A recent legal action involving palm trees and the Victoria climate tried to challenge the duty of care owed to customers by businesses months after a purchase.
Haval Barwari took the business Palm Daddy to B.C.’s Civil Resolution Tribunal after the three palm trees he purchased died several months later during the winter.
Barwari was seeking a refund of $4,500, the cost to buy the eight-foot palm trees from Palm Daddy and to have them planted.
“Mr. Barwari says the trees died several months later because they were deficient and because (the business) planted them incorrectly,” reads the March 10 CRT decision.
The company denied any liability, saying “the trees likely died from either natural causes or improper care by Mr. Barwari. (The company’s owner) also says he provided no warranties or guarantees about the trees,” says the CRT decision.
The CRT ended up dismissing most of Barwari’s claims, saying they were difficult to prove.
“Mr. Barwari bears the burden to prove his claim. I find that to show a breach of the SGA (Sale of Goods Act), Mr. Barwari must show that the trees died because they were deficient or planted negligently,” reads the decision. “This is because (the company) essentially says the trees were of merchantable quality, fit for their purposes, or reasonably durable when they were sold and planted, and they died from inappropriate care.”
Barwari tried to claim that other experts, including arborists, supported his claim, but he didn’t provide any direct evidence, partly because one wanted to charge him $2,000 for an opinion.
The issue of the time of year the trees were planted was presented by Barwari.
“I find that Mr. Barwari’s other evidence fall short of showing the trees were deficient or that (the company) planted them negligently,” reads the decision. “Mr. Barwari provided 2 screenshots from different websites. The first says that experts recommend planting windmill palms in the spring or early summer. In the second, the author recommended planting windmill palms in the spring. Mr. Barwari points out that, contrary to the website, (the company) planted the trees in late summer. However, the websites do not comment on whether planting the trees in late summer would be fatal to them. They do not explain what killed the 3 trees in this dispute. I also find the screenshots are not expert evidence because the authors’ qualifications are not stated as required by CRT rule 8.3(2). So, I place no weight on the website information.”
The CRT also dismissed a claim about if the trees should have been transported wrapped in burlap.
But the CRT did uphold one minor claim.
“Finally, Mr. Barwari says (the company) did not use fertilizer or bonemeal as specified on the website. This submission is undisputed, so I find (the company) breached this term of the agreement. So, I find Mr. Barwari is entitled to damages for this breach. However, there is no evidence that shows a failure to provide the fertilizer or bonemeal would likely lead to the death of the palm trees. There is also no evidence about the value of the fertilizer or bonemeal. So, on a judgment basis, I order (the company) to pay Mr. Barwari $100 for failing to provide these items during the planting.”
READ MORE: ‘Sweet justice’ as ICBC nailed for blaming wrong driver in Victoria snow plow crash
READ MORE: This ‘prudish’ Victoria strata sued to stop owner from living with boyfriend
Do you have a story tip? Email: chris.campbell@blackpress.ca.
Follow us on Twitter and Instagram, and like us on Facebook.
