of the bid auction
catalogue which he says was produced for the 1987 mail sale. However,
Mr. Grosvenor apparently shredded every other record which would
have assisted in establishing what materials were bought,
when, and for what price. He shredded everything that might bear
upon how much a bid auction sale might gross or net, or cost to
conduct. Every document which might have any bearing on this
proceeding other than the 1987 catalogue has been shredded.
[7] It appears that there are many similar materials
described in the 1987 bid auction catalogue and the list of materials the
Plaintiff claims were damaged by dust. However, Mr. Grosvenor would
not agree that the materials were in fact the same. In some instances
he says the descriptions suggest different materials. In other cases
where the descriptions were virtually the same, he suggested that
the materials were common and popular and therefore it was good
business to obtain those types of materials for resale. In result
then, he was, in effect saying that he may well have obtained identical
materials to those listed in 1987 after that sale had occurred but
before the dust claim arose.
[8] It is of course necessary to keep in mind that the value
of philatelic materials is directly related to the demand for
an item and its availability.
[9] The evidence as to what Mr. Grosvenor made on the 1987
mail bid sale was not particularly clear. However, he testified that
around $3,000.00 net seemed about right. Additionally, Mr.
Grosvenor testified that he would expect to sell about a third of the materials
offered for sale. If that were the case, one would expect the actual
gross income from the sale to be considerably in excess of
$3,000.00. On his evidence, it would appear that he would realize about
$9,000.00 a year net of cost of materials sold if one extrapolates from
the presumed results of the 1987 mail bid sale. Clearly I have no
evidence as to what the other costs of business were and so no basis upon
which to postulate an annual income for Grosvenor Stamp Co. or the
Plaintiff.
[10] The process of conducting a mail bid auction involves
different steps. Apparently, there are some bulk stamps offered by the
pound which do not require meticulous examination by the vendor.
On the other hand there are individual stamps offered which do
require careful examination. Individual stamps are compared as
against catalogues and assigned value based upon how closely they
match the catalogued item. As one might expect there are a variety of
characteristics that a stamp may have. The presence or
absence of characteristics alone or in combination will impact the
value of the stamp. Stamps have been a part of the world’s culture
for decades. Every country issues different stamps and the stamps a
country issues, change frequently. Countries use different cancellation
marks and those marks also change. Stamps are printed on a variety of
papers and those papers have changed over the years. The foregoing
are just some of the reasons why there is a nearly infinite variety
of collectable stamps. As well, there are a myriad of
variations, flaws and imperfections that two identical stamps can exhibit.
Finally, there are many forgers and reconstituters involved
in the more lucrative end of the stamp business. As a result, it is no
surprise that valuing a stamp is more art than calculus.
[11] Mr. Grosvenor’s list of materials allegedly damaged by
dust are valued by him in accordance with his expertise. He
testified that in some cases because he was preparing an
auction sale, he had previously identified and valued much
of what appears on the list of damaged materials.
[12] Mr. Grosvenor’s evidence was that all of the items
listed by him were damaged beyond recovery to the point
where the whole lot might fetch at most three to five
percent of their previous catalogue value. He testified that
the Defendant’s attempts at dusting and clean-up were
perfunctory and useless. He testified that the dust had an
oily or slimy feel to it and as such adhered to the paper
material such that dusting would have minimal utility.
[13] The Plaintiff’s claim relating to the sewage flood is
presented in a completely different fashion. The claimed
loss is not itemized beyond what is alleged in the Amended
Amended Statement of Claim. In part it appears that that is
the case because the individual materials are alleged by the
Plaintiff to be so contaminated that he does not wish to
have anything to do with those materials. In result, verification
of the claimed damage and assessment of the pre-damage
and post-damage value of the materials has not been offered.
[14] The destruction of all records surrounding the purchase
of materials claimed to have been lost precludes that
potential source of proof. Therefore, both claims depend entirely upon
the Plaintiff’s say so, both as to items allegedly damaged
and the quantum of the claimed losses.
[15] Clearly, because of the nature of these claims and the
evidence led by the Plaintiff to establish the claims, the
credibility of Mr. Grosvenor is pivotal.
[16] There are a number of concerns raised regarding Mr.
Grosvenor’s credibility. His testimony on a variety of subjects, some
directly relevant and some more remote was often challenged
on the basis of answers he gave at Examinations for
Discovery. Mr. Grosvenor admitted that if the transcripts of his
examinations record him as having stated something then he presumes he
did make that statement. However, he refused to accept that his
memory may have been better when examined nine or ten years
ago as compared to his memory at trial.
Additionally, when braced on the evidence apparently given
by him at Examinations for Discovery, his response was invariably
that he did not recall the questions or answers put to him. Even
though the Defendants did not seek to prove the transcript
and therefore did not attempt to have me receive the transcript
portions as evidence, the Defendant did offer the many
contradictions as a basis for negatively assessing Mr.
Grosvenor’s credibility. A few examples of the inconsistencies serve to
highlight the basis for the Defendant’s argument:
1. At trial Mr. Grosvenor said he shredded all financial
records annually once he and the company had settled taxes.
However, at Examination for Discovery Mr. Grosvenor said
that he had kept his and the company’s financial records from
about 1980 to 1990 and did not shred them until after he
contemplated pursuing the claim for damages now before me;
2. At trial Mr. Grosvenor said that he felt that the
Plaintiff had made perhaps between $8,000.00 and $10,000.00
in 1989. However at Examinations for Discovery Mr. Grosvenor said
that in 1989 about $1,000.00 revenue related to stamps.
When pressed further at Examinations for Discovery Mr.
Grosvenor could not say how much money had been made from the sale of
stamps between the day the company opened for business and
the day the dust incident occurred;
3. At trial Mr. Grosvenor stated that he did not recall
anything remotely like anyone from the Co-op offering to
help clean his store on the day of the flood. At Examination
for Discovery he admitted that Neil Hubbard from the Co-op
came after lunch and wanted to help clean up the flood in
the Plaintiff’s shop. Mr. Grosvenor admitted at Examination for
Discovery that he ordered Mr. Hubbard off the premises
because he did not trust Co-op as a result of their actions relating
to the dust incident.
[17] Additionally, the Defendant points to a number of other
concerns which reflect poorly on the credibility of Mr.
Grosvenor. A sample of those concerns follow:
(a) The income that Mr. Grosvenor says he earned for 1987
in the mail bid auction is not reported on the Plaintiff’s
returns or on Mr. Grosvenor’s personal tax returns.
(b) Mr. Grosvenor has no explanation as to why the 1987 mail
bid catalogue survived the general purging of his records.
(c) Mr. Grosvenor’s evidence was that the Plaintiff’s
records disclose purchases of philatelic materials in excess of
$105,500.00 in the period 1981 through 1991. On that evidence and the
fact that a mail bid sale was held in 1987, the Defendant’s
suggests that it would be impossible for the Plaintiff’s two claims
to total the $320,000.00 claimed.
[18] The Defendant also suggests that Mr. Grosvenor is prone
to exaggeration and therefore his evidence should be approached
with caution. The Defendant points to the following examples:
(a) The Amended Amended Statement of Claim respecting the
dust loss suggests several inches of dust covering the entire shop.
However the Plaintiff’s actual evidence was that the dust was a
quarter inch or more in some places, less in most.
(b) That the records of purchase and sale and virtually
every other relevant document which might assist on the subject of
the damage and value of the claims may have been destroyed
after the actions were contemplated and commenced.
(c) The many instances where what appear to be identical
stamps are described in the 1987 bid catalogue and the list of loss
inventory but the values on the latter are invariably much
higher.
(d) The 1987 mail bid auction catalogue was only produced at
trial and not before despite requirements of document
production.
(e) The statement that Mr. Grosvenor used proceeds from
settlement of a disability claim to replace the materials
damaged by dust. However that settlement admittedly did not
occur until 1995, years after the claimed losses.
I have concluded that Mr. Grosvenor has been guilty of many
inconsistencies, incongruities and exaggerations. I also
conclude that Mr. Grosvenor has over the many years that this lawsuit
has been his life’s focus come to accept as fact much which
is not accurate. Mr. Grosvenor has allowed righteous
indignation to colour his memory of the events surrounding these claims.
Mr. Grosvenor’s conduct, the manner of his speech and the many
unsubstantiated derogatory comments made by him are
compelling evidence of exactly that memory colouration process. I have
no doubt that Mr. Grosvenor firmly believes that the Defendants
and the Defendants’ counsel and the witnesses called by the
Defendants have lied, cheated, misrepresented, misled and
are in league to deprive him of his rightful due. Clearly, the
Defendants do not admit responsibility and have been
vigorous in attempting to answer the Plaintiff’s claim. However, that
approach does not justify Mr. Grosvenor’s beliefs. In my
view, Mr. Grosvenor has lost complete objectivity and is consumed
by this litigation and the imagined nefarious activity of the
Defendants. As such, in most instances where his evidence is
contradicted by other evidence, that other evidence must be
preferred.
[19] The Plaintiff argues that the clean-up undertaken by
the landlord after the dust incident had no impact upon the
materials. The Plaintiff argues that after the flood
all materials contaminated, even those which were metal
or plastic, could not be salvaged. Apparently the flood
claim was in fact two events. First there was a water
flood followed hours later by a sewer back-up. It is
noteworthy that none of the materials which were exposed
to the original flood were moved to higher ground before
the sewage back-up occurred, although the Plaintiff was
clearly on the premises between events.
[20] The Defendants produced their insurance adjuster,
Bill Birnie. Mr. Birnie has retired since 1990 but was
employed by Co-Operator’s General Insurance at the time of
the losses.
Mr. Birnie testified that he attended at the Plaintiff’s
premises and took photographs on the day of the dust claim and based
upon his recollection and the photographs he said that the
dust was certainly no more than 1/8 of an inch at its
heaviest concentration. That concentration was centred
on a table which had two open stamp albums on it and a
box of philatelic materials on the floor beside the table.
[21] Mr. Birnie told me that he swiped his hand across an
area of the offending dust and was able to blow that dust
off his hand without any residue. Mr. Birnie testified
that the dust was in his view ordinary and not oily. He
told me that the dust was about 1/16″ thick and that the
photographs of the scene accurately reflect that situation.
Mr. Birnie retained a cleaner to dust and vacuum the
Plaintiff’s premises.
[22] Mr. Birnie also attended the Plaintiff’s premises as
a result of the flood. He was not however able to gain
entrance to the Plaintiff’s shop and took photographs
from above a partial wall adjacent to the Plaintiff’s
shop. Mr. Birnie testified that the flood occurred in two
stages. The first was a water problem which was about 1
inch to 1 1/2 inches in height. Later that day, July 3,
1990, a sewer back-up occurred which caused contamination
of the existing flood water.
[23] Mr. Birnie’s edited notes were produced for purposes
of cross-examination. Despite personal attack and innuendo
from Mr. Grosvenor in the process of cross-examination,
the spry 80 year old Mr. Birnie was able to satisfy me
that his recollection of the physical evidence of the
events was accurate.
[24] The evidence of Lorne Downes was to the effect that
the renovations being concluded on the main floor of the
Delton Co-op Building did not involve the drilling of any
holes in the floor above the Plaintiff’s premises. While
new holes were drilled in the floor, the nearest of those
would have been 30 to 40 feet from the Plaintiff’s premises.
Therefore, the inference suggested is that any dust
created could not have travelled into the Plaintiff’s
premises.
[25] Mr. Downes did guess that when the tills on the main
floor were moved, dust may have fallen through the existing
floor holes in a minor quantity. These tills and the holes
associated with them were situate immediately above the
Plaintiff’s premises.
[26] Mr. Downes also testified that during his tenure at
the Delton Co-op Building which extended from 1987 to
March 30, 1991 and from 1993 to 2002, there had only been
two floods of the basement area. As a result, he understood
that storm water was rerouted to the outside as opposed to
the previous configuration where storm water was routed to
the building’s interior drainage system. Additionally, after
the second flooding incident he understood that the sump
area below the building’s elevator was rerouted to
discharge the sump water to the exterior of the building
instead of in through the building’s interior drainage
system. Mr. Downes was not working at the Delton Co-op
Building at the time of either of the Plaintiff’s
alleged losses and could not therefore comment specifically
on either event.
[27] Mr. Joe Schriebar of Black Diamond testified that he
was involved in the cleaning of the Plaintiff’s premises
after the dust incident. He testified that the dust was
heaviest at the table upon which the open albums were
located and diminished the further away one was from that
location. He testified that he recalled the dust at its
densest to be approximately 1/16 of an inch in depth. Mr.
Schriebar testified that the dust he encountered was
basically ordinary dust that one might find anywhere
except in the areas above the partial demising wall and
the file cabinets. The dust on those locations was much
heavier and of different texture.
[28] Mr. Schriebar testified that the cleaning process
involved using feather dusters on the exposed stamps and
albums and vacuuming where practicable and possible. The
bill sent by Black Diamond was for 14 hours work in
cleaning the Plaintiff’s premises.
[29] Mr. Schriebar did admit that while he had a memory of
this claim because it was unusual, he also relied upon a
statement reduced to writing made eight months after the
events.
[30] While Mr. Schriebar was nervous and sometimes difficult
to understand, he was very clear in his description of the
nature and the extent of the dust he encountered. His
reaction was that he was surprised there was a claim for it.
[31] Mr. Schriebar testified that he had a concern about the
delicacy of cleaning the exposed stamps but when the
cleaning was completed he was proud of the job that had been done.
[32] Mr. Schriebar did corroborate the Plaintiff’s evidence
in relation to the Plaintiff’s concern about the proper
way to clean stamps and the qualifications of Mr. Schriebar
to properly and safely clean those stamps.
[33] The evidence of Tim Leonard was to the effect that he
and his father and a helper did all of the electrical work
involved in the main floor renovations. He testified that
no holes were drilled into the floor in the area of the
Plaintiff’s premises. He also testified that he entered
the Plaintiff’s premises once and spoke to Mr. Grosvenor.
He recalled that on that visit, most of the stamps were in
books or in covers. He also said after he heard about the
Plaintiff’s complaint, he looked over the short demising
wall to the Plaintiff’s premises and did not see any
irreparable damage, although he admitted it may have
been dark. I don’t put much stock in that evidence as the
other evidence presented to me makes it clear that some
dust had invaded the premises of the Plaintiff.
[34] I do however, accept Mr. Leonard’s evidence as to
where the holes were drilled on the main floor of the
Co-op and the fact that no holes were drilled into the
floor above the Plaintiff’s premises. That evidence is
consistent with the evidence of Mr. Downes, the evidence
of Mr. Birnie, the evidence of Mr. Schriebar and the
photographic evidence.
[35] The Defendants also called Jean Colombus, the
proprietor of a vacuum cleaner, security systems store
known as Filtex. That store was also located in the
basement of the Delton Co-op Building kitty corner to
the Plaintiff’s premises. Ms. Columbus testified that
she had been a tenant in the Delton Co-op Building from
1985 to 2001 and had in that period of time experienced
two floods. Her recollection is that one flood originated
with a tornado and the other flood was the one which is
the subject of the Plaintiff’s claim. Ms. Columbus
testified she discovered the 1990 flood when she
arrived at work at approximately 8:30 a.m. on July 3rd.
At that time the flood appeared to be water, it did
not smell nor did it appear to be sewage.
Her evidence was that at no time did she ever smell
or see sewage and that after the flood she simply
cleaned her office furniture and equipment which she
still uses today.
[36] Ms. Columbus testified that at some point in the
morning of the 1990 flood, Mr. Grosvenor was on site. At
that point, the flood was approaching the Plaintiff’s
premises but had not yet arrived. She said that the
hallway adjacent to her premises and the Plaintiff’s
premises was partly wet and partly dry. She testified
that there was an opportunity for the Plaintiff to move
its material off the floor of its shop and protect that
material but that did not happen. Instead Ms. Columbus
said that Mr. Grosvenor simply locked the door to the
Plaintiff’s premises saying that the Co-op would have
to pay or words to that effect.
[37] I accept that Ms. Columbus was a reluctant participant
in these proceedings. I accept her evidence about Mr.
Grosvenor’s reaction to the flood. However, I think that the timing of
Mr. Grosvenor’s reaction is not as Ms. Columbus described it. In
my view the evidence is most consistent with the flood having
infiltrated the Plaintiff’s premises before Mr. Grosvenor
arrived. As well, I accept that the sewage contamination
of the flood water did occur but not until later in the day.
[38] The Defendants also called Edgar MacKay to testify
about the sales of stamps that he made to Mr. Grosvenor.
Mr. MacKay was a stamp dealer at the relevant time. Mr.
MacKay testified that he sold ten books of remnant collections to
Mr. Grosvenor for a total price of $500.00 to $750.00. He said
this sale took place between 1985 and 1989. A remnant or
remainder collection is a collection remaining after the valuable
stamps have been culled from it. Mr. MacKay also testified that
this was the single biggest transaction he did with Mr.
Grosvenor.
[39] The Defendants relied upon Mr. MacKay’s evidence
for the inference that Mr. Grosvenor was in the habit of
buying remainder collections. The Defendants argue that if the
inference is accepted then the Court should also infer that
the Plaintiff’s stamps were mostly remainders and not the
more valuable stamps the Plaintiff claims. That of course
is consistent with the expert testimony offered by Mr.
Spencer.
I will have more to say about that matter and Mr. Spencer
later in these Reasons.
[40] The Defendants’ officer Mr. Nick Nichol testified that
he was told by Neil Hubbard (deceased) that the dust incident
occurred when he was removing a check out isle rail on the
main floor of the Co-op. In doing so he had to remove a bolt
in the floor. Unbeknownst to him, the bolt went right
through the cement floor and through a steel plate on the underside
of the floor. The underside of the floor was the ceiling of the
Plaintiff’s premises. When the bolt was removed the plate
fell onto the light fixture in the Plaintiff’s premises.
[41] Mr. Nichol did not have any written notes of that
conversation with Mr. Hubbard, nor could he recall Hubbard’s
exact words in describing the incident. Mr. Nichol said he
arranged to have a dust sample taken from the same light
fixture on that portion of the fixture which extended beyond
the Plaintiff’s premises. Mr. Nichol says he felt that dust
sample and did not detect any slimy or oily sensation in it.
[42] Mr. Nichol was not present during the July flood but
did testify that he was aware of two earlier floods and that
there had not been a flood since the flood claim involving
the Plaintiff’s premises. Mr. Nichol testified that he did
not see, put in or direct the installation of back flow
valves in the building’s sewers. He testified as well that
he understood that that had been done although when he came
to that understanding is not clear. He said he came to that
understanding because he inquired of the of the Defendants’
maintenance staff as to the need for that type of device.
[43] Mr. Nichol testified that the furniture and property in
the basement office maintained by the Co-op was flooded.
However the carpet and steel desk chairs and cabinets all
cleaned up unremarkably. Mr. Nichol testified that the
Co-op’s employees had enough time to move the wooden
furniture and materials which would have been damaged
to higher surfaces before the flood covered those contents.
[44] The Defendants called Mr. Glen Giesinger who was
employed by Filtex at the time of the flood in 1990. He
remains with that company. Ms. Jean Columbus is his
mother-in-law.
[45] Mr. Giesinger testified that when he arrived at the
Filtex premises on July 3, 1990, the flood was ongoing
and he proceeded to lift Filtex’s stock off of the floor.
Apparently there was Filtex stock in the common hall area
between the Plaintiff’s and the Filtex’s demised premises.
He also raised those materials to higher levels.
[46] In the course of the morning he testified that he
and Neil Hubbard had thought to enter the stamp shop to
lift the materials in the shop off of the floor so as to
preserve them. However, they could not get in because of
the security system. Although the security system had been
installed by Filtex to Mr. Giesinger’s knowledge, Mr.
Giesinger did not personally have the codes. Mr. Giesinger said
Mr. Grosvenor arrived at the premises at about 11:00 or
11:30 a.m. but when asked by Hubbard to allow access to
his premises to lift the stamp shop materials out of harms’
way, Mr. Grosvenor refused. Mr. Giesinger said that Mr.
Hubbard told him that Mr. Grosvenor had told Hubbard to leave
it for the insurance and Mr. Grosvenor then left.
[47] Mr. Giesinger said he saw Mr. Grosvenor then the next
day, July 4, 1990, and Mr. Grosvenor asked him why he was
cleaning up instead of leaving it for the insurance people.
Mr. Giesinger did not note any visible human waste nor
smell anything consistent with human waste in the course
of this flood. He did say there was a kind of a musty or
moldy smell and I understood him to also describe a kind
of sludge or film on the flood waters which in his view
emanated from the cardboard boxes enclosing the Filtex
stock located in the common hallway.
[48] The Defendants called Mr. Keith Spencer as an expert
in philatelic materials. After a lengthy voir dire on Mr.
Spencer’s qualifications, I concluded that he was qualified
to provide opinion evidence on the appraisal, valuation and
disposal of philatelic materials. I declined to accept Mr.
Spencer as an expert dealer in philatelic materials.
[49] Mr. Spencer’s evidence was given in a calm rationale
fashion. He specifically discounted any feelings of
animosity or disrespect for Mr. Grosvenor although it was apparent
that Mr. Grosvenor did bear Mr. Spencer animosity.
[50] Because of the history between Mr. Grosvenor and Mr.
Spencer and their common interest in philatelic materials,
some of Mr. Spencer’s evidence was of the non-expert variety
and some of course was related to the areas in which I had
found him to be qualified. In all respects I felt Mr.
Spencer was honest and forthright with the Court, although he had
a tendency to run on at length often unnecessarily in
response to questions in both direct and cross-examination.
In the main, Mr. Spencer was a credible and reliable
witness.
[51] However, there were some instances in the course of
cross-examination where Mr. Spencer became quite combative
with Mr. Grosvenor, such that I had to admonish Mr. Spencer
to calm himself and answer the questions asked of him. I do
not think that Mr. Spencer was being dishonest or
deliberately uncooperative, rather I think Mr. Spencer became frustrated
under the prolonged and vituperative examination he was
compelled to endure at the hands of Mr. Grosvenor.
IV. THE CLAIMS
A. DUST CLAIM
1. Liability
[52] It is clear that the Defendants’ renovations to its main
floor operations caused dust to filter into the Plaintiff’s
premises. The constitution of that dust was a matter of constant
representation by the Plaintiff without any supporting evidence.
In fact the constitution of the dust is unproven. The Plaintiff
insisted that the dust was concrete dust having an oily texture
which could not be removed from paper material by mere dusting.
That view is not supported by any other evidence. The evidence
of Birnie, Schriebar, Leonard and Downes established conclusively
that no holes were actually drilled into the cement main floor
immediately above the Plaintiff’s premises. I am also
satisfied that removal of the check out rail and ensuing dust created
by the bolt falling onto the light fixture was the major source of
the dust which Mr. Birnie discovered. I also conclude that
at least some dust had entered the Plaintiff’s premises as a
result of the work being done above those premises. That is indeed
usual when construction and renovation projects are
undertaken.
[53] That dust entered the Plaintiff’s premises is admitted.
The real issue is the extent of the dust which entered the
Plaintiff’s premises and the impact of that substance upon
the Plaintiff’s stock.
[54] I prefer the evidence of Messrs. Birnie and Schriebar
as to what they observed and the results of their actions.
Their evidence is borne out by the photographs of the
Plaintiff’s premises taken by Mr. Birnie. That evidence has
persuaded me that the infiltration of dust onto the
Plaintiff’s premises was not as severe as Mr. Grosvenor attempted to
represent.
[55] Additionally, I prefer the evidence of Messrs. Birnie
and Schriebar as to the feel of the dust that they observed
and touched in the Plaintiff’s premises after the event.
There is no evidence upon which I could conclude that the
dust was particularly deleterious to philatelic materials.
There is no basis upon which I can conclude that any of the
philatelic materials were damaged by the dust event. I am
satisfied that the dust which found its way into the
Plaintiff’s shop was completely cleaned away by Mr.
Schriebar and his crew. The Plaintiff has not satisfied
me that there was a residual film on the philatelic
materials after that cleaning. The Plaintiff has not satisfied me
that the value of the philatelic materials has been
negatively impacted by the dust event.
[56] The onus is on the Plaintiff to show damage to its
philatelic materials. None of the allegedly damaged
material was entered into evidence. No expert evidence was
presented which would confirm that the Plaintiff’s materials
had a residue of dust. While I suspect that dust may have a
deleterious effect upon paper products, I also suspect that
dust can have a myriad of different properties and,
therefore, evidence as to the general effect of dust on paper wouldn’t
be helpful. Additionally, the evidence establishes that
the Plaintiff’s philatelic materials were commonly left
exposed to the elements for days at a time. Presumably
some accumulation of dust on those materials would be a
natural result of that exposure. Yet the
Plaintiff was unconcerned about that kind of dust exposure.
[57] Ultimately, the constitution of this particular dust
and the effect of this particular dust on this particular
paper was at issue. There was simply nothing in evidence
on any of those issues to support the claim of damage.
1. DAMAGES
[58] Because a great deal of effort was expended by both
sides on quantification of the claimed loss, it is
appropriate to provide the parties with my views on quantum.
[59] The problem for the Plaintiff is that again
there is very little offered by it to meet its
burden of proof. The fact is that Mr. Grosvenor
grossly exaggerated the accumulation of dust
and its pervasiveness. That fact is that the
Plaintiff did not establish how individual items
were damaged but simply claimed for virtually
everything in the store. The claim seems to encompass
materials sheathed in plastic or inside closed
albums without any explanation as to how those items
could have been damaged. The Plaintiff’s inventory of
damaged items included a number of items which were
not directly exposed to the contamination.
[60] In result, I was left to guess as to which items
claimed to have been affected actually were affected.
I am left to guess as to what extent the affected
items were affected and how that translates in value.
[61] There is yet another difficulty in attempting to
quantify the claimed loss and that is the evidence of
Mr. Grosvenor to the effect that the materials as
damaged would have a value of three to five percent
of their catalogue value. However, the actual loss
suffered will vary depending on the percentage of
catalogue value the item had before being exposed to
the deleterious dust. It is in that context that
the dispute between Mr. Grosvenor and Mr. Spencer is
important.
[62] Mr. Spencer said that by reputation and
observation Mr. Grosvenor’s materials were seconds,
remnants or remainders and consequently of little value.
While Mr. Spencer was careful to say that his opinion
was not based upon what he believed Mr. Grosvenor’s
reputation to be, I am certain that his opinion as to
value was influenced by that reputation.
Additionally, Mr. Spencer admitted that he did not
examine each of the claimed items nor did he make
detailed notes of the items that he did examine. That
is significant, because by the time he was called
upon to offer opinion as to value, he had virtually
no independent recollection of any particular stamp
or its particular grade or condition. He was forced
to rely upon very sketchy notes. I think it is also
significant because it reflects an approach which
was based upon a faulty premise. Mr. Spencer felt
that because he could not see any damage to the dust
event materials, he did not need to be particular in
examining those materials. The error in that approach
is that Mr. Spencer is not an expert on the impact
of dust on philatelic materials.
[63] Much of the focus of the litigation was on the
value of the stamps and other philatelic materials
without regard to damage by dust. Mr. Grosvenor opined
that the affected stamps were worth tens of thousands
of dollars. Mr. Spencer opined that most of the stamps
were worth pennies to at most a few dollars. In result,
I am not persuaded that Mr. Spencer’s valuation of the
materials was reliable. However, the opinion evidence
of Mr. Grosvenor as to the value of materials he
claimed were damaged by dust was also unreliable.
In the end, the evidence as to value was unsatisfactory
because neither Mr. Grosvenor’s opinion nor Mr. Spencer’s
opinion was convincing. There is in effect no satisfactory
basis to try to assign a value to any particular claimed
item. There is really no basis upon which I can assign
a salvage value to any one stamp or philatelic item even
if I had concluded that the item was in fact damaged in
a quantifiable way. Therefore, I cannot make any finding
as to the quantum of the Plaintiff’s unproven loss.
A. THE FLOOD/SEWER CLAIM
1. Liability
[64] The Plaintiff’s position is that the Co-op, its
landlord, breached the lease agreement. Specifically,
the Plaintiff alleges that the implicit covenant for
quiet enjoyment was breached.
[65] The Plaintiff alleges that there were prior floods
of the premises of which the Co-op was aware and therefore
it should have taken steps to ensure that the floods did
not recur. The Plaintiff says that the Co-op should have
installed a stop-flow valve and in failing to do so acted
both negligently and in violation of the lease.
[66] This claim fails. The evidence respecting prior
floods was not particularly clear. However, it was clear
that steps were taken after the prior flood events to
rectify what was believed to be the source of the problem.
There was no evidence as to what a stop-flow valve is,
what purpose it would serve or whether it would be effective
in preventing a flood/sewer event. In those circumstances,
I cannot conclude that the Co-op ought to have foreseen the
flood/sewer event, ought to have acted to prevent the event
or could have acted to prevent the event.
[67] In fact I am satisfied that the Co-op acted perfectly
reasonably in all respects in protecting itself and its
tenants from the potential for flooding. Clearly, it
did not want its business premises flooded. Clearly it
had taken steps to further protect against that potential.
In those circumstances I conclude that the Co-op’s duty of
care and its contractual obligations were met.
2. Damages
[68] For the reasons given relative to valuation of the loss
in the dust claim, I decline to attempt to value the items
lost in the flood/sewer claim. Not only do all of the
difficulties which made it impossible to assign value in the
dust portion of the claim apply to this portion of the
claim, but also there was an additional difficulty. I am satisfied
that there were in fact two floods as described by Mr.
Birnie. The first event was properly a flood. The second was a later
sewer back-up which resulted in contamination of the
existing flood waters by human sewage and an increase in the depth of
the flood waters.
[69] The evidence establishes that Mr. Grosvenor had the
opportunity between the two events to mitigate the
Plaintiff’s losses by moving materials on the floor of its shop to
higher ground. In my view, it was not only prudent but the
Plaintiff’s obligation to do so. Its failure to do so resulted in an
increase in the time its materials were exposed to the
deleterious substances. Therefore whatever loss the
Plaintiff suffered in the flood/sewer event is exacerbated by its
failure to take steps to preserve its property. There is no evidence
that would allow me to determine what portion of the loss
might have been suffered in the first event or flood and
what portion of the loss was the result of the second event or
sewer back-up.
V. CONCLUSION
[70] The Plaintiff has failed to establish its claims and
its actions are therefore dismissed.
The Defendants’ are entitled to their costs on Column III of
the previous Schedule C of the Rules of Court for those
steps taken prior to December 31, 2000. For those steps taken
after January 1, 2001 the Defendants’ shall be entitled to their
costs under the new Schedule C Column I. Those costs are to
be taxed.
HEARD on the 7th day of January to the 26th day of May,
2003.
DATED at Edmonton, Alberta this 5th day of June, 2003.
__________________________
J.C.Q.B.A
