101211532 Saskatchewan Ltd. - v. -, 2016 SKPC 091

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 091 Date: June 30, 2016 File: 25-15 Location: Moose Jaw _____________________________________________________________________________ Between: 101211532 Saskatchewan Ltd. - and - Cory Cronan Neville Skagen For the Plaintiff Self Represented For the Defendant _____________________________________________________________________________ JUDGMENT D. KOVATCH , J _____________________________________________________________________________ The Evidence [ 1 ] Mr. Neville Skagen testified that he is a principal in the plaintiff company.

Further, that the defendant, Mr. Cory Cronan, worked for his company in 2013. Mr. Cronan quit. The plaintiff says it lost a lot of money for damages and other matters, as a result of Mr. Cronan working for the plaintiff. Nevertheless, in 2014, Mr. Skagen was thinking about hiring Mr. Cronan again. Mr. Skagen said that he would only agree to rehire Mr. Cronan, if Mr. Cronan would be responsible for some of the damage that he had previously incurred or been responsible for. As a result, Mr. Skagen asked his friend, Mr. Maclowich to prepare an assignment of wages form for

execution by Mr. Cronan. According to Mr. Skagen, this document was prepared and then was executed by Mr. Cronan, in the presence of one Kevin Seida. This handwritten assignment of wages form was entered as exhibit P-1 at trial. [ 2 ] Eventually, Mr. Cronan made a complaint to the Saskatchewan Ministry of Labour Relations and Workplace Safety for unpaid wages. I will come to deal with this more fully in due course. At this point, I simply note that it would appear that this assignment of wages form was never complied with by either party. Had it been complied with and relied upon, any debt obligation to Mr.

Skagen’s company would have long been satisfied, and things might have proceeded very differently. [ 3 ] It would appear that Mr. Cronan worked for Mr. Skagen’s company from July 1, 2014 until October 20, 2014. These two dates appear on exhibit D-2, “The Employment Standards Inspection Report.” At the conclusion of Mr. Cronan’s employment in October 2014, the plaintiff refused to issue the final pay cheque to the defendant. The defendant then made an application to the Ministry of Labour asking for an assessment of wages owing. Mr.

Randy Armitage prepared an audit and assessment regarding outstanding wages, and prepared a written report dated February 24, 2015. That report is exhibit D-2. According to Mr. Armitage’s report, during the assessment period of August 10, 2014 to November 2, 2014, the defendant earned total salary and benefits of $13,730.98. He was paid a total of $11,652.42, leaving a shortfall of $2,078.56.

Exhibit D-2 further reads as follows: As per letter from employer, dated 20-January-2015, the employee did not receive the two payment of wages dated 18-October-2014 and 01-November-2014 in the net amount of $1,566.37 and $492.37 respectively. These amounts were deducted as per written agreement dated 08-April-2014.

Section 9-2 Saskatchewan Employment Act deems the agreement does not provide a lawful deduction from the employee’s wages. Records support $600.00 in advances not recovered from the employee and have been deducted from assessment. [ 4 ] Mr. Skagen testified that he has never paid the $2,078.56, that was assessed as due and owing by the Ministry of Labour. Following this decision by the Ministry of Labour, he then brought this action and claims judgment in debt against the defendant. The plaintiff filed another handwritten document attempting to detail the damages that he had sustained at the hands of Mr. Cronan.

This document is exhibit D-1. It is dated December 24, 2015. According to the document, Mr. Cronan owes him a total debt of $4,309.14. [ 5 ] The plaintiff also called Mr. Jim Maclowich. Mr. Maclowich is known to the court as a retired solicitor, who continues to reside in the Moose Jaw area. Mr. Maclowich testified that, acting on instructions from Mr. Skagen, he prepared the assignment of wages form that is exhibit P-1. He testified that Mr. Kevin Seida went and picked up the defendant, and Mr. Cronan and Mr. Seida executed the document and returned it to him and Mr. Skagen. He said that he and Mr.

Skagen were probably about 50 feet away from Mr. Seida and Mr. Cronan when the document was executed. He denied that there were any threats or intimidation by the plaintiff in order to induce Mr. Cronan to execute the document. [ 6 ] Mr. Cronan testified that he has worked for this company since approximately 2005. In 2013, the plaintiff bought the company or all of its equipment. He continued to work for the plaintiff in 2013 and again in 2014. He said he worked as a mechanic and did a lot of work on the plaintiff’s equipment.

He denied that he mistreated any equipment, and adamantly denied that he ever willfully damaged any of the plaintfiff’s equipment. He pointed out that the plaintiff claimed that he drove and damaged a truck while the defendant worked for the plaintiff in 2014. Mr. Cronan pointed out that the invoice filed by the plaintiff as exhibit P-2 is dated December 23, 2015, well more than a year after the employment relationship was terminated and the matter reported to the Ministry of Labour. [ 7 ] Mr. Cronan testified that it is his signature that appears on exhibit P-1, the assignment of wages form.

He testified that on April 8, 2014, Mr. Kevin Seida was employed by the plaintiff. According to Mr. Cronan, Mr. Seida picked him up and took him to the plaintiff’s business, where Mr. Skagen and Mr. Maclowich were present. According to Mr. Cronan, he was then coerced into executing the assignment of wages form. Much of the evidence of both the plaintiff and the defendant was directed to whether there was coercion in the execution of exhibit P-1. Mr. Cronan adamantly denied that any amount was owing. He testified that nothing was owing to the plaintiff. [ 8 ] However, under cross-examination by Mr.

Skagen, he did admit that he had a problem holding his water. He said that when he stayed at hotels, he would use a number of plastic bags and towels to protect the bed and bedding from being urinated upon and ruined. He also agreed with Mr. Skagen that the hotel operator at Lanigan questioned them about the bed being ruined. He also agreed that Mr. Skagen had evidence of an additional $200.00 payment being made to the hotel operator, and that this may have been related to him having ruined this bed.

Validity of the Assignment of Wages Form, Exhibit P-1 [ 9 ] The plaintiff appeared to be of the view and premised his case on the assignment of wages form establishing a civil liability and giving him a legitimate action in debt. He took pains to explain and argue that even though the Department of Labour did not recognize the assignment of wages form, he was entitled to damages based upon this document. [ 10 ] I cannot agree with the plaintiff or accept his submissions.

Section 2-65 of The Saskatchewan Employment Act , Statutes of Saskatchewan, 2013 c. S-15.1 provides that the employer holds wages in trust for the employee. It further provides that corporate directors are liable for all wages. In this case, Mr. Skagen was a trustee holding wages in trust for his employee, the defendant Mr. Cronan. It would clearly be a conflict of interest and а breach of his fiduciary duty as trustee to execute an assignment of wages form, as he did. [ 11 ] In addition,

section 9-2 of the Act reads as follows: “Subject to the other provisions of this division, an assignment of wages to secure payment of a debt is invalid.” It is most significant to note that this

section does not say that the assignment of wages is invalid

and cannot be considered by the Ministry in an assessment of wages. It says the assignment is invalid. In my view the provisions of the Act deem this assignment of wages form to be invalid and Mr. Skagen and his company cannot rely upon that document for any purpose. To allow the plaintiff to establish liability, based upon this document, would allow the plaintiff to do indirectly, that which he could not do directly. [ 12 ] Lastly, on this point, if I was to interpret this assignment of wages form, I would utilize the Contra Proferentem rule and strictly construe the document as against the plaintiff.

The document was prepared at the instance of plaintiff, for the plaintiff and immediately executed without any legal advice before other employees of the plaintiff. Utilizing the Contra Proferentem rule, I would say that the document purports to be an assignment of wages, nothing more and nothing less. An assignment of wages is generally a security document, designed to create а secure interest. It does not establish a debt relationship and does not establish anything is owed under a debt relationship.

It merely operates as a security instrument. [ 13 ] For all of the above mentioned reasons, I am not prepared to conclude that anything was owing by the defendant to the plaintiff by reason of exhibit P-1. During the course of the trial, I indicated to Mr. Skagen that he had to prove debts were owing. I now return to look at exhibit D-1, and the various debt claims advanced by the plaintiff. The first claim is Lagana Hotel Damages – Lanigan in the amount of $200.00. Mr. Skagen testified about this. He introduced as exhibit P-3 an invoice from the Lagana Hotel.

That invoice contains the following entry: “2014-10-23 mattress damage – service charge - $181.81 GST $9. 09 PST $9.09 a total of $199.99.” Also as part of exhibit P-3 is the Interac receipt showing payment to the Lagana Hotel on October 23, 2014 in the amount of $200.00. [ 14 ] The plaintiff has proved that he incurred this $200.00 payment on behalf of the defendant, for damage that the defendant caused to the hotel owner’s bed. This is a legitimate debt claim, and will be allowed. [ 15 ] However, the plaintiff has failed to prove any other legitimate debt claim as against the defendant.

The Plaintiff Company was the employer of the Defendant, Cronan. It is well established that the employee is the agent of the employer, and the employer is vicariously liable for the negligence of its employees. In my view, the defendant Cronan could not be held liable in damages for any negligence that may have caused damage to the Plaintiff’s equipment. In order to hold the defendant liable, the plaintiff would have to establish the defendant willfully damaged this equipment. The plaintiff hasn’t established the defendant negligently caused damage to his equipment, nor has he established any willful damage.

Also, he has not proved that he incurred any expense to repair any damage caused by the defendant. As mentioned above, he presented an invoice from Golden West Trailer as exhibit P-2. This invoice is dated December 23, 2015. There is no way that I can conclude that this was to repair damages caused by the defendant more than a year earlier when the defendant was employed by the plaintiff. [ 16 ] The plaintiff made a claim that the defendant caused damages at the Assiniboia Hotel. He claimed these damages in the amount of $1,200.63. The defendant denied that he caused any such damages.

The plaintiff produced no invoices or receipts to document this claim in any way. I have no way upon which I can conclude that the plaintiff the incurred $1,263.00 in expenses to the Assiniboia Hotel as a result of the defendant’s actions, and no way that I could allow a claim over of this amount as against the defendant. [ 17 ] The plaintiff also claims “forgone-lost income due to Cory Cronan’s unauthorized leaving of the job site with company vehicle/equipment – ten hours at $105.00 per hour $1, 050.00”. There is no evidence at all on this portion of the claim.

Conclusion [ 18 ] The plaintiff is entitled to judgment in the amount of $200.00. All other claims made by the plaintiff are dismissed. [ 19 ] In the event that the Ministry of Labour has received any funds in trust for the defendant, I would direct the Ministry to pay out $200.00 to the plaintiff and $1,858.74 to the defendant Cory Cronan. Dated at the City of Moose Jaw, the Province of Saskatchewan this 30 th day of June, 2016. ______________________ D. Kovatch