Phoenix Bio-Tech Corp. v. Day & Ross Inc.

This case concerned carriage of a package from Mississauga to Orillia, Ontario. The package contained goods that were required to be maintained at a temperature of between 2 and 8 degrees Celsius. The package was picked up on 7 August 2001 and a bill of lading was issued by the carrier and acknowledged by the shipper. The shipper, who was an experienced and knowledgeable shipper, did not declare a value in the bill of lading and did not give the carrier any special instructions either verbally or in the space provided on the bill of lading. When the package was not delivered over the next two days the shipper called the carrier and was told by the carrier that the package would be delivered the next day, Friday, 10 August 2001. The carrier attempted to deliver the package at 5:00 pm on 10 August but the consignee’s office was closed. The carrier kept the package over the weekend and, on the instructions of the shipper, returned the package to the shipper the following Monday. At first instance the Small Claims Judge held that there had been a novation of the original contract of carriage and that as a consequence the carrier was not entitled to rely upon the limitation of liability contained in its bill of lading and the Truck Transportation Act of Ontario. On appeal, the appeal Judge held that as a matter of law there could be no novation of a written contract of carriage except by another instrument in writing. In the result, the carrier was entitled to rely upon the $2.00 per pound limitation.