Allen v. Taku Safari Inc.
[2003] B.C.J. No. 754, [2003] BCSC 516, 122 A.C.W.S (3d) 250, Victoria Registry No. 01 5499
Facts:
Andre Allen (plaintiff) entered a contract with Taku Safari Inc. (defendant) in which Taku agreed to provide a guided hunt. Allen was required to travel to Juneau where Taku would provide a connecting flight directly to the hunt site, Inklin. Allen initially paid a deposit but was unable to participate in the hunt due to his flight being cancelled. Taku advised that they would try to accommodate Allen, even two day later, but could not guarantee the connecting flight. Allen cancelled his flight from Michigan to Juneau, but was later told of another client who arrived in Juneau, and flown to Inklin that same day. This same
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The unanticipated events did not make the performance impossible, but rather potentially delayed it to a later date.
Reasons For Judgment:
In Folia v. Relenski (1997), 14 R.P.R. (3d) 5 (B.C.S.C)., the test for frustration is states:
“…The Disruption must be permanent, not temporary or transient. The change must totally affect the nature, meaning, purpose, effect and consequence of the contract so far as concerns either or both parties.”
There is no indication that the unanticipated circumstances changed the nature of the contract or made it impossible to perform, and therefore frustrated. There was nothing explicitly stated within the contract that required a timely flight either. The fact that the plaintiff was going to be delayed by two days would not have changed the terms of the agreement. The plaintiff could have still travelled to Juneau, connect on the next available flight, and still attend a six-day hunt which he was originally contracted for.
Held:
Action is dismissed with costs on scale