Wendy Carroll v. James Chisholm, 2011 SKPC 103

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 103 Date: June 27, 2011 File: 86/10 Location: Wynyard _____________________________________________________________________________ Between: Wendy Carroll and James Chisholm - and - Larry Hemm James Chisholm For the Plaintiffs Larry Hemm For the Defendant _____________________________________________________________________________ JUDGMENT J.A. PLEMEL , J _____________________________________________________________________________ [ 1 ] The Plaintiffs are truck drivers who live and work together.

The Defendant owns a semi-trailer unit with a flat bed trailer. [ 2 ] On October 10, 2009, Wendy Carroll and Larry Hemm entered into a written agreement in which she contracted to operate his truck and trailer. James Chisholm was not a party to the written agreement but signed as a witness to the signatures of Wendy Carroll and Larry Hemm. A copy of the agreement was filed as Exhibit P-1.

THE WRITTEN CONTRACT [ 3 ] The relevant portions of the written agreement between the Ms. Carroll and Mr. Hemm are (italics mine): The Contractor (Carroll) agrees: 1) To ensure that proper care is taken of the truck and any other equipment supplied by the company (Hemm) less wear and tear. 5) To return the truck and any equipment to the company in a timely manner if this contract ends.

The Company (Hemm) agrees: 1) To provide the contractor with safe equipment at all times and to provide all equipment required to perform the job unless otherwise specified. 3) To reimburse the contractor of any and all expenses related to fixing, repairing or buying supplies for the truck or equipment or any other business related items, receipts required. 4) That the contractor has the authority to fix or repair the truck or equipment as needed at the companies expence [ sic ]. 5) The contractor will supply the following equipment on loan: (Five lines of items are then mentioned.

I will not list them here.) 6) To cover all costs relating to the maintenance, repair or replacement of any and all equipment including tarps that the contractor supplies on loan. Wages 1) Calculation of wages shall be as follows: $0.40 per hub mile for every mile driven empty or loaded. $0.45 per hub mile for every mile driven super single or team after 3 months of service.

Tarping: $50.00 per load. $50.00 for every pick up and drop after the first one. 5) Wages will be deposited into Wendy Carroll’s account on time every pay period. 6) Pay periods will be every other Friday, unless the Friday is a holiday then the business day prior will be. All money owing will be called or faxed in the day before pay day. There will be no holdbacks on any pay. THE PLAINTIFFS’ CLAIM [ 4 ] The relevant portion of the Plaintiffs’ Statement of Claim reads as follows: The Plaintiff operated the Defendant’s truck from January 30, 2010 to February 12, 2010 and was sent an invoice for $2,260.41.

The Defendant refused to pay this amount and requested the return of his truck. The truck was returned and there is a final invoice for an additional $517.97 due also for the period of February 13, 2010 to February 15, 2010. The equipment supplied has not been returned and the replacement value is $3,500.00. Also we are seeking loss of income from February 16, 2010 till March 24, 2010 at $200.00 per business day for we could not get work without our equipment for 27 days.

Therefore the Plaintiff is claiming the sum of $11,679.38 as payment for wages owed, loss of wages and loss of equipment. [ 5 ] The Plaintiffs also claim interest pursuant to The Pre-Judgment Interest Act and costs of filing these proceedings.

[ 6 ] The Defendant has filed a Dispute Note and Counterclaim. THE DISPUTE NOTE [ 7 ] In his Dispute Note, the Defendant claims that the contract he signed with Wendy Carroll on October 10, 2009, was handed to him on the same day as the semi unit and trailer were picked up and it was stated if he did not sign it they were not leaving. He claims he felt extremely pressured to agree to their terms instead of 23% of the gross made trucking.

He claims he told the Plaintiffs that if money was not being made, wages would be paid on a percentage rate after three months. [ 8 ] The Defendant goes on to claim that between October 11, 2009 and December 15, 2009, he paid wages as per the agreement totalling $14,232.54. If he had paid 23% of gross profit made trucking he would have paid them $4,832.90 less.

He claims he was not making enough money to pay fuel costs, wages and repairs and that he met the Plaintiffs at a restaurant in Lanigan and stated “that the three months on the contract were up and that I would now pay you on a percentage basis to see if the profit margin increased...”. The Defendant then goes on to calculate what he was required to pay the Plaintiffs between January 1, 2010 and February 12, 2010, if their pay was based on 23% of gross trucking profit. According to those calculations he claims he owes them only $32.60.

He claims he told them to park the semi unit in British Columbia due to the dispute about wages and that he would make other arrangements to pick it up. Therefore he denies owing them wages from February 13 to February 15, 2010. [ 9 ] The Defendant goes on in his Dispute Note to deny that he owes the Plaintiffs for their alleged equipment loss or for their alleged loss of 27 days wages for failing to return the equipment. He also denies owing them for any other wages.

THE COUNTERCLAIM [ 10 ] The Defendant claims reimbursement of $4,832.90, being the difference between what he paid the Plaintiffs on mileage as opposed to what he feels he should have paid them on percentage of gross profit. [ 11 ] The Defendant also claims “Monetary compensation of $2,500.00 for the stress, time lost and hassle encountered” when the Plaintiffs refused to communicate with him between February 13, 2010 and February 15, 2010, while en route from British Columbia to Saskatchewan. THE EVIDENCE [ 12 ] James Chisholm testified for the Plaintiffs. The Defendant Larry Hemm testified on his own behalf.

Numerous documents were filed as exhibits. [ 13 ] I am satisfied that Wendy Carroll and Larry Hemm entered into a written agreement on October 10, 2009. The Plaintiffs picked up the semi unit including the truck and flat bed trailer from the Defendant in Humboldt, Saskatchewan on that date. They operated it until February 15, 2010 when they parked it in Wynyard, Saskatchewan, approximately 100 kilometres east of Humboldt. [ 14 ] Mr. Hemm testified that he was uncomfortable with paying wages based on mileage right from the outset.

He testified that he told them if he was not making a profit after three months he would pay 23% of the gross profit he made on the truck. However, there is no evidence that they agreed to work for 23% of gross profit after three months. Much of the trucking which occurred between October 10, 2009 and February 15, 2010 was arranged through Marnor Holdings Ltd., a company based in British Columbia. Mr. Hemm paid that company 15% for their services.

Marnor Holdings’ role in this was not fully explained at trial but it appears to be in the business of arranging loads for truckers to be picked up and hauled to various locations in Canada and perhaps further. Mr. Hemm’s contact person at Marnor Holdings for Canadian dispatch was one Craig Nicholsen.

[ 15 ] The Plaintiffs and Defendant are in agreement that there was a meeting in a restaurant in Lanigan sometime in December of 2009. They disagree on what occurred at that meeting. Mr. Hemm states he told them at that meeting that three months was up and that he was now going to pay them 23% of gross profit rather than mileage. Mr. Chisholm denied that Mr. Hemm told them this. He testified that he and Wendy Carroll were travelling through Lanigan on a trip with the semi and met Mr. Hemm. They gave him receipts for small amounts. He testified that Mr.

Hemm expressed concerns about the revenues being generated from the semi and that he felt the Plaintiffs were making too much money. Mr. Hemm brought up the topic of paying them a percentage but they did not agree to being paid on that basis. Mr. Chisholm testified that the Plaintiffs drew up the agreement in question for the express purpose of avoiding disputes and to make sure that they made a suitable income driving. [ 16 ] I accept the evidence of Mr. Chisholm as to the nature of the conversation in the restaurant and I reject the evidence of Mr. Hemm.

First of all, three months had not yet passed from October 10, 2009. Three months from October 10 th would be January 10, 2010. His testimony that he told them three months was up is simply not accurate. Secondly, it appears from the evidence that Mr. Hemm paid them hub mileage “every other Friday” in January 2010, as is stipulated in the written agreement. He would not have done this if they had agreed in December to a fee structure based on gross profit. The Plaintiffs are claiming only for the period from January 30, 2010 to February 15, 2010. [ 17 ] I find that on February 12, 2010, Mr.

Hemm unilaterally decided not to put the wage payment based on hub mileage into Wendy Carroll’s account as required by the written agreement. He decided not to pay this amount because he felt he was being taken advantage of by the Plaintiffs and that he should only pay them 23% of the gross profit rather than the mileage rate specified in the written agreement. He decided to make this lower wage retroactive feeling that the Plaintiffs owed him money. He felt that the Plaintiffs were taking trips with loads which were too small to make economic sense. They had nothing to lose because they were being paid mileage.

However he, the Defendant, was losing money. He felt if they were paid 23% of the gross profit, they would make decisions regarding loads which made more economic sense and they could all make a profit. [ 18 ] On Friday, February 12, 2010, while on a trucking trip from British Columbia to Ontario, the Plaintiffs checked Wendy Carroll’s bank account and found that they had not been paid $2,260.41 for the previous two weeks. That same day they called the Defendant who told them he refused to pay this amount. Mr. Chisholm testified he made this call from Aldergrove, British Columbia. Mr.

Hemm testified that he thought the call came from Kamloops, British Columbia. Mr. Hemm testified he told the Plaintiffs that they were to leave the truck there and he would pick it up. Mr. Chisholm, however, testified they drove from Aldergrove to Merritt, British Columbia at which point a fan belt broke and they had to stop for repairs. This was on February 13, 2010. He spoke with Mr. Hemm on the phone about this and Mr. Hemm told him he could park the truck and Mr. Hemm would arrange to get it. He did not however do that, for two reasons; he stated he told Mr.

Hemm he would not do that to him even though he had not been paid and secondly, he and Wendy Carroll needed to get back to Saskatchewan where they lived. [ 19 ] Once the fan belt was repaired, the Plaintiffs continued on their way to Saskatchewan. They arrived in Wynyard, Saskatchewan on February 15 and parked the semi on the Co-op Service Station parking lot in Wynyard. It was agreed by both the Plaintiffs and the Defendant that it takes about two days to drive from Merritt to Wynyard. I am satisfied that the Plaintiffs did not prolong this portion of the trip unnecessarily.

Once they arrived in Wynyard, the Plaintiffs called and left a message on the Defendant’s home phone answering machine telling him where the truck was parked. Unfortunately, this message was not picked up until about 3:00 p.m. by the Defendant’s wife. The Defendant expressed concerns at trial that they had not contacted his cell phone to leave this message as that is how they normally communicated. Mr. Chisholm countered that they often went weeks without communicating and it was not unusual that he would not be in contact with the Defendant or with Marnor Holdings.

However, the Plaintiffs did not clearly address the Defendant’s concern that they did not pick up messages he left for them on their cell phone when he became concerned as to where the semi was between February 13 and February 15. [ 20 ] Mr. Hemm testified about the call from the Plaintiffs from British Columbia on February 13, 2010, stating he received it at around 10:00 a.m. The Plaintiffs reported that they had a broken fan belt which was replaced and charged to Mr. Hemm’s credit card. That was the last communication he had with Wendy Carroll and James Chisholm.

After that when he called their cell phone his call went straight to their voice message and no calls were returned. As a result the Defendant did not know where his semi unit or its load was until February 15, 2010. He was concerned as the semi unit had a value of approximately $75,000.00. It also had a load on it arranged by Marnor Holdings which was destined for Ontario. [ 21 ] The Defendant testified that Marnor Holdings was also concerned and on February 15, 2010, that company requested that Mr. Hemm travel to the #1 Highway east of Regina to see if he could locate the truck and load.

This was the route Craig Nicholsen of Marnor Holdings Ltd. believed they would be driving if they were taking the load to Ontario. Mr. Nicholsen advised Mr. Hemm he was not getting a straight answer from the Plaintiffs about where they were going with the load. Mr. Hemm therefore left Humboldt and

drove with the intention of trying to locate the semi unit on the Trans Canada Highway. He got as far as Lumsden, Saskatchewan when he received a message from his wife. She had returned from her work at around 3:00 p.m. that day to find a message on their home answering machine from Mr. Chisholm in which he stated the truck was in Wynyard, Saskatchewan. The Plaintiffs’ belongings had been removed, and Mr. Hemm could pick up the truck. Mr.

Hemm then contacted Marnor Holdings Ltd., and travelled back home, to pick up his wife to drive him to Wynyard so he could take possession of the semi and its load. [ 22 ] I believe the Plaintiffs did not return the Defendant’s calls because they were annoyed with him for not having deposited wages in accordance with the written agreement into Wendy Carroll’s account. I believe they knew this would cause both Mr. Hemm and Marnor Holdings Ltd. great concern regarding the whereabouts of the semi unit and the load.

I am of the view that, although they may have had reason to be annoyed, they dealt with this in an inappropriate manner by refusing to communicate the whereabouts of the truck and contents to either Marnor Holdings Ltd. or Mr. Hemm. ANALYSIS [ 23 ] The Plaintiffs must each prove their claim on a balance of probabilities. The Defendant bears the same onus in proving his counterclaim. James Chisholm’s Claim [ 24 ] Only Wendy Carroll and Larry Hemm were parties to the written agreement. Although Mr. Chisholm represented both Plaintiffs at trial and was the only Plaintiff to testify there was no agreement between Mr.

Chisholm and Mr. Hemm. Larry Hemm did not agree to pay Mr. Chisholm anything. Any agreement Mr. Chisholm may have had was between him and Ms. Carroll. He may pursue his claim to his share from her if he wishes. I dismiss his claim against the Defendant. Wendy Carroll’s Claim WAGES FROM JANUARY 30 TO FEBRUARY 15, 2010 [ 25 ] I am satisfied that Wendy Carroll is entitled to payment of wages as specified in the written agreement. I am satisfied that the Defendant agreed to pay her wages based on the mileage driven.

Although he may have preferred to pay a percentage of the profit they made, the parties never agreed to that. The Plaintiffs have based their claim on 40 cents per hub mile even though the written agreement specifies 45 cents per hub mile after the first three months, or in other words, after January 10, 2010. The Plaintiffs have abandoned any claim they would have to the extra 5 cents per hub mile after January 10, 2010. [ 26 ] Wendy Carroll is entitled to $2,260.41 for wages earned between January 30, 2010 and February 12, 2010 based on hub miles.

She is also entitled to wages for mileage from February 13 to February 15, but only mileage to Humboldt and not to Wynyard. The written agreement stated she was “To return the truck and any equipment to the company in a timely manner if this contract ends.” The Plaintiffs did not return the truck. They left it parked in Wynyard as it was more convenient for them. In doing so they drove it about 60 miles east of Humboldt. Ms. Carroll is not entitled to wages for this portion of the trip and I deduct 40 cents per mile for 60 miles being $24.00.

She is entitled to payment of $518.97 less $24.00, being $484.97 from February 13 to February 15, 2010. [ 27 ] From January 30 to February 15 Wendy Carroll is entitled to $2,260.41 plus $484.97 for total wages of $2,745.38.

PLAINTIFFS’ CLAIM FOR LOSS OF EQUIPMENT [ 28 ] Mr. Hemm agrees that he kept the Plaintiffs’ equipment which was on loan to him as part of the contract. He testified that he did so because Marnor Holdings told him they had a right to the equipment as they had an unsettled claim against the Plaintiffs. The Plaintiffs tendered a receipt, marked as Exhibit P-6 in these proceedings dated July 23, 2008. It is a receipt for $4,000.00 paid by Wendy Carroll and James Chisholm to another party for certain equipment. Mr.

Chisholm testified and I accept that $3,500.00 of this amount was for the purchase of the equipment listed on page two of the contract and that these items were all left with the truck and trailer and have not been returned to them. Even if Marnor Holdings told Mr. Hemm that they had a right to this equipment due to a claim they had against the Plaintiffs, that did not give Mr. Hemm the authority to keep the Plaintiffs’ equipment or to keep part of it and give some to Marnor Holdings.

He was required to return it to the Plaintiffs and let Marnor Holdings claim it from them if they wished. [ 29 ] I am satisfied that the Defendant owes the Plaintiff, Wendy Carroll, $3,500.00 for this equipment. PLAINTIFFS’ CLAIM FOR LOST INCOME FOR 27 DAYS [ 30 ] However, I am not satisfied that the Defendant owes the Plaintiffs for loss of wages for 27 days due to his failure to return the equipment to them. The Plaintiffs claim they could have gone to work on February 16, 2010 for a trucking company in Winnipeg, Manitoba if only they had their equipment. Mr.

Chisholm testified that because they did not have this equipment they were prevented from getting work until March 24, at which time he secured another job. I do not accept this. Mr. Chisholm testified that he told Mr. Hemm he could keep the equipment to carry on with the trip from Wynyard to Ontario and return it to him when he got back. He agreed that the turn around time on such trips could take up to two weeks. That would mean Mr. Hemm might not be back until March 1, 2010. I do not accept Mr.

Chisholm’s evidence regarding lost wages for 27 days. [ 31 ] The Plaintiffs have not satisfied me that they lost income as a result of the failure of the Defendant to return the equipment. COUNTERCLAIM FOR REIMBURSEMENT OF WAGES [ 32 ] The Defendant claims reimbursement of $4,832.90, being the difference between what he paid the Plaintiffs on mileage as opposed to what he feels he should have paid them on percentage of gross profit.

I have already ruled that Wendy Carroll is entitled to payment based on mileage and not based on gross profit. [ 33 ] The Defendant has not satisfied me that he is entitled to a reimbursement of wages and I dismiss this portion of his counterclaim.

FOR LOSSES DUE TO THE PLAINTIFFS’ FAILURE TO COMMUNICATE BETWEEN FEBRUARY 13 AND FEBRUARY 15, 2010 [ 34 ] The Defendant also claims “Monetary compensation of $2,500.00 for the stress, time lost and hassle encountered” when the Plaintiffs refused to communicate with him between February 13, 2010 and February 15, 2010. [ 35 ] The Plaintiffs’ failure to communicate with the Defendant between these dates resulted in stress and financial loss to the Defendant. It was reasonable for him to attempt to locate his truck and its load.

He is entitled to repayment for the financial loss he suffered but not for stress caused by their actions.

[ 36 ] On February 15, much of his day was wasted because he was sent on a wild goose chase trying to track down his semi. After he learned that it was parked in Wynyard he had to involve his wife in driving him to Wynyard. [ 37 ] The Defendant’s return trip from Humboldt to Lumsden was approximately 366 kilometres. The return trip from Humboldt to Wynyard was approximately 200 kilometres. I estimate that with turn around times, the travel would have taken approximately seven and one half hours out of the Defendant’s day and an additional two and one half hours out of his wife’s day for a total of ten hours.

I am awarding him $20.00 per hour for the ten hours he and his wife lost for a total of $200.00. In addition I am awarding him 40 cents per kilometre for the mileage they put on their personal vehicle for these return trips. 566 kms. x 40 cents/km = $226.40. [ 38 ] I am awarding the Defendant $200.00 + $226.40 for a total of $426.40 in his counterclaim. CONCLUSION [ 39 ] The Plaintiff, James Chisholm’s claim is dismissed. [ 40 ] The Plaintiff, Wendy Carroll, is entitled to $2,745.38 for unpaid wages plus $3,500.00 for missing equipment, for a total of $6,245.38.

From this award will be deducted $426.40 being the amount the Defendant is awarded in his counterclaim for the reasons stated above. [ 41 ] In light of the mixed success of the parties, I decline to award any costs with respect to the issuance of the pleadings. [ 42 ] Wendy Carroll shall therefore have judgment against the Defendant in the amount of $6,245.38 less $426.40 which totals $5,818.98. She is also awarded interest pursuant to The Pre-Judgment Interest Act on that amount from February 15, 2010 to today’s date. J. A. Plemel, J