Maintrack Café Ltd. - v. -, 2013 SKPC 206

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 206 Date: December 11, 2013 File: 26/12 and 27/12 Location: Weyburn _____________________________________________________________________________ Between: Maintrack Café Ltd. - and - Lilia Turcan and Christos Karampatsos Self-Represented For the Plaintiff Self-Represented For Lilia Turcan Self-Represented For Christos Karampatsos _____________________________________________________________________________ JUDGMENT K.

BAZIN , J _____________________________________________________________________________ [ 1 ] The plaintiff puts forward that he loaned $5,000.00 each to the defendants, with an additional $1,000.00 to Christos. The front of the three cheques were filed as an exhibit with the Court. There is no issue that the defendants received $5,000.00 each.

[ 2 ] The defendant Christos Karampatsos (Christos) states that he received the $1,000.00 cheque, cheque number 16733, and simply was asked to sign it and return it, which he did. He claims he did not receive any money for the cheque. $1,000.00 Cheque [ 3 ] As for the $1,000.00 cheque, John Georgacacos (John), owner of the plaintiff corporation, and the only witness for the plaintiff stated that the cheque was for $1,000.00 and he had previously given Christos cash. The return of the cheque was to pay it back.

John states that Christos wanted money to do something so he gave one thousand dollars cash and that they had to pay it back. So when the thousand dollar cheque is paid to Christos he then pays it back, in returnd for the $1,000.00 loaned. Christos says that he signed the cheque and gave it back to John. [ 4 ] Christos says that he did not know why this was done but simply did it.

John says it was for wages but it does not show up as wages or an advance of wages, although the $1,000.00 and the $5,000.00 which are claimed as loans, show up as loans in the accounting documentation prepared by the plaintiff. [ 5 ] What John had testified to, that he had given $1,000.00 cash advance and that the return of the $1,000.00 dollar cheque was repayment of the advance, does not make sense. What one would expect to have happened is that if it was a $1,000.00 cash advance it would simply be deducted from Christos’ wage and shown as an advance.

This is not recorded this way in the plaintiff’s records filed as exhibits. The $1,000.00 shows a loan, but it does not show it being paid back. [ 6 ] In addition when discussing this issue of the $1,000.00 loan, John testified that he would give Christos cash several times. He said that he gave Christos $2,000.00 cash to buy a car on a Sunday. He stated that the $2,000.00 referred to in the counterclaim by Christos which is a deduction from his cheque, was funds to buy a car.

This will be discussed further when we examine the deductions from the paycheques of Christos. [ 7 ] I find that there is actually no loan given to Christos as far as the $1,000.00 is concerned. There is no record of it, as far as loan documentation goes. The accounting records do not show it as wages advanced, as testified to by John. Since Christos was on a salary, if this was an advance, one should see some record of the thousand dollars being deducted from one of his paycheques being either September, October, or November. This does not occur.

In addition if it was for wages it should also show up in Christos’ T4 slip, which it does not. John’s explanation that it was an advance for wages is not supported by the companies’ records. [ 8 ] In addition the back of the cheque was not produced to indicate where it was deposited. [ 9 ] As to the $5,000.00 loan to Lilia Turcan (Lilia), which will be canvassed in more detail later in this decision, all parties testified that she was not involved in any discussions as to the giving of these funds to her.

The parties in their testimony all state that Lilia was never involved in a discussion with John for the money. She testified that her husband brought home the cheque, asked her to sign it and then she gave it back to him. It was her understanding that it was a gift. In addition, John testified that he never had discussions with Lilia as to the five thousand dollar alleged loan. [ 10 ] There was no documentation signed by Lilia.

John indicated that this is how in Greece they do business, simply by verbal agreements. [ 11 ] It is also noted that the plaintiff filed the front of each cheque, but did not file a copy of the back of the cheques being the two $5,000.00 cheques and the $1,000.00 cheque.

[ 12 ] As such I find that there was no loan of $1,000.00 to Christos. $5,000.00 Cheque to Christos [ 13 ] As to the $5,000.00 cheque to Christos, he is not denying receiving the funds, but states that it was a gift from his uncle to himself, and an equal gift to his wife. This was to help them in establishing themselves in Canada. [ 14 ] At the time of the payment of $5,000.00 to Christos and his wife, the defendants were living in John’s home with his wife and family. Christos and his wife Lilia, who was expecting a baby, had just moved recently from Greece in order to work for the plaintiff.

There’s nothing to indicate that matters were not amiable, between John and the defendants. The defendants had the free use of John’s home and also the free use of John’s car whenever they needed it. [ 15 ] Considering that the defendants were new to Canada and to a large extent reliant upon John and his family for their employment and housing, it would not be out of the ordinary for John to provide them a gift to start them in Canada.

Although the cheques come from the corporate plaintiff, the corporation is controlled by John. [ 16 ] I am not satisfied on a balance of probabilities that the $5,000.00 was a loan, as there's no loan documentation prepared and/or signed, which one would anticipate considering the plaintiff is a corporation. John testified that he had been in business in Canada for 35 years, and I infer that he would be well aware of the benefit of a written document for any loans.

It would be a simple matter for the corporation to have asked for and received loan documentation if in fact they were loaning money to the defendants. There of course is no need for documentation if it is simply a gift to assist the defendants to start their life in Canada. The plaintiff as well could have a verbal loan with the defendants. [ 17 ] The payback of the loan, as set out in the Statement of Claim at $500.00 per month, was never taken from the defendant’s wages, which the plaintiff testified was part of the agreement.

It is also unclear as to why a loan was to be made and then seven days later the first payment would be taken out. John did not know why the amount of $400.00 was taken, when he stated the agreement was to be $500.00 per month.

There was no explaination why monthly amounts of $400.00 per month were not taken from both defendants, as this would have been a simple arrangment with the corporation’s accountants, which John testified they used. [ 18 ] There were, in addition, several inconsistencies in the testimony of John, which I have referred to in the thousand dollar loan part of this decision. [ 19 ] The defendants testified that there was no request to pay the loan back until about a year later.

This is not disputed by the plaintiff, who indicated they sent out a demand letter close to the time of issuing the Statement of Claim, but there was no request to pay it back earlier. [ 20 ] The plaintiff could well have made a loan to Christos without documentation, but looking at the evidence as a whole, the plaintiff has not made out, on a balance of probabilites their case for a loan to Christos. $5,000.00 Cheque to Lilia [ 21 ] For the same reasons as set out in the foregoing paragraphs relating to the $5,000.00 cheque to Christos, they equally apply to the $5,000.00 cheque to Lilia.

In addition, Lilia never spoke to anyone about the $5,000.00, but simply accepted what her husband had told her that it was a gift from his uncle. [ 22 ] In addition both defendants indicated that they were never asked to pay the money back until near the time of issuing the Statement of Claim. They testified they were never asked by John to pay the money back but believe they did receive a letter from the

plaintiffs' lawyer just shortly before receiving the Statement of Claim. The Statement of Claim was issued December 11, 2012, approximately one year after the defendants were no longer employed by the plaintiff. [ 23 ] I find that the plaintiff has not proven on the balance of probabilities that the $5,000.00 to her was a loan, and find that it was a gift. [ 24 ] Accordingly the plaintiff’s claims are hereby dismissed.

Counterclaim by Christos [ 25 ] Christos claims by way of counterclaim as against the plaintiff, the $2,400.00 of which $2,000.00 was a cheque signed and returned to the plaintiff and $400.00 was deducted from his paycheque for the repaying back of expenses incurred by the plaintiff to have him come to Canada. [ 26 ] The defendant Christos, at the time had agreed to these amounts being paid back to the plaintiff. [ 27 ] No evidence was put forward by the defendant Christos that supports that these payments were not consented to and agreed to.

The defendant Christos states that the plaintiff could not lawfully ask for funds back for expenses incurred. However the defendants have not put forth any information to support this allegation. [ 28 ] The counterclaim as to the $2,400.00 is not proven. [ 29 ] Christos claims vacation pay in the amount of $437.12 and an additional $575.00 for nine days worked in December that was not paid. [ 30 ] The employee detailed record filed by the plaintiff shows that the December 31, 2011 cheque had a gross payment of $1,014.02. The net pay was $.21.

The plaintiff stated this was for payback of the loans, whereby $960.00 was paid towards the loans. In addition $53.81 was withheld for CPP and EI. [ 31 ] The amount withheld totals $1,121.43. Having found that there is no substance to the $1,000.00 loan and the $5,000.00 loan was a gift, there is no basis to withhold the $960.00 from Christos on his last cheque. As such I find that he has proven that the plaintiff owes him the sum of $960.00, being deductions from his December cheque.

Lilia ’s Counterclaim [ 32 ] Lilia, like Christos, claims back $2,400.00 which was paid to the plaintiff for repayment of expenses related to the plaintiff bringing her to Canada. As with her husband Christos, I find this was agreed to by Lilia and there if no evidence to support that the refund of these monies was not by agreement by the defendant Lilia. [ 33 ] Lilia also claims for wages for December 2011. She has claimed that she worked eight days and never received the cheque for her hours or vacation pay. [ 34 ] Lilia’s Record of Employment (ROE), states $417.68 for vacation pay.

Lilia did not receive a cheque for her work in December as shown on the plaintiff’s records. Her Record of Employment that was filed as an exhibit does show she was paid vacation

pay of $417.68. I infer that she would have been entitled to the $417.68 on her last cheque, from the fact this is how her husband Christos was paid on his last cheque in December as well. [ 35 ] The defendant Lilia also claims that her Record of Employment as prepared by the plaintiff is inaccurate, and she claims that she had worked more than 600 hours, which she had in mind, in order to collect maternity leave.

She claims that the plaintiff falsely put inaccurate hours on her Record of Employment to prevent her from obtaining maternity leave benefits. [ 36 ] As to the hours worked by Lilia, she testified that she worked six days a week with one day off for the months of September and October. She stated that in November when she gave the plaintiff her doctor slip that she could only work six hours, he was upset and told her she would only work three hours a day. She testified that she worked on average four hours a day, and on other days longer, but on average would work four hours a day, for November and December.

The plaintiff filed handwritten notes, which were not identified as to who wrote them, for November and December. From the notes it does appear, if they were accepted, that Lilia is working on average four hours per day and some days are 3 ½ and some days are 4 ½. Lilia disputes that these are accurate records as of the days she worked.

They do support her testimony that for November and December, that when she worked she averaged about 4 hours. [ 37 ] The plaintiff also testified that the November pay stub showing 166 hours is inaccurate and that Lilia was overpaid for November, and this is why she was given no money for December by way of wages for her hours worked or holiday pay.

John testified that the error was made by the accountant as he did not know she was not working full-time. [ 38 ] John initially testified that Lilia was paid by the hour, but later when trying to explain why Lilia did not receive any funds for December, he testified that she was paid by a salary for September and October and then by the hour once her hours were reduced in November 2011. [ 39 ] I accept the defendant’s evidence as to what hours she worked.

From the testimony of John, it is clear that he is unclear on many aspects of when Lilia worked and how she was paid, and the company records are also unreliable. [ 40 ] From the evidence I find as a fact that Lilia Turcan worked the following hours in 2011: 1) September - 26 days x 9 hours = 234 hours 2) October - 26 days x 9 hours = 234 hours 3) November - 26 days x 4 hours = 104 hours 4) December - 8 days x 4 hours = 32 hours Total hours worked = 604 hours [ 41 ] Having accepted Lilia's testimony as to working four hours for November, I accept that she was overpaid for November, by approximately 62 hours and at $15.00 an hour this would be $930.00.

She should have been paid $480.00 for her 32 hours worked in December, and in addition should have received $417.68 for vacation pay. This totals $897.68. It is very close to the $930.00 that was deducted by the plaintiff for overpayment. [ 42 ] As such, I conclude that $32.32 is owed by the plaintiff to the defendant Lilia Turcan in relation to wages and vacation pay. [ 43 ] Lilia also claimed against the plaintiff the sum of $12,000.00, being funds she lost due to the plaintiff’s inaccurate Record of Employment.

[ 44 ] Lilia filed a letter from Service Canada indicating that she was not able to qualify for special benefits due to the fact that she did not have 600 hours of insurable employment.

I find that the plaintiff (defendant by counterclaim) had filed an inaccurate number of hours worked by the defendant, with the knowledge that she was attempting to claim maternity benefits. [ 45 ] It was clear in the evidence of all parties that John was unhappy about Lilia being asked to work less hours by her doctor, and that one of the reasons that Christos and as well Lilia were dismissed was that Christos had wanted documentation, being Lilia’s Record of Employment in order to file for maternity leave.

There was a misunderstanding between John and Christos as to when this could be prepared and when the plaintiff had to provide the document to Lilia.

This misunderstanding does not affect the fact that once she was dismissed by the plaintiff, the plaintiff had an obligation to record accurate working hours in the Record of Employment for Lilia. [ 46 ] The defendant, Lilia is entitled to damages as against the plaintiff for negligence in the filing of the Record of Employment. [ 47 ] As the amount of damages is not known at this time, and as the defendant may be able to now qualify and receive funds retroactively for the special benefits from Service Canada, in light of the Court’s finding that she has worked 604 hours, the issue of damages as to this aspect of the defendant Lilia’s claim is adjourned to a date to be determined by the parties and the Court.

It may be that there are no damages incurred by the defendant Lilia if she now qualifies for payment from Service Canada. [ 48 ] If she is not able to obtain the payments that she had lost, the Court will hear evidence and argument on the quantum of damages to be paid by the plaintiff to the defendant Lilia. [ 49 ] As there was mixed success by all parties, no costs are awarded. [ 50 ] Dated this 11 th day of December, 2013. K. Bazin, J