2011 QCCQ 11167, 2011 QCCQ 11167

Gibb c. Farinelli 2011 QCCQ 11167 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-122808-100 DATE: August 30, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ CHRISTOPHER GIBB […], Montréal, Qc., […] Plaintiff v.

ROBERT FARINELLI -and- PAVAGES FARINELLI INC. […], Montréal, Qc., […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Christopher Gibb is suing Robert Farinelli and Pavages Farinelli inc. for $1,491.75, alleging unpaid wages. Defendants Robert Farinelli and Pavages Farinelli deny the claim. The evidence: [ 2 ] Mr. Gibb was employed from September 15, 2008 until February 2009 by Pavages Farinelli inc., a company involved in landscaping and snow removal. [ 3 ] Mr.

Gibb left his employment; his last day of work was February 1, 2009. He claimed that just before the snow season, he had a verbal agreement with Defendants; he would get 50 hours of pay each week, even if he worked less. He claims he was paid for 900 hours of work but he worked 984 hours. He is claiming the difference between the number of hours paid and those allegedly worked, namely 84 hours at a rate of $17 per hour. [ 4 ] Defendants claim all fifteen employees are paid a salary equivalent to 10 hours per day (50 hours per week) for snow removal whether there is work or not. While Mr.

Gibb's log indicates start times of 6:30 in the morning, Mr. Farinelli maintained his employees only begin at 7:00 a.m. and work until 5:30 with half an hour for lunch. [ 5 ] Mr. Gibb said he was laid off. Mr. Farinelli testified that Mr. Gibb quit after a heavy snowfall, leaving him in a bind. Mr. Gibb then admitted he had quit because he was not receiving his pay for the extra hours contained in his bank of time. Analysis: [ 6 ] Mr. Gibb was working for Pavages Farinelli and not for Mr. Farinelli personally. Therefore, there is no lien de droit with Mr. Farinelli. Mr.

Farinelli is not responsible for any possible claim.

[ 7 ] With respect to Pavages Farinelli, it claims its employees were paid an hourly rate for a 50 hour week, irrespective of whether it snowed or not. Mr. Gibb claims he was told that if he worked more than 50 hours, he would maintain the extra hours in a bank and receive payment for these hours. [ 8 ] Mr. Gibb, as Plaintiff, has the burden of proof. Given the contradictory evidence and the absence of a written contract, Mr. Gibb has not established by preponderant evidence that his claim is well founded. Therefore, the Court cannot provide him with the recourse he is seeking.

FOR THESE REASONS, THE COURT: DISMISSES Plaintiff's action against Robert Farinelli and Pavages Farinelli inc., with costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: July 4, 2011