Red Sea Auto & Sales Ltd. v. Hood Date:, 2012 BCPC 145

Citation: Red Sea Auto & Sales Ltd. v. Hood Date: 20120207 2012 BCPC 0145 File No: 38378 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: RED SEA AUTO & SALES LTD. CLAIMANT AND: CHRISTOPHER E. HOOD DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Claimant: Mr. R. McLeod Counsel for the Defendant: Ms. K. Dodds Place of Hearing: Kamloops , B.C. Date of Hearing: November 24 and November 25, 2011 Date of Judgment: February 7, 2012

A corrigendum was released by the Court on February 20, 2012, 2012; the corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] This is a claim in the sum of $14,000.00 brought by Red Sea Auto & Sales Ltd. (Red Sea) against Christopher E. Hood for the conversion of a purebred chihuahua dog, a pitbull guard dog named Lucky, a pitbull guard dog named Cholo and some mechanic’s tools. [ 2 ] Mr. Hood denied the claim and brought a counterclaim for unpaid wages from 2004 to October 2008.

There is already an Employment Standards order for the period following October 2008. [ 3 ] The claims arose from a customer/client relationship that evolved into a friendship and from there to a personal relationship and back to a friendship. At the commencement of the trial and during submissions I raised my concern that this appeared to properly be framed as a constructive trust claim in the Supreme Court. The parties agreed that even if I found there was a marriage-like relationship at one point, I should treat these claims as being in the context of a non-marriage-like relationship.

This does not provide much relief to the court considering that a significant part of the wage claim revolved around the commencement of a business in which Mr. Hood claimed he was supposed to acquire an interest arising from his intimate relationship with the Claimant’s owner. RELATIONSHIP: [ 4 ] Mr. Hood testified that when he met Ms. Raquel Hernandez-Lazo he owned his own auto body shop. He was in financial difficulties at the time and had the business up for sale. Mr. Hood said that he originally met Ms. Hernandez-Lazo when she came to the auto body shop for some work to be done.

They became friends and she ultimately invited him to her church. It was a Spanish church and he required a translator. [ 5 ] Mr. Hood testified that the relationship became romantic. He proposed to her and bought her a ring. She accepted. Although they planned a wedding, it never happened. They eventually just became friends. [ 6 ] Ms. Hernandez-Lazo denied they were ever engaged. She said the relationship was not romantic. They met at church after she had taken her vehicle in for repairs to his shop. She did not invite him to the church.

This is highly unlikely given his need for an interpreter to attend the church. Ms. Hernandez-Lazo’s evidence was not credible on the nature of the relationship. It makes no sense in the context of the evidence. [ 7 ] Geyllynne Hernandez is Ms. Hernandez-Lazo’s daughter. She said that Mr. Hood lived in her mother’s home in Kamloops. She said the relationship was like a friendship. He had his own room and he managed the business. Ms. Hernandez’s evidence was decidedly contrived and likely coached by her mother.

It lacked the ring of truth that was so much more evident in her testimony regarding some other matters. [ 8 ] Mr. Hernandez said that he met Mr. Hood when he was a young child. Mr. Hood came to their church and got to know them. Mr. Hernandez initially slipped from what I find was a contrived script by saying that “Raquel and Chris” started the body shop when they moved to Kamloops. This was very revealing. [ 9 ] I prefer the evidence of Mr. Hood with respect to how the relationship began, evolved, and eventually devolved. I do not believe Ms. Hernandez-Lazo or her children.

Their collective evidence was contrived and incredible. BANKRUPTCY: [ 10 ] Mr. Hood said that he was having financial problems in his business on the coast so he put it up for sale. Through very unsatisfactory and disjointed presentation of the evidence, I can determine the business was ultimately sold for which Mr. Hood received partial payment. The balance of the debts owing by the company were never paid by the purchaser, so a bailiff closed the doors and repossessed all of Mr. Hood’s personal items.

Of course, if he had sold the business, there is little satisfactory explanation why those personal items were still on the premises. [ 11 ] He lost all of his tools to this seizure. This all transpired in the early stages of Mr. Hood’s relationship with Ms. Hernandez- Lazo. He went to work for another body shop during that time. He had to purchase new tools. Of the items that he took from his old place, he managed to retain a restored high end vehicle. This becomes important when I address commencement of the Red Sea business.

On the balance of probabilities, for reasons I will address in this Judgment, I find that Mr. Hood was deliberately avoiding creditors ultimately resulting in him entrusting funds to Ms. Hernandez-Lazo which, in hindsight, he ought not to have done. BUSINESS: [ 12 ] Ms. Hernandez-Lazo said that the Red Sea business started in 2000. She gathered $5,000.00 and bought a Volkswagen Jetta which she sold for $9,000.00. She said that is how they came to Kamloops. Mr. Hood found the location for the body shop. She said he was the one reading the ads because she could not read English that well.

She said he also found a paint booth for the shop. He used the money she had from the car and her savings to buy the business. She denied he put any money into the business. [ 13 ] Robert Mistal said that he initially rented the property to Mr. Hood and then to Red Sea. It was Mr. Hood who came looking at the building to rent. He was the one who negotiated the rental terms. [ 14 ] Mr. Hood said that he sold the high end vehicle he had managed to retain from his insolvency for about $23,000.00. Because

he was concerned that the bailiff would take those funds, he entrusted them to Ms. Hernandez-Lazo. Ms. Hernandez-Lazo denied she ever received that payment but she has, despite demands and an order for production of her financial records, declined to produce them in these proceedings. Her explanations for failing to do so lack any credibility whatsoever and are entirely unsatisfactory. [ 15 ] Mr. Hernandez, as stated above, also testified that Raquel and Chris started the body shop. [ 16 ] Additionally, at this time when Ms.

Hernandez-Lazo was saving up money purchasing a Volkswagen Jetta and selling it for a profit, she was also living in subsidized housing and was on social assistance. If her evidence is to be believed with respect to how she managed to obtain these funds, then she had done so while living on the charity of the taxpayers. On the balance of probabilities, I do not believe her evidence. I find that the funds for purchasing the company and the tools for it were provided by Mr. Hood.

On the evidence, it is more likely they needed his $23,000.00 than the $4,000.00 net proceeds she received in the Jetta flip and whatever savings she may have had while on social assistance and supporting two children. It was a partnership and meant to be 50/50. He did everything to get the business going including locating the shop to rent, purchasing the equipment and setting it up. WAGES: [ 17 ] It is clear that this auto body shop was almost entirely run by Mr. Hood. Things were very tight in the beginning but he was content to draw no salary as he was investing in a business. [ 18 ] Ms.

Hernandez-Lazo said Mr. Hood was an employee who ran the body shop location of the company. She worked in the back dealing with detailing the cars to get them ready for him to paint. She was also working at Walmart at the time. Ms. Hernandez- Lazo attempted to persuade the court that she was quite innocent of the business process, did not understand English and was ignorant of Mr. Hood’s dealings. Her evidence was not compelling. [ 19 ] In 2001, she decided to go to school to learn to run the business. She was doing very well but had a car accident in 2002.

She was unable to continue working at Walmart or to go to school. [ 20 ] Ms. Hernandez-Lazo said she was never aware of how Mr. Hood did the payroll. She said all she received was a paper that he received from the accountant about how much each person was to be paid. She said it was his responsibility to submit payroll to the accountant. She would write the cheques and give them to Mr. Hood for himself and all of the employees. There were no deductions from those cheques for room and board or for the use of a vehicle, his gas expenses or insurance costs. Mr. Hood’s evidence was that Ms.

Hernandez-Lazo was very much the financial side of the operation. While Mr. Hood did do a lot of the financial work, he said it was mainly Ms. Hernandez-Lazo’s responsibility. His days in the body shop were long starting around 6:00 in the morning and rarely leaving before 9:00 p.m. [ 21 ] Mr. Hood said there was no employment contract for him because he believed it was a partnership. At his own body shop previously he drew a wage of $3,000.00. While working for the Abbotsford body shop, he cleared $4,000.00 a month. [ 22 ] Mr. Hood said that he now grosses about $8,000.00 per month.

The current range of salaries for his job is $6,000.00 to $10,000.00 gross. The salary he was apparently drawing but not receiving in the days in question were roughly $4,500.00 gross per month. [ 23 ] Mr. Hood said that he was getting some cheques from her but they were just getting by. The cheques he did get he would endorse over to her for the houses they were purchasing. They looked at a couple of houses, one having two rental suites. She put down $30,000.00 and they moved there. They then bought a property at North River Drive and rented out the other house.

Another house was purchased in Barriere and some others were purchased in Chilliwack. All of these were purchased under her name but shared money was used to make the mortgage payments. This gives the appearance of more creditor avoidance on Mr. Hood’s part. The extent of his contribution to these purchases is also suspect given that he has owned his own business previously, appears to be astute, and yet he is prepared to walk away from all these investments for a mere wage claim. [ 24 ] Ms. Hernandez-Lazo presented a much more pathetic picture of how she was held at the mercy of Mr. Hood. Ms.

Hernandez-Lazo said Mr. Hood would ask her to cash his cheques. He would endorse the back of them and she would deposit them to her account. She would then give him cash. She said that he told her this was necessary because he had no bank account and could not have an account. Ms. Hernandez-Lazo, though, has concealed her financial records from the court in these proceedings and I find her naiveté to be unbelievable. Her version of the dealings could have been proved easily by production of the documents she was required to produce. Her explanation for failing to do so was disingenuous.

In part, she explains the absence of records by a fire that occurred at the shop. However, she failed to explain why she did not get records from the accountant or copies of the documents from the various financial institutions. Her professed ignorance of the need to do so defies credibility. [ 25 ] While Mr. Hood’s accounts of her strict tight grasp over the finances seemed exaggerated, I am satisfied that she was the financial brain behind the operation, while he ran the auto body side. [ 26 ] Ms. Hernandez-Lazo denied that there was ever any agreement that Mr.

Hood would have an interest in the business or in the homes that she purchased for them to live in or rent out. I accept that Ms. Hernandez-Lazo never intended Mr. Hood to have those interests but I also accept that she represented to him overtly or subtly that he would do so. LUCKY: [ 27 ] Ms. Hernandez-Lazo said that Lucky was given to her by her brother, Jamie Hernandez. She does not remember exactly when it was but it was about six or seven years ago. She said the dog was a pitbull and was given to her as a guard dog because there were a lot of break-ins and tool theft at the auto body shop.

She said the dog looked aggressive but would never attack anybody. She said when Mr. Hood left, he took Lucky with him. She valued the dog at $1,600.00 based on what it would cost her to buy a dog already trained as a guard dog. She had not had any discussions with Mr. Hood about the dogs going. Even his departure was a surprise. She claimed Lucky is a purebred.

[ 28 ] Ms. Hernandez-Lazo does not want the dog back. There are already dogs in the home to replace the ones taken. The body shop is closed so there is no need of a guard dog there. There is still a separate auto dealership location. [ 29 ] Robert Mistal owns the premises where the body shop is located. He said they kept two big noisy dogs on the lot. He said he thought they had problems with theft before they got the dogs. [ 30 ] Geyllynne Hernandez said her Aunt Jacqueline gave them Lucky because her aunt could not take care of it. They decided to use the dog for a guard dog in the body shop.

She insisted that her uncles never mentioned Chris when either pitbull was given to her mother. [ 31 ] Franklin Hernandez also denied that the dogs were given to both his mother and Mr. Hood. He said the dogs were given respectively by the aunt and uncle to his mother. [ 32 ] Mr. Hood said they acquired Lucky in 2001. It came from either her brother or sister. He said it was given to them both. The puppy was very aggressive and could not be trusted. It was unpredictable so it stayed at the shop. It was chained if people were around.

They made him a littler friendlier but he became naturally more of a guard dog. [ 33 ] Mr. Hood called Lucky a “mutt” with no value to anyone other than himself. He said Ms. Hernandez-Lazo demanded he take the dog with him when he left, so he did. He admitted that the dog was given to them as a family dog. Mr. Hernandez said that Lucky was a pitbull-lab cross. [ 34 ] The Riverside Small Animal Hospital documentation with respect to Lucky described him as a pitbull mix and identified him in records dated 2010 with a birth date of January 17, 2000.

He is now 12 years old. [ 35 ] I find that Lucky was a mixed breed pitbull lab cross. He was given to Mr. Hood and Ms. Hernandez-Lazo as a gift to their family because Ms. Hernandez-Lazo’s brother could no longer keep the dog due to its aggression and their lack of trust in it. They were still in a marriage-like relationship and the unit was a family. Because the dog could not be kept at the Hood-Hernadez-Lazo family home either, Mr. Hood took the animal to the garage where he worked all day. The dog served an additional function as a guard dog. It remained at the site.

It had no further connection with the Hood-Hernandez-Lazo family other than Mr. Hood. [ 36 ] The claim is brought by Red Sea Auto & Sales Ltd. That business has no interest in Lucky. It essentially became Mr. Hood’s dog when it was banished from the home and consigned to the shop where eventually only Mr. Hood worked. Any small interest Ms. Hernandez-Lazo personally had in Lucky was forfeited when she told Mr. Hood to take the dogs with him when he left.

In any event, even if I found that she owned Lucky, she has not filed a claim and I cannot award the dog or any value in it to her. [ 37 ] Even if I could do so, Lucky is a 12 year old dog. He was trained by Mr. Hood which did give him some value even as a mixed breed dog. However, at his age, I could not find that replacing him would be at the cost of the $1,600.00 Ms. Hernandez-Lazo claims. She based the amount on what she believed it would cost her to purchase a new purebred pitbull dog trained in a guard function. The claim is significantly overinflated. [ 38 ] In short, Lucky did not belong to the Claimant.

Lucky belonged to the Hood-Hernandez-Lazo family. The dog had no financial value at the time Mr. Hood left. The Claimant as a company can have no sentimental attachment to a dog. It is clear that Ms. Hernandez-Lazo and her children had no such attachment to it either. In any event, Ms. Hernandez-Lazo told him to take the dog with him when he went. I dismiss the claim with respect to Lucky. CHOLO: [ 39 ] Ms. Hernandez-Lazo claimed that Cholo belonged to Red Sea Auto & Sales Ltd. and was given to her personally as a guard dog for her business.

She claimed to get this dog from her brother Jamie and his wife a couple of years after acquiring Lucky. She said he was a purebred pitbull as well. She claimed $1,400.00 to replace this dog. She claimed less money because he was younger than Lucky when Mr. Hood took him. [ 40 ] Geyllynne Hernandez was not sure which uncle gave them the dog. She said that whoever it was had to give the dog away because it was too big. They got Cholo because they already had Lucky. The dogs did not come to the house because they were too big. Cholo was intended to be company for Lucky. [ 41 ] Mr.

Hood said in his reply that this dog was given to him. He said he claimed that because he considered them all a family but agreed it was not given to him personally. However, he insisted the dog was theirs jointly. [ 42 ] Mr. Hood said that Ms. Hernandez-Lazo’s brother needed a home for the dog. He and Ms. Hernandez-Lazo thought it would be good company for Lucky. He said Cholo stayed with Lucky at the shop and the two dogs became buddies. [ 43 ] The Riverside Small Animal Hospital records identify Cholo as a mixed breed dog born August 20, 2003.

The Merritt Veterinary Hospital records identify Cholo as a pitbull cross. [ 44 ] Again, Cholo does not belong to the Claimant. Cholo belonged to the Hood-Hernandez-Lazo family. The dog could not be kept in the home they all shared so it stayed with Lucky in the shop. Only Mr. Hood was present in the shop on a regular basis. The Claimant is a company and can have no sentimental value in the dog. Again, Ms. Hernandez-Lazo does not want the dog back. Her family appears to have no sentimental attachment to this dog either.

In any event, Cholo has died of a terminal illness. [ 45 ] If any order would be made, it would be for Mr. Hood to pay a nominal amount to Ms. Hernandez-Lazo for the value of the mixed breed dog less the veterinary bills he paid during Cholo’s illness and dying days. I cannot make such an order, however, because Ms. Hernandez-Lazo is not a party to the proceedings. In any event an 8 year old mixed breed dog with a terminal illness has no financial value. This one had no sentimental value either. I dismiss the claim with respect to Cholo.

ESTRAYA: [ 46 ] Estraya is a chihuahua. Ms. Hernandez-Lazo had a chihuahua previously but it was struck by a car. The whole family was upset by its death. Ms. Hernandez-Lazo said that her children, Geyllynne and Franklin, saved up their money and bought her Estraya. The notice of claim seeks $1,000.00 because the purchase price of the dog was around $800.00 or $900.00 and had not been given its shots when it was acquired. [ 47 ] Robert Mistal said that Geyllynne bought the dog and it was hers. He said they bought it at the “north end”. He went to pick them up from the house where they were purchasing the dog.

He said he knew the housekeeper. Mr. Mistal’s evidence makes no sense in the context of the evidence given by all of the other witnesses. It is clear that the dog was not purchased on the “north end” or that he picked them up from the house when they purchased the dog. I disregard Mr. Mistal’s evidence in this respect entirely. [ 48 ] Geyllynne said her family got the dog. She said Mr. Hood was always included in these things because he was a friend. This was nonsensical. Geyllynne said she found an ad in the Buy & Sell. She asked Mr. Hood to go with her to get the dog.

She does not remember where it was but it was about an hour drive away. She agreed on cross-examination that this could have been Clinton. She could not remember if they paid $900.00 or $1,000.00 for the dog. The negotiations were done over the phone. After they picked up the dog, she asked Mr. Hood to drive so that she could hold it. It was Geyllynne who picked out Estraya. She wanted the white dog and knew that she would be the one taking care of it. Her mother is never home. She said she paid for the dog with money she earned by detailing full time at the car sales lot. She said Franklin helped her pay for it.

I found Geyllynne’s evidence to be thorough, forthright and largely believable in this instance. [ 49 ] Mr. Hood’s version is not terribly different. He said that after Ms. Hernandez-Lazo’s chihuahua was run over, everyone was very upset. He and Geyllynne decided to find another one for her mother. Geyllynne checked the papers and found the puppy in the Buy & Sell. They phoned the person in Clinton who had the puppy. When the puppy was old enough, he and Geyllynne drove out to pick up the dog. He said that he took Geyllynne because she had an “L” licence and it was good practice for her.

This was not compelling evidence. He said he paid for the dog. It is more likely that he helped pay for the dog than Franklin did but I do not accept that he purchased it himself. This was where his evidence was least credible and Ms. Hernandez’s was most credible. In any event, it was not purchased for him, or Geyllynne, or for the family. It was purchased for Ms. Hernandez-Lazo. The chihuahua belonged to her. It did not belong to the Claimant. [ 50 ] It appears that Ms. Hernandez was largely responsible for the care of the chihuahua which accompanied her to the sales lot. With Ms.

Hernandez-Lazo away, it appears that the care and training of the chihuahua also fell to Ms. Hernandez. In short, the dog was really Ms. Hernandez’s, sentimentally speaking. [ 51 ] Mr. Hood also primarily took all three dogs to the veterinarian and usually on his own. These bills, as well as the dog food bills, were paid with Ms. Hernandez-Lazo’s credit card. Mr. Hood would use her mastercard at the veterinary clinic make those payments. This was done over a considerable period of time and I find that this was done with Ms.

Hernandez-Lazo’s agreement, despite the innuendo that he had somehow memorized and improperly used that mastercard. I also find it was done in part with money earned or generated by Mr. Hood and paid over to Ms. Hernandez-Lazo. [ 52 ] Estraya is identified in the veterinary bills as a chihuahua mix born January 30, 2007. She is now 5 years old. [ 53 ] Estraya is now with Mr. Hood. There is no room for another dog in the Hernandez-Lazo family home. The dog has been replaced. There is no real financial value that I can apportion to Estraya who is no longer a puppy.

The sentimental value does not exist given that Ms. Hernandez-Lazo and her family do not want it back. At most, her value to Ms. Hernandez-Lazo would be $200.00 as of the time she was taken. [ 54 ] In any event, Estraya did not belong to the Claimant. The only order I could make would be for the nominal amount stated above to be payable to Ms. Hernandez-Lazo for the residual value of Estraya. Ms. Hernanadez-Lazo is not a party and so I cannot make such an order. DEPARTURE: [ 55 ] Ms. Hernandez-Lazo testified that she returned from a vacation to discover that Mr. Hood had left.

She said he had cleaned out the shop without notice to her. She said that she went to the shop and someone there told her that Mr. Hood was gone and had taken the dogs with him. She said there was no discussion prior to him leaving and it was a complete surprise to her. [ 56 ] Mr. Mastil said that Mr. Hood came in one afternoon and handed him the keys. He said he was leaving that night and his father was coming to pick him up. When Mr. Mastil heard some noise next door, he went over to see Mr. Hood loading his truck and getting ready to meet his father. He was packing tools. [ 57 ] Mr.

Mastil could not recall whether he was there when Mr. Hood handed the keys to Ms. Hernandez-Lazo. The events were not as important or memorable to Mr. Mastil as they obviously were to the others. It is not surprising, therefore, that he has little memory of them. [ 58 ] Mr. Hernandez gave evidence that Mr. Hood’s son had moved in with the family. They had a lot of altercations because Mr. Hood’s son was stealing “a lot of things”. Mr. Hood admitted that there were problems with his son. [ 59 ] Mr. Hernandez said that when they returned from Las Vegas, Mr. Hood just decided to “get up and leave”.

He said the day after they returned, he was done and he left. This does not accord with his mother’s evidence of complete surprise and no notice. [ 60 ] Mr. Hood said that he discussed his departure previously with Ms. Hernandez-Lazo. They had taken a ride to Barriere together. She was happy because Mr. Hood’s son was gone. He told her they needed to work out a deal respecting the various businesses or he needed to leave. She had refused and he said he would be leaving in a week. I accept Mr. Hood’s evidence in this

regard. It is corroborated somewhat by Mr. Hernandez and Mr. Hood was generally a credible witness. [ 61 ] Mr. Hood said that Ms. Hernandez-Lazo came to the shop and saw that his bags were packed. She asked him for the keys and Mr. Mastil was there. She demanded Mr. Mastil change the locks. This was when she told Mr. Hood that he had better take the dogs with him. He took all three at that time. [ 62 ] Mr. Hood’s father, who was quite biased and very opinionated with respect to the entire relationship and its demise, testified. His evidence must be taken with caution because of this obvious bias.

He said that he first went to Kamloops to pick up Mr. Hood’s son to take him home. Mr. Hood was to return to Kamloops to sort out matters surrounding his departure. Mr. Hood Sr. said that his son was to follow in a day or two. He kept urging his son to come back but he kept coming up with excuses to stay. This accords with Mr. Hood’s evidence that his son was gone when he confronted Ms. Hernandez-Lazo. It also supports Mr. Hood’s evidence that he confronted Ms. Hernandez-Lazo before he left. [ 63 ] Patrick Saunders used to work for the Claimant. He was very reluctant to testify but was under summons and did so.

He said that he picked up Mr. Hood on the day he left the Claimant’s property. Mr. Hood had all of his personal possessions in front of the office. All of Mr. Hood’s possessions and three dogs as well as some second rate tools were placed in the vehicle. Mr. Saunders drove him to Logan Lake to his father’s place. [ 64 ] I prefer Mr. Hood’s evidence to Ms. Hernandez-Lazo. Her evidence was contrived and devoid of sincerity. Even her son’s evidence did not support her professed surprise at Mr. Hood’s departure. Mr. Hood’s evidence is corroborated by that of Patrick Saunders to the extent of what was taken.

TOOLS: [ 65 ] Mr. Mastil said that he went over after Mr. Hood had left. There was no business going on but he did not notice whether the tools were there or not. [ 66 ] Patrick Saunders, who remained with the Claimant after Mr. Hood’s departure, said that Mr. Hood only took some second rate tools. All of the good tools were left behind. If there were two tools, Mr. Hood took the “not so good” one. Mr. Saunders was able to continue the shop’s business after Mr. Hood left. [ 67 ] As with much of Ms. Hernandez-Lazo’s evidence, I find her testimony in this regard to be incredible. Mr.

Hood used his own funds to start this business. He invested in tools. He brought some of his own tools to the business. He took away only the substandard items leaving an entirely operational shop behind. Even if the Claimant satisfied me that Mr. Hood had taken away anything that did not belong to him, it would be of such a nominal value as to be almost worthless. In any event, it was up to the Claimant to prove the value of the loss. The Claimant has failed to do so reliably in any respect.

The evidence is nothing more than an over-inflated guess of the value of items the Claimant has not established were taken. EMPLOYMENT: [ 68 ] Ms. Hernandez-Lazo cannot have it both ways. She denied that Mr. Hood had any interest in the company yet denies he is entitled to an appropriate salary. However, he solely ran the Claimant’s body shop location. He worked long hours to the point that it troubled his father. There was no serious contest to Mr. Hood’s evidence about the number of hours he put in to the Claimant’s body shop business. He was dedicated to building a company he believed he had an interest in.

He has abandoned that interest and previously pursued an Employment Standard’s claim for the period of time post 2008. Ms. Hernandez-Lazo said he took cash from the business, lived off her goodwill and received benefits such as a vehicle, gas, and free room and board. [ 69 ] Franklin Hernandez gave very unconvincing and vague evidence of Mr. Hood bringing home briefcases of cash which he would then use to lavish them with an indulgent lifestyle. Mr. Hood said the cash he took home from the shop was given over to Ms. Hernandez-Lazo. Everything was accounted for. [ 70 ] The picture painted by Ms.

Hernandez-Lazo and her children in order to make it appear that Mr. Hood was taking advantage of Ms. Hernandez-Lazo and the company instead very much supports Mr. Hood’s evidence that they were a family for very much of the relationship. Even after the romantic relationship ended, he continued to live with them as a family unit, working for the company and contributing a good deal to the success of the various enterprises as well as the care of the children in Ms. Hernandez-Lazo’s absences. [ 71 ] The question I must resolve is whether he is entitled to unpaid wages from 2004 to 2008.

If I accede to this claim, it must be framed in unjust enrichment. Mr. Hood’s own evidence is that he did not draw a salary because he was constantly reinvesting his cheques in the various investments Ms. Hernandez-Lazo was making on their behalf. I accept his evidence largely as true. However, he no longer has such an interest in the company or any of the properties in which Ms. Hernandez-Lazo has made investments. [ 72 ] There were also a number of cheques put into evidence, although falling far short of the proper document production that ought to have been made by the Claimant. Of those cheques, Mr.

Hood was able to identify some that were not endorsed by him but purported to bear his signature. I find this lack of document production to be detrimental to the Claimant’s defence to Mr. Hood’s claim and the failure to produce that documentation to be inexplicable. [ 73 ] Absent any other reliable evidence, I am satisfied that Mr. Hood ought to have been paid the sum of: a) $33,000.00 for 2004; b) $9,968.00 for 2005; c) $21,500.00 for 2006;

d) $28,000.00 for 2007; e) $39,000.00 for 2008; which represents the salary declared to Revenue Canada less $15,000.00 per annum actually paid. This exceeds the monetary jurisdiction of the court. The maximum amount he can claim for those wages in this court is $25,000.00. [ 74 ] The funds he turned over to Ms. Hernandez-Lazo were meant to invest in other properties in which he was given no interest. She cannot now claim he has been paid his wages. [ 75 ] I dismiss the Claimant’s claims entirely. I award Mr. Hood judgment for $25,000.00 in unpaid wages.

In the circumstances, it is appropriate that this sum be net of all deductions. Mr. Hood is also entitled to his costs. If the parties have exchanged settlement offers, they may bring the matter back before me to settle those costs. Otherwise, Mr. Hood shall have his reasonable costs to be assessed by the Registrar. ____________________ S. D. Frame Provincial Court Judge CORRIGENDUM: RELEASED FEBRUARY 20, 2012 [1] Please note the corrected change to Paragraph [75] of the original Reasons for Judgment issued February 7, 2012 as per the following: [75] I dismiss the Claimant’s claims entirely. I award Mr.

Hood judgment for $25,000.00 in unpaid wages. In the circumstances, it is appropriate that this sum be net of all deductions. Mr. Hood is also entitled to his costs. If the parties have exchanged settlement offers, they may bring the matter back before me to settle those costs. Otherwise, Mr. Hood shall have his reasonable costs to be assessed by the Registrar.