2013 QCCQ 3391, 2013 QCCQ 3391

9189-0608 Québec inc. c. 9158-0498 Québec inc. 2013 QCCQ 3391 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-128103-118 DATE: March 4, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ 9189-0608 QUÉBEC INC. and IGOR GORBANOV […] , Verdun, QC. […] Plaintiffs v. 9158-0498 QUÉBEC INC. and ALIAKSANDR PATAPENKA […] , Ville Lasalle, QC. […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs 9189-0608 Québec inc. and Igor Gorbanov (hereinafter “Gorbanov”) are claiming $2,592.61 from Defendants 9158- 0498 Québec inc. and Aliaksandr Patapenka (hereinafter “Patapenka”) for trucking services rendered.

Patapenka contests the claim. He submits he deducted certain costs which were payable by Gorbanov as well as the amount representing damages to his vehicle. The evidence: [ 2 ] Gorbanov worked for Patapenka as a truck driver since January 2010, pursuant to a contract concluded between the parties. In carrying out his work, he drove Patapenka’s truck. Patapenka was and is an owner-operator, providing trucking services for a company called Trimac. [ 3 ] Gorbanov logged his hours. Trimac then paid Patapenka and he subsequently paid Gorbanov. [ 4 ] Gorbanov ceased providing services for Patapenka on August 13, 2010.

Gorbanov submits he has not been paid $2,592.61 and is claiming this amount. [ 5 ] Patapenka provided a list of the amounts he owes, which total $2,293.10. He then deducted a number of costs and concluded that he did not owe Gorbanov any money; rather he claimed that Gorbanov owed him $69.82.

Plaintiff’s claim : 1.

Hours worked and miles driven : [ 6 ] Gorbanov submits that he was not paid for hours worked and/or miles driven, which are detailed as follows: 3.5 hours for trip FSS 50993502 for $33.25. 1.5 hours for trip FSS 50970154 for $14.25 US layover for trip FSS 50965536 for $100 499 miles at $0.38 per mile for trip FSS 50961344, amounting to $189.62 .5 hours at $9.50 per hour for the same trip, amounting to $ 4.75 898 miles at $0.38 per mile for trip FSS 50981332, amounting to $341.24 13.75 hours at $9.50 per hour for the same trip, amounting to $130.62 [ 7 ] Patapenka admits these amounts are payable with the exception of $33.25, which was not granted by Trimac’s dispatcher. [ 8 ] In the absence of any proof as to Trimac’s refusal to pay, the Court concludes that $33.25 is payable as well as the other amounts indicated above, which total $813.73. [ 9 ] The amount owed to Gorbanov comes to $3,106.83 plus tax, for a total of $3.506.83 2.

The Deductions : [ 10 ] Gorbanov also contests the following deductions made by Patapenka: $280 for medical insurance $100 for a missing fitting $ 381.50 for a branch shop repair $1149.13 for a cracked rear passenger fairing replacement Insurance : [ 11 ] Patapenka showed that Gorbanov was covered by an insurance policy for medical and dental expenses, the cost of which came to $280. Given the evidence, the Court concludes this amount is payable by Gorbanov.

Missing Fitting : [ 12 ] Gorbanov claims he was charged for a missing fitting but maintains he returned all equipment when he ceased working for Patapenka. [ 13 ] Patapenka submits this piece of equipment was lost but he was unable to situate when the loss occurred. [ 14 ] Given that Patapenka is unable to establish when the loss took place and since Gorbanov testified that he returned all the equipment he received, Patapenka has not met his burden of proof of establishing Gorbanov’s responsibility for the loss.

Branch Shop Repair : [ 15 ] Gorbanov contests the deduction made for a repair dated August 19, 2010. Gorbanov states that he was no longer providing services on that date and in any event, according to Trisac’s safety manager, he was not responsible for the accident. [ 16 ] Patapenka is claiming the amount, explaining that he had paid for the repairs. [ 17 ] The repair took place after Gorbanov ceased providing its services. However, the damages occurred during the time the service contract was in effect.

Gorbanov admitted he was involved in an accident but maintains the other driver was responsible for the mishap and submits that Trimac’s safety manager had acknowledged this fact. [ 18 ] However, Gorbanov failed to produce any proof of his allegations other than hearsay evidence. In light of these facts, the Court considers Gorbanov to be responsible for the payment. Cracked rear Passenger Fairing Replacement : [ 19 ] Patapenka submits Gorbanov damaged the rear passenger fairing on Patapenka’s tractor.

While Gorbanov claims he told Patapenka about the accident immediately, Patapenka maintains he was only notified after Gorbanov had repaired the damage. Patapenka submits that the repair is inadequate; the colour of the fairing is different from the rest of the tractor. He obtained an estimate for the repair of the damage, which comes to $1,149.13. He is deducting this amount from the total amount he owes Gorbanov. [ 20 ] Gorbanov submits that Patapenka’s estimate is dated March 14, 2001, which is several months after the contract ended.

He is contesting Patapenka’s decision to deduct this amount from his pay, maintaining that any claim must be made within 90 days of the end of the contract. [ 21 ]

Article 5

c) of the Agreement regarding Compensation states: “Independent Contractor Driver agrees to a hold back: the full two weeks pay. The company agrees to pay back in full the total amount of the hold back following termination of this Agreement within ninety business days after the termination of the Contract” [ 22 ]

Article 22 of the Agreement regarding Damages to the Equipment states: “Independent Contractor Driver is liable to any damages made by him to the Company’s (2007 Volvo VN730) or Trimac’s equipment and shall repay any and all amounts to compensate the damages made…” [ 23 ] Contrary to Gorbanov’s position, the Agreement does not limit the liability for damages to 90 days after the termination of the contract. The 90 day period concerns a two week hold back and does not indicate that claims for damages must be resolved within this period.

On the contrary, the Agreement states that the driver is liable for damages it made to the equipment of the other contracting party or to Trimac’s equipment. [ 24 ] Considering that Gorbanov is responsible for the damage that occurred, he is liable for the related costs to repair the vehicle. Conclusions : [ 25 ] The parties agree that Patapenka owed Gorbanov $2,293.10 prior to the final accounting.

In light of the evidence, he owes Gorbanov $2,293.10 for unpaid hours and miles plus $813.73 for a total of $3,106.83 plus tax, which comes to $3,506.83. [ 26 ] Deductions are to be made for medical insurance, branch shop repair and cracked rear passenger fairing replacement. The total of these costs is $1,810.63. These amounts already include tax. [ 27 ] Therefore, the amount outstanding is $1,696.29 (namely $3,506.83 owed by Patapenka minus the deductions of $1,810.63). [ 28 ] Finally, Gorbanov admits that Patapenka has paid $500.

After this amount is deducted, there remains the sum of $1,196.29, which Patapenka owes Gorbanov. [ 29 ] The details may be set out as follows: Earnings : $2,293.10 Unpaid hours and miles driven $813.73

Total owed: $3,106.83 Total with GST and PST $3,506.83 $3,506.83 Less Deductions for : Medical insurance $280 Branch shop repair $381.50 Cracked rear fairing replacement $1,149.13 Total $1,810.63 -$1,810.63 Amount owed (Earnings less Deductions) $1,696.29 Less $500 paid: - $ 500.00 Total amount owed by Defendant : $1,196.29 [ 30 ] Given the contract was concluded between 9189-0608 Québec inc. and 9158-0498 Québec inc., there is no “lien de droit” between Igor Gorbanov and 9158-0498 Québec inc.. Furthermore, Aliaksandr Patapenka is not personally liable.

FOR THESE REASONS, THE COURT: GRANTS , in part, Gorbanov’s motion to institute proceedings; CONDEMNS 9158-0498 Québec inc. to pay 9189-0608 Québec inc. $1,196.29 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since March 26, 2011 and judicial fees of $148. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: December 11, 2012