CITATION: Arnew v. 538274 Ontario Limited, 2008 ONCA 888
DATE: 20081223
DOCKET: C47109
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Doherty and Rosenberg JJ.A.
BETWEEN:
James Lee Arnew and 1037753 Ontario Inc.
Plaintiffs (Respondents)
and
538274 Ontario Limited, Hassan Bahceli and Emine Bahceli
Defendants (Appellant)
Myron W. Shulgan, Q.C., for the appellant 538247 Ontario Limited
Raymond G. Colautti, for the respondents
Heard and released orally: December 19, 2008
On appeal from a judgment of Justice Richard Gates of the Superior Court of Justice dated April 16, 2007.
ENDORSEMENT
[1] Counsel for the appellant no longer challenges the trial judge’s finding that the appellant committed trespass against the land and property in issue. Counsel submits, however, that on the evidence, the trial judge should have awarded only nominal damages for these trespasses. Counsel also argues that the trial judge erred in awarding the individual plaintiff aggravated damages.
[2] The trial judge fixed the damages for trespass to chattels at $35,000. The trespass in this case amounted to a conversion of the plaintiff’s chattels used by him to run his pizza operation by the appellant. The chattels were in fact turned over to a competitor of the plaintiff.
[3] There was evidence of the replacement cost of these chattels. That evidence in fact came from the appellant. While we accept that the evidence was perhaps not as a exact or detailed as it might have been, we are satisfied there was enough there to support the trial judge’s award of $35,000 for the trespass to chattel.
[4] The trial judge awarded $5,000 for trespass to land. We accept that this amount is somewhat greater than what could properly be regarded as a nominal award. There were, however, factors accompanying this particular trespass from which the trial judge could infer some actual damage to the corporate plaintiff. These factors included:
• the trespass was a “pre-emptive” strike aimed at putting the plaintiff out of business; and
• the appellant’s actions were deliberate and designed to replace the plaintiff’s business operation with that of a competitor. The appellant’s actions were also designed to prevent the plaintiff from immediately reopening its business elsewhere and going into competition with the competitor that the appellant was seeking to assist.
[5] In these circumstances, we are not prepared to interfere with the relatively modest damage award for trespass to property. We think these factors did support the inference of some actual damage.
[6] As to the award of aggravated damages, we note that the trial judge’s findings of fact with respect to both the trespass to land and property support the conclusion that the trespass was committed against the corporate plaintiff and not the individual plaintiff who was the president of the corporate plaintiff. The trial judge’s finding is consistent with the way in which the trespasses were pleaded by the plaintiff.
[7] The trial judge’s award of aggravated damages was made in favour of the individual plaintiff. Given that the trespasses were against the corporate plaintiff and that only the corporate plaintiff was entitled to damages for those trespasses, it follows that there is no basis for an award of aggravated damages to the individual plaintiff. That part of the trial award must be deleted.
[8] Consequently, the appeal is allowed and the damages are reduced by $10,000 to $40,000.
[9] There will be no order as to costs.
“D. O’Connor A.C.J.O.”
“Doherty J.A.”
“M. Rosenberg J.A.”