Recently, we wrote about a case where a couple lost the deposit they paid to an entertainment company after cancelling their wedding due to the COVID-19 pandemic.

In another recent British Columbia case, a couple was allowed to recoup their deposit, after a photography company refused to photograph the couple’s wedding due to COVID-19 safety concerns.

Couple’s Wedding Plans Changed by COVID-19 Pandemic

A couple hired a company to take photos at their wedding. They signed the contract on May 14, 2019; the wedding was scheduled for April 19, 2020. The couple paid the $1,909 deposit on May 20, 2019.

The contract contained a cancellation clause stating that if the couple cancelled the event the company would refund all the money paid except for the deposit.

The contract also stated that if the company was unable to fulfill the contract due to unforeseen circumstances such as illness, injury, a death in the photographer’s family, casualty, act of God, or any other cause beyond the control of the photographer, a full refund including the deposit would be issued to the couple at “first available notice.”

Originally the couple was planning on having 100 guests. However, on March 16, 2020, due to the COVID-19 pandemic and the provincial government’s restriction on gatherings of over 50 people, the couple emailed the company to tell them they were considering cancelling the wedding. Then, on April 7, 2020, the couple emailed the company again and stated that they had changed the location of the wedding dinner and that the wedding would go ahead on April 19, 2020. The couple was going to limit their wedding to 50 people as required by the provincial guidelines.

The parties then had a phone call and emails were exchanged. The company indicated that they were reluctant to perform the photography services. They stressed that safety and health guidelines needed to be followed. On April 8, 2020 the company referred the couple to their website for their new COVID-19 policy. On April 9, 2020 the company stated they felt moving forward with the wedding was risky and they were concerned about liability. They again referred the couple to their new policy which stated that they would no longer shoot indoors and would only take photos in large, open and secluded outdoor areas. The policy also stated that the company would only use camera lenses that allowed them to take pictures from a 2-meter distance. The company referred to the couple’s wedding as a “dangerous event”. The company told the couple that they could not photograph their wedding unless they agreed to their new COVID-19 policy.

The couple refused to agree to all of the company’s COVID-19 rules and the company did not photograph the wedding.

Photography Company Sued for Not Providing Services

The couple went to court, claiming that the company had refused to provide their photography services because of COVID-19 concerns. The couple claimed the $1,909 deposit they said the company had refused to refund after failing to complete the contract.

The company claimed that the couple cancelled the contract and then when the applicants decided to reschedule, they did not agree to the company’s new COVID-19 policies.

Court Orders Photography Company to Refund Couple’s Deposit

First, the court refused to accept the company’s argument that the couple cancelled the original contract; in fact, the company had stated that they understood the couple was thinking about cancelling or rescheduling their wedding, but the company had specifically told the couple that they were still available to complete the original contract.

The court then stated:

The question then becomes whether the [company was] entitled to impose their new COVID-19 policy on the [couple]. I find that they were not. The parties were legally required to abide by the provincial and federal laws implemented to deal with the COVID-19 pandemic. As noted, the [couple] submit that they changed their wedding plans to comply, including limiting the number of guests. The [company] requested that the [couple] go further and allow them to take all their pictures outside in a secluded open area. These were not the terms of the contract and were in excess of what was dictated by the government’s health and safety guidelines. When the [couple] did not agree to have all their photos taken in this manner, the [company] refused to take the pictures.

I find that the [company] refused to complete the terms of the contract and they cannot rely upon the government health and safety measures imposed because of COVID-19 to justify the cancellation. I acknowledge the [company’s] reasons for making the cautious decision that they no longer wanted to provide the photographic services. However, they are not entitled to keep the [couple’s] deposit when there is no legal justification for the [company] deciding not to complete the contract because they unilaterally decided that they wanted all pictures to be taken outside.”

As a result, the court concluded that the couple was entitled to the refund of their $1,909 deposit.

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The corporate lawyers at Cherkowski Marsden LLP in Vernon and Salmon Arm have over 50 years of combined experience helping clients structure their businesses and/or incorporate new or existing companies. We will thoroughly examine your options and help you determine the most advantageous business structure for your needs. We want to ensure that we come up with a strategy that best serves to minimize your costs and best affords you protection. We work with small, family-owned businesses as well as multinational corporations, and our experience and expertise are similarly varied. As a result, we are perfectly positioned to advise you as your business grows, keeping you informed of potential pitfalls and opportunities along the way. We will put together a proactive plan that best suits your current needs and can grow and change along with your business over time.

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