2013 QCCQ 1911, 2013 QCCQ 1911

Merzlikine c. Carmel Transport international Ltd 2013 QCCQ 1911 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF Montreal Civil Division No: 500-32-123496-103 DATE: March 8, 2013 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ Denis Merzlikine […] Montreal, Quebec, […] v.

Carmel Transport International Ltd 5005 Irwin Street Lasalle, Quebec, H8N 1A1 ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Denis Merzlikine sues Carmel Transport International Limited (Carmel) for three distinct claims totalling $ 3,535.72, including a claim relating to interest. [ 2 ] At the time of the events in 2008 and 2009, Mr Merzlikine, who is a transport broker, performed the service of driving Carmel's trucks to deliver certain loads in return for 35% of the transport fee charged to the shipper. [ 3 ] In all three claims, Carmel contests on the ground that Mr Merzlikine did not bring his claims in a timely manner, raising them only after the end of the business relationship in 2010.

Carmel also makes specific defences to each of the claims: 1. Repair of a light [ 4 ] On April 2, 2008, Mr Merzlikine was delivering a container to a location in Cornwall for Carmel using Carmel's chassis. He stopped at a way station in Lancaster, Ontario. A light was found by the inspector to be defective. Mr Merzlikine called for roadside assistance. The technician ended up breaking the pin in the light plug. Mr Merzlikine paid for a repair of $ 218.89 on his VISA account.

He also claims for interest paid on his VISA account from month to month. [ 5 ] Carmel contests this claims on the basis that it is the driver's responsibility to check before leaving the yard. Carmel representative's Liran Bartal doubts that Mr Merzlikine performed the verification and points out that he has not provided the form to prove that he has. Mr Merzlikine responds that he did fill out such a form but cannot produce a copy. [ 6 ] In the Court's view, it is a moot point whether Mr Merzlikine filled out an inspection form before taking possession of the chassis.

When the light was found to be defective, he paid for the service, something that clearly was the responsibility of Carmel as owner of the equipment. [ 7 ] As to interest, since a demand was only made for the first time May 12, 2010 interest will only run from that date and it will be interest at the legal rate of 5% plus the additional indemnity. 2. The overweight load [ 8 ] On April 19, 2008 Mr Merzlikine was hauling a refrigerator trailer when he was stopped in Brossard for the load to be weighed.

According to Mr Merzlikine, the weight was within limits but the inspector found that the load was too centered on the back axel. The inspector asked for one of the axels to be moved to reposition the load, which proved to be impossible. [ 9 ] Carmel was issued a ticket dated April 14, 2008, which it paid without contestation, withholding the amount, $ 224, from a payment made to Mr Merzlikine for services in the July 2008 pay period.

[ 10 ] The "constat d'infraction" gives a sligthly different picture than that provided by Mr Merzlikine's testimony. The allegation of fact in the ticket is that the load was overweight at 24,820 kilograms when the limit was 22,000 kilograms. [ 11 ] Mr Bartal challenges Mr Merzlikine's allegation that the load was in fact within the limit of 22,000 kilograms.

Mr Bartal asserts that it was a container provided by a customer and that Mr Merzlikine ought to have known that the load was overweight. [ 12 ] Another interesting fact is that the amount was only deducted from Mr Merzlikine's billings for work done in a subsequent period when he returned to the services of Carmel after a brief absence. [ 13 ] In the Court's view, Carmel, as the partly responsible for the payment of the notice of infraction, ought to have looked to its customer to be compensated for the penalty incurred. [ 14 ] The customer delivered a load that was slightly over the legal limit without informing Carmel or Mr Merzlikine. [ 15 ] Rather than the deduct the amount from monies that were due, Carmel should have taken the appropriate steps to clarify the matter with its customer.

Carmel could only look to Mr Merzlikine to indemnify it for the penalty if it could be shown that he was at fault. [ 16 ] The Court does not accept the suggestion that a driver can tell the difference between a load of 22,000 kilograms and one that is slightly over this limit: the difference is too small to be obvious. This defence is certainly not convincing. [ 17 ] As above, interest will only run from the date of the default. 3.

The damaged tires [ 18 ] This incident occurred in late February or early March, 2009, Mr Merzlikine was hired to pick up a load at a firm known ATS consisting of two containers. [ 19 ] When he picked up the empty chassis the wheels were working normally. [ 20 ] Because there was no load on the chassis, he did not sense the fact that the last two wheels were not moving properly. [ 21 ] When he arrived at the destination to pick up the load he discovered that the last set of tires were spoiled because they were being dragged along. He received the containers and delivered them to Carmel's premises in Montreal.

Carmel then changed the two tires and charged Mr Merzlikine on the next two pays for a total of $ 665.45. [ 22 ] Carmel stands by its charge on the basis that Mr Merzlikine, as driver, ought to have pulled over at the first sign of a malfunction of the wheels. Because he continued his voyage, the tires were spoiled. [ 23 ] Presumably, the chassis would been taken off the road to be repaired, saving the tires, if Mr Merzlikine had reacted more quickly. [ 24 ] The Court accepts Mr Merzlikine's testimony, however, that he only discovered the problem when he arrived to pick up the load at the customer's location.

At this point the tires were already spoiled. [ 25 ] It might not have been a good idea to continue with the delivery, but this did not cause any further damage to Carmel. [ 26 ] In the Court's view Carmel has not established the right to claim the amount, which ought to be reimbursed together with interest from the date of the default. [ 27 ] Carmel raises a general defence that all of these claims ought to have been brought more quickly by Mr Merzlikine when he saw the amounts deducted from the payments he was owed. [ 28 ] Unless there was a specific contractual stipulation to that effect the Court does not see why the general rule should not apply, that is to say that these claims are only extinguished by the usual prescriptive period of three years. [ 29 ] The fact of not immediately contesting the deduction from his pays is too ambiguous to constitute a clear renunciation of his rights. [ 30 ] Finally, the complaint under the Canada labour code (D-1) does not work against him because the government of Canada's inspector dismissed the claim on the basis that he was not an "employee" under

section 167 of the Canada Labour Code. [ 31 ] The inspector counselled him into take a civil recourse and closed the file. The Court is now seized of that civil recourse and the finding under of the Canada Labour Code simply reinforces the contractual nature of the claim. [ 32 ] The plaintiff's claim is proved to the extent of $ 1,108.34. FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay to the Plaintiff the sum of $ 1,108.34, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from the date of the default, May 12, 2010. CONDEMNS the Defendant to pay to the Plaintiff judicial fees of $ 129.

__________________________________ David L. Cameron, J.C.Q. Date of hearing: December 11, 2012