Court File and Parties

Court File No.: CV-16-562329 Date: 20170626 Superior Court of Justice - Ontario

Re: 665750 Ontario Inc. carrying on business as Camrob Enterprises 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

Before: Madam Justice J.T. Akbarali

Counsel: Todd Robinson for the applicant David Winer for the respondent Earl Lewis carrying on business as The Recovery Board No one for the respondents Atlantic Towing Inc. carrying on business as Chris’s Towing and Chris’s Towing Inc.

Heard: Submissions in Writing

Endorsement

[1] On May 28, 2017 I delivered reasons in this application in which, among other things, I found the respondents jointly liable to the applicant for conversion and unjust enrichment in relation to three vehicles owned or leased by the applicant, Camrob Enterprises, which were stored by the respondent, Chris’s Towing. One of these vehicles was sold, one sold for scrap, and one remains in the possession of Chris’s Towing.

[2] An issue has arisen with respect to the calculation of the damages to which the applicant is entitled and which was not addressed in my original endorsement: whether damages for conversion of the three vehicles should be increased to account for taxes payable.

[3] During a telephone case conference, I directed the applicant to provide written submissions on this issue by June 13, 2017 and the respondents to provide responding submissions by June 19, 2017. At that time, respondents’ counsel on the application attended the call but advised he had no instructions and that he understood the respondents were seeking new representation. I received no written submissions from Chris’s Towing or Atlantic Towing.

[4] However, Mr. Winer wrote to advise that he had been retained by Earl Lewis carrying on business as The Recovery Board. He delivered written submissions on the tax issue. He also requested a further telephone case conference to address another issue.

[5] At the second telephone case conference, Mr. Winer advised that he intends to bring a motion under r. 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to seek to reopen my decision on the basis of evidence that was not led at the original application. I understand the decision has also been appealed.

[6] I have asked the parties to deliver brief written submissions on the process proposed by Mr. Winer and my jurisdiction under r. 59.06(2) to revisit issues that have already been decided. Mr. Winer will deliver his submissions by June 27, 2017, and the applicant’s counsel, Mr. Robinson, will respond by June 30, 2017. Each is limited to four pages of written submissions. I will then decide whether I will hear the motion that Mr. Winer proposes before a formal judgment is issued against Earl Lewis.

[7] However, Mr. Robinson has asked that I deal with the tax issue as it relates to Chris’s Towing and Atlantic Towing. These respondents have raised no issues that would prevent a final judgment issuing against them. His client understandably wishes to pursue its entitlement to judgment against these respondents. The purpose of these reasons is thus to address the question of whether the damages for conversion owed by Chris’s Towing and Atlantic Towing should be increased to account for H.S.T. or R.S.T., both of which amount to 13%.

[8] Conversion has been held to result in a forced sale by which a plaintiff is able to recover the market value of the chattel at the time of conversion: Parla v. Dynasty Car Care & Collision Inc., 2009 ONSC 6600, at para. 15. I accept Camrob’s argument that a tax liability in the amount of 13%, either in respect of H.S.T. or in respect of R.S.T., flows from the deemed forced sale from conversion. I need not decide which tax is payable since the tax rates are the same. I thus conclude that the damages for conversion should be increased by 13% to reflect the taxes owing on the forced sale.

[9] Chris’s Towing and Atlantic Towing thus owe $120,440.82 to Camrob.

[10] I note that Mr. Lewis has argued that it is not just that he be responsible for the taxes because liability for any tax payment owing ought to fall to the party that actually sold the vehicle. He thus disputes that his liability via agency extends to the tax payable on the forced sale. I do not decide this issue at this time but will revisit it at the appropriate time.

[11] Camrob is free to take out the final judgment as it relates to Chris’s Towing and Atlantic Towing based on my original reasons and these supplementary reasons.

Madam Justice J.T. Akbarali Date: June 26, 2017.