Commercial Law Professor Charlotte GoldfriedName of the Student

Questions: 1. Does Ms. Smith have a claim(s) and if so, what is the nature of her claim. If the case goes to trial, what do you think the outcome of the trial will be? Explain how you came to your decision. 2.You are the judge at the Ontario Court of Appeal. Your task is to decide whether the provisions in the Criminal Code conflict with the Charter of Rights and Freedoms. Explain how you made your decision. Answers: Solution 1 Facts of the Case Ms. Smith, a senior citizen, was for the past thirty years living in her apartment. Here being a compulsive shopper she had collected a lot of goods. This had led to the accumulation of lots of goods into her apartment which by change Mr. Johnson and others in the apartment got to know of and warned her of the fire hazard due to these boxes and Mr. Johnson asked her to keep them in the storage. While in Mr. Johnson was shifting the boxes of Ms. Smith in his possession a month later there were various break-ins in the locker area that occurred. Mr. Johnson did not inform Ms. Smith regarding the break-ins nor of the fact that some of her boxes had been stolen. Issues Whether there are any other types of claim which can be made by Ms. Smith. What will be the consequence of such claim in the trial? Solution When one person (bailee) voluntarily takes possession of property belonging to another person (bailor), a bailment is created. It is necessary for the bailee to ensure that he take such proper and due care of the goods as expected reasonably by any prudent owner. If goods under bailment are lost or damaged, then it is upon the bailee to prove that due care had been taken by him (Halsbury's Laws of Canada, 2006). In a bailment its necessary to have (i) delivery by bailor (who usually is the owner) of the goods to the bailee who keeps possession. It is for a specific purpose the possession is made, and there needs to subsequently be the return of goods at the request of the bailor. In this case, there has been a bailment of goods by Ms. Smith to Mr. Johnson for storage of the good, as there has been a delivery of the good by Ms. (owner) to Mr. Jhonson for a specific purpose. It is gratuitous bailment since the bailee (Mr. Jhonson) has not charge over the product. Consistently in Canadian Courts in gratuitous bailment standard of care and diligence that has been imposed on the gratuitous bailee is much lower than that is required of rewarding a bailee (Price v. Leblanc, [1957] 7 D.L.R. (2nd) 716 (New Brunswick C. A.)(Price v. Leblanc, 1957))(Price v. Leblanc, 1957). In various Canadian Courts it has been held that it is only when gross negligence can be proved that the gratuitous would be liable (Melburn Truck Line Inc. v. Plastmo Ltd., [1992] O.J. No. 209 (Ont. Court of Justice Gen. Div)(Melburn Truck Line Inc. v. Plastmo Ltd., 1992). If the bailor is able to prove that the goods were lost or damage in the possession of the bailee, then the bailee has to prove that he had taken reasonable care if the bailee is not able to prove this the bailee would be held liable. Thus, the burden of proof lies on the bailee to prove that there had been no negligence on his part (Morris v. C.W. Martin Sons, Ltd., [1965] 2 All E.R. 725)(Morris v. C.W. Martin Sons, Ltd , 1965). Conclusion Ms. Smith can make the claim under breach of the duty of care under bailment due to her goods having been stolen from the storage where Mr. Johnson was keeping them. The burden of proof would be on Mr. Johnson to prove that he had taken care that any reasonable man as an owner of the goods would have taken. However, in the given situation the Ms. Smith's claim would hold stronger since Mr. Johnson despite knowing the fact that there were goods that were being stolen still stored the goods in the storehouse. Solution II Facts The facts of the case are such Mr. Garcia owned a video store in Toronto which sold and rented out hardcore magazines and videotape and he was held to be in contravention with section 163(1)(a) and 163(2)(a) to which he contended that these sections were in the contravention with the Charter of Rights. Issues Whether the Section 163(1) and 163(2) are in contravention of the Charter of Rights? Solution Material that is obscene and its distribution and selling is dealt with under Section 163; it was in the early 1992 in the case of R. v. Butler(R. v. Butler , 1992) that the Supreme Court of Canada first considered it. A committee on pornography and prostitution the Fraser Committee opined that the section was constitutional and even though it might be infringing under the Charter the freedom of expression, however, there are some reasonable reasons that have been attached to these freedoms. Such limits in the view of the committee justify the grounds that on some level pornography would lead to treatment of some section of the society as not being equal to the others. The Supreme Court of Canada in the year 1992 opined in the case of R. v. Butler (R.v.Butler((1992), 70 C.C.C. (3d) 129, [1992] 1 S.C.R. 452, 11 C.R. (4th) 137, [1992] 2 W.W.R. 577) unanimously that the provisions against pornography and prohibitions against it that they were constitutional and were not in contravention with the Charter of Rights and Freedoms in which freedoms were guaranteed under the section 2(b) and the same can be justified under the Charters section 1 which provides that there would be limits that were reasonable as prescribed by law. Conclusion Thus of the constitutionality of section 163 it is to be held that it is not in contravention with the freedoms that have been guaranteed under the Charter under section 2(b) since reasonable limitations can be provided by law as has been stated in the section 1 of the Charter. Thus the section 163(1) and 163(2) are not unconstitutional but are reasonable restrictions. Reference Halsbury's Laws of Canada. (2006). Markham, Ont.: LexisNexis. Price v. Leblanc, 7 D.L.R. (2nd) 716 (1957). Morris v. C.W. Martin Sons, Ltd , 2 All E.R. 725 (1965). Melburn Truck Line Inc. v. Plastmo Ltd., O.J. No. 209 (1992). v. Butler , 70 C.C.C. (3d) 129, [1992] 1 S.C.R. 452, 11 C.R. (4th) 137, [1992] 2 W.W.R. 577 (1992).