2019 QCCQ 5869, 2019 QCCQ 5869

Singh c. 9231-5407 Québec inc. 2019 QCCQ 5869 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-703812-174 DATE: July 11, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ SWARAN SINGH Plaintiff v. 9231-5407 QUÉBEC INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Swaran Singh who worked as a truck driver between October 14 th and November 20, 2016, sues 9231-5407 Québec inc. (“ 9231- 5407 ”) alleging that he is owed $3,420.00 consisting of $100.00 for each day of training and $170.00 for each day of work. [ 2 ] 9231-5407 admits the applicable rates but asserts that Mr. Singh only drove for twelve days and was only trained for four days.

It comes up with an amount 2,440.00 $ plus tax for a total of 2,805.39 $. [ 3 ] It also makes two defences in respect of the amounts claimed. [ 4 ] Firstly, it asserts that the contract according to which Mr. Singh drove for 9231-5407 was a contract between the latter and 9350- 6764 Québec inc., a corporation of which Mr. Singh is the shareholder. [ 5 ] Secondly, it claims that it can withhold an amount of $5,000.00 from the amount owed for the driving services of Mr. Singh pursuant to the contract between the parties [1] .

That contract includes Clause 4.11 which includes the following sentence: In addition, the Broker agrees to reimburse the Corporations the full amount of the deductible that they would have to pay in the event of a responsible accident involving the truck provided to the Broker , by allowing the Corporations to withhold this amount over the next payments of his bills. [ 6 ] It is not contested that there was an accident on the last day that Mr.

Singh drove and that 9231-5407 was obliged to pay a deductible of $5,000.00 applicable in the insurance held by the owner of the truck known as Day & Ross, the customer of 9231-5407. [ 7 ] 9321-5407 asserts that the circumstances of this accident show that Mr. Singh was responsible for the damages caused in this accident when the truck flipped over. [ 8 ] Mr. Singh asserts that he was not responsible for this accident which occurred under circumstances where he cannot be blamed for having lost control of the vehicle. issueS [ 9 ] The Court must determine the following issues in order to resolve this case: 1.

Is the contract under which Mr. Singh was driving a Day & Ross truck provided to him by 9231-5407 a contract with a numbered company or is it a contract of employment between Mr. Singh and 9231-5407? 2. In the event that Mr. Singh is entitled to claim for the driving services provided, what is the amount owed? 3. Can this amount be withheld because of the insurance deductible, paid to the credit of Day & Ross by 9231-5407, of $5,000.00? analysis [ 10 ] The written contract is quite confusing as to whether this is a contract between 9321-5407 and Mr. Singh himself or with Mr.

Singh’s corporation. [ 11 ] The party referred to as the “Broker” in the contract is 9350-6764 Québec Inc. but the initials “SS” are written in manuscript thereafter.

[ 12 ] The introductory clause of the contract states: B. WHEREAS the Corporations are truck owners and they want to contract the services of the Broker to perform carriage services ordered to the Corporations by Day & Ross Transportation Group; [ 13 ] On the signature lines, Mr. Singh signs under the heading “the Broker”. It is not clear that he is acting for a corporation as it would be if he signed the corporation’s name followed “ per Singh Swaran”. [ 14 ] The contract itself contains several clauses that suggest that it is a contract with the driver as an individual person as opposed to with a corporation.

The use of the masculine gender is quite constant in the contract. For example: D. WHEREAS the Corporations retain the services of the Broker as an independent contractor in the performance of his duties under this present contract. [ 15 ] A Corporation does not have a gender, being neither masculine nor feminine in English.

So, this is an indication that the Broker is an individual, meaning Singh Swaran. [ 16 ] Among several instances where the Broker is referring to a third person singular masculine, there is the obligation of courtesy: 4.06 The Broker agrees at all times to deal with the Corporations’ customers in a polite and courteous manner. [ 17 ] In addition to these ambiguities in the contract, Mr.

Naroditsky admitted candidly that the reason that Day & Ross and 9231-5407 insisted upon the contract being with a corporation was to avoid the liability for making deductions at source which would apply if the contract were with an employee. [ 18 ] As well, it is obvious on the evidence that Mr. Singh was not an independent contractor. He had absolutely no autonomy in the way he carried out his work, much of which was to undergo training with Mr. Naroditsky. [ 19 ] He was subject to a direct relationship of control by 9231-5407 through Mr. Naroditsky.

He had no other customers and could not exercise in any way any discretion or choice as to the hours he would drive and the loads he would haul. [ 20 ] When asked about these matters, Mr. Singh was unable to say whether there was any contract between him and the company, whether the company took deductions at source or whether separate income tax returns were filed. [ 21 ] Mr.

Singh barely speaks English and has no understanding of the corporate arrangement apparently made so that he could drive Day & Ross trucks. [ 22 ] On the whole, the Court concludes that the legal situation is one of an employment contract with an individual and not a contract of services with a corporation. [ 23 ] The answer to the first question is therefore that the amounts can be claimed pursuant to a contract of employment by Mr. Singh. [ 24 ] As to the amounts owing, Mr. Singh did not have appropriate records to establish all of the claims he was making.

The only documents that he could show were inspection reports for which he could only establish twelve days of driving where he inspected the truck. He had no record of his training days because he was with Mr. Nadoritsky who was the person responsible for the inspection reports. [ 25 ] Therefore, the Court is left with the proof of twelve days at $170.00 ($2,040.00) and the four days training that 9231-5407 admits ($400.00), for a total of $2,440.00.

GST and QST are not owed on an employment contract. [ 26 ] The third issue is whether 9231-5407 can recover the deductible that it paid to Day & Ross. [ 27 ] The contract signed by Mr. Singh was imposed on him by 9231-5407.

It makes reference to an obligation on the part of the Broker to pay the full amount of the deductible that 9231-5407 has to pay in the event of a responsible accident involving the truck provided to the Broker. [ 28 ] By reference to the concept of a responsible accident, the Court applies the normal meaning of those words, which is to say that to be responsible for a material damage caused to a truck driven by Mr.

Singh, 9231-5407 would have the onus of proving that he was responsible for the accident in the sense that he was at fault. [ 29 ] There is no absolute responsibility or strict responsibility provided in the contract so far as Mr. Singh is concerned. [ 30 ] There is no evidence in the file of the circumstances of the accident other than Mr. Singh’s own testimony. [ 31 ] He describes bad road conditions, poor lighting and the inability to maintain control of the vehicle when a car was approaching him in the opposite direction. [ 32 ] The narrative of Mr.

Singh amounts to an accident, not to the commission by him of a fault. [ 33 ] The fact that the truck tipped over and went off the road is not in and of itself proof of his fault, nor is there any probative value in the conviction of Mr. Nadoritsky that this accident could have only occurred if Mr. Singh had fallen asleep or was talking on his phone. [ 34 ] Falling asleep would not necessarily be the fault of the driver who may have been compelled to drive under conditions where he did not get enough sleep.

[ 35 ] It would be up to 9231-5407 to prove that he did fall asleep. Then it would depend whether he fell asleep for reasons that were his fault as opposed to the driving conditions imposed upon him by 9231-5407. [ 36 ] On the whole, to establish that there was a responsible accident, 9231-5407 would have had to provide the Court with probative evidence in the form an expert report or at the very least objective data about the probable causes of the incident. [ 37 ] The Day & Ross’ claim for the amount simply refers to a deductible.

It does not provide any evidence to demonstrate that this was an accident occuring by the fault of the driver. [ 38 ] Given the burden of proof and the onus placed on 9231-5407 under the contract, the Court concludes that the later does not have a valid claim against Mr. Singh for the recovery of the deductible to which it was responsible in its business relationship with Day & Ross. BY THESE REASONS, THE COURT: CONDEMNS the Defendant 9231-5407 Québec inc. to pay the Plaintiff Swaran Singh the amount of $2,440.00 together with interest at the legal rate together with the additional indemnity provided by

article 1619 of the Civil Code of Quebec , calculated from January 30 th , 2017; WITH LEGAL COSTS in favour of the Plaintiff. __________________________ David L. Cameron, J.C.Q. Date of hearing: May 9, 2019