2019 QCCQ 8847, 2019 QCCQ 8847

Abukadre c. 9344-7555 Québec inc. 2019 QCCQ 8847 JC00G0 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL MONTREAL CIVILE No: 500-32-156631-170 DATE: October 28, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ KHAMID ABUKADRE and 9292985 CANADA INC. Plaintiffs v. 9344-7555 QUEBEC INC. and LOAD FORCE LOGISTICS INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Khamid Abukadre, a truck-driver, and the company of which he is the principal, the co-Plaintiff, 9292985 Canada Inc. (“Canada Inc.”), sue the Defendant, 9344-7555 Québec Inc. (“9344”), and the co-Defendant, Load Force Logistics Inc. (“Load Force”), for the amount of $ 10,286.90. The claim consists of amounts charged by Canada Inc. to 9344 for loads driven from Montreal to Southern California in July 2017.

At that time, Canada Inc. was providing the services of its driver, Mr. Abukadre, to drive a truck owned by 9344. [ 2 ] 9344 worked under the auspices of the co-Defendant Load Force for its transport services in the US. [ 3 ] The claim was initially brought against 9344, but this company did not respond, because the address used in the proceedings was that of Load Force. The representative of Load Force asked for the dismissal of the case, believing that it was directed against his company.

At the first hearing held in March 2019, it was decided that the proceedings should be served on 9344, so that it could answer the claim, and also that Load Force should be added officially as a Defendant, so it could make its case, and obtain the declaration that it is not responsible for the amounts claimed, having no contractual relationship with the Plaintiffs. [ 4 ] At the second hearing, 9344 was present through its president, Mr. Alireza Gholizadeh.

Despite his presence and his willingness to answer the claim, 9344 had not filled a written Contestation. [ 5 ] Since all the parties were present and since it was also obvious, from the outset, that the amounts claimed by the Plaintiffs have been withheld because of a claim for damages to the truck, allegedly caused by Mr. Abukadre’s fault, the Court allowed the oral statement of a Contestation (and Counter-claim), which was entered in the minutes of the hearing. In that Contestation, 9344 admits that it has not paid the two invoices totalling $ 6,794.56 that would otherwise be owed to Canada Inc.

In addition to this, it asserts a Cross demand for costs incurred in repairing the vehicle, because of two incidents of damage, for a total of $ 5,918.19, as well as $ 1,900 representing the loss of finance payments and insurance during the two-month period where the trailer that was damaged was out of commission. 9344, therefore, seeks compensation between its claim totaling $ 7,818.19 and the amount it would otherwise owe to the Plaintiffs. [ 6 ] At the hearing, Canada Inc. clarified that its claim consisted in $ 6,961.81 for mileage fees, $ 400 for deliveries and layovers, as well as $ 553 for the repair of a damaged tire and wheel, making a total of $ 7,514.81.

[ 7 ] The Plaintiffs also claim additional amounts, because the business relationship between them and 9344 was severed suddenly in July 2017, resulting in a loss of three months of income. This additional claim would bring the Plaintiffs’ Demand to a total claim of $ 10,286.90. [ 8 ] To resolve this matter, the Court must answer the following questions: 1) What amount is owed to the Plaintiffs?

a) for unpaid loads;

b) for damages to the vehicle paid for by them;

c) for the lack of notice of termination of their agreement. 2) What amount can 9344 claim from the Plaintiffs for damages caused by the driver, Mr. Khamid Abukadre? 3) Is any amount owed to the Plaintiffs, because of the sudden termination of the contract between them? FACTS [ 9 ] 9344 produces a contract entitled “9344-7555 Québec Inc. Driver Duties & Employment Contract”. The first part of this document is entitled “Employment contract between 9344-7555 Québec Inc. and 929285 Canada Inc., represented by Khamid Abukadre”, hereby referred to as “Driver”.

On reading the contract, it is difficult to know whether it is a contract between 9344 and Canada Inc. or Mr. Abukadre or both. When Mr. Abukadre’s signature appears, it seems to be on behalf of 929285 Canada Inc., although the word “per”, which one usually finds before the signature, is absent. The tittle “Employment Contract” acts as a title before a series of clauses where the Driver seems to be a party, as an employee or as an owner-operator. [ 10 ] The invoicing, however, was always prepared in such a way that Canada Inc. was billing for the services, adding GST and QST. [ 11 ] Mr.

Gholizadeh takes the position that it is not an employment contract, because the driver is really an independent contractor operating without direct supervision by 9344. If that is the case, then, the only party to the contract on the driving side is Canada Inc. By using the corporate entity, Mr. Abukadre chose not to have personal rights and obligations under the Agreement. [ 12 ] In the month of July 2017, Mr. Abukadre made two last trips to California, and submitted mileage claims, which total slightly more than those recognised in the billing prepared by 9344. At the hearing, Mr.

Gholizadeh conceded that the logbook numbers would represent the actual miles driven as opposed to his accounting where the number of kilometers would be based on the assumption that the driver had travelled standard routes. He also admitted that drivers often take alternative routes, and that this is within the drivers’ discretion. [ 13 ] On balance, given the concession that Mr. Gholizadeh made, the Court determines the amount owing on the basis of the Plaintiffs’ figures. The additional amounts claimed for delivery and layovers should be grossed up with QST and GST.

Therefore, the total would be the amount calculated by the Plaintiffs (P-6) $ 6,961.81. [ 14 ] A dispute arose between the parties because of damages incurred by 9344’s equipment. A minor incident occurred in Port Hope, Ontario, on July 15, 2017. Mr. Abukadre concedes that he had stopped for coffee at an Onroute location near Port Hope, and that he caused the tire to be blown out when he turned the corner and one of the tires struck an object. His wife contacted Mr. Gholizadeh, telling him that there had been a blowout, and then she received Mr.

Gholizadeh’s approval to pay for the damage and submit the bill for reimbursement. Mr. Gholizadeh admits that he made this promise, but states that he was under the impression that it was a blowout that occurred spontaneously on the road, and not damages caused by the driver.

He points out, with reference to a photograph sent by the Plaintiffs, that it was serious impact damage to the stainless steel rim, and that the repair that was made had to be redone, when the vehicle was returned, because both the rim and the tire provided on the invoice (P-1) were inappropriate for this equipment. [ 15 ] His own claim against the Defendants for $ 589.83 (D-1 en liasse ) is for the replacement of the tire to fit the proper rim. He does not claim for the rim. [ 16 ] The other incident of damage is far more serious. It occurred when, in California, Mr.

Abukadre was operating the truck in a warehouse, where he was transferring a load. He states, in his testimony, that hooks on the wall of the warehouse scratched the side panels of the trailer. He is convinced that the damage was superficial, consisting only of scratches, which could be repaired with paint. He admits that the repair would be his responsibility, but when he was made aware of a claim over $ 5,000, he did not recognize the claim, because it was too high. Mr.

Gholizadeh explains that the damages were quite severe and required the replacement of three panels, for which he was charged a total of $ 5,328.36 by the facility that provided repair services to his business on a regular basis (D-1). ISSUES [ 17 ] The Court is of the view that the parties to this contract are 9292955 Canada Inc. and 9344-7555 Québec Inc. Based on Mr. Gholizadeh’s statement, this was a contract with an independent contractor, not an employee. The proper Plaintiff is Canada Inc.

Despite the troubled drafting of the written contract, and the references to the driver as a separate party, the Court is of the view that the contractual relationship is not between the driver and 9344, as the driver is providing services to Canada Inc., and Canada Inc. is providing these services to 9344. The references in the contract to the driver’s liability, should be read in this context as the liability of the contracting company, Canada Inc. [ 18 ] As stated above, the amount for the loads totals $6,961.81. When the accident occurred, Canada Inc.’s representative, the wife of Mr.

Abukadre, received assurances that if she paid for the immediate repair, it would be reimbursed. This is sufficient to establish the validity of the claim for $ 553. The total owed to Canada Inc. is therefore $ 7,514.81.

[ 19 ] If this repair had not been carried out, the truck would have not been returned, and the prejudice to both parties would have been much greater. Mr.

Gholizadeh did not place any condition on his authorization for the money to be spent, and this is understandable: if he had done so, there might have been confusion and refusal, and it was in his best interest to agree to the reimbursement unconditionally. [ 20 ] Both parties being in good faith on this issue, the Court will not upset that agreement. [ 21 ] As to the damages that occurred to the side panels, the Court accepts the sincerity of the testimony of Mr.

Gholizadeh, as to the necessity of carrying out these repairs. [ 22 ] On a piece of equipment of this value, the cost of parts and labour totaling approximately $ 5,300, taxes included, appears to be quite modest, and there is no indication that this would be excessive. [ 23 ] Apart from the admission on the part of Mr. Abukaddre that he would have paid a lower amount, acknowledging his responsibility, the terms of the Agreement between the parties, although not very well drafted, support the notion that the contractor providing the driving services is responsible when the driver has been at fault.

There is, for example, the indemnity clause: […] 4. INDEMNITY.

DRIVER agrees to indemnify, defend, and hold 9344-7555 QUEBEC INC. harmless from any and all liabilities which 9344-7555 QUEBEC INC. may incur as a result of any acts or failures to act, or negligence on the part of DRIVER is continuing and shall survive the expiration of the term of this Agreement. […] [ 24 ] There is, however, a limitation to this liability under DRIVER’S OBLIGATIONS: […] 7.3 In case of an accident, if the DRIVER is guilty, he must pay the full deductible insurance cost. […] [ 25 ] On that basis, the contractor’s liability which would be equivalent to approximately $ 5,300, would be limited to the deductible, $ 5,000 [1] .

If 9344 decided not to make an insurance claim, this would not alter the limitation, as stipulated, to the amount of the deductible. [ 26 ] The fault of Mr. Abukadre is obvious: he was operating the vehicle in a warehouse area, and the side panels were damaged by the impact with some object, either the hooks, as Mr. Abukadre states, or some other object.

It goes without saying that, unless there is something really unusual in the interior of a warehouse, a driver would be at fault for causing an impact between the trailer and some part of the warehouse, as was the case here. [ 27 ] Finally, as to abrupt termination of the contract, the facts, as explained to the Court, are that, when the dispute arose between the parties as to the cost of damages, and this matter couldn’t not be resolved despite the intervention of a third party, Mr. Abukadre became angry, and terminated the relationship. The rupture was mutual. Mr.

Abukadre did not give any notice that Canada Inc. would terminate the Agreement, despite the clause in the Agreement that provides for termination by the Driver, with 30-days-notice: 3. TERM. This Agreement may be terminated by DRIVER (OWNER OPERATOR) following the completion of any existing commitments after thirty (30) days notice to the other, otherwise Penalties will be charged. Once the contract is terminated the last cheque will be issued after 30 days. [ 28 ] The contract does not contain any commitment by 9344 of any particular volume of business.

Since this is a contract with an independent contractor and not an employee, it was a contract of service that could be resiliated at any time by the client, the client being in this case 9344, with the obligation to pay whatever charges are owed up until the resiliation. Therefore, the Plaintiffs’ claim for the loss of income during the period where it sought other work is not valid. [ 29 ] The amount owed by Canada Inc. will be compensated against the amount owed by 9344, resulting in a small balance owed to Canada Inc.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant, 9344-7555 Québec Inc., to pay the Plaintiff, 9292985 Canada Inc., the amount of $ 7,514.81, together with interest at the legal rate, and the additional indemnity provided at

article 1619 of the Civil Code of Quebec ; CONDEMNS the Plaintiff, 9292985 Canada Inc., to pay the Defendant, 9344- 7555 Québec Inc., the amount of $ 5,000, together with interest at the legal rate, and the additional indemnity provided at

article 1619 of the Civil Code of Quebec ; OPERATES compensation between these two condemnations resulting in a balance owed by 9344-7555 Québec Inc. to 9292985 Canada Inc. of $ 2,514.81, together with interest at the legal rate, and the additional indemnity, calculated from the institution of the proceedings on July 26, 2017; DISMISSES the claim brought by Mr. Khamid Abukadre personally against both Defendants; Dismisses the claim brought by 9292985 Canada Inc. against the Defendant, Load Force Logistics Inc.;

DISMISSES the Counter-claim made by 9344-7555 Québec Inc. against Mr. Khamid Abukadre personally; Each party paying its costs. __________________________________ DAVID L. CAMERON, J.C.Q. Dates of hearing: March 11, 2019 and September 24, 2019.