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I bought a Full XL mattress and bed frame from a store in Ontario, but they delivered a California King – they contended they didn't have Full XL. I can't accept the King as it won't fit in bedroom! I called them to pick it up, but they insisted on charging $250 especially as I live in a rural area. I escalated to the Manager but she said the same. I can't lift – let alone move – them, and paid movers $100 to transport both back to the store. The store refunded me for the mattress and bed frame, but not $100. They emailed

Your request for $100 is inappropriate. This is final, and we will not respond to you any more on this matter.

What's the most fitting case on remoteness of damage? Hadley v Baxendale [1854] EWHC J70? The Achilleas [2008] UKHL 4?

FYI, ON Small Claims Court charges $102 for filing a claim.

  • @Nij Why did you delete my sentence on ON Small Cm Ct? It's relevant. I don't want to be told that I have to sue for the $100. – Pearl Koffman Dec 23 '19 at 5:47
  • Case law is pointless unless you want to make your own case in court, so what else are you expecting to be told? – Nij Dec 23 '19 at 6:06
  • Just for some context, I don't know about Ontario, but in some places, a store is forbidden to resell a mattress that has already been delivered to a consumer. So that would explain why they were so eager to have you keep the larger mattress - if they replace it, they can't resell the original one but have to throw it away, and thus they are out the value of an entire mattress, instead of just the difference in value between what you ordered and what they delivered. – Nate Eldredge Dec 23 '19 at 6:32
  • @Nij I can cite case law to them, to prove I have law on my side. – Pearl Koffman Dec 23 '19 at 6:35
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    @Nij: A credible threat of legal action might get them to pay, even if OP actually has no intention of following through, and more knowledge might allow one to make a more credible threat. – Nate Eldredge Dec 23 '19 at 16:52
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You are probably entitled to the $100 (more or less)

They breached the contract and you are entitled to damages (what it cost you) for dealing with their breach if they are unable or unwilling to remedy their breach.

This would include the reasonable cost of your disposing of the unwanted mattress plus or minus any difference in the price from you sourcing the equivalent mattress elsewhere (subject to any legitimate terms of the contract that allow them to cancel the contract if they can’t supply).

Of course, it’s not worth suing over such a trivial amount but this is the sort of thing the consumer protection regulator in your jurisdiction would be interested in.

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  • Thanks. Do you have any case law or statute that I can cite to bolster my complaint? – Pearl Koffman Dec 24 '19 at 6:59
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Case law won't help you. They breached their contract with you, but you are not thereby entitled to an arbitrary remedy of your choice. They would either have to refund your money, or replace the mattress -- the delivery of the wrong mattress was at their potential loss. You decided that you wanted to return the mattress, which you can certainly do, but you can't expect them to refund the money that is cost you to send the mattress back. In the long run, you would have had to sue them to dispose of the bigger mattress, if they had decided to only refund the sale price.

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    If the store had an obligation to refund, wouldn't they also have an obligation to haul away the incorrect mattress, in order to restore the status quo? Since they refused to do so, aren't they liable for the cost of having it done? I don't see how this is an "arbitrary" remedy. – Nate Eldredge Dec 23 '19 at 6:33
  • (I am presuming here that $100 was a reasonable price for hauling a mattress. Of course if OP drastically overpaid for that service, I would expect the store to only be liable for what hauling would reasonably cost.) – Nate Eldredge Dec 23 '19 at 6:38
  • @NateEldredge just rephrased the gist of the whole question. This answer does not answer it yet. Is such a common scenario really not already answered by case law? – Greendrake Dec 23 '19 at 6:58
  • Sure, but the point is that the filing cost and the movers cost are about the same, so it is a no-win proposition for the OP. – user6726 Dec 23 '19 at 16:06
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    @user6726 not sure about Canada, but say in the UK filing costs are added to the claim (in small claims court). So it would be totally reasonable to sue provided that the store is doomed to lose. The question is: is it? – Greendrake Dec 23 '19 at 22:56

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