WESTERN HONDA - v. -, 2015 SKPC 182

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 182 Date: December 29, 2015 File: 91-14 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: WESTERN HONDA - and - MANUEL FERREIRA and 1559637 ALBERTA LTD. Operating under the Firm Name and Style of Shipmyride.com Timothy McLeod For the Plaintiff Manuel Ferreira For the Defendant _____________________________________________________________________________ JUDGMENT D. KOVATCH, J. _____________________________________________________________________________ I.

INTRODUCTION [ 1 ] This case serves as a classic example as to why an individual should always receive and follow some good legal advice before acting as his own counsel in a law suit. The plaintiff contracted with the defendants to have the defendants pick up a vehicle in Calgary, and deliver it to the Western Honda lot in Moose Jaw. The vehicle was damaged during that transport. The primary thrust of the

defendant’s defense was that it was not responsible for the transportation of the vehicle, and that the Plaintiffs should pursue a third party car carrier company. During the course of the trial, on a number of occasions, Mr. Ferreira advised he was not familiar with legal proceedings, and asked me to assist him or grant him some leeway in his examination and cross-examination. I believe I did that. Mr. Ferreira handled the evidence quite well. His primary problem was not in how he asked the questions or led evidence.

His primary problem was that he led all of his evidence in an attempt to establish a defense that was virtually impossible for him to establish. The result is that the Plaintiff must be granted judgment. II. THE EVIDENCE [ 2 ] Mr. Brock Szakacs was the only witness for the plaintiff. He is the General Manager of the Plaintiff, Western Honda, in Moose Jaw. Late in the month of January, 2014, an individual attended at the Moose Jaw Honda lot to negotiate and purchase a brand new 2014 Honda Oddysey van. He had some specific requirements for this van.

Western Honda did not have a van that met all of these requirements on its lot. However, the plaintiffs ascertained that Calgary Honda had a vehicle that met all of the purchaser’s requirements. Western Honda could arrange to have the vehicle shipped from Calgary to Moose Jaw so that it could close the deal with its customer. One problem remained. At the time, Honda had a number of discounts or sales incentives, that obviously made the purchase of a new vehicle more attractive to that purchaser. These special incentives were due to expire at the end of business on January 31, 2014.

In order for the third party purchaser to avail himself of these incentives, the deal had to be concluded and delivery of the vehicle made by close of business on January 31st. [ 3 ] Western Honda went into the website called ehaulers.com. The Court was advised that this a website subscribed to by many independent individuals involved in the transportation of cars and other vehicles. Western Honda went to this website and advised it was interested in having a vehicle picked up in Calgary and delivered to the Western Honda lot in Moose Jaw. [ 4 ] The defendant Mr.

Ferreira is the sole shareholder and director of the defendant 1559637 Alberta Ltd. That company operates a business entitled Shipmyride.com. I gather that shimyride.com owns and operates a number of trucks that regularly transport motor vehicles. Mr. Ferreira was in touch with Mr. Szakacs and Western Honda by e-mail and by phone. In cross-examination, Mr. Ferreira had Mr. Szakacs agree that their e-mails and telephone conversations occurred on January 30th. Further, that the cost for delivery of a van like this would generally be between $450.00 and $525.00.

In this case, Western Honda agreed to pay $725.00 in order to obtain delivery on January 31st. (I don’t know how Mr. Ferreira assisted his cause by establishing that the plaintiffs paid a higher than ordinary price in order to obtain prompt delivery. Nevertheless, that was the evidence.) Mr. Ferreira also suggested that Mr. Szakacs asked “can you get it there by the 31 st ?” and that Mr. Ferreira said that he could. Mr. Szakacs didn’t disagree that this conversation took place. [ 5 ] In his evidence, Mr.

Ferreira testified that he did not have a truck or driver that was immediately available and that could make delivery of this van within 24 hours as required. He said he was attempting to assist the plaintiff, and so he made contact with some other car carrier companies, including Capital Car Carriers. Mr. Ferreira said that he decided he would take the job. He spoke to Capital Car Carriers and asked them to deliver the van right away, and said he would pay them right away.

He made arrangements with Capital Car Carriers to pick up the vehicle in Calgary on January 30th, and to deliver it later that same night to Western Honda in Moose Jaw. No evidence was led regarding the contract practice between Ferreira or Shipmyride and Capital Car Carriers, or how this contract price related to the contract between the plaintiff and defendants. [ 6 ] Shipmyride generated an order form which was delivered to Western Honda in Moose Jaw. It of course details the point of pickup and the point of delivery and the agreed upon price.

The car hauler is shown as Shipmyride with all of the contact information for Shipmyride. On the order form, no mention is made of any third party carrier. On January 31st following delivery, Shipmyride sent a letter and enclosed invoice to Western Honda. Everything is on Shipmyride letterhead. This details how payment can be made to Shipmyride. The court was advised that Western Honda paid Shipmyride in advance.

Once again, in all of these documents, absolutely no mention is made of any third party carrier. [ 7 ] On the morning of January 31st, Western Honda immediately noticed that the vehicle had been delivered and was parked on its lot. Unfortunately, they also noticed a large number of dents and chips to the back end of the vehicle. They described these as “possibly rock chips”. Western Honda concluded the deal with its third party purchaser. It of course had to repair this damage. The total cost of these repairs, including taxes was $5,658.20. Western Honda corresponded for a while with the defendants.

After it became apparent that payment from the defendant was not quickly forthcoming, the plaintiffs commenced this action. [ 8 ] In cross-examination, Mr. Ferreira suggested that the plaintiffs did not inspect the vehicle immediately prior to pickup. He also had them admit that the vehicle was on the Western Honda lot overnight, before being inspected in the morning. He made what I would describe as a feeble attempt to establish that the vehicle could have been damaged prior to or subsequent to the delivery. There is absolutely no evidence that the vehicle was damaged before or after delivery.

On a balance of probabilities, I am prepared to conclude that the vehicle was damaged during transport from Calgary to Moose Jaw.

[ 9 ] In his own evidence, Mr. Ferreira said the industry term for this kind of damage is “road rash”. It is caused by the drive wheels on the carrier truck throwing up stones and other abrasives from the road which then strike the vehicle which is being towed behind. [ 10 ] Mr. Ferreira testified that for a period of time, he tried to discuss this matter with Capital Car Carriers, and get them to take some responsibility for this damage. Finally, however, Capital Car Carriers just walked away and refused to deal with the situation. Mr.

Ferreira expressed that he wished the Plaintiffs had named Capital Car Carriers in this law suit, so that they would be forced to deal with this issue. He also testified that if Shipmyride had actually handled this vehicle, it would have got a bill of lading showing that this vehicle was not damaged in any fashion when it was loaded. Under these circumstances, probably Shipmyride would have assumed responsibility for the damage and referred the matter to its insurer. He felt that in such circumstances, his insurer then would have dealt with the matter.

In his evidence and argument, he placed great emphasis upon the bill of lading as a prerequisite to advancing an insurance claim. He said that Capital Car Carriers were the actual carrier and provided the Bill of Lading. As a result, the plaintiffs should be pursuing Capital Car Carriers and not Shipmyride.com. He said: “we didn’t even move the vehicle. We are caught in the middle.” He questioned why the plaintiffs did not pursue Capital Car Carriers. However, under cross-examination by Mr. McLeod, he did agree that Mr. McLeod advised him that the plaintiffs had no legal action against Capital Car Carriers.

Further, that the defendants would have to bring in Capital Car Carriers as a third party. [ 11 ] In his closing argument, Mr. Ferreira made reference to the terms of service published on the ehaulers website. Mr. Ferreira maintained that Shipmyride was a broker, and not a carrier. The broker should not be sued for the carrier breaching its responsibilities. In this case, the plaintiffs should be pursuing Capital Car Carriers for breach of its responsibilities as the car carrier. III. ANALYSIS AND DECISION [ 12 ] In my introduction, I indicated that Mr.

Ferreira was attempting to establish a defense that was legally impossible for him to establish. In my view, it was impossible for Mr. Ferreira to establish that Shipmyride was a mere broker, and not a carrier. Shipmyride contracted to be the carrier. It was an implied and/or express term of that contract that it would deliver the van in good and merchantable form or quality.

It delivered the van in a damaged form and thereby breached its obligation as carrier. [ 13 ] When I look at the Legal Dictionary’s definition of a broker, they describe such an individual as an agent who assists in the negotiation and execution of contracts for a fee or commission. They emphasize that normally a broker does not own the property, and is not a party to the sales contract. A classic example of course is the real estate broker. The real estate agent or real estate broker assists the parties in negotiating and executing the contract of sale. The agent or broker then receives a commission.

However, the agent is not a party to the sales contract itself. [ 14 ] By way of contrast, the subcontractor is described as individual who contracts with principal contractor or another subcontractor, to perform some portion of a larger contract that the principal contractor is involved in. [ 15 ] Leaving aside these

definitions for the moment, the nature of the business arrangement between the parties in this action must be determined by the contract documents, and not simply by Mr. Ferreira’s belief as to what his role in the matter was. When one examines those contract documents, it is impossible to reach a conclusion that Mr. Ferreira and Shipmyride were mere brokers. The contract documents indicate there was a contract between Western Honda and Shipmyride. Shipmyride is referred to as the car hauler. The order indicates that Shipmyride will haul a 2014 Honda Oddysey for a total price of $725.00.

Shipmyride then issued an invoice and was paid for this very work. Having contracted to perform this work, Shipmyride then had options available. It could, as it would probably do in most cases, instruct its agent and employee to make the pickup and delivery. Mr. Ferreira virtually conceded that had it acted in this fashion, and the damages been sustained, then Shipmyride would have been liable. Alternatively, if Shipmyride was unable or unwilling to actually perform the work, it could contract with another individual, to have that other individual perform the work on its behalf.

It could enter into a subcontract, as clearly happened here. But the terms of that subcontract are and were entirely between Shipmyride and Capital Car Carriers. The terms of that subcontract could not and did not any way alter the contractual obligations of Shipmyride to Western Honda. As a result, Shipmyride remained contractually obligated to deliver the van to Western Honda in a good and undamaged form. It was liable for the damages when it did not do so. [ 16 ] In addition, the very basic and elementary concept of privity of contract dictates the result here.

Privity of contract means that only the parties to a contract may sue each other for breach of that contract. Generally speaking, a third party who is not a party to the contract, may not sue a contracting party for breach of that contract. If Mr. Ferreira and Shipmyride had been brokers, then there would have existed a contract between Western Honda and Capital Car Carriers. Then, Western Honda would have been able to launch a law suit against Capital Car Carriers for breach of contract.

However, in this case, there was no contractual or any form of business relationship between Western Honda and Capital Car Carriers. Western Honda had no legal action against Capital Car Carriers, and Western Honda’s solicitor, Mr. McLeod, clearly provided Mr. Ferreira with the correct legal advice about this. If Capital Car Carriers was to be brought into this action, Shipmyride had to bring them in as a third party. It truly is unfortunate that Mr. Ferreira did not get legal advice and take steps to add Capital Car Carriers as a third party.

A strong case has been made by the defendant for a judgment against Capital Car Carriers as a third party. But without them being formally named as a third party and brought into the action, clearly

no such judgment can be granted. IV. THE ACTION AGAINST MR. FERREIRA PERSONALLY [ 17 ] Counsel for Western Honda made an argument that Mr. Ferreira should be held personally liable for these damages. However, as I recall Mr. Szakacs’ evidence, it was to the effect that he understood he was dealing with Shipmyride. He dealt with Shipmyride via computer and e-mail. He spoke on the phone to Shipmyride and spoke with Mr. Ferreira. The invoices and correspondence come from Shipmyride. Under these circumstances, I do not think that I should pierce the corporate veil.

Overall, the evidence suggests that all steps taken by Mr. Ferreira were taken as the personal representative of the corporation. V. CONCLUSION AND JUDGMENT [ 18 ] In the result, the action against the defendant, Manuel Ferreira in his personal capacity is dismissed. The plaintiffs will have judgment against the corporate defendant carrying on business as Shipmyride.com in the amount of $5,658.20. This sum will bear interest under The Prejudgment Interest Act from January 31, 2014 to the date of judgment.

In addition, the plaintiff will have costs in the amount of $64.00 for issuing the claim plus $20.00 for the cost of service. Dated at the City of Moose Jaw in the Province of Saskatchewan, this 29th day of December, 2015. ___________________________________ D. Kovatch, J