COURT FILE NO.: 436/01

DATE: 20040513

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, MACFARLAND AND MATLOW JJ.

B E T W E E N:

COLDMATIC REFRIGERATION OF CANADA LTD.

Plaintiff/Appellant

• and -

MANUEL DOS SANTOS

Defendant/Respondent

Patrick Summers, for the Plaintiff/Appellant

Manuel Dos Santos, In Person

HEARD: May 13, 2004

MACFARLAND J.: (Orally)

1The factual findings of the trial judge are not challenged in this Court, there is no cross-appeal by Mr. Dos Santos, who has filed no materials.

2In view of those findings, the plaintiff was entitled to the return of the vehicle or its value as at the time the defendant converted it to his own use.

3The trial judge did not deal in any way with the plaintiff’s request for the return of the vehicle. On the evidence, there was no difficulty in the defendant transferring ownership of the said vehicle back to the plaintiff. The truck was, at the time of trial, registered in the name of a corporate entity which Mr. Dos Santos controlled.

4Further, the evidence of value from the plaintiff’s representative was that the vehicle had a value of some $6,500.00 in 1999, and the defendant in his evidence did not disagree with that figure.

5The plaintiff initially preferred the return of the truck. On these facts as found, we see no basis on which to deprive the plaintiff of its preferred remedy. However, during the course of the argument, when asked, Mr. Dos Santos informed the Court he sold the truck in 2003 for salvage and received $600.00.

6In our view, the trial judge ought to have found the value of the truck as at November, 1999 to be $6,500.00 as attested to by Mr. Zafir, in the circumstances here, where Mr. Dos Santos agrees with that figure or to use his own language “does not disagree with that number”. The appeal is allowed. Paragraph 1 of the judgment is varied by requiring the defendant to pay to the plaintiff the sum of $6,500.00 plus pre-judgment interest at 5% per annum from November 12, 1999 to June 11, 2001.

O’DRISCOLL J.

7We have heard submissions as to costs. Counsel for the plaintiff/appellant has given to us a draft Bill of Costs of the appellant on the basis of partial indemnity. The total is $5,389.76. Of that amount $2,448.33 represents disbursements, so the fees being sought in the appeal are something less than $3,000.00. I have endorsed the back of the Appeal Book and Compendium on behalf of my colleagues and myself as follows: “This appeal is allowed in part for the oral reasons of even date given for the Court by MacFarland J. In the result, paragraph (1) of the formal judgment of Cameron J., dated June 11, 2001 is set aside and replaced with the following:

(1) This Court orders and adjudges that the defendant pay to the plaintiff the sum of $6,500.00, plus pre-judgment interest at the rate of 5% per annum from November 12, 1999 until June 11, 2001. Costs in the fixed amount of $5,389.76, all inclusive are payable forthwith by the respondent to the plaintiff.”

8At the request of counsel for the appellant I have continued the endorsement and it reads: “There will be an order dispensing with the need for the approval of the respondent/defendant of the formal order of this Court.”

O’DRISCOLL J.

MACFARLAND J.

MATLOW J.

Date of Reasons for Judgment: May 13, 2004

Date of Release: May 25, 2004

COURT FILE NO.: 436/01

DATE: 20040513

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT