More than a year into the pandemic, couples are facing the painful decision of having to cancel, postpone or modify their wedding plans, many now for a second time (with the same intended partner). When developing plans to move forward with their vendors, individuals and vendors need to be aware of their rights and obligation to best determine what solution best fits their particular circumstances.
Do I Have to Pay for Undelivered Services?
Many contracts entered into after the commencement of COVID-19 will now contain force majeure clauses specifically dealing with “pandemic” or “COVID-19”. These provisions vary but will generally govern how the events listed in the clause are to be handled. Notwithstanding any force majeure provisions, however, in Ontario, section 26 of the Consumer Protection Act, 2002, S.O. 2002, Ch. 30, Sch. A (CPA) states that purchasers can terminate a future performance contract if the services cannot be delivered within 30 days. If the CPA provisions apply to your contract, a deposit must usually be returned (CPA s. 95).
If the agreement is frustrated (impossible or radically changed), parties may be discharged and deposits (or at lease some potion thereof – see below) will be returnable. However, there are a number of persuasive decisions where British Columbia Courts have consistently determined that cases where the vendor was willing to work with a smaller event or move the date did not meet the threshold for frustration.
Your Vendor May be Entitled to Compensation
In addition to protections for consumers, there are factors to consider when determining whether a vendor may nevertheless be entitled to any compensation. For instance, in preparation for an event, a vendor may have partially performed the contract. For example, if you had a food tasting at your venue that is included in the final fee, or an engagement shoot included in a wedding photo package. The law recognizes a presumption that people do not generally work for free. Your vendors may also have suffered some opportunity loss. The cost of this type of service may be deducted from a deposit.
i. Reach Out to your Vendor
In many cases, particularly if you are postponing the event, you will want to maintain a positive relationship with your chosen vendors. Likewise, vendors will generally want to work constructively with clients to salvage future business and their stellar reputations. Accordingly, vendors may be willing to be flexible to work towards a mutually agreeable solution. Before taking any litigious steps, it is often a good idea to simply reach out to your vendor in an amicable manner to see if they would be willing to work with you.
ii. Formally Demand Your Deposit
You may be entitled to your deposit back if there has not been partial performance and the services cannot be delivered. If your vendor does not agree to return your deposit and/or reschedule, formally demanding your deposit in writing clearly laying out your position may help persuade a vendor to cooperate.
iii. Negotiated Settlement
In many cases, particularly where the vendor may have partially performed their obligations, it may be possible to negotiate a settlement. Instead of the vendor simply returning your deposit or just applying it to a new date there could be an alternative arrangement. A vendor may be agreeable to applying the deposit to a new date in exchange for some other arrangement that compensates any work already performed or the opportunity cost of having held your original date. For instance, if you have moved your big reception but still plan to have a small ceremony on your original date, you may consider using your vendor for a reduced package on your original date in exchange for moving your larger package to a future date penalty-free.
iv. Litigation in the Small Claims Court
If the above options are not appropriate or are unsuccessful, you may consider commencing a claim. Most likely, a claim for a wedding vendor/venue will be in the Small Claims Court. The Small Claims Court is designed to handle disputes in the amount of $35,000 or less, and while the cost of an entire wedding may very well exceed this amount, a claim against any one vendor would most likely fall within the Small Claims Court jurisdiction. The advantage of Small Claims Court is that it is considerably less expensive and is easier for self-represented litigants to navigate.
In the event you have determined that proceeding with a claim is in your interests, you can take the following steps to commence a claim in the Small Claims Court:
- File a Plaintiffs Claim
- Serve the Plaintiffs Claim
- If no Defence is received, note the Defendant/s in default and move for Default Judgment
- If a Defence is received, attend the Settlement Conference
- If a resolution is not reached at the Settlement Conference, proceed to trial
A lawyer can help you navigate these types of claims by providing a consultation, assisting with your demand letter, or setting up your claim. We recommend speaking to a lawyer to determine how a lawyer may best assist you in your dispute.
In the interim, we sincerely hope that your wedding plans will not be derailed or, at the very least, can be satisfactorily modified to allow everyone to enjoy the happy occasion.