Nasim Akhtar - v. -, 2016 SKPC 151

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 151 Date: November 5, 2016 File: SC#159 of 2015 Location: Saskatoon _____________________________________________________________________________ Between: Nasim Akhtar - and - Sean J. Bear and Saskatchewan Government Insurance Mr. Nasim Akhtar For the Plaintiff Ms. Lynn Barlage For the Defendant, SGI _____________________________________________________________________________ JUDGMENT B.G. MORGAN , J _____________________________________________________________________________ Introduction [ 1 ] Mr.

Akhtar owns his own cab, and operates under the banner of Comfort Cabs in Saskatoon. When he is not himself driving the cab, he will rent it to another driver at a flat rate.

[2] On February 14, 2015, the cab was being driven by another individual, when it was involved in a motor vehicle accidentwith Mr. Bear. There is no issue that Mr. Bear is at fault, accordingly, Saskatchewan Government Insurance (SGI) is acting as hisinsurer. [3] As a result of the accident, the plaintiff had to buy a replacement vehicle, and outfit it as a cab. His claim is for an amount tocompensate him for the interruption of his business. In his view, he is owed an additional five days, and claims $2,770.50.

He has beenpaid the cost of the purchase of his replacement vehicle [4] Much of what occurred is not in dispute; the true amount of the loss is the issue. I will therefore deal with some preliminaryprocedural issues, and set out the undisputed facts to provide the context, deal with the disputed facts, and then address the variousissues. Procedural Issues [5] After issuance of the claim, but prior to the trial, the plaintiff became aware that he may not be able to maintain this actionagainst Saskatchewan Government Insurance (SGI).

In Khawar v Constantinoff, 2016 SKPC 10 , 2016 SKPC 010, JudgeAgnew of this Court held, in a similar situation, that Saskatchewan Government Insurance was not a proper party. This was canvassed invarious pre-trial meetings, but the claim was left as it was until after all of the evidence was heard, to see if there was perhaps some otherreason SGI had been named. At the end of the trial, I indicated that I would dismiss the claim against SGI, and I do so at this point. Thisdid not in any way affect the conduct of the trial; Ms. Barlage candidly admitted that SGI’s role was as insurer for Mr.

Bear, with thecentral trial issue being the quantum of damages. [6] A second matter was that the plaintiff had originally claimed Provincial Sales Tax (PST) on his claim for businessinterruption, but abandoned that at trial. [7] The parties filed an Agreed Book of Exhibits (collectively entered as Exhibit C-1), on the proviso that all of those documentswould be available for trial, and ones that the parties particularly wanted to refer to would simply be referenced. I thank both parties fortheir assistance in this matter, as it avoided wasting court time dealing with exhibits that were really not disputed.

All exhibits were ofcourse subject to the weight to be given to each. Factual Background [8] The background of what occurred is well laid out in the exhibit documents, and I provide the time frame as follows. Unlessotherwise mentioned, all dates refer to 2015. February 14: the plaintiff’s 2010 Toyota Prius hybrid cab was involved in the accident, and was deemed a total loss. The vehicle wasbeing rented by another driver at the time. Feb. 16-17: a claim was filed with SGI.

I note there is some issue as to when the claim was actually filed; however, it was done bycomputer and it was perhaps received by SGI on the morning of February 17. February 16 was a Monday, a statutory holiday (Family Day), and the 14th was a Saturday. There is no question the claim was submitted promptly, irrespective of the precise day. February 18: the vehicle was determined to be a total loss, and it was sent for salvage. Mr.

Macas, who was the agent for the plaintiffin all negotiations with SGI, was made aware of this fact on February 18, and he passed on to the plaintiff the need for him to get areplacement vehicle promptly. A Transfer of Ownership form shows that the plaintiff purchased a 2010 Chevrolet Malibu as areplacement vehicle on this date for the sum of $6,000.00 (Exhibit C-1, defendant’s supplementary document 2).

February 19: Mr. Macas took possession of the vehicle, preparatory to converting that into a taxi cab. There is no dispute between the parties that, at least at this time, all Comfort Cab vehicles were painted white. This particular vehicle was gray, necessitating it being re- painted. February 20: Mr. Macas took that Malibu to Allif Auto Service to get it ready for commercial service. February 23: Mr.

Macas, through his agency, paid the sum of $1,175.90 for some work, including a complete inspection of the vehicle, replacement of front and rear brake pads and routers, change of fluids and replacing control arm and tie rod (Exhibit P-1). February 24: a Light Vehicle Inspection Certificate was issued by SGI indicating the vehicle passed inspection for use as a taxi (Exhibit C-1, document A3). February 25: Mr.

Macas started installing the equipment to make this vehicle operational as a taxi, while at the same time looking for a loaner vehicle for his client to drive while this vehicle was getting ready for service. (The provision of a loaner vehicle for taxi cab owners/operators to use while their vehicles are being serviced is quite common, although availability may be a factor, depending on a number of factors). February 27: the plaintiff had acquired the use of a loaner taxi and it was being operated. March 2: Mr. Macas started to refinish the Malibu. From this date to March 6, Mr.

Macas’ shop, KM Taxitech, was preparing the vehicle for painting, the painting having to be done by another shop as Mr. Macas’ operation was not able to do the painting. March 9: the vehicle was towed to Continental Autobody to have it painted, the painting having been arranged the prior week. It had to be towed as, due to the nature of the work done in “prepping” the vehicle, it was not able to be driven. March 11: the vehicle, now painted, was brought back to Mr. Macas for him to re-fit it as a cab. March 12: the loaner vehicle that Mr.

Akhtar was using as a cab was involved in an accident and not able to be used; it was taken out of service. March 16: the 2010 Malibu was now all refinished, decals were on it, a meter was installed, etc., and it was all ready to go into service as a cab. March 17: the vehicle was returned to Mr. Akhtar who noted that the meter was not calibrated, and the driver’s door was not latching properly. Mr. Macas therefore purchased a door latch (Exhibit P-3), and as the meter was not working, had to look into how to repair that. March 18: Mr.

Macas then transferred the computer from the loaner vehicle to the new cab, ensured all final permits were ready, and essentially got everything completed. The vehicle was dropped off to Mr. Akhtar that night. March 19: Mr. Akhtar was back in service with his replacement cab. [ 9 ] Against that background of 33 days (February 14 - March 18), it is necessary to go into further detail respecting this claim. [ 10 ] I start by noting two recurrent themes that have bearing on this case.

[ 11 ] The first is that SGI has acknowledged in their policies that when the owner of a taxi cab suffers a loss, his or her situation is different from the average citizen. Thus, if a private citizen’s vehicle is damaged in an accident, and that citizen is not at fault, he or she may be entitled to the use of a rental vehicle while the damaged vehicle is being repaired.

For the average individual, that vehicle is used to get back and forth to work, run errands, etc.....the usual things one does with a family car. [ 12 ] The difference with respect to a cab driver is that if his or her vehicle is out of use, he or she is out of business. The situation is different, and is treated differently, in that SGI does pay down time respecting loss of use of a vehicle if the cab driver is not at fault. That is what happened in this case. [ 13 ] Nadine Heatherington explained that policy, referring to the defendant’s supplementary statement of document 2 contained in Exhibit C-1.

As she explained, down time claims for a taxi cab owner can be paid in one of two ways. Effective August 1, 2014, the daily rate of compensation, without the need for the cab driver to provide income substantiation is, $170.00/day.

However, the taxi owner has the option to provide income substantiation, and receive compensation at a higher rate if it is warranted. [ 14 ] In this case, the plaintiff opted for the latter course, and by agreement, and in accordance with the policy of what information SGI needed to substantiate the loss, this claim for downtime was paid at the rate of $532.00/day. [ 15 ] However, there are different stages for the loss suffered by a cab driver. Mr. Robert Bahr, the adjuster in this case, explained that process.

He is well versed with taxi claims, as that is what he was handling in February 2015, and he is well known to Mr. Macas, who represents a number of cab drivers in these types of claims. Mr. Bahr explained that Stage I is used to compensate loss of use immediately following the accident. He says that’s usually a seven day time frame, the seven days starting after determining the vehicle is a total loss as being a general figure. Thus, in this case, the accident was February 14, it was declared to be a total loss February 18, and if you add seven days to that, you arrive at February 26.

He referred to that as the income loss period, either being the $170.00/day or, in this case, $532.00/day by agreement. [ 16 ] He explained that Stage II deals with the loss of use while you are replacing the vehicle you have now purchased, and that, by policy, is limited to 15 days at $170.00/hour or 15 days at whatever higher rate is negotiated. This part of the claim is based on the need to take a standard motor vehicle and convert it to a cab, by adding a meter, putting on company decals, etc.

In this case, as Comfort Cab required white vehicles, and the Malibu that had been purchased was gray, that would also necessitate painting the vehicle white. [ 17 ] This explanation was necessary to address that first point I referred to above, which is this: the plaintiff frames his case partly as being an examination of the correctness and fairness of SGI’s policy of, among other things, capping Stage II at 15 days; whereas the defendant argues, among other things, that it is not SGI’s policy that is on trial; rather, the overall question is, this being a tort claim, whether the plaintiff has been adequately compensated.

This would include an examination of his efforts to mitigate his losses. I must resolve this point in favour of the defendant. This civil suit has to be decided based on principles of law, not the internal policies of an individual insurer.

The question I must answer is: has the plaintiff been fairly compensated, which, as the defendant correctly points out, also brings into play questions of proof of loss, mitigation of loss, etc. [ 18 ] The second point is that the plaintiff has also, as part of his case, referred to policies, procedures and examples that are not relevant to the situation that the plaintiff faces. I will provide examples of this below. [ 19 ] It is against that background that I will now delve into more detail on this particular case, recognizing SGI has paid $10,189.00 to the plaintiff for loss of use - down time.

The ultimate question is: Is that sufficient compensation, or is the plaintiff owed more? The plaintiff states he is owed five days more, at $532.00/day, claiming the sum of $2,660.00. [ 20 ] There was, over the course of two days of this trial, evidence called on a number of points. I do not intend to examine areas that do not have direct bearing on this, although I will make a couple of preliminary observations. [ 21 ] As an example of what I referred to above, a considerable amount of time was spent comparing different SGI policies to the case at bar.

As one example, the plaintiff’s agent in this case showed Mr. Bahr various documents in which Mr. Bahr had apparently authorised higher figures, on different claims, and showing him documents respecting SGI policy on determining rental allowances for

light vehicles. As Mr. Bahr made clear, the policy respecting rental car replacement use on repair of a light vehicle is an entirely different policy than the one used when dealing with refinishing of a replacement car for use as a taxi cab. The policies are simply not interchangeable, and what applies in one does not apply to the other. [ 22 ] I also point out that whatever Mr.

Bahr may or may not have authorised by way of payment in other cases (and whereas he acknowledged the documents appeared to be accurate, he had no personal recollection of the particular claims being cited, hardly surprising in light of the work volume he has), the ultimate question for me is not whether or not someone was overcompensated or under compensated in another case; rather, the issue in this case is compensation. [ 23 ] I am satisfied that SGI has paid the sum of $10,189.00 for the downtime claim, as evidenced by defendant Document 20 in Exhibit C-1. That is a letter from Mr. Bahr to Mr.

Nasim dated March 24, 2015, signed by Mr. Macas as Mr. Nasim’s agent, which sets out how that figure was arrived at: $6,915.00 for the first 13 days the taxi was out of service, at a rate of $532.00/day; the letter refers to this as being the “Stage I portion of this claim based on income documents presented; SGI paid a further 15 days, in their assessment as what was “fair and reasonable to complete the Stage II process of this claim at a rate of $170.00/day for 13 days and two days at a rate of $532.00 for a total of $3,274.00". [ 24 ] Mr.

Macas’ signature on that document is acknowledgment of receipt, not necessarily satisfaction; clearly, Mr. Macas has always been of the view that the total payment should have been in a higher amount. [ 25 ] Turning to the issue of the time that was spent in finding a vehicle and having it readied for use as a cab, it is clear that SGI has paid a total of 28 days, based on the aforesaid document. How they arrived at that figure is also abundantly clear. [ 26 ] I turn now to reviewing the evidence of the various witnesses, focusing on the pertinent aspects of their evidence. [ 27 ] Mr.

Macas was the first defence witness called, and he was clearly the one who had the knowledge of what exactly transpired in this case, not surprising considering he was the individual who did most of the work involved in the claim. Although it could be argued that this makes him somewhat of a biased witness, I did find he presented his evidence in a fair and forthright manner, and I find he generally has a lot of knowledge respecting what he was doing.

However, that does not necessarily mean that I agree that everything he did was reasonable in the circumstances. [ 28 ] First, he testified that, when he learned the vehicle was a total loss, he did tell Mr. Akhtar that he would need to find a new vehicle, but he also mentioned that Mr. Akhtar needed to look for a new car soon, as there was some pressure from SGI to get one quickly. Whereas I accept that was a perception Mr. Macas had, I find that it is not supported by the evidence. I note that Mr. Akhtar testified that Mr. Macas did tell him he needed to buy a car right away, but all that does is confirm Mr.

Macas’ erroneous view. I am satisfied there was no actual pressure exerted, and in fact it would not matter to SGI that a replacement vehicle be found the very day the vehicle was determined to be total loss. I agree with the argument advanced by Ms. Barlage that a bit more time spent looking for a replacement vehicle that was white, and therefore not in need for re-painting, might have been prudent. Yet the plaintiff purchased what seemed to be the first vehicle he came across. [ 29 ] I am further satisfied Mr.

Macas, being totally familiar with this type of work and what was needed to find a replacement car, had to be aware of the relevant policies. Mr. Akhtar was relying totally on Mr. Macas, and Mr. Akhtar’s testimony was that he bought the first vehicle he saw. As he put it, adopting a comment in his trial statement during cross-examination, “I purchased the first car I could”. He also noted that the gentleman he purchased it from did not let him take it to a mechanic for an inspection basically telling him if he didn’t like it, he didn’t have to buy it.

He therefore test drove it, it seemed okay to him, and he arranged to purchase the vehicle. [ 30 ] A second example of what I found as a certain lack of clarity in some of Mr. Macas’ evidence was with respect to the actual purchase price of the vehicle. Mr. Akhtar did not have the funds available for the purchase, and borrowed the money from Mr. Macas. Mr. Macas’ evidence was that he thought the purchase price was around $8,000.00, and Mr. Akhtar’s evidence was that he thinks it was $6,000.00. However, Mr.

Akhtar also referred to paying a deposit to hold the vehicle until he came up with the rest of the money, either later on February 18 or perhaps the next day. Not a lot turns on this; I merely mention it because there was no firm evidence from the plaintiff as to what was actually paid for the vehicle. This is of course not germane to the replacement cost, but it does show a certain

lack of detail in the evidence presented by the plaintiff. [ 31 ] Mr. Macas’ agency is in the business of restoring vehicles for use as taxi cabs, so whereas it is argued that his evidence should be discounted on the basis that he has a direct interest in this litigation, as he is not exactly a disinterested party (he has a hand in this as both a provider or services to the plaintiff in getting back into business and acting as his agent in this lawsuit), I do not accept that argument.

I do not find anything inappropriate with the level of his involvement, but there is an added cost here that I cannot pass on to the defendant. That cost, I find, is in having the replacement vehicle prepped for painting by Mr. Macas through his shop, then having that vehicle towed to Continental Autobody for the purposes of having it painted, and then of course having it towed back before he could get back to work on finishing the vehicle’s preparations. [ 32 ] I also find that the time spent painting and prepping the vehicle was excessive, for two reasons. [ 33 ] The first deals with the time spent. Mr.

Olorenshaw was qualified as an expert defence witness and gave opinion evidence on industry standards in the auto body industry as to time and work required to do certain work. I accept his evidence that it is fairly standard for a shop to beat the “flat rate”, in this case, 52.6 hours on the estimate. In this case, I find that one five day work week would have been more than sufficient to prepare and paint this car; there was no pounding out dents, no ordering parts. As. Mr. Olorenshaw put it, one would simply be “scuffing and painting”. [ 34 ] The second deals with the work done.

In looking at the pre and post inspections of the vehicles, I find that Mr. Maacs was providing the plaintiff with a replacement vehicle that had a substantially superior paint job to the one that had been lost in the February accident. Obviously, the replacement vehicle had to be freshly painted, and painted white, which would be superior in the sense that it was newer. But the masking and prepping that was done on that replacement vehicle was far more extensive and detailed than what had been done originally on the vehicle that was a total loss. [ 35 ] In cross-examination of other witnesses, Mr.

Macas made a lot of the fact that there was a certain assumed rate, or time it would take, to paint a vehicle, and argued that the manager of one body shop had stated “if you gave me the balance of any week, I could get you in in the beginning of the next week. Total days in the shop would be two weeks.” Although Mr. Macas did not retain that particular body shop to do the painting, he argued that two weeks would be a reasonable amount of time to have a vehicle painted and prepared. However, the total time spent on prep work and painting in this case was less than that. It seems Mr.

Macas had raised this argument partly to test the evidence of the defence expert, Mr. Joel Olorenshaw, but I do find that the plaintiff’s evidence of the amount of time needed to be spent on the vehicle is unreliable. [ 36 ] Mr. Akhtar was the second witness, and in the ordinary course of events, he would have been the first witness to testify. Mr. Akhtar’s evidence in many ways parroted Mr. Macas’, or simply confirmed leading questions put to him by Mr. Macas. Much of Mr. Akhtar’s evidence was of limited use, although I also have to note that Mr. Akhtar’s evidence was mostly confirming things that Mr.

Macas had testified to, things that were not really in dispute as they were amply supported by the documentation. It was clear from listening to Mr. Akhtar that the very reason he hired Mr. Macas was because he had no experience in these matters, as he testified. [ 37 ] However, what I do find lacking in Mr. Akhtar’s evidence was particulars of the actual loss he suffered. I found Mr. Akhtar tried to be a good witness, and reasonably accurate in what he said on some things. As an example, I accept that he had difficulty locating a loaner vehicle for the reasons he stated.

However, having said that, it is equally clear that he relied totally on Mr. Macas and he took no independent steps to hurry things along. More importantly, however, he simply offered no reliable evidence of his loss. [ 38 ] As one example, whereas I accept his evidence that when he wasn’t driving, he would rent the vehicle out to another driver at $85.00 per 12 hours shift (this apparently being an industry standard of some type), I do not know how often he rented his vehicle out, nor to whom.

His estimate of his actual income from the business is of no evidentiary value as it is all estimated, without any supporting documentation at all, such as business records, income tax returns, etc. His estimate that he would take home between $4,000.00 and $5,000.00 per month hangs in a complete evidentiary vacuum. [ 39 ] Defence witnesses did say that $532.00/day was an accurate compensation for all individuals who may have been driving the vehicle over the period that it was out of business. That amount of compensation was something that was worked out between SGI and Mr. Macas on behalf of Mr.

Akhtar, and was based on Comfort Cab averages for their operation generally. But I cannot accept that

figure as an accurate representation of the actual loss to Mr. Akhtar, let alone anyone who may be associated with his operation. In his view, the money he received was meant to compensate his business operation generally, and he seemed to feel he had an obligation to compensate drivers who worked for him, who were not able to work for the 33 days that the vehicle was out of service. That may be a moral obligation he felt; however, that is not compensation that is necessarily due from the defendant Mr. Bear to Mr.

Akhtar as plaintiff, and even if I were to conclude that it was, I have scant evidence to quantify what that loss would be. [ 40 ] I canvass this last point in some detail because a lynch pin of the plaintiff’s argument is that he has to compensate his drivers. I do not accept that: Mr. Akhtar has sued Mr. Bear. SGI is liable to cover the damages caused to Mr. Akhtar by Mr. Bear. Even if I were to agree with the plaintiff on this point, he has not proven what this loss is. [ 41 ] The defendant’s argument is quite straight-forward: what is Mr. Bear liable to Mr. Akhtar for? Ms.

Barlage argues that the amount of $532.00 is not the issue. Rather, she says, the central question is the amount of the loss. And, she argues, the plaintiff hasn’t established that at all. For this court to provide further compensation to the plaintiff, in addition to the $10,189.00 already paid, she argues, would be over-compensation. [ 42 ] The plaintiff is required to establish his or her claim on a balance of probabilities, and for the reasons given, this he has failed to do. The plaintiff’s claim is therefore dismissed . Each party is to bear their own costs. __________________ B.G. Morgan, J