ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 49741/07
DATE: 2014/02/19

BETWEEN:

DAVE IRONSIDE
Plaintiff

– and –

KAREN DELAZZARI AS EXECUTOR OF THE ESTATE OF ANTHONY DELAZZARI
Defendant

Alan J. Butcher, for the Plaintiff

Luigi De Lisio, for the Defendant

HEARD: Nov. 12, 13, 14 & 15, 2013

the honourable mr. justice d.j. taliano

ISSUES

[1] The plaintiff and the defendant, Anthony Delazzari (“Delazzari”), were partners in a business venture. This partnership was abruptly terminated when Delazzari unlawfully broke into the plaintiff’s premises, removed articles which he had no right to remove from the plaintiff’s possession, and stole other articles in which he had no proprietary interest. In the aftermath of the break-in, Delazzari defamed the plaintiff on the Internet. Delazzari has since passed away. This action, which is against Delazzari’s estate, is for damages sustained by the plaintiff as a result of Delazzari’s misconduct.

BACKGROUND

[2] The plaintiff and Delazzari were both involved in the automotive industry.

[3] In 1999, the plaintiff commenced working with fiber-reinforced plastics, and he soon realized he had both passion and skill for manufacturing fiberglass auto bodies and parts.

[4] While developing this business, the plaintiff took a personal interest in rebuilding a Studebaker Silver Hawk. When he first acquired this vehicle, it was a wreck, its only value being in the scrap metal. Yet, after many months and countless hours of painstaking work, he transformed this mass of metal into a beautifully finished operating automobile. The various stages of his work are depicted in photographs commencing at Tab 128 of Exhibit 1(d), and ending at Tab 134, pages 1-3. These photos say much more about the plaintiff’s skills than words can describe.

[5] The quality of his work and reputation attracted the attention of Delazzari, who was also a skilled auto craftsman in his own right. Delazzari had possession of an original 1964 Daytona Coupe, and he needed parts, which had to be manufactured, to finish rebuilding the vehicle. He engaged the plaintiff to manufacture the missing parts. As their business relationship grew, the plaintiff and Delazzari agreed on a joint business venture to manufacture and sell a replica 1964 Daytona Coupe from fiberglass. Delazzari owned the original vehicle which they agreed he would supply to the plaintiff who would build a complete 1964 Daytona Coupe replica mould set to be used by both the plaintiff and Delazzari to produce and market Daytona Coupe auto bodies for sale on the Internet.

[6] By verbal agreement, the profits were to be shared equally after the plaintiff’s costs were reimbursed to him. The plaintiff commenced manufacturing the mould and it took him between six and eight months to complete the project. Once the mould was built, it could be used to produce 200 replica auto bodies.

[7] Three auto bodies were produced and turned over to Delazzari for sale. However, the plaintiff was disappointed with the compensation he received for his work. Before doing any more work, the plaintiff decided that he needed to discuss the situation with Delazzari and reach an agreement with respect to future production.

[8] The agreement they reached, which was signed and witnessed by the parties and may be found at Tab 3, Exhibit 1A, was intended to govern the production of future Daytona Coupe auto bodies.

[9] The contract provided that the plaintiff and Delazzari were equal owners of a replica of a 1964 Daytona Coupe fiberglass auto body. The proceeds of sale of future auto bodies, which were to be produced by the plaintiff, were to be divided equally between the parties after payment of the plaintiff’s costs of manufacture. These costs were established by the contract to be $2,800, subject to price fluctuation in the cost of materials.

[10] The contract also provided that the plaintiff was entitled to 100% manufacturing and possessory rights over the mould. It also stipulated that the plaintiff was to have full responsibility to maintain the mould set, and the cost of maintenance was to be absorbed equally by the parties. The contract further provided that the plaintiff would be responsible for any post repair work or body preparation work incurred after the sale of the product to the customer.

[11] After signing the contract on December 23, 2005, there was no contact between the parties until Friday, January 13, 2006 when a shocking development occurred. At that time, Delazzari contacted the plaintiff's assistant, Kyle Armsworthy, and requested that for a fee, he leave the door to the premises unlocked and the alarm system off to permit the removal of the Daytona Coupe mould on Monday, January 16, 2006.

[12] Armsworthy informed the plaintiff of the telephone call and the plaintiff reported the matter to the police. The police indicated that they could do nothing since no crime had been committed. Accordingly, the plaintiff installed a video camera and planned to camp-out in his shop and wait for what was to happen on the 16th.

[13] However, on the morning of the 16th, officers of the Niagara Police Service instructed the plaintiff to close the business for the day, lock the premises and go home to “get out of harm’s way”.

[14] At 5:13 p.m. that same day, the plaintiff was advised by security personnel that the alarm at his shop had been activated. The plaintiff went immediately to his shop where he found that the police had already stopped a cube van loaded with moulds and other articles that had been stolen from his shop. Police officers were in the process of arresting the five men who were involved, one of whom was Delazzari. The plaintiff observed how the replica body parts that had been removed from his shop had been stacked on top of one another in the cube van and he realized immediately that the moulds would be damaged by the manner in which they were placed in the van.

[15] A video of the actual break-in and theft was recorded by the plaintiff and the video recording was filed as Exhibit 4. The video shows Delazzari and four other men removing the moulds from the plaintiff’s shop in a rough and hurried fashion. Delazzari was shown on the video to be directing the four other men. Thumping is heard on the video indicating that the moulds were either thrown into the van or placed there very roughly. In addition, they were piled in a space that was not large enough to properly house them without damage.

[16] The evidence of the plaintiff and his assistant, Jason Smith, was that these moulds were in perfect condition prior to the break-in. I accept and believe their evidence.

[17] The plaintiff explained that the moulds have to be handled with extreme care because they are easily damaged. Serious damage to the moulds prevents their further use. That is the reason the plaintiff retained possessory control over the moulds in the contract – to ensure that they would be properly cared for in order to preserve their integrity for future manufacture.

[18] The damage to the moulds was video recorded by the plaintiff, and the CD was marked as Exhibit 5. The plaintiff adduced incontrovertible evidence that the moulds were damaged beyond repair, and could not be used to manufacture future Daytona Coupe auto bodies. I find that to be a fact.

[19] Mr. Delazzari was charged with theft and eventually pled guilty to the offence on May 11, 2009, the day the matter was scheduled for trial. However, he claimed at his sentencing hearing, that it was a civil matter and his conduct fell within “a grey area”.

[20] The truth is that it was not a civil matter because Delazzari had no right to possession of the moulds, nor did he have any right to break into the plaintiff's premises to remove them or the other articles he stole from the plaintiff which he subsequently sold without any reimbursement to the plaintiff. The crown accepted Delazzari’s plea of guilty to theft under $5,000, even though the value of the stolen property was stated to be $25,000. When the presiding judge queried the acceptance of the plea to “theft under” by the crown, she was told that although there had been some damage to the moulds, they were recovered and any damage would be resolved by a civil court where Delazzari had filed a counterclaim based on “differences” that had arisen in their partnership.

[21] Because of these submissions, Delazzari was given what the plaintiff described as a “completely unacceptable” punishment – that being a conditional discharge and probation following a joint submission (see Tab 7, Exhibit 1A).

[22] Although a counterclaim was filed in this proceeding, no evidence was adduced to support the counterclaim nor was any evidence introduced of “differences” that had arisen in the relationship between the plaintiff and Delazzari. In addition, the plaintiff testified that no “differences” in the partnership were ever disclosed by Delazzari to the plaintiff. A contract had been signed by the parties and within days, Delazzari grossly violated its terms without any notice whatsoever to the plaintiff. His breach of the contract also constituted both a tort against the plaintiff, and a criminal act for which he was not adequately punished by virtue of inaccurate submissions made to the criminal court.

[23] Following the break-in, although the plaintiff had two auto bodies in his possession, he was unable to complete them without the original parts which were in Delazzari’s possession.

[24] However, Delazzari was not finished with the plaintiff and the worst was yet to come. The defendant instructed an employee, who had expert computer skills, to post defamatory statements about the plaintiff on a webpage controlled by the defendant. The plaintiff testified that when his own business webpages were searched by a potential client, the client would automatically be redirected to a webpage controlled by the defendant, where the defamatory postings against the plaintiff were posted. In the postings, the plaintiff was described as an “Internet/eBay Scammer”. The plaintiff alleges that online sales of his products virtually disappeared as a result of the defamatory material. According to the plaintiff, he was unable to conduct his business, operate a Facebook account or utilize other social media without linking his name and business with the defamatory comments. The plaintiff was virtually put out of business by Delazzari’s defamatory behaviour. I will return to this subject momentarily.

[25] In addition, Delazzari sold Mustang Cowls that he had stolen from the plaintiff’s premises without the plaintiff's permission, and used hypertext links to pictures of the product located on the plaintiff's website without the plaintiff's knowledge or consent. Although the plaintiff was not able to specify the exact number of Cowls that were stolen, he testified that there were a minimum of 12 and probably many more. He has confined his claim to 12.

[26] The plaintiff advanced yet another claim that also has credibility. Sometime in 2005, while the business relationship between the plaintiff and Delazzari was ongoing, the defendant offered to store on his property, free of charge, certain vehicles owned by the plaintiff or his spouse. After the relationship between the parties terminated, neither party made any formal demand for the return or removal of the vehicles, and they remained on Delazzari’s property and in his possession until their return was demanded on October 1, 2012. The plaintiff’s inaction is explained in part by the fact that a non-communication order was imposed on Delazzari as a term of his judicial interim release and as a term of his probation once the criminal proceeding was completed.

[27] The vehicles are described as a 1990 Buick Regal Grand Sport, a 1957 Studebaker Silver Hawk, a 1983 Datsun, and a Ford Mustang. The latter two vehicles only had scrap value, but the Studebaker and the Buick were drivable at the time they were stored, and had significant value. They have never been returned to the plaintiff and when the plaintiff drove by the area where they had been stored by Delazzari, they were not there. Although the defendant has the obligation to explain what happened to the vehicles, no explanation had ever been made by Delazzari before he passed and no explanation has been offered by the representatives of his estate since his passing.

[28] The onus is on the defendant to show that the loss of the property has not been caused by any negligence or improper conduct on his part. Since no evidence or any explanation has been tendered as to what happened to these articles, the defendant is liable to the plaintiff for their value (see McCreary v. Therrien Construction Co. Limited and Therrien, 1951 127 (ON CA), 1951 O.R. 735 (Ont. C.A.)).

[29] As a result of Delazzari’s civil and criminal misconduct, the plaintiff has suffered damages, distress and humiliation. The defamation and the other electronic misconduct continued until the close of the defendant's business in 2012 or 2013, when Delazzari passed away and his website was finally taken down.

THE PLAINTIFF’S DAMAGES

a) Loss of the Mould Set

[30] The plaintiff places a value of approximately $60,000 on the mould set. He testified that it took between 520 and 600 hours of the plaintiff’s time to manufacture. He testified that he worked from June 2005 to September 2005 on the project, an average working day being eight to 10 hours plus many weekends. Some days he worked until midnight because of the fragile nature of fiberglass, and the danger of leaving it unattended at various stages.

[31] With respect to his labour rate, the plaintiff testified that rates vary in the industry depending on the complexity of the project. The range at the relevant time was between $35 and $90 per hour. This Daytona Coupe mould was of average difficulty and, therefore, the plaintiff claims that a rate of $65 per hour is reasonable. Using a midrange of $65 per hour, the labour component would be $36,000.

[32] In addition to labour costs, the cost of applying a necessary Release Agent to the moulds was claimed by the plaintiff to cost $10,027.90. This figure was confirmed by the manufacturer by document marked as Exhibit 6.

[33] The plaintiff, therefore, claims a gross value of $46,000 for the loss of the moulds.

[34] Support for the plaintiff’s position is found in the evidence of Paul Simpson. He has been in the auto body business for 57 years. He was familiar with the Daytona Coupe, and he viewed the photographs of the damage to the moulds in question. It was his opinion that they were damaged beyond repair. I accept his evidence. He testified that it would cost approximately $48,000 to replace the mould, and if he were to undertake such a project, the shipping would be at the buyer’s expense and responsibility because of the high risk of damage.

[35] Accordingly, I find that the cost to replace the Daytona Coupe mould which Delazzari damaged beyond repair was the cost of the plaintiff’s labour (estimated at between $33,000 and $39,000 or mid-range $36,000 plus $10,027.90 for a total of $46,000. Since the plaintiff only owned one-half of the mould, I fix his loss at $23,000.

[36] I do so notwithstanding that the plaintiff had placed a partnership value of $11,000 on the production costs of the mould when it was contributed to the partnership with Delazzari. It is one matter to agree to discount the value of one’s work for specific business or partnership purposes. It is quite another matter to determine the actual value of the asset, following wrongful behaviour by a partner that terminates the partnership. The actual value of the asset which Delazzari stole was $46,000, and that is the basis for this award of $23,000 representing the plaintiff’s one-half interest in the mould.

b) Loss of Daytona Coupe Sales

[37] Counsel for the plaintiff contends that future sales of the Daytona Coupe moulds could be reasonably anticipated because of several key factors. First, the plaintiff was an excellent craftsman, and the end product would have been in demand because of the quality of his work. For instance, from the one auction that was conducted by Delazzari, three additional orders were received. Second, the plaintiff was experienced in the industry and had good marketing and computer skills. If the moulds had been properly maintained, they could have been used to manufacture approximately 200 bodies. The plaintiff testified that it was his intention to produce one replica per week over a period of four years which would have produced a gross profit of $160,000. After allowing for contingencies, the plaintiff is seeking the sum of $60,000 for this head of loss.

[38] I agree that the plaintiff is a superior craftsman, and any Daytona Coupe bodies produced from the mould would have been of very high quality and highly marketable. Further, in order to establish his claim for future lost revenue, the plaintiff need only show that there was a reasonable chance of such loss occurring. However quantification of that loss is more difficult to determine. There is no economic data before the court as to what the demand for Daytona Coupe bodies was at the time of the conversion, nor what the future demand may have been. Similarly, there is no financial data from the plaintiff setting out a track record for financial dealings which would assist in determining this issue. All that is known is that when one body was put up for auction it sold, and three additional orders were generated. Based on the paucity of this evidence, it is difficult to determine the reasonable economic loss for lost business opportunity flowing from the conversion with any precision.

[39] In addition, in making the determination, certain contingencies come into play and must be taken into account. For instance, the handling of the moulds over a run of 200 manufactured auto bodies stretched over a period of approximately four years would have increased the risk of damage to the moulds in the manufacturing process which would have limited production runs. In addition, the moulds would have been at risk of damage even in storage because of their inherent fragility over a period of time. In addition, it is difficult to accept that his intentions would not have been interrupted by holidays, illness and other factors which would have reduced his production values.

[40] Although the plaintiff has demonstrated that but for Delazzari’s conduct, the plaintiff would have been able to market his product and therefore has sustained a loss of future revenues, I have concluded that there is insufficient proof to justify an award in the amount claimed. I am prepared to allow a more modest award based on the likelihood that the plaintiff would have been successful in marketing perhaps as many as 20 replicas, in the same way that he was able to market the Mustang Cowls, which would produce a gross profit of $16,000. However, the Mustang Cowls were smaller items and carried a modest price. The Coupe was much larger and carried a much bigger price tag so comparable sales would not be reasonably expected. I therefore award the plaintiff the sum of $8,000 representing his half share of those gross profits. Although the figure appears and actually is, somewhat arbitrary, it is influenced to some extent at least by intangibles arising from the plaintiff’s evidence, demeanour, character and work habits as exhibited over several days of his trial testimony.

c) Damages Arising From Tort of Defamation

[41] Following the break-in, the plaintiff noticed that although potential customers were accessing his website, they were not completing their search. He also noticed a significant drop in orders. He testified (and his evidence was not disputed) that when he investigated, he found that potential customers who tried to access the plaintiff’s websites were automatically directed to one of Delazzari’s websites, where they would see the following words: (Reproduced at Volume 4, Plaintiff’s Trial Documents Brief, Tab 129, at pages 1 and 7 respectively.)

Consumer Alert: These sites are operated by Dave Ironside and Kyle Armsworthy

Someone has registered Johnex3Motorsports.net in Dave Ironside’s name, with our postal address and phone number. We suspect that it is an attempt to frame us. Because MustangCowl.com is already making excuses [archived copy] which are much like those of international Mustang and Canadian Custom Fiberglass (delays of delivery, etc., as previously documented).

Dave Ironside Alert

Watch out for this internet/eBay scammer.

[42] In Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3, at para. 62, the Supreme Court states:

…[A] publication which tends to lower a person in the estimation of right-thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability…What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances.

[43] In a defamatory action, the plaintiff must establish three elements on a balance of probabilities: first, that the words complained of are defamatory; second, that the words have been published; and third, that the plaintiff is the person defamed (see Warman v. Grosvenor 2008 57728 (ON SC), 2008, 92 O.R. (3d) 663 at para. 53). I am satisfied that these three conditions have been satisfied.

[44] The posting of these words on the Internet was a deliberate and malicious act on the part of Delazzari, done for the sole purpose of ruining the plaintiff’s reputation and business by labelling him as dishonest and incompetent. Delazzari knew that the words were not true, and knew what impact these words would have on the plaintiff’s business. He intended to hurt the plaintiff and by posting them on the Internet, Delazzari used “one of the most powerful tools of communication ever invented… a medium of virtually limitless international defamation” (see Barrick Gold Corp. v. Lopehandia et al. 2004 12938 (ON CA), 2004, 71 O.R. (3d) 416 (Ont. C.A.) at para. 62).

[45] The words remained on the Internet for approximately seven years, or until mid-2013, when they were removed not because of this lawsuit which commenced in September 2007, but rather because the defendant’s website and business were closed following his passing. The defendant never apologized to the plaintiff for what he had done. Furthermore, an apology has not been offered by representatives of Delazzari’s estate. The plaintiff estimated that as many as 7,600 consumers were redirected to the defendant’s website after attempting to access the plaintiff’s website.

[46] The plaintiff has impressed me throughout this trial as hard-working and honourable, a highly intelligent and dedicated craftsman who would sacrifice his own interests to satisfy a customer. His generosity and sense of obligation extended even to rectifying Delazzari’s work to ensure the client got what he had bargained for. At no time during the trial was any evidence presented to the court to justify the words used by Delazzari to describe the plaintiff. The words were completely and utterly false and Delazzari knew them to be so. His sole purpose was to maliciously inflict harm on the plaintiff and he did so expertly.

[47] In Barrick, the Court of Appeal adopted the words of Lyrissa Barnett Lidsky in her article, “Silencing John Doe: Defamation and Discourse in Cyberspace” (2000), 49 Duke L.J. 855 at pp. 862-65 as follows:

…Once a message enters cyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forum frequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be published again and again. The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that “the truth rarely catches up with a lie”.

[48] These words have turned out to be prophetic because, following the break-in and the posting of the offending material, the plaintiff went into a “tail spin” caused largely by Delazzari’s flagrant breach of trust. Delazzari’s betrayal and criminal behaviour left the plaintiff feeling that he could no longer trust people and he went into a sort of seclusion. He gave up his business and took a position with Bodine Mfg. where he worked for a short time during which he earned approximately $11,000. His hourly rate was $16.50. When this employment ended, he was depressed and he travelled extensively both to eastern and western Canada, frequently contemplating suicide. In 2008, he went to Thailand and pursued kickboxing activities, but returned to Canada to participate in Delazzari’s criminal trial. At the same time, he sought medical attention for his suicidal thinking and was prescribed medication to keep his emotions in check. He was concerned about becoming addicted to the drugs that were prescribed for his emotional condition. Without this medication, however, it was difficult for him to remain balanced.

[49] Having to deal with this case for seven years has taken a huge emotional toll on the plaintiff, something which was obvious when he testified. There were times when he broke down in the witness box, particularly when he was forced to view once again the break-in and the damage done to his work by Delazzari and his accomplices. He was approved for an Ontario Disability Pension in 2008 which pays him a pension of $1,260 per month. His application was supported by his psychiatrist, Dr. Abraham (see medical report and certificate dated July 2008, found at Tab 75, Exhibit 1B).

[50] Page five of Dr. Abraham’s medical report sets out the doctor’s diagnosis as follows: major depressive disorder, generalized anxiety disorder, panic disorder, adjustment disorder, avoidant personality disorder. It was noted that the plaintiff’s stress was caused by financial losses and the loss of his business. On page seven, he is classified as “unsafe and suffering from severe symptoms and signs of depression in seven of 13 categories”.

[51] I am satisfied on a balance of probabilities that the break-in followed closely by the defamation has had a major impact not only on the plaintiff’s financial stability but on his mental health. The plaintiff’s health continues to suffer by reason of Delazzari’s misconduct. Other than the job with Bodine noted above, the plaintiff has not been able to work since the break-in and discovery of the defamation.

d) General Damages

[52] In Mina Mar Group Inc. v. Divine, 2011 ONSC 1172, the court reviewed the case law on general damage awards in defamation cases. At paragraph 10, Mr. Justice Perell lists factors to be considered in determining general damages, as articulated by the Supreme Court in Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130. These factors include: (a) the plaintiff’s position and standing; (b) the nature and seriousness of the defamatory statements; (c) the mode and extent of the publication; (d) the absence or refusal to retract the libel or to apologize for it; (e) the conduct and motive of the defendant; and (f) the presence of aggravating or mitigating circumstances.

[53] The cases referred to in Mina Mar illustrate a range of general damages from $10,000 to $75,000.

[54] The breach of trust, the defamation, the break-in and conversion of the plaintiff’s property was high-handed, reprehensible, offensive and morally repugnant. Delazzari’s conduct constituted not only an egregious breach of contract between the parties, but his criminal behaviour towards his business partner was outrageous. Both events had a “profound and life changing impact” on the plaintiff, words used to describe another plaintiff, but equally applicable here. Put simply, these events devastated him to the point that he lost his livelihood. He was forced, by the emotional damage that had been inflicted upon him, to give up the work that he loved to perform. Although he turned to other work, he was unable to continue and travelled in an effort to deal with the emotional difficulties that these events had caused.

[55] Delazzari’s conduct was reprehensible. His behaviour calls for condemnation and an appropriate level of compensation that will reflect the degree of anguish caused to the plaintiff. I would assess general damages in the sum of $50,000.

e) Aggravated Damages

[56] In Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, the Supreme Court relies upon the description of aggravated damages articulated by Ontario Court of Appeal in Walker v. CFTO Ltd. 1987 126 (ON CA), 1987, 59 O.R. (2d) 104 (Ont. C.A.) at p.111:

Where the defendant is guilty of insulting, high handed, spiteful, malicious or oppressive conduct which increase the mental distress – the humiliation, indignation, anxiety, grief, fear and the like – suffered by the plaintiff as a result of being defamed, the plaintiff may be entitled to what has come to be known as ‘aggravated damages’.

[57] Justice Cory, in Hill, further provides that aggravated damages “take into account the additional harm caused to the plaintiff’s feelings by the defendant’s outrageous and malicious conduct” (para. 189). The Supreme Court describes how malicious intent may be proven as follows:

…[M]alice may be established by intrinsic evidence derived from the libelous statement itself and the circumstances of its publication, or by extrinsic evidence pertaining to the surrounding circumstances which demonstrate that the defendant was motivated by an unjustifiable intention to injure the plaintiff (para. 190).

[58] I find that the malicious nature of the defamation, and the outrageous criminal conduct by Delazzari, far exceeds a simple breach of contract and entitles the plaintiff to aggravated damages. Delazzari’s words not only tarnished the plaintiff’s reputation, but they continued to tarnish his reputation over a period of seven years. No apology has ever been tendered, and the words used were purposefully designed not only to drive the plaintiff out of business, but to keep him out of business. The defamation and the break-in had a significant impact on the plaintiff’s health. The plaintiff’s inability to trust people and to function normally in society, are the residual effects of Delazzari’s behaviour. The plaintiff still struggles with these problems and testified that closure has not been possible given the unsatisfactory disposition of the criminal charges against Delazzari.

[59] In light of the Delazzari’s outrageous and malicious conduct, I award aggravated damages in the sum of $25,000.

f) Bailment Damages

[60] Of the items stored by Delazzari on the plaintiff’s behalf, the 1957 Studebaker Silver Hawk was the most valuable. The plaintiff testified that he would not have accepted less than $25,000 for the vehicle. To support his valuation, he produced materials found at Tab 135 of Vol. 4 of his Trial Document Brief indicating a range of value between $11,850 and $26,900.

[61] Although I accept the plaintiff’s evidence with respect to the worth of this vehicle, the plaintiff bears some responsibility for not retrieving his automobile sooner than he did. Although he had instructed a lawyer (not his present lawyer) to demand the return of the vehicle earlier, his instructions were not carried out and the plaintiff did not pursue the matter at that time. Although he did go to the police, they refused to intervene in what they considered to be a civil matter. No formal demand was made for the return of the items until October 1, 2012 (some seven years after the vehicle was stored with Delazzari), when his current counsel issued a demand letter found at Tab 40, Exhibit 1B. It should also be noted that there was a non- communication order issued by the criminal court that factored into the plaintiff’s failure to deal with Delazzari directly over the matter.

[62] Accordingly, although I am satisfied that the value of the Studebaker was $25,000 as the plaintiff claimed, the plaintiff’s inordinate delay in pursuing his rights requires that the value of the bailed goods be discounted to reflect the plaintiff’s lack of due diligence in asserting his rights. I therefore fix the plaintiff’s responsibility for the loss of his goods at 25%, and award him $18,750 for Delazzari’s conversion of the Studebaker vehicle.

[63] The plaintiff also stored a 1990 Buick Regal Grand Sport with Delazzari, which was roadworthy and which he valued at between $750 and $1,000. I allow the lesser figure. The Mustang and Datsun vehicles had only scrap value which I allow at $500 and $750 respectively for a total of $1,250 for these two items. I also award the plaintiff the value of 12 Mustang Cowls (the number was not disputed by the defendant) stolen by Delazzari valued at $468. The loss of these items is therefore $2,468. I do not apply the discount mentioned in para. 62 above because the value of these articles was not impacted by the plaintiff’s delay in pursuing his rights.

g) Punitive Damages

[64] With respect to punitive damages, the objective is retribution, deterrence and denunciation of high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour. However, punitive damages are only exceptionally awarded where other penalties, including the awarding of general damages, aggravated damages and penal sanctions, do not adequately reflect these objectives (see Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595). It is a means by which the court expresses its outrage at the egregious conduct of the defendant. Any award of punitive damages when added to compensatory damages must produce a total sum which is rationally required to punish the defendant.

[65] In Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, the Court set out the principles upon which punitive damages may be awarded at para. 196:

Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and high-handed that it offends the court's sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner. It is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence.

[66] It has also been said that the quantification of punitive damages must be reasonably proportionate to the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff, any advantage or profit gained by the defendant having regard to any other fines or penalties suffered by the defendant for the misconduct in question.

[67] There is little doubt that Delazzari’s misconduct, both in the break-in and the defamation, can be characterized as highly reprehensible misconduct. The issue is whether the other penalties incurred, including the awarding of general damages, aggravated damages and other compensation awarded herein, adequately reflect the objectives of retribution, deterrence and denunciation.

[68] It seems to me that the result of the criminal proceedings led to something that might be classified as a slap on the wrist. This was a serious crime, consisting of break and enter and theft of goods valued at in excess of $5,000 with far reaching financial and emotional consequences for the plaintiff, yet the consequences for Delazzari were minimal. That aspect of the case sends a wrong message to future wrongdoers that a punitive damage award might help to correct.

[69] In addition, it appears that Delazzari profited from the defamation and the break-in. Certainly, business enquiries that were directed to the plaintiff were re-routed to the defendant’s website and they would have increased the defendant’s opportunity to sell his own products as well as the plaintiff’s products that he had stolen from the plaintiff. Further, the break-in led to the theft of a number of Mustang Cowls that the plaintiff was not able to precisely number. He testified that there were at least 12, but he estimates that there were many more without being able to specify how many more. The result is that not only has the plaintiff been harmed by the Delazzari’s behaviour, Delazzari has profited by his misconduct. In addition, the theft of the plaintiff’s images of the Mustang Cowls from his website by Delazzari is also an aggravating factor and the images would have assisted Delazzari’s sales.

[70] On the other hand, the general and aggravated damages this court has awarded are significant. In addition, the person who committed this injustice has passed away. It is too late to send him a message from the courts that would deter him from future objectionable behaviour, and any award under this category will only hurt the beneficiaries of his estate who had nothing to do with his misbehaviour. As a matter of fact, Mrs. Delazzari testified that she did try to persuade her husband not to do what he was doing, but she says that he would not listen. These are all factors which militate against a significant or perhaps any punitive damage award.

[71] With that said, however, I have nevertheless concluded that punitive damages are warranted here as a strong expression of the court’s disapproval of Delazzaris unacceptable behaviour. I therefore award punitive damages which I fix in the sum of $10,000, in addition to the amounts set out above, to express the courts condemnation of Delazzari`s conduct.

[72] Accordingly, in summary, I award the plaintiff the following sums:

1. Loss of the Mould Set $23,000
2. Loss of Daytona Coupe Sales $ 8,000
3. General Damages $50,000
4. Aggravated Damages $25,000
5. Loss of Studebaker Silver Hawk $18,750
6. Loss of Other Bailed Items $ 2,468
7. Punitive Damages $10,000

Less Credit for Mitigation ($11,000)

Total $126,218

[73] Both counsel agreed that further submissions with respect to costs and any other housekeeping items would be made following the release of these Reasons for Judgment. I will entertain a telephone conference call, to be arranged through the local trial co-ordinator’s office, to address the method to be used to receive costs submissions. Arrangements are to be made within 15 days of the date of these Reasons.

Taliano J.

Released: February 19, 2014

COURT FILE NO.: 49741/07
DATE: 2014/02/19

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVE IRONSIDE
Plaintiff

– and –

KAREN DELAZZARI AS EXECUTOR OF THE ESTATE OF ANTHONY DELAZZARI
Defendant

REASONS FOR JUDGMENT

Taliano J.

Released: February 19, 2014