Court of Appeal for Ontario

Date: 2018-04-20 Docket: C63970

Judges: Benotto, Brown and Miller JJ.A.

Between

665750 Ontario Inc. carrying on business as Camrob Enterprises Applicant (Respondent on Appeal)

and

Atlantic Towing Inc. carrying on business as Chris's Towing, Chris's Towing Inc. and Earl Lewis carrying on business as The Recovery Board Respondents (Appellant on Appeal)

Counsel

Sean N. Zeitz, for the appellant Earl Lewis

Todd Robinson and Robyn Blumberg, for the respondent

Heard and released orally: April 20, 2018

On appeal from: the judgment of Justice Jasmin Akbarali of the Superior Court of Justice, dated May 18, 2017.

Reasons for Decision

[1] Earl Lewis, carrying on business as The Recovery Board appeals the application judge's finding that he is jointly and severally liable for the conversion of three vehicles.

[2] Three vehicles owned or leased by Camrob were left at J.M. Auto Electric which wanted them removed. J.M. asked Chris Diamanti, the principal of Chris's Towing, to remove the vehicles. Diamanti towed the vehicles to a storage area and retained the appellant Earl Lewis to ascertain the ownership of the vehicles, register the liens and issue notices of intention to sell against Camrob. He did so.

[3] Camrob brought an application alleging conversion and unjust enrichment and seeking a declaration that the liens were invalid. Diamanti had sold one vehicle, disposed of another for scrap and retained possession of the third, though he alleged it was in poor condition and could not be sold.

[4] The application judge held that the appellant was jointly and severally liable in damages for conversion in the amount of $120,440.82 which included an increase to the original damage calculation for the HST she concluded would be payable on the deemed sale of the vehicles arising from the conversion.

[5] The appellant submits that as agent he is not liable. Although it is conceded, as the application judge found, that "when an agent commits torts, an injured party is entitled to sue the agent, the principal or both", he alleges that the judge erred by finding Diamanti liable for conversion and then automatically imputing that liability to him. Simply put, he alleges there was no intention on his part to exercise dominion over the vehicles.

[6] Further, the appellant argues that the application judge erred by increasing the damages to include the HST.

[7] We do not accept the appellant's submissions with respect to conversion. The application judge found that the appellant was "deeply involved" in the "events that transpired". Those events amount to wrongful interference with the goods of another. It was open to the application judge to make this finding on the basis of the appellant's own evidence.

[8] We agree with the appellant that the application judge erred in her application of the "deemed sale" methodology used to calculate damages for conversion. Ownership of the vehicle had changed before the actual sales of the vehicles. The respondent was not party to the actual sales and had suffered no damages in connection with HST. We agree with the appellant that the application judge erred in awarding damages for HST when none had been incurred.

[9] We therefore allow the appeal in part and reduce the damages to $105,165.82 to reflect a reduction of the HST erroneously added.

[10] As agreed by counsel, costs of the appeal payable to the respondent at $9,000 all inclusive.

"M.L. Benotto J.A."

"David Brown J.A."

"B.W. Miller J.A."