Bailments occur when a third party (the bailee) holds the property of another (the “bailor” or typically the “owner”). When the held property is damaged or lost, the owner often looks to the courts for redress against the Bailee.
The central issue is often how well, or how poorly, the bailee safeguarded the property under their care. The standard of care is typically set according to the terms of the contract creating the bailment, but if there is no contract, or if the contract is silent about how the bailee was to safeguard the property, the court will have to determine the standard of care to apply. Typically, if the bailment is gratuitous (ie: free), the standard is very low and the bailee will only be liable if guilty of gross negligence. If the bailment is for hire or for reward (ie: a fee is paid), then the standard of care is typically the level of care that would be shown by the owner, acting reasonably, or if the bailee is part of a certain industry, the norms of that industry.
This recent appellate decision confirms that the standard of care is never to a level of perfection. In practical terms, this means that a court can ignore, as they did in this recent case, a whole list of additional things that the bailee could have done to improve the safety of the property, provided that what the bailee did was similar to what a prudent owner might reasonably be expected to do in order to keep their property safe, in similar circumstances, where there is no industry standard to gauge the conduct of the bailee otherwise.
In this recent case, the court was not prepared to hold the bailee liable simply because the bailee could have perhaps used better locks, or deployed a better security system, or possibly added some additional hurdles for thieves to go through, because in the end no security system would stop a motivated thief. The court was satisfied that what the bailee did was reasonable: in this case keep the plaintiff’s uninsured hitch trailer-home in a facility protected by a fence, a ditch around the perimeter, a padlocked front gate, and the deployment of regular security patrols throughout closing hours. The thieves seemed to know the routine, and broke the lock during a downtime in the security checks, and entered quickly, hitched the plaintiff’s trailer-home, and departed within minutes.
The court reasoned that a true owner would not have done anything more than what the dealership did to safeguard the subject property, especially when there was no history of thefts. The Court of Appeal ruled that the trial judge was not required to conclude that because more could have been done, the bailee had to be, by default, in breach of their duty to safeguard the owner’s property.
Letwin v. Camp Mart, 2022 ONCA 475
https://www.canlii.org/en/on/onca/doc/2022/2022onca475/2022onca475.html