COMM 393 Chapter Notes - Chapter Case: Counterclaim
COMM 393 Bevo Farms Ltd. v. Veg Gro Inc. Case Briefs
[2008] B.C.J. No. 241
2008 BCCA 66
165 A.C.W.S. (3d) 556
42 B.L.R. (4th) 210
British Columbia Court of Appeal
February 11, 2008
Facts
Situation
• The plaintiff is a greenhouse plant and seedling grower in Langley, British
Columbia.
• In November 2005, the defendant entered into an agreement with the plaintiff to
purchase a quantity of tomato seedlings for $607,757.10. The price included the
cost of the seedlings and delivery to the defendant’s place of business in Ontario.
o Half the seedlings would be delivered by January 9, 2006 and the rest by
January 13, 2006.
• The parties had previously done business and the defendant had told the plaintiff
that the seedlings had to be delivered by mid-January in order for the plants to
grow, ripe, and be ready for sale at the market’s peak
• Shipping reports sent by the plaintiff to the defendant were endorsed with the
statement “goods travel at buyer’s risk”
o A representative of the defendant signed each of these reports below the
endorsement
• The plaintiff used a carrier to transport the seedlings to Ontario; both the plaintiff
and its carrier understood that the carriage terms in the Motor Vehicle Act
R.S.B.C. were implied into their contract by law
• In 2006, six shipments of seedlings were sent by the plaintiff. One of the carrier’s
trucks was involved in an accident in Ontario and a load of seedlings worth
$54,420 was lost.
• The carrier did not complete a bill of lading as required by the Motor Vehicle Act,
and the plaintiff failed to ensure a bill of lading had been issued
• The plaintiff made a claim against the carrier for the cost of the lost goods, and
the carrier indemnified the plaintiff for the value of the seedlings. The plaintiff
then issued credit memos to the defendant.
• In early March 2006, the plaintiff sent a shipment of seedlings to the defendant to
replace the lost seedlings, but the defendant claimed it had suffered a loss of
profits in the amount of $708,447.61 from not receiving the original shipment on
time.
o The defendant claimed to set-off its alleged losses against the invoices
from the plaintiff totaling $354,623.26 for other shipments.
Initial Judgment
• The trial judge held the defendants liable to pay the sum of $354,623.26, and
dismissed the counterclaim.
• The defendants are now appealing.
Issues
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