Merkowsky v. Chartrand, 2002 SKQB 268

• Judge: Maher, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 24, 2002
• Jurisdiction: Saskatchewan
• Citations: 2002 SKQB 268;(2002), 220 Sask.R. 183 (QB)

Merkowsky v. Chartrand (2002), 220 Sask.R. 183 (QB)

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. JL.016

Armand Merkowsky (plaintiff) v. Darcy Chartrand and Rose Chartrand (defendants)

(1999 Q.B. No. 872; 2002 SKQB 268)

Indexed As: Merkowsky v. Chartrand

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Maher, J.

June 24, 2002.

Summary:

Merkowsky and Chartrand started a trucking business. Merkowsky arranged financing to purchase a truck and trailer and was to do the books. Chartrand was to work the truck. The trucking business failed. Merkowsky claimed damages from Chartrand for loss of use and loss of value of the truck and for removal of parts from the truck. Merkowsky also claimed against Chartrand's grandmother for wrongfully withholding the truck and certain of his goods on her property. Chartrand claimed against Merkowsky for loss of wages. Chartrand's grandmother claimed against Merkowsky for rent for the use of her buildings and property by the trucking venture and for storage of Merkowsky's non-trucking items on her property.

The Saskatchewan Court of Queen's Bench granted judgment for Merkowsky and dismissed the claims of Chartrand and his grandmother.

Damages - Topic 1912

Torts affecting goods - Wrongful detention (detinue) - Measure of damages - Merkowsky and Chartrand started a trucking business - Financing for a truck and trailer was arranged by Merkowsky through a credit union - The business failed - The truck had been stored on property owned by Chartrand's grandmother - Chartrand and his grandmother refused to deliver the truck to either Merkowsky or the credit union - The truck was finally seized by the credit union six months later and was sold - The Saskatchewan Court of Queen's Bench held that Chartrand and his grandmother had wrongfully withheld the truck and that the wrongful withholding had resulted in Merkowsky not being able to make the loan payments on the truck for six months - The court awarded Merkowsky damages equal to six months' loan payments ($13,596) plus $5,429.48 for the cost to him of a replevin action - See paragraphs 33 to 34.

Joint Ventures - Topic 5

General principles - What constitutes a joint venture - Merkowsky and Chartrand started a trucking business - Merkowsky arranged financing to purchase a truck and trailer and was to do the books - Chartrand was to work the truck - After three years, the debt on the truck and trailer would be paid and they would then be owned by Chartrand - The trucking business failed after two years - Chartrand claimed against Merkowsky for wages, contending that he should be paid wages at 25% of the gross income earned by the truck - The Saskatchewan Court of Queen's Bench held that Chartrand was a participant in a joint business venture with Merkowsky and was not an employee - He was therefore not entitled to wages - The court considered that Merkowsky and Chartrand shared control of the business, they both had an interest in the truck and trailer and they both risked a loss and had a chance for profit - See paragraphs 24 to 29.

Master and Servant - Topic 303

Nature of relationship - What constitutes an employer-employee relationship - [See Joint Ventures - Topic 5 ].

Torts - Topic 3133

Trespass - Trespass to goods - Wrongful detention - What constitutes - Merkowsky and Chartrand started a trucking business - Financing for a truck and trailer was arranged by Merkowsky through a credit union - The business failed - The truck had been stored on property owned by Chartrand's grandmother - Chartrand and his grandmother refused to deliver the truck to either Merkowsky or the credit union - The truck was finally seized by the credit union six months later and was sold - The Saskatchewan Court of Queen's Bench held that there was no bona fide issue to be litigated between Merkowsky, Chartrand or Chartrand's grandmother on the matter of payment of the money owed to the credit union or the sale of the truck to pay down that debt, and that Chartrand and his grandmother had wrongfully withheld the truck - See paragraphs 31 to 32.

Cases Noticed:

Montreal (City) v. Montreal Locomotive Works Ltd. et al., [1947] 1 D.L.R. 161 (P.C.), appld. [para. 24].

Ross v. Acorn (1986), 46 Sask.R. 69 (C.A.), refd to. [para. 32].

Cohnstaedt v. University of Regina (1994), 116 Sask.R. 241; 59 W.A.C. 241 (C.A.), refd to. [para. 32].

Counsel:

T. Klassen, for the plaintiff;

H. Siwak, for the defendants.

This action was heard before Maher, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on June 24, 2002.