COURT OF APPEAL FOR ONTARIO

CITATION: Georgian Bluffs (Township) v. Moyer, 2012 ONCA 700

DATE: 20121017

DOCKET: C53734

Sharpe, Gillese and Watt JJ.A.

BETWEEN

The Corporation of the Township of Georgian Bluffs

Plaintiff (Respondent)

and

James Moyer

Defendant (Appellant)

M. Paul Downs and Paula Downs, for the appellant

R. H. Thomson, for the respondent

Heard: October 5, 2012

On appeal from the judgment of Justice R.M. Thompson of the Superior Court of Justice, dated April, 19, 2011.

BY THE COURT:

[1] The appellant owns a rural, 100-acre property located in the respondent Township. He inherited the property from his father, along with his father’s habit of storing a large volume of discarded vehicles, equipment, construction material and other items on the property. Some of this material was dispersed over a municipal road allowance adjacent to the appellant’s property.

[2] The respondent Township decided to take action to eliminate what it regarded as a nuisance and eyesore. Its representatives entered onto the road allowance and a portion of the appellant’s property and removed chattels, including vehicles and other objects from the road allowance as well as some chattels, namely discarded wooden pallets, from the appellant’s property. The Township added to the appellant’s property tax bill the cost of removal and clean-up of the road allowance and commenced this action claiming, inter alia, an order requiring the appellant to remove all the wrecked, discarded and abandoned vehicles and other objects and debris from his property. The appellant defended that claim and counterclaimed for damages for trespass and conversion, punitive damages, and an order removing from his tax bill the cost of the removal and clean-up related to the road allowance.

[3] The trial judge dismissed the Township’s claim for an order requiring the appellant to clean up his entire property. He found that the appellant had established that his use of the property qualified as a legal non-conforming use with respect to the bylaw provisions relied on by the Township. The trial judge also found that the Township was not entitled to add the road allowance clean-up costs to the appellant’s property tax bill. The trial judge found that the Township had trespassed upon the appellant’s property and removed chattels belonging to the appellant but he rejected the claim in conversion on the ground that the appellant had failed to establish that the chattels removed had any value. The trial judge also rejected the appellant’s claim for punitive damages.

[4] As a remedy for the trespass committed by the Township, the trial judge fashioned what he described as “an equitable resolution”. He ordered that the appellant be entitled to retrieve three vehicles that had been towed from the road allowance without any storage or towing charges and that he not be required to compensate the Township for the cost of its clean-up of the road allowance.

[5] In a subsequent endorsement dealing with costs, the trial judge concluded that the litigation never should have occurred and that each party should bear its own costs of the action.

ISSUES

[6] The appellant raises several grounds of appeal asking us to award damages for conversion, damages for trespass, and punitive damages, and to grant leave to appeal costs and award him costs of the action.

ANALYSIS

(1) Conversion

[7] The trial judge dismissed the claim for damages for conversion on the basis that the chattels that he found had been removed from the appellant’s property – namely, wooden pallets – were worthless.

[8] In our view, there is no basis for us to interfere with the trial judge’s finding as to the value of the pallets. There was evidence to support that finding. The appellant had collected the pallets from factories as they were no longer usable and could not be repaired. He had paid nothing for the pallets and he made no effort to resell them.

[9] While the appellant argues other items were removed from his property, there is no finding to support his contention that those items were removed from his property rather than the road allowance. Moreover, there was no credible evidence provided by the appellant as to the value of the chattels he says were removed from his property.

[10] We do not agree that the circumstances of this case fall within the principle identified in Lamb v. Kincaid (1907), 1907 38 (SCC), 38 S.C.R. 516, that a wrongdoer cannot escape or limit liability by destroying the evidence needed to ascertain the value of converted goods. The removal and destruction of the pallets by the Township did not preclude an assessment of their value as there was evidence from which the trial judge could fairly conclude that the converted property had no value.

[11] However, the Township did remove and destroy property belonging to the appellant and we agree with the submission that although the property had no market value, the appellant is entitled to an award of nominal damages for the Township’s wrongful act of conversion. Subject to what we say below with respect to costs, as a practical matter, we consider that nominal award to be subsumed in the set-off of damages against towing, storage and clean-up costs discussed under the next heading.

(2) Trespass

[12] The appellant argues that although the trial judge held that the Township trespassed upon his property and that he was entitled to damages on account of that trespass, the trial judge failed to award any damages.

[13] We disagree. The trial judge found that the trespass was “not minimal” but on the other hand, “not grossly intrusive” and that the physical damage associated with it was “negligible”.

[14] It is undisputed that the appellant was liable for the cost of removing objects and cleaning up the road allowance. In addition, the judgment allowed the appellant to retrieve vehicles the Township rightfully removed without towing or storage charges. In effect, the judgment set off the clean-up, towing and storage charges against the damages for trespass.

[15] In our view, it was open to the trial judge to fashion a remedy along those lines. Although the Township had not claimed the clean-up costs in the action, those costs were clearly in issue at the trial as they related to to the dispute about adding the costs to the appellant’s property tax bill. We recognize that there may have been an issue as to whether the Township’s action in adding the costs to the appellant’s tax bill protected the claim from being barred by the running of the limitation period. However, even if the appellant had a possible defence to the claim, there was on the record a legal obligation from which he was released. We are not persuaded that the trial judge erred in finding that the release of that claim, combined with the release from towing and storage charges for the three vehicles, was adequate compensation for the Township’s infringement of the appellant’s property rights.

(3) Punitive Damages

[16] The findings of the trial judge do not justify an award for punitive damages. He expressly refused to find that the Township’s conduct was malicious, high-handed, arbitrary, oppressive, deliberate or callous. On the contrary, he found that the trespass occurred through incompetence and a failure to understand the limits of the Township’s authority. The trial judge concluded that although the trespass was not minimal neither was it grossly intrusive and the resulting physical damage was negligible.

[17] These findings were open to the trial judge and we see no basis to interfere with his conclusion that the conduct of the Township did not rise to level warranting the sanction of punitive damages.

(4) Costs

[18] In his costs endorsement, the trial judge found:

This action should never have occurred. It was caused by an incompetent employee of the Township who simply did not know what his job was or the limitations to his legal powers, coupled with the stubbornness of a citizen who did not like government authority.

[19] We see no reason to disagree with that assessment. However, we disagree with its implications with respect to costs.

[20] The action that “should have never occurred” was an action brought by the Township. The appellant successfully defended himself against the most significant element of the claim advanced by the Township – namely, an order that he remove all objectionable items from his 100-acre property. The appellant also succeeded in having the clean-up costs struck from his property tax bill, in establishing that the Township had trespassed upon his property, and, as we have found, in establishing that the Township had converted chattels he owned. In other words, the appellant was successful on every substantive issue raised in the litigation and it was only his counter-claim for damages that met with limited success.

[21] In the light of the overall success achieved by the appellant with respect to the illegality of the Township’s actions, the trial judge erred in principle by denying him costs. In Northwood Mortgage Ltd. v. Gensol Solutions Inc. (2005), 2005 793 (ON CA), 3 B.L.R. (4th) 322 (Ont. C.A.), at para. 6, this court stated that “an order depriving a successful party of costs is exceptional”. This case does not present a compelling reason to depart from the usual rule.

[22] The appellant submitted a bill of costs for the claim and counterclaim in the amount of $93,862.13 on a substantial indemnity basis and $72,413.63 on a partial indemnity basis and disbursements of $2312.77. Those amounts must be reduced to take into account the fact that substantial portions of the counterclaim were unsuccessful.

[23] We do not agree that this is a case for substantial indemnity costs. While offers to settle were submitted by the appellant, it is not possible to say that the result he achieved was superior to the terms of those offers. Nor do we consider the conduct of the Township to be such as to call for a substantial indemnity award for reasons similar to those outlined above with respect to punitive damages.

[24] In our view, taking all the circumstances to account, an award of $50,000 and $2312.77 for disbursements, inclusive of taxes, is appropriate.

DISPOSITION

[25] Leave to appeal costs is granted and the appellant is awarded his costs of the trial in the amount of $52,312.77, inclusive of taxes and disbursements. The appeal is otherwise dismissed. The appellant is also entitled to costs of the appeal fixed in the amount of $15,000 plus $4047.73 for disbursements, both figures inclusive of taxes.

“Robert J. Sharpe”

“E.E. Gillese J.A.”

“David Watt J.A.”

Released: October 17, 2012