2014 QCCQ 6536, 2014 QCCQ 6536

Singh c. 6118992 Canada inc. 2014 QCCQ 6536 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-131157-119 DATE: May 30, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L.

CAMERON J.C.Q. ______________________________________________________________________ GIAN SINGH […] Montreal, Qc, […] Plaintiff v. 6118992 CANADA INC. 7747 Chouinard Lasalle, Qc, H8N 2E2 -et- MAJHAIL SINGH NIRBAL […] Lasalle, Qc, […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ The Plaintiff's Claims [ 1 ] The Plaintiff, Mr Gian Singh, sues the Defendants, 6118992 Canada Inc. and its principal, Majhail Singh Nirbal, for amounts associated with truck-driving services provided by the Plaintiff. [ 2 ] In the Application, the claim is broken down as follows: 1.

Arrears for August and September 2009 $ 1,500 2. Unjust deduction from pay for damages to the trailer $ 2,500 3. Unproductive time waiting for work $ 3,000 [ 3 ] The claim is stated at a total of $ 7,000, the limit in the Small-Claims Division. [ 4 ] At the hearing, the Plaintiff testified, with respect to item no. 1 that he was owed $ 4,825 for the last period he worked, 20 trips at $ 235 per trip and two small trips worth 125$.

He states in this testimony that he received final payments of $ 1,600 and $ 1,800, leaving a balance of $ 1,425. [ 5 ] He explained that the claim for unproductive time, item no. 3, results from an incident where he accepted work that was to be provided within two weeks of his acceptance, and in fact he waited six weeks, losing an expectation of three to five trips per week during four weeks.

[ 6 ] In the Court's calculation, this would mean a claim of an average of four trips at $ 235 for four weeks: 16 X $ 235 = $ 4,360. The Defence [ 7 ] The written contestation is a simple denial alleging that the Plaintiff's claim is false. [ 8 ] At the hearing, Mr Majhail Singh Nirbal admits, with respect to the arrears, that the trips in question were driven by the Plaintiff, but asserts that they were paid for in full. He states that the Plaintiff was working in connection with these trips for "Topline".

The Defendant 6118992 Canada Inc. was paid by Topline to provide the truck and the driver and, in turn paid the Defendant, through a company, 7029799 Canada Inc. [ 9 ] He produced copies of a bank statement and various cheques made by 6118992 Canada Inc. He testified that one of these cheques, # 0448 in the amount of $ 1,600 was the final payment for the Defendant's services.

He is mistaken in not attributing the cheque in the amount of $ 1,600 dated August 17 as well to the final payment. [ 10 ] Concerning the damages to the trailer, Mr Mijhail Singh produced an invoice dated June 26, 2009 and cover letter dated December 8, 2011 (D-1) from Topline Logistics Inc of Brampton Ontario for $ 4,500. In the letter, Topline takes the position that Gian Singh is responsible for damages that occurred to the trailer "in 2009 in Montreal, PQ". [ 11 ] The Defendants, also share the view that the damages were caused through the fault of the Plaintiff who was driving their tractor at the time.

They say he ran into a barrier, causing the damage to the trailer he was hauling, which belonged to Topline. [ 12 ] The Defendants then deducted $ 3,500 rather than $ 4,500 from its payment to the Plaintiff, upon the recommendation of Topline. Topline was influential in the decision because of its business relationship with the Defendants. [ 13 ] Apart from the letter, no evidence was provided as to the damage.

Mr Mijhail Singh Nirbal testifies that he saw the damage to the panel and roof of the trailer when it occurred in 2009. [ 14 ] Mr Mijhail Singh Nirbal complains that when the Defendant ceased working for him, he did not give proper notice, and he did not return the truck promptly, giving back the keys only two weeks later. [ 15 ] The matter was mediated through a mutual friend who had provided the reference for the employment in the first place.

This friend is the witness, Harcharan Singh Sandmu. [ 16 ] The matter was, as far as Mijhail Singh Nirbal is concerned, settled through the final payment of $ 1,600, which, implicitly, would include an acceptance of the deductions of Gian Singh’s contribution for damage to the trailer that had been made through instalments. [ 17 ] Mr Mijhail Singh doesn't explain why the Plaintiff accepted less than the full amount owed payment, but asserts that he did make the concession, because his lawsuit came only several months later. [ 18 ] As to the allegation of the unproductive time of six weeks, Mijhail Singh testified that Mr Singh was in fact fired from the job, which involved a client known as "Kraft" because he had parked improperly.

He therefore denies any responsibility for the Plaintiff not receiving work during this period. [ 19 ] A witness called by the Defendants, Mr Harcharan Singh Sandmu, confirmed that Topline charged $ 4,500, but accepted a reduction to $ 3,500 and that this amount was deducted from time to time from payments owed to the Plaintiff in small increments.

As to the delay in work being given, he does not believe that there was any such delay. [ 20 ] His testimony had not much probative value, however, because he described himself as merely a mutual friend, who had recommended the Plaintiff to the Defendants, but not as having any function within the Defendant's business. [ 21 ] He does shed light however on the final payment made to the Plaintiff, because he was present.

According to his testimony, the Plaintiff provided copies of all the trip sheets these were counted and the payment made. [ 22 ] Harcharan Singh Sandmu has the impression that what was owed was paid, but there is nothing to explain the fact that the payment was short of the amount owed. [ 23 ] He also confirms that the Plaintiff only notified the Defendant and gave back the truck two weeks after the work ceased.

The Plaintiff started working directly for Topline at that time The Plaintiff's Reply [ 24 ] In reply to the Defendant's evidence, the Plaintiff, Gian Singh states that he stopped work in September 2009 and that the final payment was only made approximately one year later in late August 2010. The final amount was $ 1,600. This corresponds to the cheque # 0448 dated August 17, 2010. [ 25 ] He provided a written calculation of his claim (P-7). It is expressed as follows: he was owed $ 4,825 and was only paid $ 3,400 ($ 1,600 + $ 1,800) leaving a balance of $ 1,425.

There is also a cheque, # 0444 in the amount of $ 1,800 payable to the same company July 30, 2010. This would seem to correspond to the other payment he admits to having received. [ 26 ] As to the accident, he complains that there is no report, no photos and therefore no evidence to establish his fault. He explains that it occurred during a severe snow storm and he did not wish to take the truck out at night in these conditions. He was told to do so, however. When he came to the intersection at St-Laurent and Crémazie under the bridge and did a sharp left hand turn to go toward

highway 40, because of the poor visibility, the trailer wheel went onto the sidewalk and the box of the trailer scrapped against a structure. [ 27 ] He therefore denies being at fault: it was an unavoidable accident. But, there was an agreement that the damage to the trailer would be reduced by $ 1,000, to $ 3,500, and the Defendant would accept $ 1,000 as well.

Therefore, Mr Gian Singh accepts that $ 2,500 was deducted from his pay in consideration of this agreement. [ 28 ] Though he agreed to the deductions that he said totalled $ 2,500, he claims this amount back, because there was no agreement, initially that he would be responsible for damages of this type. [ 29 ] His total claim would therefore be $ 3,925. [ 30 ] Finally, he denies not having given adequate notice of the end of his contract.

He states that he parked the truck in the Defendant's yard. [ 31 ] Mr Gian Singh's wife, Mrs Lado Dubb testified about the situation of the end of the contractual relations between the parties.

From her perspective, her husband was under pressure because of threats by Mijhail Singh that he would "ruin us” if the final settlement was not accepted. [ 32 ] Mr Gian Singh corroborated this testimony to some degree, stating that Mr Mijhail Singh said, before the deposit of the final payments, "do what you like, if I would want to, I could destroy you". [ 33 ] A final exchange of testimony Mr Mijhail Singh denies having made any threats. Analysis [ 34 ] The claim for unpaid amounts for loads is well founded.

The Defendants admit the amount of the claim for loads hauled, and the only proof of payment consists in the two cheques. There is a balance owing of $ 1,425. as shown by the Plaintiff’s calculations (P- 7). [ 35 ] Mr Mijhail Singh does not provide any reason why this balance was not settled as part of the final payment. The mere receipt of the lesser amount does not establish that the claim for the balance was renounced by the Plaintiff.

The fact that the Plaintiff waited several months to sue is not significant, in the absence of any expression of renunciation of his rights in the communications between the parties. [ 36 ] As to the claim for delay in beginning the work, the assertion of the Plaintiff is not probative. If the work did not commence when he expected it, he had to decide whether to treat the contract as breached, and inform the Defendants of his position, and either claim damages or resolution of the contract.

It is entirely too late, after the work has begun without protest and the parties have engaged in business for a considerable period of time, to revive this claim which was never made at the time. [ 37 ] The assertions about the delay in returning the truck at the end of the engagement are not made out by the Defendants. The evidence is contradictory, and there is no documentation, no written demand.

No counterclaim is asserted in respect of this allegation in any event, so that it is not necessary for the Court to express an opinion. [ 38 ] Finally, the claim to recover the amount credited against the payments for the damage to the trailer, $ 2,500, is not well founded. In the course of the dealings between the partes, Mr Gian Singh agreed to contribute $ 2,500 to the total claim of $ 4,500, though his explanation of the events may, perhaps, establish that it was an accident for which he could not be blamed. Though the Defendants believed that $ 3,500 has been deducted, Mr Gian Singh only speaks of $ 2,500.

By agreeing to the compromise, and allowing the payments to be made through deductions to his pay, he has settled the matter. This is a contract of transaction. It is now not possible to claim back the payment. [ 39 ] Finally, no defence is made by Mr Mijhail Singh Nirbal that he does not personally owe the amounts claimed because of the existence of the corporation 6118992 Canada Inc. Both parties used corporations to channel payments, but the testimony establishes that the business relationship was also personal between the two individuals.

BY THESE REASONS, THE COURT: CONDEMNS the Defendants, solidarily, to pay the Plaintiff the amount of $ 1,425, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from September 29, 2009. CONDEMNS the Defendants, solidarily, to pay, to the Plaintiff, judicial costs in the amount of $ 207. __________________________________ DAVID L. CAMERON J.C.Q. Date of hearing: February 4, 2014