2012 QCCQ 14722, 2012 QCCQ 14722

Feng c. Bogeljic 2012 QCCQ 14722 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-121353-108 DATE: December 14, 2012 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ GUOJIE FENG -and- CLERMONT F. TRANSPORT INC. […] , Berthierville QC. […] Plaintiffs v.

PETAR BOGELJIC -and- VARES TRANSPORT INC. […] , Montréal QC. […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Guojie Feng and Clermont F. Transport inc. are suing Peter Bogeljic and Vares Transport inc. (“Vares”) for $4,359.01, representing unpaid wages. Defendants, although duly advised of the hearing, were not present. The procedures: [ 2 ] Mr. Feng applied to Vares to work as a long distance driver.

Vares required him to incorporate a company, claiming it only deals with drivers on this basis. Vares terminated Mr. Feng 's employment. He sought payment for the last trips he had made plus compensation for unjust dismissal, prior notice and vacation pay. Vares claimed Mr. Feng was not an employee but operated through his company. [ 3 ] Mr. Feng presented a complaint pursuant to

Part III of the Canada Labour Code . He also filed the present motion to introduce proceedings before this Court. The Preliminary Motion before the Small Claims Division, Court of Quebec: [ 4 ] In the Small Claims Division of the Court of Quebec, Defendants applied to have Mr. Feng’s action referred to the federal Minister of Labour. Defendants alleged that Mr. Feng’s action was the same as his claim that had been adjudicated by Franck Philippe,

Inspector for the Minister of Labour. [ 5 ] The Application for referral was dismissed on May 4, 2009, by Judge Jacques Paquet, who concluded that since the federal and provincial forums have concurrent jurisdiction, nothing precludes this Court from hearing the case. Mr. Feng's complaint pursuant to the Canada Labour Code: [ 6 ] Mr. Feng’s complaint pursuant to the Canada Labour Code was initially dismissed by Inspector Philippe. Mr. Feng successfully appealed that decision. His complaint was then heard by Me. Mark Abramowitz, acting as an adjudicator under

Part III of the Canada Labour Code . He concluded on October 6, 2010 that Mr. Feng was, in fact, an employee and awarded him $9,296.54 for his unpaid trips, for vacation pay, statutory holidays and two weeks severance pay [1] . The judgment of the Federal Court: [ 7 ] Vares applied for judicial review of Me. Abramowitz's decision. Amongst other issues, the Federal Court held that Mr. Feng was an employee and not an independent contractor. However, it concluded that Mr.

Feng’s claim for prior notice, statutory holidays and vacation pay are to be calculated after a different adjudicator determines the issue of wrongful dismissal [2] . [ 8 ] The Federal Court did not rule on the amounts payable to Mr. Feng for the trips he made. Accordingly, Me. Abramowitz’s decision awarding Mr. Feng $3,955.68, for his unpaid trips was not overturned. However, to date, Mr. Feng has not received payment. [ 9 ] The undersigned is unaware of what steps Mr. Feng has taken to either execute Me. Abramowitz’s decision or to otherwise obtain the compensation Vares owes him. The current status of Mr.

Feng’s case: [ 10 ] Mr. Feng’s case pursuant to the Canada Labour Code has since been assigned to another adjudicator but the case has not yet been heard. The case before the Small Claims Division, Court of Quebec: [ 11 ] This Court heard Mr. Feng’s evidence regarding his trips and expenses. However, since the hearing, Mr.

Feng has withdrawn his claim before the Small Claims Division regarding the wages owed to him by Vares for the trips he made. [ 12 ] He is now limiting his claim to the following items: a) $115 for expenses he paid during his trips b) $9 for his costs to send a demand letter c) $ 340 for lost wages to attend court hearings d) $174 for Court costs. [ 13 ] The evidence shows that Mr. Feng's expenses for such items as lumbar fees, log books, bridge costs, cell phone etc. were not reimbursed and amount to $115.95. This sum takes into account the advance Mr. Feng received from Vares. Mr.

Feng is entitled to $115, which he is claiming. He also has the right to $9 in order to transmit a demand letter and to the cost of his judicial fees. However, the Court does not grant compensation for parties to pursue their case in Court. [ 14 ] Since Mr. Feng worked as an employee of Vares, there is no lien de droit with Mr. Bogeljic. Given that Mr. Feng carried out the work in question, there is no basis for the claim instituted by Claremont F. Transport inc.. FOR THESE REASONS, THE COURT; GRANTS , in part, Mr.

Feng’s motion to introduce proceedings; CONDEMNS Vares Transport inc. to pay Guojie Feng $124, plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since the institution of his action, plus judicial fees of $124.

DISMISSES Clermont F. Transport inc.’s motion to introduce proceedings against Vares Transport inc. and Petar Bogeljic, without costs. DISMISSES Guojie Feng’s motion to introduce proceedings against Petar Bogeljic, without costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: September 4, 2012