IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Claimant, Teja Trucking Ltd., operates a business of long-haul trucking out of Abbotsford, BC. The parties agree that on September 11, 2018, the Claimant hired the Defendant, Nasiru Munkaila, to work for the company as a driver. This was a contract of employment. The Claimant supplied the trucks and gave the Defendant his work assignments. This was a very brief period of employment that only lasted a few weeks. By the end of the month that employment was terminated.

[2]           The Claimant has brought this claim against the Defendant seeking to recover damages arising from what it says is the Defendant’s negligence. Specifically, the Claimant says that the Defendant damaged a load of granite (for countertops and such) that the Defendant was delivering from Burnaby, BC to Calgary, Alberta. Arminder Singh Teja, the principal of the Claimant, says that that as a result of this negligence, the Claimant had to pay the customer $5000 in settlement of the customer’s claim for damages. He seeks to recover this from the Defendant.

[3]           The Claimant also seeks damages from the Defendant for a second load of pulp products that was a rush order, but that was delivered late because of the negligence of the Defendant. The Claimant says that it was not paid for the delivery of this load and it also lost a good customer. The Claimant sues the Defendant to recover the cost of this load as well.

[4]           The Defendant denies that he is responsible for the damage in this case. He says that when he delivered the load of granite to the customer, it was unloaded in good condition. He has produced a bill of lading from the customer that records the granite being delivered without noting any complaint. The Defendants says that he watched the granite being unloaded and that it was not damaged. He also testified that he was unable to take the trip to deliver the pulp product. He agrees that he was able to pick it up from its original location in Skookumchuk, BC. The load was then driven to Abbotsford, but the Defendant informed the Claimant that he was unable to deliver the load to Richmond, BC, because of a commitment he had to his previous employer. It was Mr. Teja who completed this delivery.

[5]           The Defendant had not yet given his notice to his previous employer and this ultimately led to his dismissal from employment with the Claimant. This in turn gave rise to two other aspects of this claim. First, the Claimant refused to pay the Defendant for the trips that he had driven. The Defendant brought a counter-claim for his unpaid wages as part of this litigation. However, that matter was subsequently adjudicated under the Canada Labour Code and the Defendant has now received the wages that were owing to him. At the trial of this matter he was no longer pursuing his counterclaim.

[6]           The other unresolved matter is the Claimant’s assertion that the Defendant took a CB radio and a tarp belonging to the Claimant from the truck that the Defendant returned to the Claimant. The Defendant denies this. The burden of proof rests with the Claimant to prove this claim, but the evidence presented by the Claimant does not support its assertion. According to the evidence of the Claimant’s dispatcher, these items were not discovered to be missing until about 10 days after the Defendant left his employment. But Mr. Teja personally completed delivery of the load in the truck that the Defendant returned to the Claimant’s yard, so that if the items had been taken by the Defendant when he was last on the Claimant’s property, this should have been discovered by Mr. Teja the following day. Since the items were not discovered to be missing until 10 days later, it is unlikely that they were taken by the Defendant. The Claimant has not met the burden of proving this claim.

[7]           Generally speaking, the burden of proof of a civil claim rests with the party who is making the claim. That party is required to prove that what they are alleging is true, on a balance of probabilities. In other words, that party must prove that the allegation is more likely true than not. There are two problems with the claims that the Claimant has brought against the Defendant for negligence. Firstly, the Claimant hasn’t proven that the damage which it paid for was caused by the Defendant’s negligence. The Defendant has furnished some proof that he delivered the load in question to the recipient in satisfactory condition. It is not clear from the evidence if the damage that the Claimant paid for was caused by the Defendant or by some other cause at the recipient’s location and blamed on the Defendant. Both are possible, but the evidence does not show which is more likely.

[8]           But even if it was the case that the damage was caused by the Defendant’s negligence, the claim still cannot succeed. The law in British Columbia prevents an employer from successfully bringing a claim against an employee for ordinary negligence. A number of decisions of courts in this province and elsewhere in Canada have held this to be the law. I am bound to follow those decisions. This principle was set out by the British Columbia Supreme Court in Kirby v. Amalgamated Income Limited Partnership, 2009 BCSC 1044 and Movassaghi v. Steels Industrial Products Ltd., 2012 BCSC 1663. It was also set out by the Ontario Court of Appeal in 2261897 Ontario Inc. v Quest Audio Visual Inc., 2015 ONSC 2428 and by the Alberta Court of Queen’s Bench in Shamac Country Inns Ltd v Sandy's Oilfield Hauling Ltd, 2015 ABQB 518.

[9]           At law, employees are expected to exercise reasonable care in the course of their duties. When an employee fails to do so, and commits an act of ordinary negligence, the employer must resort to lawful employee discipline, or can dismiss the employee in an appropriate case. But the law does not generally impose financial responsibility on the employee for the amount of such loss. The policy reasons for this are because the employer is generally in a better position than the employee to absorb the cost of ordinary employee negligence whether as a cost of doing business or by acquiring appropriate insurance.

[10]        The law also recognizes that certain types of employment are disproportionately fraught with risk of significant loss. A minor employee error can result in significant damages. Just as the employer enjoys the benefit of the profits of an operation, the employer also bear the burden for most losses in the operation, other than those caused by a deliberate act of the employee. The law recognizes that there is a power imbalance in most employment relationships and because of this, the law does not pass the cost of damage arising from the ordinary negligence of an employee that occurs in the course of his or her employment on to that employee.

[11]        Because of this, the Defendant is not liable to the Claimant for any damages that the Claimant may have incurred as a result of any act of ordinary negligence caused by the Defendant. If the Defendant had committed such an act of negligence, one of its possible remedies was to dismiss the Defendant from his employment and that is what ultimately happened in this case. In any event, it has not been proven on a balance of probabilities that the Defendant was in fact negligent in this case. The evidence in this case is conflicting and negligence has not been proven to the required standard of proof. The Claimant has also failed to prove, on a balance of probabilities, that the Defendant converted the radio or the tarp for his own use. The evidence of the dispatcher suggests that these things went missing after the Defendant had left his employment and after others had used the truck in question, without noticing that these items were not there.

[12]        Accordingly, the Claimant’s Claim in this matter is dismissed. The Defendant’s counterclaim has been resolved under the Canada Labour Code and the counterclaim is also dismissed. Since neither party has been able to establish their claim, no costs will be awarded.