Canadian Employment Law Today

October 20, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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THIS INSTALMENT of You Make the Call fea- tures an employee who damaged company product while making an ill-advised driving decision while on the job. The worker was a truck driver for Chohan Freight Forwarders, a freight shipping and lo - gistics company based in Surrey, B.C. When he started working for the company, the worker signed an employment agreement that allowed Chohan to deduct any outstanding or accumu - lated fees that he incurred while working for the company, including tolls, tickets, fines, freight claims, automobile claims, truck damage, or missing equipment. The worker was assigned to make a delivery that required him to drive through the city of Kamloops, B.C. When presenting the worker with the assignment, Chohan management warned him to be aware of the height of the load that he was carrying. Because the height of the load was exceptionally high, they warned him to avoid taking a route through Kamloops that required going through a particular underpass because the height clearance wasn't enough to accommodate the load. The worker was cau - tioned a second time about the underpass be- fore he set out on the delivery. However, the worker ignored the warnings and took the route that included the under- pass. When he reached the underpass, the freight hit the overhead part and damaged the truck, the overpass, and the freight which he was delivering. He also received a ticket for a driving offence. The damage to the freight cost Chohan more than $12,000 and it cost the company $2,625 to transport the damaged freight from the accident site and deliver a new load to the customer. The worker signed a letter acknowledging liability for the ticket, the damages to the freight, and any deductibles or damage repairs charged by the City of Kamloops. However, Chohan filed a court claim against the worker not just for the damaged freight and the cost to transport it and replacement freight, but also for an additional $10,000 in revenue that it lost as a result of the accident. The com - pany claimed that the customer cancelled other orders because "they believed that the accident showed that some of Chohan's drivers were careless and did not follow proper routes and protocols." ©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 79990 3547 RC-0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 YOU MAKE THE CALL Was the worker liable for the cost of lost revenue stemming from the accident for which he was responsible? OR Was the worker only liable for the cost of the freight damaged in the accident and the delivery of new freight? IF YOU SAID the worker was only liable for the cost of the freight and not any lost revenue, you're right. The court noted that there was precedent for employees being held liable for damages caused to an employer that are not classified as ordinary negligence, but in this case the worker's conduct could be considered ordinary negligence. The employment agree - ment contemplated liability for damage to the freight itself and reasonably foreseeable dam- ages such as the cost to remove and replace it, but nothing referring to lost revenue was fac- tored into either the agreement or the repay- ment letter that the worker signed after the ac- cident, the court said. The court found that loss of revenue was not reasonably foreseeable from the accident, par- ticularly since Chohan's customer was com- pensated for the lost freight and it wasn't ex- pected that a contract cancellation based upon on accident involving ordinary negligence would lead to a cancellation of all contracts. In addition, neither the employment agreement or the repayment letter contemplated liability for contract cancellations. "It is neither reasonable to expect an employ - ee to compensate an employer for losing busi- ness as a result of a single accident, nor is it rea- sonably foreseeable that such damages would flow from a single accident," said the court. The court dismissed the claim of $10,000 for lost revenue and limited the worker's respon- sibility of repaying Chohan to $14,770.12 for the damage to the freight and the cost of re- moving and replacing it. For more information, see: • Chohan Freight Forwarders Ltd v. Maqboolm 2021 BCPC 86 (B.C. Prov. Ct.). Employer wants repayment for lost revenue after accident CREDIT: SUPAKORN RATTANARACH iSTOCK

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