Bata v. City Parking Canada Ltd.
(1974), 2 O.R. (2d) 446
ONTARIO COURT OF APPEAL
3RD DECEMBER 1973
Contracts — Bailment — Licence — Operator of car park announcing that “Charges are for use of parking space only” — Whether bailment or licence — Whether operator liable for damage to customer’s car.
Bailment — Licence — Operator of car park announcing that “Charges are for use of parking space only” — Whether bailment or licence — Whether operator liable for damage to customer’s car.
Where the operator of a car park issues to its customers a ticket and exhibits signs, announcing that charges are for the use of parking space only and that the operator assumes no responsibility for damage to the car, the relationship between the operator and its customers is not one of bailor and bailee but of licensor and licensee. Consequently, in the absence of a special contractual provision, the operator is not liable for the theft of and subsequent damage to a customer’s car.
[Williams & Wilson Ltd. v. OK Parking Stations Ltd.,  2 O.R. 151, 17 D.L.R. (3d) 243; Re S. Davis & Co., Ltd.,  Ch. 402; Palmer v. Toronto Med. Arts Bldg. Ltd.,  O.R. 60; Ashby v. Tolhurst,  2 All E.R. 837; Tinsley v. Dudley  1 All E.R. 252, refd to]
APPEAL from a decision of Mr. Michael E. Anka, acting under appointment as a Judge of the Small Claims Court in favour of the plaintiff in an action for damage to a motor vehicle.
B.S. Wortzman, for defendant, appellant.
D. Morgan, for plaintiff, respondent.
SCHROEDER, J.A. (orally):– The defendant appeals from a judgment pronounced by His Honour Judge Micheal E. Anka in the First Small Claims Court of the Judicial District of Ottawa- Carleton in an action brought by the plaintiff for damages to his motor vehicle which was stolen from the parking lot operated by the defendant where it had been parked for a consideration.
The plaintiff was awarded the sum of $239 for damages caused to the motor vehicle during the time that it was out of the plaintiff’s possession, and the amount of this claim is not in issue.
The appellant was the owner of a parking lot located in the centre of the City of Ottawa on Albert, Metcalfe and Queen Sts. On or about August 27, 1970, the respondent entered the appellant’s parking lot through the Metcalfe St. entrance and stopped behind a line of cars parked in a line opposite the attendant’s hut on the parking premises. The respondent stated that the attendant requested that the keys be left in the car and that he gave the respondent a ticket hereinafter referred to.
It is evident from the reasons for judgment of the learned Judge that he treated the relationship between the plaintiff and the defendant as that of bailor and bailee, and this assumption underlying his judgment led him to the conclusion that the defendant was liable to the plaintiff because it had not discharged the onus of proof cast upon it as bailee of the plaintiff’s motor-car. He did not consider whether the relationship was that of bailor and bailee as contrasted with that of licensor and licensee.
The true nature of the relationship was implied by the formal dispute notice filed by the defendant which reads as follows:
The parking contract entered into between City Parking Canada Limited and its customers includes the following:
“Charges are for use of parking space only. This company assumes no responsibility whatever for loss or damage due to fire, theft or otherwise, to the vehicle or its contents, however caused.”
(Emphasis is mine.)
The learned Judge based his judgment largely on a County Court judgment in Williams & Wilson Ltd. v. OK Parking Stations Ltd.,  2 O.R. 151, 17 D.L.R. (3d) 243, and particularly on the reasoning appearing at p. 153 O.R., p. 245 D.L.R., and the following pages. In that case too, the assumption was that the transaction between the parties was one of bailment. It is important, therefore, to determine the true nature of the bargain entered into by the parties in the present action.
Bailment has been defined as a delivery of personal chattels in trust on a contract express or implied that the trust shall be duly executed and the chattels redelivered in either their original or an altered form as soon as the time or use for, or condition on which they were bailed shall have elapsed or been performed. This definition which is taken from Bacon’s Abridgment was approved and adopted in Re S. Davis & Co., Ltd.,  Ch. 402. 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.
The distinction between bailment and licence was discussed by this Court in Palmer v. Toronto Med. Arts Bldg. Ltd.,  O.R. 60. At p. 67 reference is made to the judgment of Sir Wilfrid Greene, M.R., in Ashby v. Tolhurst,  2 All E.R. 837. There the plaintiff had driven his motor-car on to premises belonging to the defendant. He had paid one shilling to an attendant, who was in the defendant’s employment, received a ticket, and left the car with its doors locked. He returned later to find that his car was no longer there, the attendant saying that he had given it to the plaintiff’s friend who was in fact a stranger. The ticket was called a “car park ticket” and contained the words:
The proprietors do not take any responsibility for the safe custody of any cars or articles there nor for any damage to the cars or articles however caused, nor for any injuries to any persons, all cars being left in all respects entirely at owners’ risk. Owners are requested to show ticket when required.
It was there held that the relationship between the parties was that of licensor and licensee and not that of bailor and bailee, and there was therefore no obligation upon the defendants towards the plaintiff in relation to the car left in the car park.
It was further held that even if there was a bailment and that the defendant had authority to deliver possession of the car, and that he did so quite honestly under a mistake, the conditions on the ticket were wide enough to protect the defendant. It was further held that there could not be implied into the contract a term that the car should not be handed over without production of the ticket.
In his reasons for judgment at p. 840, Sir Wilfrid Greene, M.R., stressed the importance of examining the nature of the relationship between the parties [at p. 68]:
“… a matter upon which the character of the ground is, I think, not without importance, but the most important element is the document itself. It describes the place in which the car is to be left as a ‘car park,’ and the document is described as a ‘car park ticket’. I myself regard those words as being in one sense, in a real sense, I think, the most important part of the document, because they indicate the nature of the rights which the proprietor of a car is going to get. ‘Car park ticket’: you take a ticket in order to park your car, and parking your car means, I should have thought, leaving your car in a place. If you park your car in the street, you are liable to get into trouble with the police. On the other hand, you are entitled to park your car in places indicated by the police or the appropriate authorities for the purpose. Parking a car is leaving a car and, I should have thought, nothing else.”
Romer, L.J., stated:
“… in order that there shall be a bailment there must be a delivery by the bailor, that is to say, he must part with his possession of the chattel in question.”
. . . . .
“It is true that, if the car had been left there for any particular purpose that required that the defendant should have possession of the car, a delivery would rightly be inferred, and, if the car had been left at the car park for the purposes of being sold or by way of pledge or for the purposes of being driven away to some other place or indeed for the purposes of safe custody, delivery of the car, although not actually made, would readily be inferred. It is perfectly plain in this case that the car was not delivered to the defendants for safe custody.”
The principle enunciated in Ashby v. Tolhurst, supra, was again considered and applied by the English Court of Appeal in the later case of Tinsley v. Dudley,  1 All E.R. 252.
The respondent in the present case admitted that he was given a ticket which contained a number and also a triangular heading with the words “City Parking”. The latter two words appear in large capital letters. The ticket also contained the following wording: Charges are for use of parking space only.
This company assumes no responsibility whatever for loss or damage due to fire, theft, collision or otherwise, to the vehicle or its contents, however caused.
(The emphasis is mine.)
It was also established in evidence that there were two signs on the lot which contained words similar to those on the parking ticket. One of these signs was on the appellant attendant’s hut at the Metcalf St. entrance, and the other sign was on a board along the Albert St. side of the lot. These signs were two and one-half feet in width by 18 in. high, and the letters on them were one and one-half to one and three- quarters inches in height. The parking was done in daylight and one of the signs on the lot would have been clearly visible to the appellant when he attended to make arrangements for the parking of his car and to receive his parking ticket.
The words on the two signs and the words which appear on the parking ticket given to the customer indicate in a very real sense the nature of the rights which the proprietor of a car may expect to enjoy under the arrangement into which he is entering. The words “charges are for use of parking space only”, exclude at once any notion that the arrangement entered into is one of bailment, and if there is any doubt on that score the words “This company assumes no responsibility whatever for loss or damage due to fire, theft, collision or otherwise to the vehicle or its contents, however caused” should effectively remove any doubt in the matter.
With deference, I disagree with the conclusion of the learned trial Judge that the relationship between the plaintiff and the defendant was that of bailor and bailee. Applying the test that was applied by this Court in Palmer v. Toronto Med. Arts Bldg. Ltd., supra, which followed and applied the test laid down in Ashby v. Tolhurst, I am impelled to the conclusion that the relationship between the plaintiff and the defendant company was rather that of licensee and licensor. It follows that in the absence of proof of any stipulation placing an obligation on the defendant company as licensor towards the plaintiff as licensee, the defendant is not liable for the damage caused to the plaintiff’s motor-car after it had been stolen. Moreover, a bailment not having been established, no burden of proof was cast upon the defendant as held by the trial Judge.
In the result, the appeal is allowed with costs, the judgment in appeal is set aside and judgment shall issue in place thereof dismissing the action with costs. I fix the counsel fee allowable to the defendant at trial at the sum of $25, and the counsel fee on the appeal at $25. In view of the fact that the appellant’s factum was filed very late, the appellant shall be allowed no fee in respect thereof.