Court of Appeal for Ontario

Citation: Canada Forgings Inc. v. Riverside Excavating (Niagara) Ltd., 2015 ONCA 433

Date: 2015-06-15

Docket: C58547

Before: MacPherson, Epstein and Roberts JJ.A.

Between:

Canada Forgings Inc.

Plaintiff (Respondent)

and

Riverside Excavating (Niagara) Ltd., International Marine Salvage Inc. and Remo Benedetti Jr.

Defendants (Appellant)

Counsel:

Michael Bordin, for the appellant

Alan J. Butcher, for the respondent

Heard: June 11, 2015

On appeal from the judgment of Justice Dale Parayeski of the Superior Court of Justice, dated February 26, 2014.

Endorsement

[1] The appellant International Marine Salvage Inc. (“IMS”) appeals from the judgment of Parayeski J. of the Superior Court of Justice dated February 26, 2014, granting judgment to the respondent Canada Forgings Inc. (“CF”) in the amount of $270,735 for committing the tort of conversion of several very large metal die blocks.

[2] The appellant does not appeal the trial judge’s conclusion that it committed the tort of conversion. It does appeal, on three grounds, the trial judge’s damages assessment.

[3] First, the appellant contends that the trial judge erred in awarding replacement costs for the 26 missing die blocks. It says that the trial judge did not distinguish between missing die blocks that were actually replaced by CF (four in number) and die blocks which have never been replaced and never would be (the 26 for which the trial judge awarded damages). If the trial judge had made this distinction, the proper measure of damages would have been the value of the die blocks as scrap metal.

[4] We do not accept this submission. The die blocks were an unusual, bordering on unique, product. The trial judge described them in this fashion:

The die blocks in this case are heavy, sometimes weighing thousands of pounds. Once used, the pairs of blocks are stored outside. If they have not been irreparably damaged in the forging process, they may be reused if the same part is reordered by a customer. They may also be reused by flooding the cut impressions so that clean faces are restored, and into which new cuts can be made which correspond to new parts.

The evidence is that the plaintiff stores die blocks, sometimes not actually using them for decades, because doing so makes business sense.

The evidence is that the die blocks have utility as described. They were in useable condition. Although they were stored outdoors, the evidence was that this does not cause them to materially deteriorate. They were oiled to protect them to some extent, and were labelled with recorded numbers.

[5] In short, CF’s storage yard was not a dumping ground for obsolete, useless die blocks. It was not the equivalent of an automobile or old tire graveyard site. The die blocks were stored, not buried, on CF’s yard. They were cared for, inventoried, arranged in rows, and numbered. It is true that they might not be used for many years. And it might turn out that some of them would never be used. But all of them were useable and there was evidence that some of them were in fact used. It follows that the trial judge did not err by awarding damages on the basis of replacement cost.

[6] Second, the appellant submits that the trial judge misapprehended the evidence and committed a palpable and overriding error in finding that IMS purchased approximately 90% of the missing die blocks.

[7] We disagree. The trial judge reviewed the evidence and reached these conclusions:

I am satisfied on the plaintiff’s evidence that it is more likely than not that Remo Benedetti Jr. was the only thief involved.

I am satisfied that it is more likely than not that IMS was the only recipient of the stolen dies.

[8] In our view, the evidence supports his conclusions. In any event, the important legal point is that they are far removed from being palpable and overriding errors.

[9] Third, the appellant asserts that the trial judge erred in compensating CF $7500 for lost time and productivity as a result of IMS’s conversion of CF’s die blocks.

[10] We are not persuaded by this submission.

[11] In its Notice of Appeal, the appellant stated that the trial judge made six factual and legal errors. An error relating to the validity and quantum of reimbursement for CF’s employees’ costs connected to the conversion of the die blocks is not one of those errors. In any event, we see, as did the trial judge, a direct connection between these employee costs and IMS’s receipt of the stolen die blocks which is the basis for the now uncontested finding that IMS committed the tort of conversion. As the trial judge accepted, CF’s employees “engaged in activities to investigate and substantiate this loss rather than doing their usual duties.”

[12] We make a final observation. On all three issues, the trial judge made a very careful analysis, often against the backdrop of a sparse and difficult evidentiary landscape. On each issue, the trial judge found in favour of CF and awarded damages – but in each instance significantly below the amount sought by CF. In other words, his damages award strikes us as carefully considered and fair.

[13] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed at $15,000, inclusive of disbursements and applicable taxes.

“J.C. MacPherson J.A.”

“Gloria Epstein J.A.”

“L.B. Roberts J.A.”