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Kruger Products Limited v. First Choice Logistics Inc. Page 4 6. The FCL Defendants state that the [warehousing agreement] includes provisions requiring the Plaintiff to obtain insurance including, inter alia, “insurance of its inventory and property within the Warehouse” and that such insurance should name the FCL Defendants as additional assureds and stand as primary coverage. As a consequence of these insurance provisions, the Plaintiff is barred by the terms of the [warehousing agreement] and is otherwise estopped from claiming against the FCL Defendants to the extent of the indemnity which would have been provided by such insurance if such insurance had been placed by the Plaintiff. 7. The FCL Defendants state that it was an express or implied term of the [warehousing agreement] that the parties restrict recovery between them for any loss or damage to the amount of available insurance. The Plaintiff is therefore barred by the terms of the [warehousing agreement] and is otherwise estopped from claiming against the FCL Defendants in total or, in the alternative, to the extent of the indemnity that would have been provided by such insurance as the Plaintiff was obliged to obtain and maintain under the terms of the [warehousing agreement]. 2013 BCCA 3 (CanLII) [5] The action did not come on for trial until June 2008. By that time, the pleadings had been amended several times and assorted third parties had been joined by FCL, including various “Toyota” corporations alleged to have been involved in the design, manufacture, distribution or sale of the propane-powered lift truck (or forklift) allegedly involved in the starting of the fire, and Mason Forklift Ltd. (“Mason”), which had leased the forklift to FCL. These third parties in turn joined certain fourth parties. By the time of trial, however, the fourth party proceedings had been discontinued. [6] In an amendment to its statement of claim made pursuant to an order dated June 6, 2008, Scott expressly waived any right to recover from the defendants or any other party, any portion of its loss that might be attributable to the fault or breach of duty of any of the Toyota corporations or Mason and any other persons not named as defendants, for which the defendants might have been entitled to claim contribution, indemnity or apportionment. [7] Immediately before the trial commenced, the trial judge sitting in chambers ordered that the parties endorse an order dismissing the proceedings against Mason and the Toyota third parties, subject to the condition that the order would not be filed
Kruger Products Limited v. First Choice Logistics Inc. Page 5 until the conclusion of the trial. On September 17, 2008, the Toyota proceedings were dismissed and on November 5, 2008 those against Mason were also dismissed, the latter without prejudice to certain possible defences. [8] The trial occupied 20 days beginning June 16, 2008. Even though no third or fourth party proceedings remained to be tried, there were many issues of fact and law to be resolved between the plaintiff and the defendants. Thus it is not surprising that the trial judge’s reasons ‒ indexed as 2010 BCSC 1242 ‒ are lengthy and detailed. I do not intend to review them as a whole, given that most of his factual findings are unchallenged on this appeal. I do note, however, that one of the difficult issues before the Court was to determine the exact terms of the agreement between Scott and FCL. Although the parties had discussed the terms of several drafts, they had never signed any written warehousing agreement. The trial judge ultimately found that their agreement (referred to as the “WMA”) consisted of a draft agreement and two appendices, “A” and “C”. Both parties had acted on the basis of these documents since early 2000. (Paras. 84-5.) No appeal is taken from that finding. 2013 BCCA 3 (CanLII) [9] Another significant issue was the standard of care to which FCL was subject in operating the warehouse. Appendix A required FCL to maintain the facility in “food grade condition and cleanliness at all times”, and para. 7(a) of the agreement itself required FCL to perform its services in an “efficient, effective and professional manner, and properly, safely, efficiently and professionally ... all in accordance with the highest industry standards”. In addition, s. 2(4) of the Warehouse Receipt Act required that the warehouser exercise the care and diligence that a “careful and vigilant” owner of goods similar to those being stored would exercise in similar circumstances. (Para. 106.) The trial judge found that this standard of care was a higher one than that of reasonable care (para. 108), and again, no appeal is taken from that conclusion. [10] This appeal challenges only two substantive conclusions reached by the trial judge ‒ first, his finding of fact that Scott’s losses and damages were caused by negligence on the part of FCL; and second, his conclusion of law that Scott’s claim
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