James Leonard Champoux - v. -, 2012 SKPC 14

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 014 Date: January 4, 2012 Information: 3/2011 Location: Swift Current, SK _____________________________________________________________________________ Between: James Leonard Champoux - and - Bakken Holdings Ltd., Operating as Low Cost Towing Mr. James Champoux For the Plaintiff Mr. James Fisher For the Defendant JUDGMENT L.A. MATSALLA , J [ 1 ] The claim in this case alleges that a tow truck operator improperly towed a tractor trailer unit from a ditch and, in doing so, caused significant damage to the unit. The Case for the Plaintiff

[ 2 ] The plaintiff, a resident of Aldergrove, British Columbia, has done business as a trucker for some time. His work involves moving freight over long distances. On the relevant dates in this case, he owned a 1995 Freightliner tractor unit that pulled two trailers - one behind the other (also referred to as “the unit”). The vehicle orientation is commonly referred to as a “B-Train”. [ 3 ] In early 2009 he entered into a contract to haul lumber from Vancouver to Steinbeck, Manitoba. On February 4, 2009, he was operating the unit eastbound on Highway No. 1, near Morse, Saskatchewan.

His trailers were fully loaded and so he was pulling weight estimated to be 135,000 pounds. At about 2:00 a.m. he was approaching Morse and he was preparing to stop driving for the night. He pulled his unit to the left lane intending to make a left turn through a break in the median on the highway. He had slowed to about 5 - 10 kilometres an hour as he started to proceed through the break however at that point he hit a patch of ice and the tractor began to slide. According to the plaintiff, the momentum of the trailers pushed the tractor causing the unit and the trailers to jackknife.

The right side of the trailer went off the road into snow in the median. Despite his best efforts Mr. Champoux’s truck ended up with the front wheels on the edge of the road and the back wheels off the road’s surface. The lead trailer was partially off the road on its right side. It appears the rear trailer remained substantially on the road surface. The tractor unit and the lead trailer were at a considerable angle to one another. [ 4 ] The vehicle was not impeding traffic so the plaintiff testified that he did not contact a towing company until about 8:00 a.m. the next morning.

Prior to making the call at 6:00 or 7:00 a.m., he walked around the trailer and he noticed a bent plastic faring on the side of the tractor. A tow truck operated by the defendant attended at the scene at about 10:00 a.m. The driver, Mr. Bakken, is a director and employee of the defendant company and he manoeuvred the vehicle to the front of the tractor. After hooking up he began to pull but the tow truck started to dig into the asphalt without moving the unit. [ 5 ] Mr. Bakken asked Mr. Champoux to get into the tractor unit to assist in the effort.

Another attempt was made only to have the rear-end of the tractor jump up and down. The front of the tractor was lifting as well. Mr. Champoux asked Mr. Bakken to discontinue the effort and he exited the cab. The parties discussed the problem. They considered disconnecting the trailers but the lead trailer was at such an angle to the tractor that there was a concern that the trailer would topple over. Mr. Champoux suggested that the defendant tie onto the last trailer to pull the unit and trailers backward. Mr. Bakken did not give the idea much consideration.

He then drove his tow truck ahead by about 30 feet and he began to pull. The truck started to move and finally, when the back wheels were off the road, Mr. Champoux drove it out. As he did so he testified that he heard a bang. Apparently no further discussion took place between the two men and Mr. Champoux paid Mr. Bakken and the latter left the scene. [ 6 ] Photos were taken by the plaintiff later in the day. Photograph number 1 of P-2 shows that the frame of the tractor is bent. Mr.

Champoux believes that a winch on the side of the lead trailer caught a bracket on the back of the tractor and bent the left side of the frame. The right side of the frame buckled as well. [ 7 ] Mr. Champoux contacted his insurance company and arrangements were made for another tow truck to pull the tractor to a frame shop in Regina. He spent the night in Morse while he awaited the arrival of the rental truck from British Columbia. The truck was to deliver the load to its intended destination. [ 8 ] Repairs were completed in Regina on March 3 however, on the way back to Vancouver, Mr.

Champoux noted a problem and further repairs to align the axles were made in Vancouver on March 13. [ 9 ] Mr. Champoux sues for the following: (

a) reimbursement of the towing bill - $ 350.00 (

b) payment of his insurance deductible - $ 2,500.00 (

c) renting a truck to rescue the load - $18,322.50 (

d) additional repairs to the truck - $ 550.00 (

e) miscellaneous expenses (including phone calls etc.) - $ 500.00 $22,222.50

He has abandoned any claim over the sum of $20,000.00. He also seeks costs. He seeks compensation to clean the truck ($62.67), costs to communicate with his insurer ($28.60), costs to ferry the tractor from Vancouver to his residence on Vancouver Island ($144.10), costs to align the axles in Vancouver ($728.65), and costs of additional insurance for February and March while the truck was repaired ($603.38). [ 10 ] The plaintiff made a claim with The Insurance Corporation of British Columbia (“ICBC”). Mr. Michael Kelly testified for the plaintiff.

He is an appraiser or estimator in the commercial claims department of ICBC and he has considerable experience as an auto body technician. In his 35 years of experience, he has repaired heavy equipment and his duties include collecting information and determining if damage caused to a vehicle is related to the loss. He has taken internal courses on suspensions, frames and commercial trucks and trailers. While he is not an accident reconstructionist, he has given opinion evidence in Court as to how motor vehicle damage may have been caused. The plaintiff called Mr.

Kelly to give evidence on how the damage was caused in this case however while his evidence was considered it was not accepted as that of an expert. [ 11 ] The plaintiff provided the witness with a diagram to show the orientation of the vehicles and he told the witness how the vehicle was extracted from the ditch. After considering the damage to the truck, Mr. Kelly concluded that the right front of the trailer hooked onto the rail of the tractor resulting in the damage.

He said that the damage in question would likely have occurred if the unit was pulled from the front or from the back however the damage, in his view, was caused during the recovery of the unit from the ditch. He went on to say that, in his view, there was another way to pull the tractor out, that is, a crane could have been used to lift the truck or the trailers. In any event a spotter should have been employed so that the effort could have been stopped if necessary. It was his view that a jackknife is a relatively common incident and that, as such, little damage is usually caused.

In particular, the frame of a truck is hardly ever damaged. [ 12 ] The plaintiff called a witness who was a local trucker and rancher who observed the plaintiff make the left hand turn and enter the ditch. It was the witness’ view that as a result of sliding into the ditch, the right hand side of the trailer was putting pressure on the tractor unit. He walked around the tractor and no apparent damage was visible. After the unit was pulled out, it appeared to him that the frame may have been twisted because a winch on the side of the trailer had caught the tractor rail.

He believed that the damage was likely caused in a fraction of a second such that a spotter would not have been useful. It was his view that the damage likely occurred when the towing chain was extended and the tow truck was less controllable. While he is not in the towing business, he thought that towing from the front was likely the best although his first sense was that the truck should have been pulled backward. However, he admitted that Mr. Bakken is experienced in pulling out tractors. [ 13 ] Ms.

Champoux is the bookkeeper for the plaintiff business and she testified as to the costs of repair to the tractor, the cost of renting another truck and other related expenses. The Case for the Defendant [ 14 ] Mr. Bakken’s company has been in the towing business for 26 years and he operates his business with five to six employees. He is familiar with heavy towing and with the use of a heavy duty tow truck.

His business conducts as many as 300 heavy tows a year of which about 90 percent are completed by him. [ 15 ] On the day in question he received a call from the plaintiff between 9:30 and 10:00 a.m. and he was on site within one-half hour. He took a look at the problem for about 15 minutes and, after considering the options, he decided to pull from the front. Initially the tow truck could not dig in but using a winch and more cable enabled the spades to dig into the pavement to hold the truck in place and he was able to winch the tractor forward.

It pulled hard but, he said, he has had heavier pulls. [ 16 ] In his experience he has not had success in pulling a tractor from behind because the vehicles are not in a straight line and for that reason there are two hinge points to deal with. He said that the tractor units are not built to be pulled backward. [ 17 ] After the truck and trailers were pulled out of the ditch, Mr. Champoux pointed out some damage to him however Mr. Bakken was paid and he left the scene.

[ 18 ] According to Mr. Bakken, there are other ways to complete a pull. One method is to unload the trailers and winch the unit out but the process would require a crane. Another method is to have a second truck pull on the load to keep it upright during the tow. The methods were not appropriate in this case because the trailers were not in danger of tipping. At the end, he said, pulling from the front was “the safest and only way”, and “99.9 percent” of vehicles in this position are pulled out from the front.

He went on to say that he has not seen any other such jobs done differently. [ 19 ] The defendant called Mr. Craig Muz who has worked as a technical advisor for Saskatchewan Government Insurance since 2007. His duties include investigating mechanical and auto body failures as they relate to heavy equipment. He reviewed Mr. Bakken’s diagram of the orientation of the vehicles and he examined photographs of the damage. It was his view that the left rear corner of the frame of the tractor was down and the corner frame of the trailer caught the frame of the tractor causing the frame to buckle.

It appeared to him that there were two points of damage - one from entering into the ditch (the left rail) and the other upon recovery (the right rail). In his view, it would have been unsafe to pull the unit backwards because the attempt would require the tow truck to be on the travelled portion of the highway. The Position of the Plaintiff [ 20 ] The plaintiff asserts that the tow truck operator did not do his work properly. It would seem that he is arguing that Mr.

Bakken, an employee of the defendant company, did not use reasonable skill in conducting the towing operation or that he negligently carried out the operation. The Position of the Defendant [ 21 ] At the outset, the defendant argues that the plaintiff commenced his action beyond the limitation period set out in The Limitations Act , S.S. 2004, c.L-16.1 (“the Act ”) and so his action is statute barred.

Even if the action was brought in compliance with the Act , there is evidence that some or all of the damage was caused when the unit entered the ditch and that even if the damage was caused by towing, the defendant used reasonable care and skill and he was not negligent when he proceeded to tow the tractor trailer unit out of the ditch. The Limitation Period [ 22 ] On January 10, 2011, the Provincial Court received material from the plaintiff requesting the preparation of a Summons. The record in this case indicates that the Summons was issued on January 31, 2011, with a return date of March 1.

Subsequently the plaintiff requested a later return date and the present Summons was issued on March 7, with a return date of May 3. The plaintiff’s material outlined a claim that arose on February 9, 2009. [ 23 ] The relevant portions of the Act read as follows: 5 Unless otherwise provided in this Act , no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered. 6(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred;

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(

a) to (

d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved.

[24] The relevant portions of The Small Claims Act, 1997, S.S. 1997, c. S-50.11 read as follows: 6(1) Any person who has a claim to which this Act applies and who wishes to proceed pursuant to this Act may apply to a clerk tohave a summons issued.

(2) A person applying to a clerk shall: (

a) provide the clerk with the details of the person’s claim; and (

b) produce for inspection by the clerk any documents in the person’s possession relating to the claim.

(3) Unless otherwise directed by the judge with respect to a specific claim, the clerk shall assist the plaintiff in preparing a concisewritten statement of the claim.

(4) The plaintiff or the plaintiff’s lawyer shall sign the written statement of the claim.

(5) The clerk shall provide the written statement of the claim to a judge. 7(1) If the judge is satisfied that the plaintiff may have a valid claim, the judge shall issue a summons that: (

a) is directed to the person or persons against whom the claim is made; (

b) states the time of the case management conference or time of the trial and the court location that the judge considers appropriate. [25] The issue has been considered by Mr. Justice McIntyre of the Court of Queen’s Bench who said this in respect of the assertionthat the claim was barred in that case: 9 The respondents’ analysis is flawed. The authorities relied upon refer to issuing a writ in a process similar to that which occurs inthis Court.

Applying those authorities to the circumstances before the Court ignores the fact that the process for commencing an actionunder The Small Claims Act, 1997, is different from the process of commencing an action in the Court of Queen’s Bench. Under Rule 14of The Queen’s Bench Rules, a statement of claim must be signed and sealed by the local registrar and is then deemed to be issued. Thisis accomplished at the time the plaintiff first presents the claim at the registrar’s office.

On the other hand, when a plaintiff in a smallclaims action files his claim with a clerk of the court, the claim is not issued until a judge approves of it. This is beyond a plaintiff’scontrol. 10 In Kemp v. Metzner, supra, the British Columbia Court of Appeal stated at para. 29 ((2000), 2000 BCCA 462 , 190 D.L.R. (4th) 388): By the act of issuing a writ, a plaintiff has commenced an action and set in train the legal process to obtain relief... In the situation at hand, the appellant set the legal process in motion when he applied to the Provincial Court in Weyburn for a smallclaims summons.

At that point, he had done all that was required of him in order to commence a small claims action. Any further actionrequired before a summons could be issued was beyond his control. The appellant did not file his claim at the last minute; he filed it a full six days before the limitation period was to expire[1]. In this case, although the Summons was reissued after February 4, the claim was filed on January 10, 2011 and, therefore, I mustconclude that the claim is not statute barred and may proceed. The Burden [26] The plaintiff bears the burden of establishing his case on the balance of probabilities.

It has been said that the evidence acceptedby the Court must be sufficient to establish that it is “more probable than not” that the allegations of the plaintiff are more correct than

the contrary. [2] If the probabilities are equal then the burden has not been discharged. Analysis [27] Provincial legislation in The Consumer Protection Act, S.S. 1996 c. C-30.1 provides remedies to consumers in respect of certaintransactions involving retail sellers. The legislation does not provide statutory warranties in respect of services.

Such is the case here. [28] As one might expect in the exigent circumstances of this case, a written contract for the provision of services was not entered intoby the parties however it is an implicit condition in a contract for services that the work will be done in a proper and workmanlike manner.[3] [29] The extent of the condition was considered in Mack v.

Stuike[4] in which, at paragraph 24, the Court referred favourably to apassage in Halsbury’s (3d) ed. page 435 that reads as follows: A contract to perform any work, in the absence of any stipulation as to the manner in which it is to be carried out, implies a condition thatthe work shall be done in a good and workmanlike manner, and the workmen employed on the work must be possessed of the ordinaryamount of skill possessed by those exercising the particular trade.

A person who contracts to do work and supply materials warrants thatthe materials which he uses will be of good quality and reasonably fit for the purpose for which he is using them unless thecircumstances of the contract are such as to exclude any such warranty. [30] Scheibel J. in Al Vogel Construction Ltd. v. Forbes[5] commented on the nature of the implied condition when he said: Perfection is not the test to be applied. That is, “work and material may be reasonably fit for the intended purpose despite minordeviations from the contractual specifications...” Poirier v.

Clermont Rosa Concrete Foundation Ltd. (March 30, 1992) Doc. Ca 43-90(Ont. C.A.) and C.E.D. (Western) 3d ed. Vol. 5, pp. 77 and 78, 39. [31] In the case of the allegation of negligence, the plaintiff must show that the defendant owed him a duty of care and that thedefendant was in breach of that duty. The Court in Maisonneuve at paragraphs 31 and 35 said this about the three facets of a claim innegligence: 31 In order to succeed in negligence the plaintiffs must prove Burley’s actions amounted to a breach of a duty of care owed them byBurley.

The tort of negligence revolves around three elements-duty, breach and loss and, as stated by the Saskatchewan Court of Appealin SEDCO v. William Kelly Hldg. Ltd., (SK CA), [1990] 4 W.W.R. 134 at p. 152, three questions are raised: ... Did a duty of care arise; if so, what was the nature and scope of that duty; was the duty breached; and, if the duty was breached, wasthere a loss, that is a compensable loss of the nature recoverable under the form of the tort at issue? [32] A contractor (the defendant in this case) has a duty to perform work to a reasonable standard of care.

On the matter of such astandard, Dawson J. in Maisonneuve said at paragraphs 35 and 36: 35 Conduct is negligent if it creates an unreasonable risk of harm. The measuring rod used in negligence law to judge an actor’sconduct is the reasonable person. In 1856, Baron Alderson furnished the common law world with a definition of negligence that is stillappropriate today: ... Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate theconduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

The defendants might havebeen liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done... (Blyth v. TheCompany of Proprietors of the Birmingham Waterworks Company (1856), 156 E.R. 1047 at 1049 (Exch.)).

36 The plaintiffs cannot simply allege negligence or show how the wall could have been done better. Except where the matter is anon-technical matter within the knowledge of the ordinary person, the plaintiff must adduce evidence, preferably expert evidence, tosupport its claim: Kauffman v. Toronto Transit Commission, (SCC), [1960] S.C.R. 251. [33] The evidence before me from the plaintiff, who is a trucker and not a tow truck operator, is that he would have pulled the unit outfrom the rear. Mr.

Kelly, an appraiser, said that damage would have occurred to the unit whether it had been pulled from the front or therear and he would have used a crane to lift the tractor and trailers. The plaintiff’s witness who was a rancher and who observed the towjob, said that he initially thought that pulling the unit from the rear would have been the better course but he deferred to Mr. Bakken’sexperience. The defendant testified that he completed the job in the best way that he could have and the defendant’s witness, Mr.

Muz,who is an insurance investigator, thought that some damage may have been caused when the unit entered the ditch and that it would havebeen unsafe to pull the unit backwards. Conclusion [34] I cannot conclude that all of the damage occurred as a result of the tow truck pulling the unit out of the ditch. Even if it could besaid that the damage occurred at that time, it seems that the tow truck operator did his work in a reasonable fashion and in the manneracceptable in the trade.

I have not heard evidence from any other experienced tow truck operator that would indicate that the workshould have been done in a different fashion or that the work was not proper and in accordance with the acceptable standard in the trade. The fact that the damage occurred does not mean that the work was not done within acceptable limits. I must conclude that the evidencedoes not show that the defendant did not meet the standard of a reasonable and prudent tow truck operator. [35] The onus is on the plaintiff and the onus has not been discharged in this case.

The action is dismissed. ____________________________ L.A. Matsalla, J [1] Bakaluk v. Ross McGregor and Karen McGregor, [2003] S.J. No. 678 [2] Miller v. Minister of Pensions, [1947] 2 All E.R. 372 at 374, per Lord Denning [3] Maisonneuve v. Burley, 2001 SKQB 407 at para. 46 [4] (1963), (SK KB), 43 D.L.R. (2d) 763 (Sask. Q.B.) [5] (SK KB), [1998] S.J. No. 696 (Sask. Q.B.) at para. 8