1313 Transport Inc. v. Jhinger, 2018 BCPC 262

Citation: 1313 Transport Inc. v. Jhinger 2018 BCPC 262 Date: 20181025 File No: 23410 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA SMALL CLAIMS BETWEEN: 1313 TRANSPORT INC. CLAIMANT AND: BALBIR SINGH JHINGER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing for the Claimant: J. S. Sangha Appearing in person: B. S. Jhinger Place of Hearing: Abbotsford , B.C. Date of Hearing: October 19, 2018 Date of Judgment: October 25, 2018

Introduction [ 1 ] The Claimant, 1313 Transport Inc., is a British Columbia Corporation that is in the business of operating transport trucks. Jagraj Singh Sangha is the president of the Company and is its principal operating officer. The Defendant, Balbir Singh Jhinger, is a professional truck driver. Everyone agrees that from sometime in August until early November of 2017, the Defendant was an employee of the Claimant. [ 2 ] The Claimant brings this claim against the Defendant for damages caused to a truck that the Defendant had control of.

According to the Claimant, the Defendant damaged the truck by putting diesel fuel into a tank on the truck that held Diesel Exhaust Fluid (or DEF as it is known in the trade. DEF is a liquid contained in a separate tank that is injected into the exhaust pipeline in order to reduce the toxicity of the emissions). The Claimant says that the Defendant did this intentionally. The Defendant denies this and calls into question the evidence that the Claimant has presented to support this conclusion. [ 3 ] At the trial of this matter testimony was given by Mr. Sangha, by the Defendant, and by a friend of Mr.

Sangha’s who witnessed a conversation he had with the Defendant. The Claimant did not call his mechanic to testify and instead relied on a written statement from the mechanic. The Defendant argues that this is fatal to the claim because the “evidence” of the mechanic is unsworn and because the Defendant was denied the opportunity to test the reliability of what the mechanic was saying either through cross- examination, or by having access to the maintenance records for this truck. This was a 2014 vehicle that had over 1.3 million kilometres on its odometer. [ 4 ] At the hearing of this matter, Mr.

Sangha and his witness testified using a Punjabi speaking interpreter, who also assisted Mr. Sangha in his questioning of the Defendant. This was often challenging for the interpreter, Mr. Tatlay, who has been a certified court interpreter for over thirty years. The parties were frequently requested to slow down and wait for translation to occur, but often the excitement of the proceedings overtook them and they made things quite challenging for Mr. Tatlay, who is to be commended for his patience.

Despite this, I am satisfied that each of the parties was given the opportunity to fairly present their cases. [ 5 ] Following is a

summary of the evidence presented at trial, a

summary of the law that applies to the facts of this case, and my reasons for making the order that is being made in this case.

Summary of Evidence [ 6 ] Jagraj Singh Sangha is the President of the Claimant 1313 Transport Inc. and he is also a director of, and shareholder in, the Company. The Company is in the business of long haul transport and a lot of its work is performed for CN Transport, hauling that company’s loaded trailers. The Claimant is not a large company. [ 7 ] According to the evidence of Mr. Sangha and of the Defendant, the Defendant was hired as a driver for the Claimant on August 24, 2017. The Defendant is an experienced truck driver and has provided documents attesting to his having a good safety record. Both Mr.

Sangha and the Defendant agree that the Defendant was an employee of the Claimant. Neither has suggested that he was an independent contractor, and in fact, at a collateral proceeding before the Employment Standards Board, the matter proceeded with the parties’ relationship acknowledged as such. [ 8 ] Mr. Sangha claims that on October 12, 2017, the Defendant drove the truck on a round trip from Surrey to Calgary. He says that while on that trip, the Defendant fuelled the vehicle at a Petro-Canada Truck Stop in Cochrane, Alberta.

The Defendant has no specific recollection of this, but acknowledges that it is possible. To prove this, Mr. Sangha relies on a fuel receipt which shows that on that date, both diesel and DEF were purchased for that truck. He also relies on photographs from a surveillance camera showing the presence of this truck and a person who is wearing a turban. The person is photographed from the top, so there is no reasonable way of knowing if this is the Defendant or not.

The Defendant had requested to see the logbook for this trip, but the Claimant has not produced it and did not produce it at the hearing of this matter. [ 9 ] The October 12, 2017 trip was completed. The next day, Mr. Sangha himself drove the truck on another trip from Surrey to Calgary. He experienced some problems with the truck and the “check engine” light came on. Initially, it was suggested that the truck broke down in Revelstoke, BC and was towed to Calgary. But Mr. Sangha said that this was a mistake.

He said that he was able to drive the truck to Calgary, where he took the truck to South City Truck Centre to be repaired. [ 10 ] Mr. Sangha did not call a mechanic or other expert witness to explain the repairs that were made to the truck or to testify the cause of the damage to the truck. Instead, he relies on an invoice that he received from South City Truck Centre. The invoice is dated November 21, 2017 and is marked “paid in full”. The total amount of the invoice is for $11,089.32, which is made up of $1,500 for labour, $9,061.26 for parts, and $528.06 for sales tax.

According to the invoice, the truck was brought in on October 13, 2017 and left on October 23, 2017. The following description appears on the invoice: “Tech report: check and repair for check engine light on and unit in derate mode. Hook-up to unit had active codes for nox conversion efficiency low. Try clearing codes and force regen unit. Unit stopped doing regen due to very high temp in the SCR one box. Brought unit to the shop and start following troubleshooting. First step check DEF quantity, open DEF tank cap, noticed strong smell of diesel.

Siphon some of the fluid out of the tank and confirmed it is mixed with diesel. Advised customer at this point unit will need new one box with new filters, DEF nozzle, DEF pump and lines, metering unit and nox sensors, also have to remove the DEF tank and flush it out. Customer OK to proceed all repairs and requested to find used good parts. Found all good used parts and install onto unit. Flush the tank and top up with new DEF fluid, clear all codes and force regen unit it. Successfully completed regen. No more check engine light on. Repair complete.

Release unit.” [ 11 ] The Claimant alleges that, while the truck was in the shop being repaired, it was unavailable to be used on other jobs. In its

Notice of Claim, the Claimant estimates that the truck would have earned $650 per day if it had been operating during that time and it claims damages in the sum of $6,500 for the period that the truck was in the shop. [ 12 ] The Defendant continued to work for the Claimant throughout the period of the repairs. On November 6, 2017, after completing a trip for the Claimant, the Defendant received a text message telling him to come to Mr. Sangha’s home. According to the evidence of a witness who was present at that meeting, Gurdev Singh Randhawa, Mr.

Sangha asked the Defendant why there was diesel in the truck’s DEF box. The Defendant denied causing this problem, and said “I don’t know what was in that box.” An argument with shouting ensued and the Defendant’s employment was terminated. In the Notice of Claim, the Claimant alleged that it would produce a witness at trial who had heard the Defendant say “How do I know what each pump holds in the tanks at the gas stations?” But this was not what Mr. Randhawa testified that the Defendant had said.

All of the witnesses generally agree that the Defendant denied that he was responsible for the problem and that he was upset over being accused of causing the problem. [ 13 ] The Defendant is suspicious about the authenticity of the repair bill. He asserts that the mechanic who prepared the invoice is a friend of the Claimant. He complains that the Claimant has frustrated any opportunity he has to verify that the repairs are legitimate. Specifically: 1.

The mechanic who prepared the repairs was not produced in court as a witness, he did not have the opportunity to cross- examine the mechanic, or even to have the mechanic to swear or affirm that the repairs were in fact performed. 2. The Defendant gave notice in his reply that he wanted to see the logbook for the trips in question and the maintenance record for the truck, but the Claimant has refused to produce these.

No one appeared on behalf of the Claimant at the pre-trial conference, when the Defendant had hoped that the Claimant would be ordered to produce these documents. [ 14 ] The Defendant testified that he is a very experienced truck driver and that he would not have intentionally put diesel into the DEF tank, nor would he have done so negligently or carelessly. He specifically denies doing so in his evidence, and states that he also denied doing so at the meeting of November 6, 2017. [ 15 ] The Claimant has alleged in its Notice of Claim that the Defendant put diesel into the DEF tank intentionally.

But in giving his evidence, Mr. Sangha did not suggest any reason or motive that the Defendant would have to do this. The Defendant did not display any previous animosity against the Claimant, and even at the trial of this matter, both the Defendant and Mr. Sangha referred to one another as “my friend”, much as lawyers do in a trial, as if their prior relationship had been a friendly one and would continue to be so if not for this lawsuit. Applicable Law (

a) Burden of Proof [ 16 ] In a civil case, the burden of proof rests with the Claimant to prove its case on a balance of probabilities. The Supreme Court of Canada stated in F. H. v. McDougall 2008 SCC 53 , [2008] 3 S.C.R. 41 , at para. [49] : “There is only one standard of proof in a civil case and that is proof on a balance of probabilities.

One legal rule applies in all cases and that is that the evidence must be scrutinized with care by the trial judge in deciding whether it is more likely than not that an alleged event has occurred.” [ 17 ] This means that it is necessary for the Claimant to produce admissible evidence which tends to make it more likely than not that what is asserted is true. For evidence to be admissible it must be relevant to a material issue before the court and it must not offend any rule of evidence. (

b) Accepting Unsworn or Unaffirmed Evidence [ 18 ] Most evidence at a trial is presented by a witness who either swears or affirms to tell the truth. When a statement, either spoken or in writing, is made out of court, that statement is usually not admissible as evidence in court for the truth of its contents. This is because no one has sworn or affirmed that it is true. It is not possible to test the truth of that statement by cross-examination or other scrutiny. This type of evidence is called hearsay, and is usually not admissible as evidence at a trial.

There are a great number of exceptions to this rule, but these reasons will only concern any which might apply in this case. [ 19 ] Section 16 (1) of the Small Claims Act gives the court the discretion to: “admit as evidence in a proceeding under this Act or the rules any oral or written testimony, record or other thing that the court considers is credible or trustworthy and is relevant to the matter being heard, even though the testimony, record or other thing is not admissible as evidence in any other court under the laws of evidence.” [ 20 ] In other words, the court can accept as evidence something that might otherwise be inadmissible, such as hearsay, if it considers the thing to be credible and trustworthy.

Something is credible if it can be believed, and something is considered to be trustworthy if it is able to be relied on as honest and truthful. (

c) Liability of an Employee to an Employer in Negligence [ 21 ] As a general rule, an employee is not liable to his or her employer for damages caused by the employee’s negligence. Employees are not liable to their employers for acts of simple negligence. In Kirby v. Amalgamated Income Ltd. Partnership 2009 BSCC 1044, the British Columbia Supreme Court held that something more than simple negligence is required before an employer can recover damages from an employee. Analysis

[ 22 ] In this case, the Claimant has failed to prove that the Defendant intentionally caused any damage to the truck in question. The Defendant has denied doing so, both in the course of his sworn testimony at trial, and when confronted by Mr. Sangha in the presence of Mr. Randhawa. The Defendant was not witnessed intentionally damaging the truck, and the Claimant has not produced any evidence to show that the Claimant did so. [ 23 ] The Claimant relies on the comments written on the mechanic’s invoice to prove that the damage was caused by the Defendant. There are a number of problems with this: 1.

Firstly, the mechanic did not testify in court, and he has not sworn or affirmed that what he wrote on the invoice is true and accurate, of merely a guess, suspicion, or just one possible explanation for what happened. 2. The mechanic has not been made available for cross-examination in order to question any of these things and so it can’t be determined if what he has written is credible or trustworthy. 3. The mechanic’s comments do not explain when the damage occurred. Could the truck have been driven back to Surrey and then to Calgary the next day with diesel in the DEF tank?

Or is it more likely that the problem occurred closer in time to when the problem presented itself, on the trip that Mr. Sangha took with the truck? 4. The mechanic does not set out what his qualifications are to make the conclusion set out in his invoice. He does not even state if these are his own conclusions or something he has been told by someone else. [ 24 ] All of these problems make it impossible to accept what is written on the invoice for the truth of its contents. The comments of the mechanic written on the invoice cannot be accepted into evidence under

section 16 of the Small Claims Act because it cannot be found to be credible and trustworthy. [ 25 ] The Claimant has refused to give the Defendant a chance to confirm that he was the driver on the trip that Claimant says the problem was caused. He has refused to provide the log books for the truck, which would help to show if it was the Defendant or some other driver on this trip.

He has also refused to produce maintenance records for the truck to allow the Defendant to explore other reasons for why this problem might have occurred. [ 26 ] The Claimant has not proven any reason or motive why the Defendant would intentionally damage this truck. Even if the Claimant had proven that the Defendant caused diesel to be poured into the DEF tank, it is more likely that this was done accidentally rather than intentionally.

If the Defendant did so negligently, the Claimant cannot recover judgement against the Defendant for the resulting damages because the Defendant is an employee of the Claimant and employees are generally not liable for such damages caused by their negligent acts committed in the course of their employment. [ 27 ] The Claimant has failed to prove that it was the Defendant who damaged the truck, or that the damage was caused intentionally.

For the foregoing reasons, the Claim brought by the Claimant against the Defendant is dismissed. [ 28 ] The Claimant has refused to disclose documents that would have helped in resolving this claim. No one appeared on behalf of the Claimant at the pre-trial conference scheduled in this matter and the Claimant did not produce the witness who he says would have backed up his claim. That person was never presented to give that evidence under oath or affirmation and to be cross-examined. On this basis, the claim had little chance of success.

Accordingly, the Defendant will be awarded costs against the Defendant for his filing fees of $50. Order [ 29 ] The Claim brought by the Claimant 1313 Transport Inc. against Balbir Singh Jhinger is dismissed. The Claimant is ordered to pay costs of $50 to the Defendant. Dated at the City of Abbotsford, in the Province of British Columbia this 25 th day of October, 2018. __________________________________ (The Honourable Judge K. D. Skilnick)