By Gerry Neely
B.A. LL.B.

The transfer of the postal service to a Crown Corporation may improve relations at the post office, and it may even improve service in the long run. However, the present uncertain service means that businesses will continue to use couriers for mail that must reach its destination by a certain date, until either the postal service improves or the Crown Corporation attempts to enforce the monopoly it has for the delivery of first class mail.

Having entrusted important mail to a courier and paid a substantially higher amount for its delivery than one would have paid to the Post Office, what remedy do you have against the courier service if it negligently fails to deliver by the specific date, the mail given to it. This question arose in a recent case where the unfortunate Plaintiff had agreed to sell Crown land to a third party upon a condition that title to the lands was to be conveyed to the purchaser by December 31st, 1976. The Plaintiff had to take certain steps before it was entitled to the Crown Grants, and those steps were completed in November of 1976. At that time the Crown Grant Unit of the Lands Branch in Victoria was made aware of the urgency of registration in the Prince George Land Registry Office on or before December 31st, 1976. The President of the Plaintiff company attended in Victoria on December 29th, 1976, the date when the Crown Grants were issued and ready for registration. The President asked if he could take the Crown Grants to Prince George by airplane, but he was advised that Government policy would not permit that. Instead the Grants would have to be either sent by registered mail or delivered by courier. The courier service advised the Lands Branch that one-day service could be given to Prince George. This would have meant that delivery could be made in Prince George on December 31st, 1976, and with that assurance, the Lands Branch contracted with the courier service for delivery of the Crown Grants. In fact, the courier failed to deliver the Crown Grants in Prince George until January 4th, 1977. The purchaser refused to complete the transaction and the resulting settlement created a financial loss to the Plaintiff of approximately $77,000.00.

The Plaintiff sued both the Crown and the courier for negligence. The Court held that the Crown was not liable because it fulfilled its statutory duty in accordance with the provisions of the Land Act. There was no doubt that the courier failed to do what it agreed to do. In fact the evidence indicated that the waybill directed that shipment was to be made by "air shipment only" and "special delivery." Instead it was delivered by truck by an agent employed by the courier service.

Notwithstanding this evidence, the courier was found not liable for the damages suffered by the Plaintiff, because it did not owe a duty to the Plaintiff. For that duty to exist, it must have been reasonably foreseeable that a failure to follow instructions properly would cause injury to a third party such as the Plaintiff. The courier service argued that it had no knowledge of what documents it had been delivering and it was not aware that it was delivering those documents on behalf of the Plaintiff. It was not aware of the importance of the documents, because of an "unwritten" governmental policy not to disclose to a courier the contents of an envelope.

The results of the case would probably have been different had the Plaintiff been able to contract directly with the courier service. The importance of this decision however, is to indicate the necessity of obtaining a firm commitment from a courier of its ability to deliver by the required date and time. The second point is to make certain that the courier is aware that damage may arise in the event that delivery is made after that time. Taking these steps should result in the recovery of those damages which would be "reasonably foreseeable" as arising from the breach of duty by the courier.

1.

Hofstrand Farms Ltd. v. R. In Right of Province of British Columbia and B.C.D. Ltd. 22 B.C.L.R. 348.

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