Trucking v. Grewal Date:, 2012 BCPC 527

Citation: Trucking v. Grewal Date: 20121011 2012 BCPC 0527 File No: C7430 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: GURDYAL SINGH TRUCKING CLAIMANT AND: HARDEEP SINGH GREWAL DEFENDANT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.J. ROUNTHWAITE Appearing in person: The Claimaint Counsel for the Defendant: T. Ellan Place of Hearing: Chilliawck , B.C. Date of Hearing: September 21, 28, October 11, 2012 Date of Judgment: October 11, 2012 [ 1 ] THE COURT: Clearly, one of these parties has been engaged in fraudulent transactions. Is the evidence sufficient to allow the Court to determine which one?

[ 2 ] It is common ground that the claimant was here in Canada on a provincial nominee program, requiring him to invest in business and to create jobs in order to secure permanent residency status. [ 3 ] It also is common ground that these parties came together under the guise of a trucking business.

From there, however, the parties' versions of events diverge. [ 4 ] The claimant says that in February 2010 he bought a Western Star tractor truck from the defendant for $25,000, and then hired the defendant's father whom I shall refer to as Jesse, to drive that truck at a salary of $4,000 per month. [ 5 ] In May 2010, he also purchased a Deloupe trailer from the defendant for $15,800 as well as a second tractor truck, a Freightliner, hiring the defendant himself to drive that truck. [ 6 ] When both father and son complained about their salary, the claimant says they reached an agreement in December 2010 whereby he would retain roughly 10 percent of the profit, with the remainder going to them, after paying all of the expenses.

Further, as the claimant wanted to get out of the trucking business, they agreed the defendant would buy two flatbed trailers from the claimant by June 2011, and buy back the Western Star truck by May 2012. As a guarantee, the claimant says he signed transfer papers for the return of the Western Star truck, post-dated to May 2012. [ 7 ] According to the claimant, the defendant altered that date and registered the transfer in January 2011, without making any payment for the truck.

The Freightliner truck and Deloupe trailer were also transferred back to the defendant in January of 2011, but the claimant takes no issue with that transfer. The claimant sues for the value of the Western Star truck, being $25,000. [ 8 ] The defendant's version of events is quite different. He and his father both say this was all a sham, done to fulfil the claimant's immigration requirements. They remained the owner/operators throughout, with payments made and transfer papers signed just to create a paper trail for immigration purposes.

They say in counterclaim that the claimant actually owes the defendant money for unpaid fuel, salary, and maintenance work which he performed on the vehicle. [ 9 ] Judges do not have a special ability to determine who is lying and who is telling the truth. All we can do is examine the evidence carefully. Does it make sense? Is it consistent, particularly with respect to documentary evidence that is there in black and white? [ 10 ] It seems to me there are two possibilities on the evidence.

The first, that the claimant is an honest, legitimate business man, but newly arrived to Canada, he has been taken advantage of, indeed wronged, by the defendant's group. [ 11 ] In support of that first possibility I note three things: (

a) The lack of relationship between these parties. They are not connected by blood or marriage. As the claimant has asked, what reason would they have for helping him as the defendant suggests? The defendant says it was done out of sympathy for the claimant's medical and family circumstances. (

b) I note the transfer papers by which the Western Star truck was transferred back to the defendant in January of 2011. That has been included at Exhibit 1, Tab 1 of the materials as well as Exhibit 3, Tab A-3. Clearly, the date on those transfer papers has been altered, although I have to say the copy is poor, so I cannot sufficiently tell what the original date was. (

c) I note that after the January 2011 transfer, the claimant continued to pay insurance for three months which he says was for the Western Star truck. Why would he continue to pay insurance if he was aware of the transfer? [ 12 ] I referred to two possibilities on the evidence. The second possibility is this: That the defendant remained the beneficial owner of these trucks and the Deloupe trailer throughout, and that this was all a sham to create a paper trail for immigration purposes, to make it look like the claimant was investing in business.

If that is the case, then it is an illegal transaction and it goes against public policy for the Court to enforce a fraudulent transaction. [ 13 ] Here I have noted four elements of the evidence, the first being that $25,000 was the stated price for the Western Star truck. However, payment was made via cheque for $15,000 only.

The claimant says $10,000 was paid in cash at the defendant's request but he has no documentary proof of that $10,000 cash payment ever being made. [ 14 ] Quite frankly, business people should know better than to hand over $10,000 cash without written acknowledgement, but in any event, the defendant says that the $15,000 payment was all that was made and that it was returned to the claimant, with $3,000 being paid back immediately, and the balance being paid over a three month period when money that was due to come to the defendant's father, Jesse, was in fact retained by the claimant. [ 15 ] Second, the $15,800 purchase price for the Deloupe trailer.

This time the defendant says that amount of money was paid back immediately and he points to a deposit of $15,800 in the claimant's account. [ 16 ] Now, the claimant says this was his own money, but I do note that the deposit has not been marked in the same way as it appears his other personal deposits have been marked in that particular account. And again, how can the Court determine the origins of that 15,800 deposit: did that come from the defendant immediately paying back the supposed purchase price, or was it money indeed that was deposited by the claimant?

I cannot tell. [ 17 ] Third, I look at the December 2010 agreement, which is located at Exhibit 1, Tab 4. Everybody agrees -- all of the secondary witnesses as well -- that this agreement is consistent with that of an owner/operator, with up to 10 percent of the profits going to the dispatch company and the remainder going to the owner/operator. Quite frankly, it makes no sense that the claimant, as the actual owner of these vehicles, would agree to pay 90 to 100 percent of the profits to people who were merely drivers.

[ 18 ] Fourth, I look at the Freightliner and Deloupe trailer; both being legitimately transferred back to the defendant in January 2011. It appears somewhat consistent with the notion that the Western Star truck was being transferred back at the same time. [ 19 ] I referred to two possibilities on the evidence. I have examined both of these possibilities in light of the whole of the evidence, but particularly with respect to the documentary evidence. This is one of those cases where I simply do not know which possibility is fact. I do not know whether Mr.

Dutt as a person who is newly and recently come to Canada; has been taken advantage of by people who are more experienced, or whether this was all a sham done for immigration purposes. [ 20 ] The claimant, and the defendant in counterclaim, each have the burden of proving the case on the balance of probabilities, and have to satisfy the Court that his version of events is more likely true than not. [ 21 ] The claimant has failed to prove his version of events on the balance of probabilities, but so too the defendant, in terms of his counterclaim, also fails. [ 22 ] Both the claim and the counterclaim will be dismissed.

Because of that result, I will not make any order for costs. Neither of you are entitled to reimbursement of your court fees. That is my decision. _____________________ C.J. Rounthwaite Provincial Court Judge