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Torts - Detinue. Kew Estate v. Konarski
In Kew Estate v. Konarski (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here where the defendant was "found liable for the torts of conversion and detinue and was ordered to return the vehicles to the estate".
Here the court considers the measure of damages for a property tort, and the date of calculation of such damages:[5] Mr. Konarski was found liable for the torts of conversion and detinue and was ordered to return the vehicles to the estate. ....
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[14] The trial judge worked from the legal principle that damages for tortious interference with property are to be assessed by the diminution in value resulting from the defendant’s tort: Darbishire v. Warran, [1963] 1 W.L.R. 1067, at p. 1077; Lengert et al. v. Gladstone (1970), 1970 CanLII 837 (BC CA), 11 D.L.R. (3d) 726 (B.C. C.A.), at pp. 727-8. Diminution in value, in turn, is to be assessed by the reasonable cost of the restoration work required to bring the damaged property back to its pre-damaged condition: O’Grady v. Wesminster Scaffolding Ltd., [1962] 2 Lloyd’s Rep 238 (Q.B.). The trial judge noted that where the cost of restoration exceeds the cost of replacement, courts will sometimes limit damages payable to the cost of replacement, but are not invariably required to do so. There are circumstances where courts can award repair costs even when they exceed the cost of replacement. That analysis is guided by factors such as:1) the uniqueness of the property;
2) the availability of a replacement;
3) the size of the difference between the cost of repair and the cost of replacement;
4) the plaintiff’s interest in having the property repaired; and
5) the benefits of repair to the plaintiff weighed against the burden imposed on the defendant of having to pay the higher quantum.
(Elizabeth Adjin-Tettey, “Measurement of Damages for Interference with Property Interests in Torts and Contracts” (2003) 26 Advoc. Q. 391, at p. 395) ....
(2) Failure to follow binding authority that damages to be assessed on a cost of replacement basis
[28] The appellant argued that the trial judge failed to follow this court’s decision in 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980, 138 O.R. (3d) 562, at para. 61, which specified that in a claim for conversion, the value of a chattel that has been converted is to be assessed as of the date of conversion: “a tortfeasor will be forced to purchase the converted asset from the plaintiff. The general measure of damages is the market value of the converted asset as of the date of conversion.”
[29] Performance Plus Golf Academy, and the cases it cites, do not speak to the situation that confronted the trial judge, does not preclude an award of damages in addition to the return of goods, and does not establish a categorical rule limiting damages to the market value at date of conversion. Unsurprisingly, Performance Plus Golf Academy was not put to the trial judge. The framing of the claim by the respondent was for a return of all goods and, in addition, for damages to compensate for any damage done to the vehicles while in the appellant’s possession. ....
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[32] The trial judge, in my view, appropriately identified the factors needed to guide the assessment of damages, and particularly whether to order restoration rather than replacement, in the context of wrongly detained property that has been returned in a damaged state. These considerations are:1. the uniqueness of the property;
2. the availability of a replacement;
3. the size of the difference between the cost of repair and the cost of replacement;
4. the plaintiff’s interest in having the property repaired; and
5. the benefits of repair to the plaintiff weighed against the burden imposed on the defendant of having to pay the higher quantum.
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