Citation: Gaiger v. Inn at Spry Point
2002 PESCTD 60
Date: 20020913
Docket: S-1-SC-23695
Registry: Charlottetown
PROVINCE OF PRINCE EDWARD ISLAND
IN THE SUPREME COURT - TRIAL DIVISION
BETWEEN:
PETER and JENNIFER GAIGER
PLAINTIFFS
AND:
INN AT SPRY POINT INC.
DEFENDANT
BEFORE: The Honourable Chief Justice J. Armand DesRoches
Peter and Jennifer Gaiger
Paul Kiley
Acting on Own Behalf
Solicitor on behalf of the Defendant
Place and Date of Hearing
Charlottetown, Prince Edward Island
August 28, 2002
Place and Date of Decision
Charlottetown, Prince Edward Island
September 13, 2002
Citation: Gaiger v. Inn at Spry Point
2002 PESCTD 60
S-1-SC-23695
BETWEEN:
PETER and JENNIFER GAIGER
PLAINTIFFS
AND:
INN AT SPRY POINT INC.
DEFENDANT
Prince Edward Island Supreme Court - Trial Division
Before: DesRoches, C.J.
Date of Hearing: August 28, 2002
Date of Decision: September 13, 2002
[8 Pages]
CONTRACTS - Consensus ad idem.
LIBEL AND SLANDER - defamation - notice requirement of s. 14 of the Defamation
Act.
Plaintiffs present and acting on their own behalf
Paul Kiley, solicitor for the defendant
DesRoches, C. J.:
The plaintiffs, Peter and Jennifer Gaiger, filed a notice of claim in the Small
[1]
Claims Division seeking from the defendant, the Inn at Spry Point Inc., the sum of
$8,000 for money lost and for stress when they changed the venue of their wedding
which they had planned to hold at the Inn at Spy Point.
[2]
The defendant disputes the plaintiffs’ claim and has counterclaimed also
seeking the sum of $8,000 claiming lost revenue and damages for defamation.
In effect, except for the defendant’s claim based on defamation, the parties
[3]
based their claims on an alleged breach of contract.
[4]
The plaintiff Peter Gaiger (“Gaiger”) testified that during the spring of 2000 he
and his then fiancé, Jennifer Maycock, began looking for a venue for their wedding
which was to take place in July, 2001. They ultimately met with Audrey Firth (“Firth”)
who was and is in charge of events and catering for both the Inn at Bay Fortune and
the Inn at Spry Point. After viewing the facilities and the grounds at both Inns, the
plaintiffs decided the Inn at Spry Point was just the location they had been seeking.
[5]
In August, 2000 the plaintiffs together with Sue Astley, a wedding coordinator
employed by Avant-Garde Group, met with Firth at the Inn at Spry Point to establish
rates. Gaiger testified the wedding date was set for July 7, 2001. He stated Firth
provided them with a sheet setting out the daily rate charged for each of the 15 rooms
at the Inn. According to this sheet, the rate varied according to the room from $140
per night to $185 per night. Only two of the 15 rooms were listed at $185 per night; all
other rooms listed were less expensive.
[6]
It was agreed that another meeting would be held at the Inn on August 23,
2000. Present at this meeting were the plaintiffs, Sue Astley, Jennifer Maycock’s
parents, Firth and the Inn’s chef. Gaiger stated every detail was negotiated at this
meeting. According to him, he and his fiancé were to book all the rooms at the Inn at
the rates shown on the sheet already provided. Any rooms not occupied by wedding
guests would be paid for by the plaintiffs. The reception meal would cost $55 per
person based on an attendance of 55 - 60 persons. It was agreed the Inn’s restaurant
would be closed to the public the day of the wedding. Gaiger also testified there was
to be no set-up fee, no function room fee and no cake cutting fee. He said a gratuity of
15% would be expected.
[7]
At the conclusion of the meeting, Jennifer’s father, John Maycock, paid a
$2,000 deposit using his VISA card. Gaiger testified they requested a written contract
and Firth promised to provide one.
[8]
Based on this meeting the plaintiffs began planning in earnest; they had
Page: 2
invitations, match containers and thank-you cards printed. All the planning centered
around the Inn at Spry Point as the venue for the wedding.
[9]
Gaiger testified that in about October, 2000 “red flags” began going up. No
contract had been produced (none ever would be provided) and some invited guests
reported problems with booking accommodations at the Inn. The situation was
discussed with David Wilmer (“Wilmer”), the majority shareholder and director of both
the Inn at Spry Point and the Inn at Bay Fortune. The booking difficulties were
overcome, however, the plaintiffs later learned that very few invited guests were
reserving rooms at the Inn. Upon making enquiries, they discovered that guests were
being quoted room rates far in excess of the rates contained in the rate sheet. They
questioned Wilmer who informed them that the sheet contained the 2000 rates, not the
2001 rates.
[10] By May, 2001 the plaintiffs were getting “uncomfortable”; they had no written
contract, and few wedding guests had booked accommodations at the Inn. When
questioned about the rate discrepancy, Wilmer stated in an e-mail that it was obvious
the plaintiffs’ perception was that the 2000 rates would be applicable to their wedding.
He said, however, the desk clerk who had provided the 2000 room rate sheet could
not have sold rooms at the 2000 rate since she and Wilmer had been working on 2001
rates at about the time of the August 2000 meeting. Wilmer proposed that the 11
rooms above the $185 per night rate for 2001 would be “rolled back to $185
regardless of price differential”. He also stated, however, that the $185 rate would be
applicable only for the night of July 7, the day of the wedding.
[11] The plaintiffs arranged to meet with Wilmer on May 10th. In preparation for this
meeting, the plaintiffs consulted a lawyer who prepared a letter which the plaintiffs
could take with them to the meeting. This letter requested the following:
[12]
(a)
the guests be charged the rates specified and confirmed last
year by your agent, that is, between $140.00 and $185.00
per evening as set out in the “Spry Point Rooms
Description” sheet provided to Ms. Maycock when she
negotiated this last year;
(b)
because of the above, the clients should not have to pay for
empty rooms which would almost certainly have been filled
for the wedding and for the night before the wedding except
for the above;
(c)
that the room and catering contract be written up as agreed
in 2000 between your agent Ms. Firth, Mr. Gaiger, Ms.
Maycock, and their agent Sue Astley;
On May 10 , a meeting was held at the Inn at Spry Point. Present were the
Page: 3
plaintiffs, Sue Astley, Firth and Wilmer. The meeting began amicably enough but soon
became heated. After some acrimonious debate, Gaiger gave the lawyer’s letter to
Wilmer who then left the meeting. He did not return. Firth persuaded the plaintiffs to
stay so the differences could be worked out. However, the meeting ended with little
agreement reached. Subsequent to the meeting discussions took place, and letters
were exchanged between Wilmer and the plaintiffs’ lawyer. By May 22, however, the
plaintiffs decided to change the venue for their wedding. The wedding was held on
July 7, but not at the Inn at Spry Point. According to Gaiger’s evidence, the change of
venue at close to the last minute resulted in expenses of $1,208.55 consisting of cost of
craft supplies, postage, printing costs and the loss of a deposit on a dance floor. This
amount also includes the $25 filing fee for the notice of claim, but does not include
legal fees incurred in consulting with their lawyer.
[13] Audrey Firth testified on behalf of the defendant. She recalled meeting with the
plaintiffs for a site inspection in either June or July, 2000. Her next contact with them
was a brief meeting when the plaintiffs were accompanied by Sue Astley. Firth testified
she met the plaintiffs again and recalled that Jennifer’s parents were present. She has
handwritten notes of this meeting. She said it was agreed the price of the reception
would be $55 per person with a guaranteed attendance of 60 people. She stated there
had to be that number of persons in order to justify closing the Inn’s dining room to the
public. She testified that, contrary to Gaiger’s evidence, she did tell the plaintiffs there
would be a $300 set up fee. She explained to them there was a lot of work involved in
setting up for the reception, and it is usual to charge such a fee. Also contrary to
Gaiger’s testimony, Firth stated the expected gratuity would be 18 - 20%, not 15% as
stated by Gaiger.
[14] Firth testified she does not recall discussing room rates with the plaintiffs. She
said she did not get into discussions about room rates as that was the responsibility of
the front desk staff. Firth also testifiefd she was never involved with room bookings for
this, or for any other wedding.
[15] Firth also recalled the May meeting. She testified Sue Astley “became quite
vocal”, and wanted to discuss room rates. According to Firth there was a “big
argument” and Wilmer left the room after being handed the lawyer’s letter by one of
the plaintiffs. She stated she prevailed upon the plaintiffs to stay to try to work out the
differences. Firth testified the plaintiffs wanted assurances that two of their guests would
have the guaranteed low room rates not just for the night of the wedding, but for three
nights. The plaintiffs also could not guarantee 60 people for the reception, but thought
the number would be closer to 30 or 40. Firth stated she undertook to speak to Wilmer
about the new numbers. Firth has handwritten notes of this meeting as well. Firth also
testified she could not recall any conversation about a written contract. She said the
$2,000 deposit was taken by the front desk manager.
Page: 4
[16] David Wilmer testified. He had not been directly involved in the plaintiffs’
wedding preparations until contacted by the plaintiffs concerning room rates. He
agreed to bring the 2001 rates back to $185 for the night of the wedding only. He
received an e-mail from Jennifer which led him to believe all was “back on track”.
However, the May meeting proved otherwise.
[17] Wilmer testified the meeting started off “OK”, but then Sue Astley told Wilmer
he was “ruining their wedding”. The room rates were discussed and he told the
plaintiffs he was prepared to honour the $185 per night rate. He was handed the
lawyer’s letter and left the meeting to read it. He did not return to the meeting.
[18] According to Wilmer, the requests in the letter (quoted in paragraph [11] above)
changed the terms of what he believed to have been the original agreement. In his
response to the plaintiffs’ counsel, Wilmer agreed to the rates of $140 - $185 per night
as set out in the 2000 room rate sheet. He stated the plaintiffs would be responsible for
paying the rate for empty rooms on July 7, and also for a gratuity of $5 per room for
housekeeping staff and $2 per guest per day for breakfast wait staff. He further wrote
that the $55 quoted for the reception was based on an estimated 70-80 guests for
which the Inn would close its dining room to the public. Wilmer told the lawyer that
the Inn would determine whether its dining room would be closed after the number of
guests was ascertained. He also wrote there would be a $300 set up fee as quoted, and
gratuities would be 18% on all food and beverages. Wilmer agreed to a written
contract in the terms set out in his letter.
[19] Wilmer testified he received a letter from the plaintiffs’ lawyer a few days after
his letter informing him the plaintiffs no longer wished to hold their wedding at the Inn
at Spry Point and demanding:
[20]
1.
A full return of deposit paid by Mr. Maycock;
2.
Reimbursement of all deposits taken from intending guests
without cancellation fees applied;
3.
Compensation to Ms. Maycock for the cost of invitations,
printing, transport, rentals and otherwise;
4.
A complete apology.
All deposits ultimately were returned as requested.
[21] Wilmer stated he suffered damages due to the plaintiffs’ failure to fulfill their
contract to have their wedding at the Inn. He estimates he lost $1,400 - $1,500 in
Page: 5
revenue from rooms unbooked for July 7, and an unspecified amount of revenue from
reduced food and beverage sales. He also claims damages for defamation to which I
will turn later in these reasons.
[22] As stated at the outset of these reasons, each side to this proceeding is seeking
damages based on an alleged breach of contract by the other side. Obviously, before
there can be damages awarded for breach of contract the existence of a contract and
its breach must be established.
[23] The idea of a contract is promissory in nature. However, from the legal
standpoint, agreement is at the basis of any legally enforceable contract. In the
classical period of the English common law, the necessary agreement was expressed as
consensus ad idem, an expression meaning simply “agreement to the same thing”, or
“a meeting of the minds”.
[24] In order for an enforceable contract to come into existence there must be, apart
from some consideration, an offer and an acceptance. Because of the requirement for
agreement, the acceptance must tally in all respects with the offer, otherwise there is no
consensus ad idem, and therefore no contract. If there is an obvious ambiguity about
the terms of the purported contract, no objectively ascertained agreement can be
inferred or concluded. Professor G.H.L. Fridman in his text The Law of Contract in
Canada, Carswell, Fourth Edition, very succinctly put in this way at p. 259:
Contract depends upon agreement. There must be a consensus ad idem.
Sometimes what appears to be a valid contract is the product of a mistake by
one or both parties. Such a mistake may pertain to the terms of the contract,
or it may relate to the existence or nature of the subject-matter of the
contract.
[25] I conclude from the evidence that this is precisely what happened in this
instance. What seemed to the parties to be a valid contract was the product of mistakes
made by both. Indeed, in his letter of May 22, 2001 to the plaintiffs’ counsel, Wilmer
states in part: “I regret that this misunderstanding has taken place...”
[26] The evidence is clear there were misunderstandings. For example, the plaintiffs
believed Firth had agreed in August 2000 to firm room rates for the July, 2001 wedding
date. Firth testified she does not recall discussing room rates with the plaintiffs, and
room rates were not her responsibility. The plaintiffs understood they were not to be
charged a set-up fee. Firth’s evidence is clear; she explained to the plaintiffs there
would be a $300 set-up fee which was usual. The plaintiffs believed the gratuity was to
be 15%. Firth said in evidence the plaintiffs were told the gratuity would be 18 - 20%.
[27]
Clearly by May, 2001 the parties had not reached any agreement on many of
Page: 6
the terms of the purported contract. At that point, there was no consensus ad idem.
[28] After the meeting in May, 2001, attended by Wilmer, he attempted to put the
plaintiffs’ wedding plans back on track by offering certain terms in his letter of May 5 to
plaintiffs’ counsel. However, in his letter of May 18 in response, plaintiffs’ counsel
clearly rejected this offer.
[29] Based upon all the evidence presented I can only conclude there never was a
legally enforceable contract between the plaintiffs and the defendant. There having
been no contract, there cannot have been a breach of contract. In the result, both the
plaintiffs’ claim and the defendant’s counterclaim based on breach of contract are
dismissed.
[30] The defendant also has advanced a claim for unspecified damages for alleged
defamation. It appears when it became clear to the plaintiffs they would move the
venue of their wedding from the Inn at Spry Point, Jennifer posted certain comments on
an internet site relating to the wedding indicating the change of location was due to the
defendant’s “negligence” and the defendant “...not honouring the quoted and booked
room rates...” and “...not honouring our request for a contract...”
[31] Although Graiger testified this site was meant for their friends and invited guests
only, it appears it was read by at least one person who mentioned it to a desk clerk at
the Inn.
[32] I would dismiss the defendant’s defamation action. Section 14(1) of the
Defamation Act, R.S.P.E.I. 1988, Ch. D-5 provides:
14. (1) No action lies unless the plaintiff has, within three months after the
publication of the defamatory matter has come to his notice or knowledge,
given to the defendant, in the case of a daily newspaper, five, and in the case
of any other newspaper or where the defamatory matter was broadcast,
fourteen days notice in writing of his intention to bring an action, specifying
the language complained of.
(2) The notice shall be served in the same manner as an originating
notice.
[33] There is no evidence of any notice being given to the plaintiffs in this case. In a
case such as this where the claim for defamation is advanced in a counterclaim, I
would read s. 14 as requiring the defendant to give notice to the plaintiffs (defendants
by counterclaim). Also, I do not hold that the notice requirement applies only to
newspapers or corporate broadcasting facilities. An examination of the purpose of the
notice requirement leads me to conclude it should be applicable in all cases in which
defamation is alleged as the basis for a claim.
Page: 7
[34] In Pitre v. Jeffrey and The Canadian Broadcasting Corporation, [1994] 1
P.E.I.R. 204, Jenkins J. made the following comments on the notice requirement at p.
208:
Section 20 of the Defamation Act states that the Act is to be interpreted
and construed so as to effect its general purpose of making uniform the law
of those provinces which enact it. The Ontario Libel and Slander Act, R.S.O.
1980, c. 237, contains provisions similar to the provisions under
consideration in the Defamation Act. The effect of the notice provisions was
addressed by the Ontario Court of Appeal in Grossman v. CFTO-TV Ltd. et al
(1983), 139 D.L.R. (3d) 618. Justice Cory stated at pp. 621-622:
Effect of the legislation
The section stands as a condition precedent to the
commencement of an action for libel. It constitutes an
absolute bar. The purpose of the notice is to call the
attention of the publishers to the alleged libellous matter.
When it is received an investigation can be made, and if the
publisher deems it appropriate, a correction, a retraction or
apology can be published. In this way the publisher can
avoid or reduce the damages payable for the publication of a
libellous statement.
The plaintiff, as well, may benefit from the notice. A
timely correction, a retraction or apology can often
constitute a better remedy than damages. This principle has
been recognized in those jurisdictions in the United States
which require the service of a notice: see, for example
Webb v. Call Publishing Co. et al. (1920), 173 Wis. 45 at
p. 52, 180 N.W. 263 at p. 265, and Hucko v. Jos. Schlitz
Brewing Co. et al (1981), 302 N.W. 2d 68 (Wis. Ct. of
App.).
The notice provision, therefore, may benefit both parties.
It does, however, stand as a bar to the action and forever
prevents a determination of the issue on the merits. There is
no form of notice set out in the Act.
Notice provisions in defamation legislation are generally viewed as
conditions precedent to an action. The object of requiring the plaintiff to
give all the defendants notice in writing specifying the particular statements
of which he complains is to enable the defendants to correct or withdraw the
statements, and to apologize for having published them: Gatley on Libel and
Slander, 7 th ed., p. 929.
[35] The judgment of this Court in Ayangma v. Canadian Broadcasting Corporation
et al., [2000] 2 P.E.I.R. 210 is to the same effect.
Page: 8
[36] My view that the plaintiffs ought to have been given notice is supported by the
comments of Julian Porter and David A. Potts in their text Canadian Libel Practice, in
which the authors state at p. 14, paragraph 47 that, in Ontario, the courts have held
that every defendant in an action is entitled to be given notice. Failure to give notice to
a particular defendant will result in the action against that defendant being dismissed.
[37] The required notice was not given in this case, therefore, the defendant did not
fulfill the statutory notice requirements of the Defamation Act. This failure is fatal to the
defendant’s defamation counterclaim against the plaintiffs, and it is dismissed.
[38] In the result, the plaintiff’s claim against the defendant is dismissed and the
defendant’s counterclaim against the plaintiffs is dismissed.
[39]
There shall be no order as to the costs.
September 13, 2002
C.J.