Citation: ☼ Anderson v. Kasey Beauty Inc.

2023 BCPC 166

Date: ☼20230707
File No: C-19228
Registry: Port
Coquitlam

2023 BCPC 166 (CanLII)

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
SMALL CLAIMS COURT

BETWEEN:
NANCI ANDERSON
CLAIMANT

AND:
KASEY BEAUTY INC.
DEFENDANT

REASONS FOR JUDGMENT

OF THE
HONOURABLE JUDGE W. LEE

Appearing in person: N. Anderson

Appearing for the Defendant: S. Nguyen
Place of Hearing: Port Coquitlam, B.C.
Date of Hearing: June 29, 2023
Date of Judgment: July 7, 2023
Anderson v. Kasey Beauty Inc. Page 1

Introduction

[1] This is a claim by Nanci L. Anderson against Kasey Beauty Inc. (“Kasey Beauty”)
concerning a pair of diamond solitaire earrings and a gold necklace that Ms. Anderson
left at the defendant’s place of business and which were subsequently lost. At issue is

2023 BCPC 166 (CanLII)

whether Kasey Beauty is liable for the loss and if so, the amount of damages due to the
claimant.

[2] Ms. Anderson also claims a refund of $514.50 for facial treatments that were
never used. Kasey Beauty has not taken issue with this claim.

Evidence

[3] On behalf of the claimant, I heard evidence from Ms. Anderson and Patrick
Robinson

[4] On behalf of the defendant, I heard evidence from Ada Au. Ms. Au’s mother is
the owner of Kasey Beauty.

[5] At the start of the trial, both parties intended to call as a witness Cindy Li. It was
decided that Kasey Beauty would call Ms. Li as a witness allowing Ms. Anderson to then
cross-examine her. However, when Ms. Li was called to the stand, she did not
understand the question when she was asked if she would affirm to tell the truth. It was
apparent Ms. Li did not understand English sufficiently to testify without the use of an
interpreter. Counsel for Kasey Beauty advised that he did not have instructions to retain
an interpreter and so Kasey Beauty would not call Ms. Li as a witness. I then gave Ms.
Anderson the option to call Ms. Li as a witness. If she chose to do so, Ms. Anderson
would have to pay the costs for an interpreter. Ms. Anderson elected not to call Ms. Li
as a witness.

[6] The facts are not in dispute.

[7] Before June 2021, Ms. Anderson had been going to Kasey Beauty for some 10
years for salon treatments.
Anderson v. Kasey Beauty Inc. Page 2

[8] On June 6, 2021, Ms. Anderson attended Kasey Beauty for a facial, which was
scheduled for 10:00 a.m. to 11:30 a.m. Ms. Anderson also had a pedicure appointment
booked for noon at a nearby salon.

[9] The facial service was provided by Cindy Li. Just before the facial, Ms. Anderson

2023 BCPC 166 (CanLII)

removed her earrings and necklace, placing them on the table beside her. When the
facial was completed, Ms. Anderson got dressed but forgot to retrieve her earrings and
necklace.

[10] Ms. Anderson went on to purchase five additional treatments for $514.50.

[11] After Ms. Anderson went to her pedicure appointment, Cindy Li phoned her. Ms.
Li told Ms. Anderson that her earrings and necklace were still at Kasey Beauty. Ms.
Anderson could not immediately return to Kasey Beauty because of her pedicure
appointment.

[12] Ms. Anderson said she would come back to Kacey Beauty later that day to get
the jewellery. However, Ms. Li was closing the salon for the day so Ms. Anderson could
not return to get her jewellery.

[13] Ms. Anderson told Ms. Li she had another appointment at Kasey Beauty in two
weeks and she would retrieve the jewellery then.

[14] Ms. Anderson did not return to Kacey Beauty before her next appointment. Due
to the COVID-19 pandemic, Kacey Beauty was not open for drop-in clients and all visits
had to be pre-booked. Ms. Anderson also said she did not want to force Ms. Li to come
to the business simply to allow Ms. Anderson to retrieve the jewellery.

[15] Two weeks later, Ms. Anderson returned for her appointment. Ms. Li looked for
the jewellery and could not find them. Ms. Anderson spoke to the owner of Kasey
Jewellery, Rebecca Au, who suggested that Ms. Anderson make a claim on her home
insurance. Ms. Anderson said the jewellery was not covered by her home insurance.
She also felt she should not have to make a claim as it was not her fault for the loss.
Anderson v. Kasey Beauty Inc. Page 3

[16] Because of the dispute about the lost jewellery, Ms. Anderson never used any of
the pre-paid facial treatments.

[17] As Ms. Li did not testify at trial, I do not have any evidence of what she may have
done with the jewellery. I also do not have any evidence to contradict Ms. Anderson’s

2023 BCPC 166 (CanLII)

description of the incident or her discussion with Ms. Li.

Burden of Proof

[18] In any civil action, the burden of proof lies with the party asserting a claim to
prove their case on the balance of probabilities: Vista Leadership Inc. v. Pilon, 2021
BCPC 320 at para. 10. In this case, that burden falls on Ms. Anderson to satisfy me that
she has proven her case. In doing so I will look at all the evidence, whether it came from
the claimant or the defendant. If Ms. Anderson fails to meet the burden, the claim will be
dismissed.

Analysis

[19] Ms. Anderson submits that Kacey Beauty was acting as a bailee holding
possession of her jewellery and that Kacey Beauty breached their duty of care when the
jewellery was lost.

[20] Kacey Beauty argues that it granted Ms. Anderson a licence to leave the
jewellery at the premises and that no bailment was created.

[21] In the decision MacAulay v. Meise, 2020 BCPC 135, Judge Malfair defined a
bailment as follows:

[73] A person who possesses or stores items for another is often

referred to as a “bailee.” A Bailee has a duty of care towards the items
they are storing for someone else, but those duties are different for bailees
who are paid (“bailees for reward”), and bailees who are not. Parties who
agree to store someone’s goods but are not paid are “gratuitous bailees,”
while parties who have someone else’s goods on their property against
their will are “involuntary bailees.”
Anderson v. Kasey Beauty Inc. Page 4

[22] The decision Robertson v. Stang, 1997 CanLII 2122 (BC SC) discussed the
difference between bailment and licence:

(2) Bailment v. License

[57] A bailment may be defined as the delivery or transfer of possession

2023 BCPC 166 (CanLII)

of a chattel with a specific mandate which requires it to be returned or
dealt with in a particular way by the bailee: Bata v. City Parking Canada
Ltd. (1973), 1973 CanLII 796 (ON CA), 2 O.R. (2d) 446 (C.A.); Palmer,
supra. The distinction between a bailment and a license has been
discussed in: Palmer, supra; Withers, Evans Ltd. (Trustee of) v. Sterling
Circuits Inc. (1988), 1988 CanLII 3352 (BC SC), 47 D.L.R. (4th) 614
(B.C.S.C.); and Zweeres v. Thibault, 23 A.2d 529 (Vt. S.C. 1942);
…
[62] N.E. Palmer, in Bailment, 2nd ed (Sydney: The Law Book Company
Ltd., 1991) at 382, describes the distinction between bailments and
licenses as follows:
The law has repeatedly drawn a distinction between bailments and
licences; the former requiring a transfer of possession and a
voluntary acceptance of the common law duty of safekeeping, the
latter amounting to no more than a grant of permission to the user
of a chattel to leave it upon the licensor's land on the understanding
that neither possession shall be transferred nor responsibility for
guarding the chattel accepted.
[63] The significance of the distinction between bailments and licenses
is discussed by Schroeder J.A. in Bata v. City Parking Canada
Ltd. (1973), 1973 CanLII 796 (ON CA), 2 O.R. (2d) 446 at 448 (C.A.):
There is a very wide divergence between the relationship of bailor
and bailee and that of licensor and licensee in that the latter, in the
absence of some special contractual provision, carries no obligation
on the part of the licensor towards the licensee with respect to the
chattel subject to the licence.
[64] These cases establish the principle that control over the subject
chattels is the key to distinguishing between bailments and licenses. In
the present case, the facts suggest that the plaintiff surrendered control of
her goods to the defendants and a bailment relationship was created: it
was the defendants who moved the plaintiff's goods into storage; the
plaintiff did not have a key to the storage rooms; the plaintiff was told by
Mr. Stang that her goods would be safe; and the plaintiff was uncertain as
to where exactly the goods were stored. In addition, it was the defendants
who determined that the goods would be moved and did so with full
knowledge of the plaintiff's emotional condition at the time. While it may
be true that the plaintiff could remove her goods at any time she wished,
this is not unusual where there is a bailment of indeterminate length, and
Anderson v. Kasey Beauty Inc. Page 5

in Zweeres, supra, was held to not necessarily be indicative of a license

relationship.

[23] In summary, a bailment is where a bailee stores goods on behalf of another (the
“bailor”). A licence is where one person (the “licensor”) allows another (the “licensee”) to

2023 BCPC 166 (CanLII)

use their space. One example is where the owner of a parking lot, the licensor, provides
permission for a vehicle owner, the licensee, to park their vehicle. The licensor provides
permission for the licensee vehicle owner to use the parking space. Absent a specific
agreement otherwise, the licensor does not promise to safeguard the vehicle.

[24] Kasey Beauty submits that it was a licensor and only agreed to provide a space
for Ms. Anderson, as a licensee, to store her jewellery.

[25] I do not accept this submission. Ms. Anderson’s evidence was that Cindy Li
agreed to hold onto the jewellery. There was no discussion about the use of the store
premises as a place to store the jewellery.

[26] Absent a licence for the holding of the jewellery, I am satisfied that Kacey Beauty
was acting as a bailee of the jewellery.

[27] As was described in MacAulay v Meise, which I referred to earlier, there are
different types of bailees and different levels of duty of care. The MacAulay case
referred to bailees for reward, gratuitous bailees and involuntary bailees.

[28] A bailee for reward is paid to store someone’s goods. That was not the case
here.

[29] A gratuitous bailee exists where someone agrees to store someone’s goods but
is not paid to do so.

[30] An involuntary bailee exists where the bailor’s goods are on the bailee’s property
against the wishes of the bailee. An involuntary bailee may exist whether the bailee is
paid or not.
Anderson v. Kasey Beauty Inc. Page 6

[31] Based on Ms. Anderson’s evidence, it appears that Ms. Li agreed that Kacey
Beauty would keep the jewellery until Ms. Anderson could retrieve them. As such, I find
that Kacey Beauty was a gratuitous bailee.

[32] In MacAulay v Meise at para. 80, Judge Malfair described the requisite standard

2023 BCPC 166 (CanLII)

of care as follows:

[80] The characterization of the bailment as gratuitous or for reward is

extremely important. At common law the standard of care imposed upon a
bailee, as well as the location of the onus of proof, depends upon the
proper characterization of the relationship. Where the bailment is
involuntary or gratuitous the bailee generally has been held liable for only
reckless or intentional damage and the burden of proof rests with the
bailor. Where the bailment is for reward, the bailee is liable for negligence
or the failure to exercise due care and diligence.

[33] In Lund v. Dey, 2015 BCSC 953 (CanLII), the Court described the standard of
care as follows:

[46] If Mr. Dey was a bailee, he was a gratuitous bailee, because he did
not receive any consideration. A gratuitous bailee is held to a lower
standard of care than a bailee for reward. Traditionally, it was said that a
gratuitous bailee does not breach his standard of care except where there
is gross negligence, but in more recent cases the standard of care of a
gratuitous bailee has been described as the duty to take reasonable care
in light of all the circumstances: Robertson v. Stang, 1997 CanLII
2122 (BC SC) at para. 67.

[34] In Robertson v. Stang, which I referred to earlier, the court described the
standard of care as follows:

[66] Traditionally, the standard of care imposed upon a bailee has been
governed by the existence and location of any benefit or award arising out
of the bailment. Where the bailment is a gratuitous one solely for the
bailor's benefit, then the bailee has generally only been held liable for
"gross negligence": Brewer v. Calori (1921), 29 B.C.R. 457 (C.A.). Where
the bailment is for reward, the standard is somewhat higher, the bailee
being held liable for "negligence", or a failure to exercise due care and
diligence: Zweeres, supra; Davis v. Henry Birks & Sons Ltd., 1981 CanLII
3401 (BC SC), [1981] 5 W.W.R. 559 (B.C.S.C.), appeal dismissed (1983),
41 B.C.L.R. 138 (C.A.); Thieven v. Southmark Vancouver Corporation (29
June 1990) Vancouver Registry No. 996/89 (B.C.S.C.).
Anderson v. Kasey Beauty Inc. Page 7

[35] What we know from the evidence is that Kacey Beauty held onto the jewellery for
Ms. Anderson. We also know that two weeks later, when Ms. Anderson returned to
Kacey Beauty, the jewellery could not be found.

[36] Because Ms. Li did not testify, we do not know what was done with the jewellery.

2023 BCPC 166 (CanLII)

We do not know if it was placed in some secure location or what steps were taken to
safeguard the jewellery.

[37] Even though the jewellery went missing, I cannot presume that there was
negligence involved in the loss of the jewellery. To arrive at that conclusion, I would be
speculating without any supporting evidence.

[38] This is not a case where a rebuttable presumption of negligence has been
established such that Kasey Beauty has to prove it was not negligent.

[39] The onus is on Ms. Anderson as the claimant to prove on the balance of
probabilities that Kacey Beauty was grossly negligent or failed to take reasonable care
in light of all the circumstances. As there is no evidence to support such a finding, the
onus has not been met. I find that Ms. Anderson has not proven her claim on the
balance of probabilities that Kacey Beauty was liable for the loss of the jewellery and
that the claim must be dismissed.

[40] Because I did not find Kasey Beauty liable for the lost jewellery, I do not have to
consider the issues of contributory negligence or failure to mitigate, as raised by Kasey
Beauty. I also do not need to assess the value of the lost jewellery.

[41] There remains a claim for a refund of $514.50 for the unused facial treatments.
The Reply filed by Kasey Beauty acknowledges this claim and so there will be judgment
in this regard.

Order

[42] Kasey Beauty Inc. will pay Nanci L. Anderson the sum of $514.50 plus the filing
fee of $156 and additional fees of $75.
Anderson v. Kasey Beauty Inc. Page 8

_____________________________
The Honourable Judge W. Lee
Provincial Court of British Columbia

2023 BCPC 166 (CanLII)