Sahara Trucking v. Abbotsford Truck and Trailer Date:, 2012 BCPC 246

Citation: Sahara Trucking v. Abbotsford Truck and Trailer Date: 20120717 2012 BCPC 0246 File No: 20127 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SAHARA TRUCKING LTD. CLAIMANT AND: ABBOTSFORD TRUCK AND TRAILER REPAIR LTD. DEFENDANT AND: CONSUMER BAILIFFS INC. THIRD PARTY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Claimant: C. J. S. Ellett Appearing for the Defendant: J. S. Braich Appearing for the Third Party : J. Weisbrod Place of Hearing: Abbotsford , B.C. Date of Hearing: July 11, 2012

Date of Judgment: July 17, 2012 Factual Background [1] The parties to this action are all corporations operating out of Abbotsford, BC. The Third Party has ceased its businessoperations prior to the date of trial in this matter, but its participation is important because it is holding money in trust, the release ofwhich will depend on the outcome of this litigation. [2] The Claimant is a trucking company owned by Harpreet Kaur Dhaliwal. Her husband Santokh Singh (Tony) Dhaliwal is thePresident of the Claimant and is also a truck driver.

The Claimant owns a 2003 Freightliner Tractor Unit and on December 16, 2010 thetruck would not start. It was towed by MSA Towing to the Defendant’s premises for repairs. The problem was electrical in nature andthe Defendant’s mechanics were able to diagnose and repair the problem to the Claimant’s satisfaction. The cost of the repairs was$2,628.08, including all applicable taxes. The bill included the towing costs even though the Mr. Dhaliwal had agreed to pay that directlyaccording to the evidence of the tow truck driver.

He failed to pay the towing company and this charge was paid by the Claimant andadded to its bill. [3] The Defendant was unable to pay the full amount of the bill. It paid $1500 by cheque on December 30, 2010. The Defendantpromised to pay the balance and the truck was released to Mr. Dhaliwal on January 9, 2011 on the strength of his promise.

According to a notation made on the Claimant’s invoice, the Defendant promised to pay the balance by January 15th. [4] The Defendant failed to pay the balance as promised, so on January 24, 2011 the Third Party Consumer Bailiffs Inc. registereda lien under the Repairer’s Lien Act on behalf of the Defendant. The lien was registered on line. It properly described the vehicle byserial number, but the amount of the lien was shown as $2,628.08. The lien failed to reflect that the Defendant had already paid $1,500of this amount and that the actual balance owing was $1,128.08.

The Defendant admits that it mistakenly gave the Third Party theincorrect balance owing. [5] The Third Party seized the Claimant’s tractor unit on February 4, 2011. The Third Party prepared an invoice which stated thatthe Claimant could have its vehicle back upon making payment of $5,376.56. This amount included the sum of $2,628.08 which wasincorrectly reported as being the amount owing by the Defendant to the Claimant.

On the same day the Claimant gave the Third Party abank draft for the full amount it was claiming ($5,376.56) and the vehicle was returned to the Claimant. [6] From that sum, $1,500 was eventually (recently) returned to the Claimant by the Third Party. The Claimant brings this actionfor the return of the money it paid to the Third Party for bailiff’s fees ($2,754.48) and damages for the wrongful seizure of its tractorunit.

The Claimant alleges that the Defendant had no right to seize its vehicle because the lien was invalid and because the fees chargedby the bailiff exceeded what is legally permissible under the Repairers Lien Act Fees Regulation. [7] The Claimant also alleges that while the tractor unit was wrongfully converted on behalf of the Defendant, it lost income in theamount of $2,620. Mr. Dhaliwal testified that he was unable to complete a contract with Link Trucking Ltd. which would have netted theClaimant this amount.

A letter from Paul Gill, a director of Link Trucking Ltd. was filed as part of the Claimant’s exhibit 1, although Mr.Gill was not called as a witness. In his letter, Mr. Gill writes on behalf of Link Trucking Ltd.: “This is to confirm that Mrs. Harpreet K. Dhaliwal of Sahara Trucking Ltd. has been off work due to his truck being towed. It was takenaway by Consumer Bailiffs from Feb.4-Feb 10. This has been valuable time wasted. He could have made two round trips to Edmonton of2800 miles altogether. We pay $1.55 per mile and an additional $35 for each pickup and drop.

His gross would have been $4620 minus$2000 of fuel leaving him with a loss of $2620.” [8] The Claimant also seeks pre-judgement interest and disbursements which total $1,272.02. [9] The Third Party admits that it charged fees well in excess of those allowed by the Repairers Lien Act Fees Regulation.According to the evidence of Ms. Weisbrod, nobody in the industry adheres to those fees because they are grossly inadequate. The tariffwas set in 1981 and it has never been updated.

Applicable Law and Analysis [10] The Claimant argues that the seizure of its tractor unit was unlawful because the Defendant’s lien was invalid. The RepairersLien Act of British Columbia gives mechanics a lien on the chattels which they repair. The lien is originally a possessory lien, but section3(1) of the Act requires that where, as in this case, a garage keeper surrenders possession of a motor vehicle that is subject to such a lien,the debtor must sign “an invoice or other statement of account” and if that occurs, the garage keeper does not lose the lien.

Subsection(2) provides that in such case, the lien expires 21 days after possession of the vehicle is surrendered unless the garage keeper registers afinancial statement with the Personal Property Security Act registry. [11] In this case counsel for the Claimant argues that there has been no invoice or statement of account signed as required by section3(1) of the Act. The evidence is in conflict on this point, but the Defendant has produced an invoice signed by “Tony” and I accept thatthis was signed by Mr.

Dhaliwal on behalf of the Claimant prior to the release of the vehicle. [12] The Supreme Court of British Columbia has held that if a lien is invalid, then the seizure of a chattel pursuant to that lien isunlawful. In Altenreid v. Coquitlam Diesel Service Ltd. (BCSC), Mr. Justice Fraser held that “for the seizure to belawful, the lien must be valid” and summarized the requirements of a valid lien as being the following:

1. The work must be done. 2. The repairer must obtain an acknowledgment of indebtedness from the owner. 3. Possession of the item repaired must be surrendered to the owner. 4. Within 21 days of the repairer giving up possession of the item, the lien documents must be registered [13] In that case the court also held that where a vehicle was seized pursuant to an invalid lien, the party from whom the vehicle wasseized was entitled to return of all money paid to recover the property (less any amount owing to the repairer), as well as any income lostfrom the use of the vehicle.

Even where there is no loss of income, Justice Fraser held that: “It is a direct and foreseeable consequence of an unlawful seizure that some grief will be visited upon the owner or the owner's agent, forwhich the owner is entitled to be compensated in damages. In some cases, a reasonably substantial award might be appropriate, as wherethe owner has suffered anxiety or where having to submit to the unlawful demands of the repairer amounts to an indignity.” [14]

Section 3 of the Fees Regulation to the Repairers Lien Act sets out the law as to what fees can be charged by a person whoseizes property under the authority of the Act. That

section reads as follows: 3. A sheriff, bailiff or other person who enforces a lien under the Repairers Lien Act shall charge the following fees: (

a) for receiving and filing a warrant to seize, a fee of $30; (

b) for seizure under warrant, a fee of $60; (

c) for delivery to the garage keeper, a fee of $40; (

d) for distances actually and necessarily travelled, a fee of $0.40/km; (

e) for reasonable and necessary expenses and disbursements actually incurred for seizure and delivery, the actual cost of those expensesand disbursements. [15] Despite the evidence of the Ms. Weisbrod about the practice in the industry, the Supreme Court of British Columbia has alsoheld that bailiffs who purport to seize a chattel under the authority of the Repairer’s Lien Act are only entitled to collect the feespermitted under the regulations to that Act, notwithstanding that such fees may be financially inadequate.

It may be that the regulationsdo not prevent the bailiff from making a contract for additional charges with its client (in this case the Defendant). But in regard to thebailiff’s relationship with the owner of the seized property, with whom no contractual relationship exists, the law is clear that the feesthat the bailiff can legally charge that party are restricted by the regulations. [16] In General Motors Acceptance Corp. v.

Absolute Bailiffs Inc. (BCSC) Madam Justice Kirkpatrick of theBritish Columbia Supreme Court held at paragraph 16 that the fees which a bailiff can charge for seizing an item under the RepairersLien Act are restricted to what is allowed under the regulations. Paragraph 3(

e) of the regulations does not authorize the bailiff chargingan increased cost for the other items such as filing the lien, storage of the item seized, mileage or delivery of the seized property. [17] In Warbrick and Sickman v. Absolute Bailiffs Inc. 2000 BCPC 47, the Honourable Judge Bruce (now Madam Justice Bruce ofthe British Columbia Supreme Court) also held that the amount that a bailiff can charge to a party whose property is seized under theRepairers Lien Act is limited to the amounts set out in

section 3 of the Regulations. [18] Here the Third Party required the Claimant to pay amounts in excess of the amounts set out in the Regulations before theClaimant could have its tractor unit back. For example, the regulations permit a fee of $30 for receiving and filing of the lien. TheClaimant was charged $120 for this item. The regulations permit a fee of $60 for the seizure. The Claimant was charged $475. Theregulations permit a fee of $40 for delivery of the item seized.

The Claimant was charged $375. [19] The Claimant alleges that the lien is not valid because it does not correctly state the amount that the Claimant owed to theDefendant. The Defendant admits this to be the case but says that it was an honest mistake. Section 3(8) of the Act, excuses somemistakes if they are not “seriously misleading.” This subsection reads as follows:

(8) The validity of the registration of a financing statement is not affected by a defect, irregularity, omission or error in the financingstatement or in the registration of it unless the defect, irregularity, omission or error is seriously misleading. [20] Counsel for the Claimant argues that it is seriously misleading to include the wrong amount owing on the lien and therefore thelien is invalid. The registered lien states that the amount owing by the Claimant was $2,628.08, when the true amount was actually$1,128.08.

The Defendant agrees that this was a mistake that was made when the lien was registered, but argues that this is not seriouslymisleading. [21] The courts of this province have held that strict compliance with the Repairer’s Lien Act is required because it is anextraordinary remedy. It allows a person to be deprived of his or her property without any court order or any finding by a court that a

debt exists. In such cases the law requires that everything must be done properly before this remedy can be utilized. [22] For example, in Lund v. Trimar Tire Ltd., (New Westminster Registry No. A861887, November 13, 1986) McMorran Co. Ct. J.stated: [T]he Repairers' Lien Act permits mechanics and tradesmen to refuse to surrender possession of a vehicle on which they have performedwork, if certain conditions are complied with in advance of the surrendering of possession of the vehicle. This kind of protection is bystatute and is an extraordinary remedy.

The rules are clear and the authorities are clear that extraordinary remedies such as this must becomplied with strictly by those who seek to take advantage of them. [23] In Rayner v. Corvette Specialties Ltd. (Vancouver Registry No. F872051, February 25, 1988), Cowan Co. Ct. J. held at page 6: The Repairers Lien Act enlarges upon the possessory lien which a person who worked on and improved a chattel had at common law byempowering the holder of a lien to realize upon it by effecting a sale of the chattel involved upon complying with the statute.

Since theAct goes beyond the common law right to a possessory lien, the conditions in the Act must be strictly complied with. [24] In Swidrovich v. Jake’s Autobody Ltd. and Active Bailiff Service Ltd. (1990) (BC SC), 51 B.C.L.R. (2d) 231,Mr. Justice Macdonnell of the British Columbia Supreme Court held that a lien registered under the Repairers Lien Act which set out anincorrect vehicle identification number was not a valid lien. [25] Within the context of section 3(8) of the Act, the word “seriously” is synonymous with “important” or “significant”.

Misleadingmeans “capable of leading into error.” In my view a mistaken amount of the balance owing in a repairer’s lien is “seriously misleading”within the definition of the subsection because it can result in a person having his or her vehicle withheld unless an unjust amount ofmoney is paid. The property owner can be denied the use and enjoyment of the property unless what is tantamount to a ransom is paid.The potential for such an injustice is significant and serious and it is important for the law not to sanction or tolerate this. [26] To summarize the applicable law in this matter: 1.

Where a repairer surrenders possession of repaired property to the property’s owner, in order for the repairer to maintain a valid lienunder the Repairers Lien Act, the repairer must have done the work on which the lien is based, the owner of the property must haveacknowledged an indebtedness for the amount claimed by the repairer for doing that work, and the repairer must have registered a validlien in compliance with the Act within 21 days of the transfer of possession. 2. If the lien is not valid, than the seizure of the subject property under the authority of the invalid lien is unlawful.

The party fromwhom the vehicle was seized was entitled to return of all money paid to recover the property (less any amount owing to the repairer). 3. In the case of an unlawful seizure of property pursuant to an invalid lien, the party from whom the property was taken may also beentitled to damages for loss of use of the property from the party who authorized the unlawful seizure. 4. A bailiff who seizes property under the Repairers Lien Act may only demand from the owner of the seized property those feespermitted under the Regulations to the Repairers Lien Act. 5.

A lien which significantly misstates the amount owing by the owner of property to the repairer is seriously misleading and such alien is invalid. Any seizure of property effected under the authority of such a lien is an unlawful seizure. 6. The Repairers Lien Act gives repairers an extraordinary remedy and therefore the Act must be strictly complied with. A court shouldnot overlook non-compliance with the Act that is not trivial or insignificant.

Such non-compliance may include where the person seizingthe property has demanded money in excess of the actual debt or fees in excess of those authorized under the regulations to the Actbefore returning the property to its owner. [27] Applying the law as summarized to the facts of this case, I find that the Defendant’s lien was not a valid one because iterroneously misstated the amount owing by the Claimant by more than double the correct amount. Such an error is seriously misleadingand this invalidates the lien.

Because the lien was invalid, the seizure of the Claimant’s tractor unit under the authority of the invalid lienwas an unlawful one. The seizure was also unlawful because the Third Party demanded and received fees in excess of those permittedunder the regulations to the Act.

Non-compliance with the regulations to the Act by charging excessive fees overlooks the requirementthat the Act be strictly complied with for the Claimant to use the extraordinary remedy that the Act provides. [28] The Claimant is entitled to the return of the money it paid to the Third Party, not including the balance owing to the Claimant.It is also entitled to damages which result from the illegal seizure of his property. I accept the Claimant’s evidence that, as the result ofits being wrongfully deprived of the tractor unit, it lost the opportunity to earn income of $2,620.00.

The Claimant will therefore havejudgement in the sum of $5,374.48 calculated as follows: Amount paid to Third Party $5,376.56Less amount previously refunded by Third Party (1,500.00)Less amount owing to Claimant (1,128.08)Plus damages for loss of use of tractor unit 2,620.00TOTAL AMOUNT OWING $5,374.48

Costs [ 29 ] The Claimant also asks for costs which it calculates to be the sum of $1,272.02. Besides filing fees, the costs claimed include disbursements for copying, process servers, agents’ fees, registered mail and the costs of an interpreter for the Claimant to give his evidence. [ 30 ] Costs recoverable in a small claims action are different from those that may be recovered in a Supreme Court action.

In a small claims action, the court’s goal, as set out in section 2(1) of the Small Claims Act , is to “allow people who bring claims to the Provincial Court to have them resolved and to have enforcement proceedings concluded in a just, speedy, inexpensive and simple manner” (emphasis added). [ 31 ] Under

section 19 of the Small Claims Act , the costs which are recoverable are to be determined by the court in accordance with the rules. Under section 19(4) however, a party may not recover counsel’s fees. In dealing with the fees which are allowable to a successful party, rule 20 of the Small Claims Rules reads, in part, as follows: Successful party to receive filing and service fees

(2) An unsuccessful party must pay to the successful party the following expenses, unless a judge or registrar orders otherwise: (

a) any fees the party paid for filing any documents; (

b) reasonable amounts the party paid for serving any documents; (

c) any other reasonable charges or expenses that the judge or registrar considers directly relate to the conduct of the proceeding. Determination of expenses

(3) A judge may determine the amount of the expenses that are payable under subrule (2) or refer the matter to the registrar… Compensation for unnecessary expenses

(6) A judge may order a party or witness whose conduct causes another party or witness to incur expenses to pay all or part of those expenses. [ 32 ] The Act and Rules attempt to strike a balance for litigants. On the one hand, they seek to make proceedings inexpensive so that the means of parties do not prohibit them from pursuing just claims or presenting valid defences. On the other hand, the costs which can be ordered under the Act and Rules should operate to deter those litigants who bring claims lacking in merit or designed to serve as a nuisance.

Litigants who bring claims that are without foundation or which lack the evidence to support them, should realize that there will be a cost they will have to pay for utilizing the scarce resource of court time and for the inconvenience caused to other parties to the action.

The costs will not fully meet the expense that the other side has been put to, but they should be more than simply the other side’s filing fee. [ 33 ] In requiring an unsuccessful party to pay “any other reasonable charges or expenses”, this would typically include such expenses as agents’ fees, except where the agent is a lawyer (because this is indirect recovery of solicitor-client fees.) In this case the agents’ fees claimed are not significant. In Kelly v.

Lam 2006 BCPC 98 , agents’ fees were allowed but mileage costs were not. [ 34 ] There is a problem with allowing costs for such disbursements as photocopying, long distance charges and courier fees. On the one hand, there will be cases which by their very nature involve a large amount of documents and therefore significant photocopying will accompany the nature of the action. In those circumstances it will be reasonable to expect that a party called upon to litigate such an action should recover the costs of reproduction of those documents.

However, generally speaking, allowing costs of this nature requires small claims court judges or clerks to be take the time to sort out the minor details of which copies should be allowed and which shouldn’t. Many small claims court registries typically have only one staff member assigned to coordinating all of the small claims files and there are no taxing officers like there are in other courts. It would be unreasonable to add to the small court clerk’s duties the task of refereeing disputes over disbursements.

Given the backlogs which exist in many small claims courts and the cost of trial time, it makes less sense to assign this task to judges. [ 35 ] In Knittel v. Hazco Environmental, 2009 BCPC 158 it was held that as a general rule disbursements such as photocopying, courier fees or long distance charges will not be recoverable in small claims cases.

This is not an absolute rule, but generally such an approach is in keeping with the goal set out in section 2(1) of the Act of creating an inexpensive and simple process. [ 36 ] The Claimant required the services of an interpreter and he seeks to recover the interpreter’s cost from the Defendant. Counsel did not provide any authority for requiring an unsuccessful party to pay this cost but I have reviewed the law on this point. The BC Court of Appeal commented on this generally in Gradek v.

Daimler Chrysler Canada Financial Services Inc 2011 BCCA 136 , where Madam Justice Prowse stated at para. [18]: I am in general agreement... that the object of the small claims procedures set out in the Small Claims Act , R.S.B.C. 1996, c. 430 and Rules , B.C. Reg. 261/93 is "to provide parties, and lay litigants, in particular with an easily understandable, flexible, and less costly alternative to the Supreme Court".

I am also prepared to accept that, in most cases, the pre-trial procedures, including pre-trial disclosure of documents and expert reports, mediation services, settlement conferences and recovery of such reasonable expenses as interpreter fees ,

provided in the Provincial Court, will enable the parties to proceed in a cost-efficient manner to a just result. [ 37 ] In Paul’s Restaurant v. Dunn [1996] BCJ No. 114 (BCSC) , Mr. Justice Joyce (then a Master in the Supreme Court) discusses at paragraphs 12 and 13 when it is appropriate for interpreter’s fees to be included in an order for costs. He writes: In this case the question is... whether the unsuccessful party is bound to recompense the successful party in respect of those fees. The answer to that question depends on whether or not it was "necessary or proper" for the successful party to incur them...

It may be that even without s.14 of the Charter a party who is deaf or who does not understand English and who employs the assistance of an interpreter in civil proceedings incurs a proper disbursement. But with the force of the Charter which gives a litigant who does not understand or speak the language in which the proceedings are conducted or who is deaf the fundamental right to have the assistance of an interpreter I think it is impossible to say that the cost of employing the interpreter is not a proper disbursement.

Further, I consider that the Charter right is not limited to the assistance of an interpreter for the purpose of testifying in court.

Section 14 of the Charter is not limited by its words to the assistance of an interpreter only for testifying and in my view it is broader than that. [ 38 ] Rule 20 (2) (

c) of the Small Claims Rules requires that an unsuccessful must pay to the successful party such reasonable charges that directly relate to the conduct of the proceeding. On the authorities I have referred to, interpreter’s fees for a person who does not understand the language in which proceedings are conducted a reasonable expense and I find that they are allowable costs within the meaning of Rule 20 (2) (c). [ 39 ] The Claimant will be allowed the following costs: (

a) Agent’s fees-$25.00 (

b) Company searches-$24.00 (

c) PPSA searches-$37.00 (

d) Registered mail for service of Claim-$19.51 (

e) Interpreter’s fee-$400.00 (

f) Filing fee-$156.00 Total: $661.51 Order [ 40 ] For the foregoing reasons, the Claimant will have judgement against the Defendant in the amount of $5,374.48 plus interest as permitted under the Pre-Judgement Interest Act, plus costs in the sum of $661.51. [ 41 ] The Third Party is ordered to pay the sum of $1,128.08 which it holds in trust to the Claimant on account of the amount owing by the Defendant on this judgement. Dated at the City of Abbotsford, in the Province of British Columbia this 17 th day of July, 2012. __________________________________ The Honourable Judge K. D. Skilnick