Executive Summary: Key Legal and Evidentiary Issues

• Allocation of the civil burden of proof under articles 2803 and 2804 C.c.Q. and the consequences when neither side meets that burden.
• Credibility and sufficiency of evidence regarding alleged non-delivery and loss of goods versus the carrier’s account of full return of the load.
• Absence of independent or expert evidence on alleged forgery of the bill of lading and the legal impact of failing to substantiate fraud allegations.
• Lack of documentary and expert proof to establish both the existence and the precise value of the allegedly missing merchandise.
• Evidentiary weight of the carrier’s bill of lading and photographs compared with the shipper’s internal listing prepared by its representative.
• Failure by the carrier to prove any contractual or legal basis for charging return-freight fees after unilaterally refusing to complete the delivery.

Background and parties

No3rd Inc. is a wholesaler that sells and distributes various products, including by supplying large retail clients with bulk quantities of goods. In the ordinary course of its business, No3rd contracts with transport companies to move merchandise to its customers. 9392-1179 Québec inc., operating under the name T-BOARD, runs a transportation business moving different types of goods and is linked to another carrier, Transport Transram Express inc. The dispute arose from a single shipment intended for an important client in Ontario, arranged through a transportation broker, which led to competing claims before the Small Claims Division of the Court of Québec.

The shipment and the alleged missing goods

No3rd hired T-BOARD to pick up a load of merchandise for delivery to an Amazon-related destination on 5 December 2023. T-BOARD took possession of the goods but, upon learning the identity of the client and recalling that No3rd had a track record of unpaid debts toward Transram, the related transport company, T-BOARD decided not to complete the delivery in Ontario. Instead, it instructed its driver to return the load to No3rd’s premises. No3rd later claimed that a substantial portion of the goods never came back and that the missing inventory was worth at least CAD 15,000. In its judicial application, No3rd alleged that T-BOARD refused to deliver the load, kept the goods as leverage until receiving “blackmail” money, and only then returned part of the merchandise. It further accused the vendor or carrier of forging signatures, fabricating a proof of delivery (POD), and effectively stealing half of the load. These serious accusations formed the basis of a damages claim for CAD 15,000 and a request for the return of the allegedly retained products.

The defence and the counterclaim

T-BOARD denied any wrongdoing and asserted that all of the goods it had picked up were returned to No3rd. It relied on a bill of lading documenting the return of the shipment on 6 December 2023, which it said had been signed or initialled by No3rd’s representatives upon redelivery. The carrier explained that its decision to abort the delivery was motivated by serious concerns over No3rd’s payment history in the transport industry, particularly its outstanding indebtedness to Transram. Out of fear of again going unpaid, it opted to bring the merchandise back rather than risk completing the Ontario delivery. In a counterclaim, T-BOARD sought CAD 1,450 as compensation for the cost of picking up the load and then returning it to No3rd, treating these amounts as recoverable transport charges. However, it did not point to any specific contractual clause or agreement by which No3rd had accepted responsibility for such return costs in the event T-BOARD chose not to deliver.

Evidence presented on delivery, return and alleged forgery

The court’s analysis focused heavily on the rules of evidence and the allocation of the burden of proof under article 2803 C.c.Q., which requires each party to prove the facts supporting its own position. For No3rd, that meant establishing, on a balance of probabilities, that T-BOARD failed to return all of the goods and that a defined quantity of merchandise was in fact missing. The judge found that No3rd’s evidentiary record suffered from several critical weaknesses. No employee of No3rd testified as to the precise circumstances of the carrier’s pickup or, more importantly, as to what happened when the load was physically returned to No3rd’s warehouse. This omission was notable because T-BOARD had clearly signalled at a prior case-management conference that it would be calling its driver as a witness. On the key issue of alleged document forgery, No3rd produced no handwriting or document expert and no independent evidence to substantiate the claim that signatures on the carrier’s bill of lading were falsified. The court observed that, in civil law practice, allegations of fabricated documents or forged signatures are ordinarily proved through handwriting expertise or similarly independent technical evidence, not merely by assertion. No3rd also failed to call expert or independent testimony to clarify industry practices on loading pallets, the number of boxes per pallet, and how loads are typically configured in a semi-trailer—issues that were central to deciphering the notations and quantities on the bill of lading. As for valuation, the company relied only on an internally prepared list of supposedly missing goods, drawn up by its own representative and assigning wholesale prices to each item. It did not produce its own purchase invoices, supplier contracts, or other corroborating documents that could substantiate actual acquisition cost or realistic wholesale value. The court rejected the notion that a litigant could offload its evidentiary burden by asking the judge to conduct internet research (such as checking prices on Google) to fill in the gaps in proof.

The carrier’s documentary and testimonial evidence

In contrast, T-BOARD called its driver, who gave a detailed account of why he returned the goods and how the redelivery unfolded at No3rd’s premises. The driver testified that all the merchandise he had originally picked up for the Ontario delivery was brought back to No3rd. He explained that two No3rd employees unloaded the truck and that he obtained a signature on the bill of lading to confirm the return. He also took multiple photographs of the truck’s cargo bay both before and after the unloading at No3rd’s warehouse. Those images, together with the bill of lading and his oral testimony, presented a coherent and internally consistent version of events from the carrier’s side. Given the numerous gaps in No3rd’s proof and the lack of any expert or independent evidence to undermine the bill of lading or the driver’s account, the judge found no valid legal reason to discard T-BOARD’s version of what occurred. The court stressed that a claimant cannot prove its case merely through a series of uncorroborated assertions from a single representative when serious allegations such as forgery and theft are made.

Application of the burden of proof and assessment of both claims

Relying on the general rules of civil proof, the court underlined that the party bearing the burden of persuasion loses if the evidence is insufficient, inconclusive, or evenly balanced. For the principal claim, No3rd carried the burden of showing that goods were missing, that T-BOARD was responsible for the loss, and that the loss had a substantiated monetary value. On all of these points, its case fell short: the alleged non-return of part of the load was not established by persuasive evidence, the alleged falsification of the bill of lading was unsupported by expert analysis, and the valuation of the supposed shortage rested solely on an uncorroborated internal spreadsheet. By contrast, the carrier’s evidence, while not perfect, was consistent and better supported, particularly through the driver’s testimony, the signed bill of lading, and photographic exhibits. As a result, the court held that the preponderance of the evidence favoured the carrier’s position that all of the goods had been returned. The principal action by No3rd was therefore dismissed. Turning to the counterclaim, the judge held that T-BOARD had not demonstrated any contractual basis or agreed term that would entitle it to charge return-freight or “back haul” fees after it unilaterally decided not to complete the delivery. The carrier’s refusal to deliver was a business decision rooted in its lack of confidence in the shipper, but there was no evidence that No3rd had agreed to bear the costs of that decision. Without a contractual or statutory foundation for charging the CAD 1,450 in return costs, the counterclaim likewise had to be rejected.

Outcome and absence of monetary award

In the end, the Court of Québec rejected both No3rd Inc.’s principal claim for CAD 15,000 in alleged cargo loss and 9392-1179 Québec inc. (T-BOARD)’s counterclaim for CAD 1,450 in return-transport fees. Neither party was found to have proved its claim on the balance of probabilities, and the court ordered that there be no costs of justice as between them. As a result, there is effectively no successful party in this litigation and no monetary damages, costs, or other amounts were awarded in favour of either side; the total financial recovery ordered by the court is 0, with any costs or fees not capable of being quantified as a positive award to one party.