Court File and Parties

COURT FILE NO.: 16-2739 SR DATE: 2020/08/05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:[^1]

Charlene Marie Kew, Estate Trustee During Litigation for The Estate of Robert Thomas Kew, Deceased Plaintiff

– and –

Steve Konarski Defendant

COUNSEL: John G. Langlois, for the Plaintiff Justin N. O’Rourke, for the Defendant

HEARD: October 7, 8, 9, 10 and 11, 2019, and by way of written submissions received on November 12, 2019, December 9, 2019, and January 6, 2020

JUSTICE I.F. Leach

Overview

[1] This action deals with an unfortunate dispute focused on the treatment and disposition of five specific vehicles and/or various parts thereof that belonged to Robert Thomas Kew, (a retired businessman, licenced mechanic and collector of automobiles), at the time of his unexpected death on March 31, 2015.

[2] The plaintiff, Charlene Marie Kew, (who apparently prefers to use her middle name “Marie”), is Mr Kew’s former wife and estate trustee. The basis and particulars of her claims, pursued on behalf of the estate, are described in more detail below. In broad terms, however:

a. Ms Kew contends that the defendant, Steve Konarski, was a trusted family friend who betrayed that trust; i.e., by offering to help move and store the relevant vehicles and parts for a time on a gratuitous basis, to assist a grieving family in a time of need, before he then deliberately manipulated events in a manner designed to profit from the estate and wrongfully appropriate the relevant vehicles and parts for his own benefit.

b. Relying on the legal concepts of replevin and detinue, the primary relief sought by the plaintiff is a court-ordered return of the relevant vehicles and parts to the estate.

c. To the extent those vehicles and parts cannot or will not be returned to the estate in whole or in part, and in a condition similar to the condition they were in when entrusted to Mr Konarski, (which may not be possible based on allegations that the vehicles have been stripped of certain parts and/or otherwise damaged), Ms Kew asks in the alternative that the estate be awarded damages based on Mr Konarski’s wrongful conversion of the estate’s property.[^2]

[3] The defendant Mr Konarski denies Ms Kew’s allegations, and claims that he in fact was the wronged party here; a party who acted lawfully to protect his interests, and secure indirect compensation for services he provided to the estate on the understanding he would be paid in return. The basis and particulars of Mr Konarski’s defence and counterclaim are described in more detail below. In broad terms, however:

a. Mr Konarski contends that he had a binding and legally enforceable agreement with Ms Kew, as the representative or putative representative of Robert Kew’s estate; an agreement whereby he would provide help with moving certain vehicles and parts, and storing them at his premises for a limited period of time, in exchange for payment at the rate he was capable of charging other commercial customers for such services.

b. Mr Konarski says the aforesaid agreement then was breached when his numerous attempts to request payment for such moving and storage services were deflected and/or ignored, and the relevant vehicles and parts were left at his premises beyond the agreed period.

c. Mr Konarski says that, in the circumstances, he was entitled to exercise rights of lien and retention in lieu of sale, pursuant to the Repair and Storage Liens Act, R.S.O. 1990, c.R.25, (“the RSLA”), and did so in a lawful manner giving him full title to the relevant vehicles and parts. He accordingly seeks a formal declaration that all right, title and interest of the plaintiff in the relevant property is now vested in Mr Konarski, free and clear of any liens or encumbrances.

d. In the alternative, Mr Konarski relies on the doctrine of unjust enrichment, contending that the estate has been unjustly enriched by the moving and storage services he provided without receiving promised payment, and that the court should remedy that unjust enrichment by declaring that the estate holds any legal title to the vehicles and parts on a constructive trust for his benefit; i.e., such that he should be regarded as the proper beneficial owner of the vehicles and parts on that basis.

e. In the further alternative, if the court orders that the relevant vehicles and/or parts should be returned to the estate, Mr Konarski seeks compensation for his towing and storage services on a quantum meruit basis.

f. Mr Konarski also denies that the relevant vehicles were provided to him in the condition alleged by the plaintiff; e.g., contending that that they already were damaged and/or had missing components when he took possession of them, and/or that he has made improvements to the vehicles in respect of which allowances should be made.

[4] For reasons outlined in more detail below, it was agreed that, in the event Mr Konarski was ordered to return vehicles and/or parts in his possession to the estate, it would be appropriate to direct a reference, (pursuant to Rule 54.02 of the Rules of Civil Procedure), to address and resolve remaining questions as to the extent to which the value of the property then returned might fall short of that which Mr Konarski originally received, (e.g., in terms of missing components or other damage), and corresponding quantification of any damages for conversion.

Evidence – General comments

[5] During the course of the trial, I received oral testimony from the following witnesses:

a. the plaintiff, who is the former spouse of Robert Kew, and his estate trustee;

b. Warren Melanson, the owner and operator of a business, (“Melanson Motors Inc.”), that includes a vehicle storage facility in the city of Stratford;

c. Cody Kew, the adult daughter of Robert Kew and the plaintiff;

d. Jason Kew, the adult son of Robert Kew and the plaintiff; and

e. the defendant, Mr Konarski.

[6] All of those witnesses initially were presented for examination, cross-examination and re-examination. However, the plaintiff also exercised an opportunity, which I decided to grant pursuant to authorities such as R. v. McNeill, 2000 CanLII 4897 (ON CA), [2000] O.J. No. 1357 (C.A.), to provide further testimony from the plaintiff herself and Jason Kew in reply, in order to address what I felt to be numerous legitimate concerns about violations of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.); violations of which became evident during the course of Mr Konarski’s testimony when he made numerous allegations of misconduct by the plaintiff and Jason Kew that were never put to them during the course of cross-examination.

[7] For reasons delivered orally following a voir dire during the course of the trial, I also received evidence, (tendered by the plaintiff), that was provided through an affidavit sworn on April 27, 2018, by Thomas or “Tom” Peters, (the plaintiff’s second husband), prior to his death on August 21, 2018; i.e., more than 15 months prior to the commencement of trial. As I indicated at the time, the affidavit evidence nevertheless was admitted subject to the proviso that the ultimate credibility and reliability of the evidence provided by Mr Peters, and the weight to be given that evidence, would be the subject of further consideration and determination during the course of the trial.

[8] I also was presented with numerous exhibits, including the following:

i. an amended “Trial Brief of Documents”, filed by the plaintiff on consent, the precise contents of which are set forth in its index[^3], but include:

1. a proof of death certificate and court documents relating to the formal administration of Robert Kew’s estate;

2. correspondence relating to insurance arrangements for the relevant vehicles;

3. documents relating to an investigation by the Ontario Provincial Police, (carried out at the request of the plaintiff), into Mr Konarski’s retention of the relevant vehicles;

4. documents obtained from the Ministry of Transportation relating to steps taken by Mr Konarski to assume formal ownership of the relevant vehicles;

5. telephone records indicating calls made by and to the plaintiff, using certain telephone lines and numbers, over the course of certain months in 2015 and early 2016;

6. reproduced text messages exchanged between the plaintiff and defendant between March 30, 2015, and December 31, 2015;

7. a copy of the standard vehicle storage contract template used by Melanson Motors Inc.; and

8. excerpts from the Canada Postal Guide relating to “Registered Mail”;

ii. a “Defendant’s Document Brief” filed, by the defendant on consent, the precise contents of which are set forth in its index[^4], but which includes:

1. documents relating to the importation of an unrelated vehicle from the United States into Canada in October of 1996, in respect of which the defendant was said to have provided the plaintiff with assistance;

2. documents, (such as photographs, business cards, invoices and fee schedules), relating to general towing, storage and other business activities of the defendant and an unrelated impound facility;

3. photographs of various vehicles, parts and other items apparently owned by Robert Kew at the time of his death, and referred to in testimony;

4. documents relating to litigation and settlement of disagreements relating to Robert Kew’s estate;

5. documents relating to appraisal of certain vehicles previously owned by Robert Kew;

6. a summary of items the defendant believes formed part of Robert Kew’s estate assets, and photographs said to include advertised resale of at least one such vehicle;

7. telephone records indicating calls made by and to the plaintiff over the course of certain months in 2015 and early 2016 – largely replicating the same documents included in the plaintiff’s “Trial Brief of Documents” but with highlighting;

8. reproduced text messages exchanged between the plaintiff and defendant between March 30, 2015, and December 31, 2015 – replicating the same documents included in the plaintiff’s “Trial Brief of Documents”;

9. a copy of correspondence from a paralegal retained by the defendant to “Mr Robert Kew” by registered mail on July 23, 2015;

10. a copy of an “Ontario RSLA Registration” registered on July 23, 2015;

11. a copy of an invoice rendered by “Steve Konarski Farms” to “Robert Key (Rob)” dated August 17, 2015;

12. photographs of the building where the defendant stored some of the relevant vehicles;

13. copies of “motor vehicle appraisal records”, relating to four of the relevant vehicles, prepared by Scott Jervis on or about August 19, 2015, and filed with the Ministry of Finance;

14. correspondence provided by BDO Canada LLP, dated October 11, 2016, indicating that the defendant reported $30,700 in storage revenue on his personal tax return for 2015, and received advice about his independent obligation to report and remit HST accordingly;

15. a copy of an affidavit sworn by the defendant on August 20, 2015, in support of his request for the Ministry of Transportation to supply him with new ownership in relation to four of the vehicles in dispute;

16. ownerships dated August 20, 2015, and a number of “used vehicle information packages”, relating to the vehicles in dispute; and

17. documentation filed with the Ministry of Consumer and Business Services, on or about July 21, 2016, apparently relating to renewal of registrations under the Personal Property Security Act, R.S.O. 1990, c.P.10, (or “the PPSA”).

iii. two photographs, introduced during the course of Mr Melanson’s examination-in-chief, depicting the exterior and interior of the vehicle storage facility operated by his business; and

iv. three photographs, introduced during cross-examination of the defendant Mr Konarski, depicting one of the vehicles in dispute; i.e., 1960 Corvette convertible.

[9] This unfortunately was a trial consumed with focus on a myriad of minor details, all of which properly were said to be relevant in determining the legal basis on which the parties were interacting over the course of an extended period, the precise manner in which numerous vehicles were moved, relocated and stored, and the attributes they may or may not have had at various points in time.

[10] During the course of these reasons, I unavoidably have considered and reflected on the minutia of such matters, in an effort to form as accurate a sense as possible in determining the true nature of the parties’ relationship, and a just basis for determining which evidence was most credible and reliable in relation to disputed issues.

[11] To the extent my detailed description of the evidence undoubtedly will not expressly address all aspects of the evidence presented for my consideration, it certainly was all considered and examined closely.

Evidence – General background findings of fact

[12] As one would expect in a trial of this nature, there were a number of important areas of disagreement and conflicting evidence, and I will return to those later in these reasons.

[13] Before doing so, I nevertheless think it helpful to provide an outline and rough chronology of numerous underlying events, and corresponding factual findings I have made, in relation to matters that seemed agreed, not the subject of conflicting evidence, and/or not seriously disputed.[^5]

[14] Those findings of fact include the following:

a. Robert Thomas Kew, (usually referred to by family and friends as “Bob Kew”), was born in 1940, here in Ontario. Over the course of his life, he came to be involved in a number of businesses, while also using his skills as a licenced mechanic and indulging his intense interest in collecting and working on cars, (many of them antiques), as well as a number of airplanes.

b. Prior to meeting the plaintiff, Bob Kew married and fathered eight children, before that earlier relationship came to an end.

c. Bob Kew then met and married the plaintiff, and they remained married for “quite a few” years. During the course of their marriage:

i. Bob and Marie engaged in a number of business activities and hobbies together, including shared ownership and operation of a company which hauled milk for farmers, (“Clayton Kew Limited”), management of an apartment building, and various types of work relating to vehicles.

ii. In the course of such activities, Bob and Marie also acquired a number of real estate properties they owned jointly, including a 50 acre farm property near the village of Kintore, (which served as the matrimonial home but also had two large commercial buildings), the aforesaid apartment building, (located in the town of Southampton), and a house in Mitchell, (acquired following a “tip” from Mr Konarski), that was acquired, improved and then “flipped” as an investment property.

iii. The union between Bob and Marie also produced two more children for Bob Kew; i.e., a son named Jason, and a daughter named Cody. They were raised in the matrimonial home on the Kintore farm property.

d. During the course of his marriage to the plaintiff, Bob Kew also came to know and develop a relationship with the defendant, Mr Konarski. In that regard:

i. Initial contact between the two men occurred in the early 1980s, and was brought about through Mr Konarski’s father-in-law. That gentleman would attend at the Kintore farm property from time to time to perform “safety checks” on a number of Bob’s vehicles. Over time, Mr Konarski came to the property as well, which in turn led to Bob Kew and Mr Konarski bonding through their mutual interest in and passion for automotive mechanics.

ii. Over the course of the relationship between the two men, which lasted some 30-35 years, Mr Kew and Mr Konarski would visit each other’s properties quite regularly to provide each other with advice, support and assistance, on what was described as a “give and take” basis, in relation to various mechanical, welding and other projects. For example:

1. Bob Kew had superior experience with heavy equipment mechanics, working with vehicles that were involved in heavy collisions and/or categorized as write-offs, and general rebuilding of cars. He was also an expert welder. He provided Mr Konarski with informal mentoring and training in relation to such matters, and assisted Mr Konarski by providing services within his areas of expertise. In the course of doing so, the two men built a number of cars together. Bob also would allow Mr Konarski to use his “backhoe” occasionally.

2. Services provided by Mr Konarski from time to time, in return, included oil-undercoating of vehicles, delivery of a vehicle to a London high school for Mr Kew, and helping Mr Kew to retrieve and import a collector vehicle from Ohio in 1996.

iii. It also was not disputed that that Mr Konarski provided assistance to the plaintiff and her children from time to time, even after the plaintiff and Bob Kew divorced. For example:

1. There was an occasion in or around 1998 when Mr Konarski drove the plaintiff and her daughter Cody to Ottawa to pick up a BMW vehicle.

2. There was an occasion in or around 2000 when Mr Konarski built a shed and transported it to the plaintiff’s hotel in Southampton.

3. There was an occasion in or around 2015 when Mr Konarski used his tow truck to haul a “fifth wheel trailer” from Simcoe to Southampton, for the plaintiff’s second husband, Mr Peters.

iv. The plaintiff acknowledged that there was at least one specifically identified occasion, (Mr Konarski said there were others), in respect of which Mr Konarski had been paid for his provision of material and services. In particular, the plaintiff readily agreed that Mr Konarski had been paid an amount intended to cover his construction and delivery of a “shed” to the plaintiff’s hotel in Southampton.[^6]

e. Bob and Marie Kew separated and formally divorced in 1999, after Bob was sentenced to a lengthy term of imprisonment, in respect of which he eventually would spend some nine years in custody, albeit with some minor interruptions. The precise nature of Bob’s conviction or convictions was not confirmed during the course of the trial, but the relevant charge or charges apparently were in the nature of sexual interference or other sexual wrongdoing vis-à-vis minors, which in turn led to the imposition of restrictions on Bob’s ability to associate with young children, including the couple’s daughter Cody.

f. Notwithstanding that separation and divorce, Bob and Marie Kew generally remained on good terms; i.e., continuing to interact, and continuing to hold property together. For example:

i. While Bob remained in custody, Marie continued to visit him and they continued to speak by telephone, having frequent discussions about the children and ongoing business matters.

ii. After Bob’s release from custody, he and Marie continued to speak regularly by telephone, he continued to “come over” for visits, and Marie continued to provide Bob with support; e.g., helping him to purchase cars and giving him money for groceries.

iii. Marie also agreed to support Bob financially, progressively extending loans to him that eventually would total some $35,000 by the time of Bob’s death.

iv. While the milk hauling business declined during Bob’s incarceration and eventually had to be sold, (after a period of Marie trying to run it with Bob’s son Dave Kew, and then on her own), Bob and Marie continued to maintain joint ownership of the apartment building and the Kintore farm property.

v. Marie and Cody generally relocated their principal residence to Southampton in or around the year 2000. Jason nevertheless apparently chose to remain at the Kintore farm property, which Marie and Bob permitted him to keep occupying as his principal residence. However, Bob also continued to use the Kintore farm property, and its two commercial buildings in particular; e.g., for storage of some of the many cars, planes, parts and other items he had accumulated.

g. In the meantime, the plaintiff continued to acquire additional property on her own; e.g., a cottage property and a hotel operation, near her residence in Southampton, which she continues to own and operate. She also met and married her second husband, Mr Peters.

h. After Bob’s release from custody, his principal residence became a rural property located in or near the town of Wiarton, Ontario, which included a residence, (described variously as a “log house” or “cottage”), along with one or more outbuildings. While living at that property, Bob continued to indulge his interest in collecting and working on collector vehicles.

i. At some point, Bob also developed a romantic relationship with a woman named Joanne (or Joanna) Marzec, who apparently stayed with Bob at his Wiarton property at certain times. In that regard, Marie, Jason, Cody and Mr Konarski each had some level of familiarity with that relationship, and all of them understood that the relationship was complicated and volatile, based on reports received from Bob and/or direct interactions with Ms Marzec.[^7] For example:

i. Marie understood that Ms Marzec suffered from a drug addiction, had a temper, and frequently did not treat Bob very well; e.g., verbally abusing him. Bob also had spoken repeatedly and candidly to Marie about Ms Marzec taking, damaging and/or threatening to harm his vehicles, including described incidents wherein:

1. Ms Marzec had taken one of Bob’s cars while she was under the influence of drugs, causing several police cars to give chase;

2. Ms Marzec had broken the windshield of Bob’s 1960 Corvette and stolen its keys, during one of their disputes, such that Bob not only was temporarily unable to drive the vehicle, but also felt obliged to remove its ignition; i.e., to prevent Ms Marzec from following through on her threat to take it; and

3. Ms Marzec had threatened to burn Bob’s “ZRI Corvette”, causing Bob to hide that vehicle by leaving it with Mr Konarski.

ii. Based on her direct interactions with Ms Marzec, observations of how her father and Ms Marzec interacted when together, and numerous comments made to her by her father, Cody believed that Ms Marzec was more interested in her father’s assets than her father, that her father’s relationship with Ms Marzec was not a healthy one from her father’s perspective, and that there was good reason to be concerned about Ms Marzec’s possible conduct after her father’s death. In that regard:

1. Cody testified that Ms Marzec treated her father badly, had no interest in getting to know her father’s family, and seemed intent on isolating her father.

2. Cody understood that Ms Marzec had a “bad reputation”, including having “had a lot of trouble down in London”, which in turn had been a prime motivation for Ms Marzec to spend time with Bob Kew in the Wiarton and Owen Sound area, where she had a “clean slate”.

3. Moreover, Bob frequently told Cody that Ms Marzec was “threatening to burn things, smash cars, and all that kind of stuff if she didn’t get her way”. Cody recalled, for example, her father saying that Ms Marzec had vandalized his 1960 Corvette, and that he had removed the vehicle’s ignition because he feared Ms Marzec would take the vehicle.

4. In the result, Cody says, she “didn’t really know what [Ms Marzec] was capable of doing”, but “absolutely” felt Ms Marzec was “potentially dangerous” and a “loose cannon”.

iii. Jason had received reports from his father that Ms Marzec was unstable, that she had previously stolen a vehicle owned by his father and driven it without a licence, that she was thought to have taken car keys that had gone missing, and that she also had made threats to burn down his father’s residence in Wiarton. Jason also understood that, although his father had visited Ms Marzec on the day of his fatal accident, they were “not getting along at the time”, and his father already had placed her things out on the porch of his log house in Wiarton.

iv. As for Mr Konarski, he confirmed that he knew Ms Marzec, accused her of being “a hooker”, understood that she would take keys to Bob’s vehicles, and also knew that she would threaten to burn one of Bob’s cars whenever she “got a little contentious”.

j. On Sunday, March 29, 2015, Bob Kew was driving one of his many vehicles when the roads unexpectedly became treacherous because of the winter weather. His vehicle left the road and went into a ditch near the village of Kintore, colliding with a hydro pole. Bob was stranded and injured, and telephoned his son Jason, (living a couple of kilometers away at the Kintore farm property), requesting assistance; e.g., to help remove Bob’s vehicle from the ditch, and assist in getting both the vehicle and Bob to the Kintore farm. In response:

i. Jason attended at the scene of the accident, and assisted his father with towing the vehicle back to the Kintore farm.

ii. After their arrival at the farm, Bob was complaining of chest pain, which he initially attributed to an airbag deploying during the collision.

iii. Jason then persuaded his father to proceed immediately to the hospital in Kitchener, where he already had a heart specialist appointment scheduled for the following day.

iv. However, while en route from the Kintore farm to the Kitchener hospital, with Jason driving, Bob experienced what was later diagnosed as a massive heart attack. Recognizing that something was seriously wrong with his father, Jason drove directly to the hospital in Stratford, which was closer to their location.

v. At the Stratford Hospital, medical staff worked to stabilize Bob’s condition before transferring him to the hospital in Kitchener, with Jason following behind the ambulance.

k. Events occurring after arrival of Jason and Bob at the Kitchener hospital, on the evening of March 29, 2015, or the early morning hours of March 30, 2015, included the following:

i. Jason telephoned his mother to indicate that Bob had been in an accident, was now at the Kitchener hospital, and seemed to be stable and “doing okay”. Marie in turn telephoned Cody, (who had just started her work shift at a retirement home), to relay that information. Based on the available information, it was decided that Cody would remain at work, with Marie promising to call again if the situation changed.

ii. Shortly thereafter, however, Jason received further information indicating that Bob’s condition had deteriorated, apparently prompting physicians to place him in an induced coma and begin surgery. Jason accordingly called his mother again, providing her with that further update, and asking her to let Cody know that she should come and see her father.

iii. Marie then telephoned Cody again to relay that further information and suggestion, which prompted Cody to leave work and proceed to the Kitchener hospital with her boyfriend at the time.

iv. Marie also telephoned the defendant, Mr Konarski, to let him know that Bob had been in an accident and his situation was deteriorating.

v. By the afternoon/evening of March 31, 2015, the plaintiff and her children were all at the hospital to see Bob, with Cody’s boyfriend remaining in a nearby waiting room. Despite the shock of the unexpected accident, and seeing Bob connected to so many machines, they generally were still hopeful he would recover. While his situation had started to deteriorate “a little bit” more, he generally appeared to be stable, so everyone returned to their homes for the night.

l. Events occurring on March 31, 2015, included the following:

i. Early that morning, Jason received further information indicating that Bob’s condition had worsened, and that he was not expected to survive. Jason called his mother to relay that further update, and indicate he was returning to the hospital.

ii. After receiving that troubling update, Marie made arrangements with Cody for them to travel back to the hospital together. (At the time, Tom Peters, the plaintiff’s husband, was not home, having gone to Nova Scotia for his father’s funeral.)

iii. Marie also then telephoned Mr Konarski again, to provide him with a similar update. In the course of that conversation, Mr Konarski said he too would proceed to the Kitchener hospital.

iv. Later than morning, and into that afternoon, Marie, Jason, Cody and Mr Konarski were all at the Kitchener hospital together, alternating between Bob’s hospital room and a nearby waiting area. Throughout that time, Bob remained in very serious condition, relying in large measure on life support systems.

v. At some point that afternoon, Bob’s doctor met with Marie, Jason, Cody and Mr Konarski in a waiting area and provided further information; e.g., noting that Bob’s heart function had been reduced to 13 or 15 percent of normal, such that the life support machines effectively were “the only thing keeping him breathing”. The physician also indicated in various ways that Bob’s vital signs had not improved, that he was “failing”, that the doctors could not do anything more for him, that his chances of survival were “50/50”, and that there was not much hope that Bob would survive with any quality of life if he was resuscitated.[^8] The physician outlined possible options. He was seeking guidance as to whether Bob should be “taken off life support”, indicating that one option would be removal of that life support to “see how it went”; i.e., to see if Bob would be able to survive and recover without it.

vi. Discussions then ensued as to what course of action should be taken, with Marie, Jason, Cody and Mr Konarski present and participating. Eventually, a decision was made to have Bob removed from life support, to see how he might fare without it.

vii. While still at the hospital, there also were discussions between Marie, Jason, Cody and Mr Konarski about the advisability of arrangements to secure and protect Bob’s property, including his many vehicles then located at his Wiarton home. There were particular concerns about the possibility of Ms Marzec taking or harming such property, after learning about Bob’s situation and his absence from Wiarton. The discussion included Mr Konarski’s suggestion that Bob’s backhoe should be positioned across the Wiarton property’s driveway, to block the removal of any other vehicles.[^9] However, there was also recognition that a measure would not prevent Ms Marzec from accessing and harming the vehicles and/or Bob’s house, if that was her intent.

viii. Later that day, (i.e., March 31, 2015), Bob Kew died at the Kitchener hospital. Jason assumed initial responsibility for the making of funeral and burial arrangements.

m. In the wake of Bob’s death, there nevertheless was uncertainty about his formal estate arrangements; e.g., as to whether he had a will, and where that will could be located.

n. In the meantime, concerns about Ms Marzec taking or harming Bob’s property were reinforced when Jason called Ms Marzec on April 1, 2015, to break the news of Bob’s death, and she reacted by claiming to be Bob’s common-law wife, while also making threats to kill Jason, destroy Bob’s cars, and burn Bob’s Wiarton home.

o. In the result, despite ongoing uncertainty about who would be granted authority to administer Bob’s estate and/or share in its distribution, arrangements were made to secure his property, including plans to move vehicles from the Wiarton property to locations where they would be more secure. In that regard:

i. The plaintiff, her husband Mr Peters, Jason, Cody and Mr Konarski all participated in those arrangements to some extent.

ii. At the time, the plaintiff and Mr Peters had a vehicle and trailer capable of transporting other vehicles, and Mr Konarski had a similar vehicle and trailer. Over time, both trailers were used to move vehicles from Wiarton.

iii. Mr Konarski participated in four such efforts. The first occurred during the first week of April, 2015; i.e., between the time of Mr Kew’s death and his funeral. The other efforts, in which Mr Konarski participated, occurred within the following weeks.

iv. Through such visits, the following vehicles and parts, (listed in order of age), were transported from Wiarton to Mr Konarski’s property in Sebringville and stored there:

1. a 1936 Dodge pick-up truck;

2. a collection of parts, associated with a 1954 Corvette, that were grouped together but not really assembled;

3. a 1956 Dodge Custom Royal convertible;[^10]

4. a 1960 Corvette convertible; and

5. a 1992 BMW convertible.

v. At the same time, various additional items of Bob’s estate property, (e.g., certain tools, items of equipment, and an additional seat for an all-terrain vehicle), also were transported from Wiarton to Mr Konarski’s property and stored there.

vi. Using his vehicle and trailer, Mr Konarski also helped the plaintiff and her husband transport a Mercedes vehicle, (associated with Ms Marzec and registered to the girlfriend or spouse of Ms Marzec’s father), from the Wiarton property to a destination in London.

vii. The circumstances in which Mr Konarski came to participate in such moving and storage efforts, and the basis on which he provided such assistance, lie at the heart of this dispute.

p. Mr Kew’s funeral and burial took place, (in St Marys and Kintore respectively), on April 7, 2015. Mr Konarski was asked by Mr Kew’s family to serve as one of the pallbearers, and did so.

q. By the time of the funeral and burial, all efforts to locate a will signed by Mr Kew had been unsuccessful. Such efforts had located only the unsigned copy of a will, retained by the law firm involved in its preparation, which Bob apparently had executed before then retaining the original copy. The text of that will, (reflected in the unsigned copy retained by the law firm), appointed the plaintiff as Bob’s estate trustee. However, as the executed copy of the will retained by Bob was still missing, it still was not clear whether the plaintiff or someone else would have formal authority to administer Bob’s estate; i.e., as Bob’s formally confirmed estate trustee. Nor was it clear who eventually would share in the distribution of any estate residue, after Bob’s debts had been addressed.[^11]

r. In the meantime, there were pressing debts and other obligations associated with Bob’s estate, including the need to pay for the costs of his funeral and burial. In such circumstances, the plaintiff voluntarily began to deal with such matters, using her own money to address estate debts, (e.g., to cover the cost of the funeral and burial out of her “own pocket”), when and where necessary. Explaining her reasoning, the plaintiff said she “didn’t want to see Bob go to his grave without a funeral”. Nor did she wish to see Bob’s estate mired in confusion, unpaid bills and debt, or have his reputation “be any worse”.[^12] In the result, the plaintiff thereafter:

i. retained Mr Langlois, (a lawyer based in Stratford and counsel to the plaintiff in these proceedings), to provide legal advice relating to proper administration of Bob’s estate;

ii. proceeded to retrieve and review mail sent to Bob’s Wiarton home by regular post,[^13] in order to look for any bills or other estate-related documents still being sent there;

iii. relayed any estate-related documents to Mr Langlois; and

iv. continued using her own money to address any discovered debts of the estate, including required payments on a reverse mortgage, utility charges, taxes, (including payments required to discharged a lien registered on Bob’s Wiarton property by the Receiver General), minimum payments required in relation to Bob’s accumulated credit card debt, and “whatever needed to be paid”.

s. The plaintiff continued to address debts of the estate through use of her own money, until she was owed more than $50,000.00 by the estate, and her bank began to express concerns that reinforced her own. With the assistance of counsel, arrangements were made to have further estate debts paid directly from estate assets.

t. Sometime in June of 2015, a notice addressed to Bob indicated that insurance placed on a number of Bob’s vehicles would be coming to an end, owing to non-payment of premiums. When that notice came to the plaintiff’s attention, she contacted the insurer to indicate that Bob had died, that the plaintiff was looking after payment of Bob’s bills, and that his vehicles were not being operated. In the circumstances, the insurer recommended downgrading Bob’s existing vehicle insurance to simple comprehensive coverage; i.e., insuring Bob’s vehicles in relation to fire and theft, but not their operation. The plaintiff accepted the recommendation and indicated that further insurance-related correspondence could be sent to her directly, via her home address in Southampton.

u. The plaintiff otherwise continued to visit the Wiarton property and check delivered mail for bills relating to Bob’s estate. Without a formal appointment as Bob’s estate trustee, the plaintiff could not and did not make any general arrangements with Canada Post to have Bob’s mail redirected to her address.

v. On July 23, 2015, Donald Lamb, a London based paralegal retained by Mr Konarski, sent a registered letter on Mr Konarski’s behalf. The letter was addressed to “Mr Robert Kew, c/o General Delivery, Wiarton”, and its salutation read “Dear Mr Kew”. Under a heading that read “Steve Konarski and Robert Kew”, the letter indicated:

i. that Mr Lamb represented “the above-captioned client”, (i.e., Mr Konarski), regarding an outstanding debt on vehicles that appeared to belong to Mr Kew;

ii. that a Repair and Storage Liens Act registration had been placed on four particular vehicles described by make, model and vehicle identification number, (corresponding to the 1936 Dodge pick up truck, the 1956 Dodge Custom Royal, the 1960 Corvette, and the 1992 BMW referred to herein), for an indicated lien amount of $28,000;

iii. that Mr Kew had 15 days from the date of the letter notification to contact Mr Lamb’s client if Mr Kew wished “to pay all applicable charges and/or redeem” the vehicles; and

iv. that Mr Kew should telephone Mr Lamb if there were any questions.

w. On August 17, 2015, a typed “Invoice”, (labelled “Statement #1-KEW”), was prepared, indicating on its face that it was being issued by “Steve Konarski Farms” to “Robert Kew (Rob)”. The invoice outlined charges for “Storage at $50.00 a day from April 1, 2015 to August 15, 2015”, or “$6,750”, in relation to each of four vehicles identified by year, make, model and identification numbers, (apparently corresponding to the 1936 Dodge pick up truck, 1956 Dodge Custom Royal, 1960 Corvette and 1992 BMW referred to herein – although the invoice refers to a “1968 Dodge Lancer” instead of a 1956 Dodge Custom Royal), for a total of $27,000.00 in storage charges, to which HST of $3,510.00 was added, for a total indicated “Amount due” of $30,510.00. The “Invoice” makes no reference to charges for anything but storage. For example, it does not purport to reflect any charges for moving/transportation or associated labour in that regard. It was not disputed that the prepared Invoice actually was never sent to Mr Kew’s last address or provided to the plaintiff, prior to this litigation.

x. On August 20, 2015, Mr Konarski swore an affidavit, (commissioned by Mr Lamb), in relation to “four (4) vehicles owned by Robert Kew of Wiarton”; vehicles that were described more specifically by make, model and identification numbers corresponding to the 1936 Dodge pick up truck, the 1956 Dodge Custom Royal, the 1960 Corvette, and the 1992 BMW referred to herein. Amongst other indications in the affidavit, Mr Konarski swore:

i. that “the common-law spouse of Robert Kew” had “delivered” the four indicated vehicles to his property for storage “in early April of 2015”;

ii. that his storage charge for each vehicle was “$50.00 per day”,

iii. that he applied that storage charge in relation to the vehicles from “April 1^st, 2015” to “August 15^th, 2015”, after which he “stopped adding” further charges;

iv. that the “total owing” to him was “$27,000 (Plus HST)”;

v. that his “account remain[ed] unpaid” as of the date of the affidavit;

vi. that he had incurred additional expenses of $1,200 “to process a Repair and Storage Liens Act of Ontario Registration” against the indicated vehicles, “in order to protect [his] interests”;

vii. that he believed he had satisfied all of the requirements under the Ontario Repair and Storage Liens Act”; and

viii. that he required “new ownerships” for the indicated vehicles from the Ministry of Transportation.

y. On September 2, 2015, Lant Insurance Brokers sent a letter to “Robert Thomas Kew” via regular post to the plaintiff’s address in Southampton. The salutation on the letter read “Dear Mr Kew or To Whom it May Concern”. In the letter, the insurance brokers indicated that it had “come to [their] attention” that Mr Kew had passed away, and that “a client of [theirs]” was now the registered owner of the 1936 Dodge pick up truck, the 1956 Dodge Custom Royal, and the 1960 Corvette. The letter went on to say that a letter would be required, from a lawyer, estate trustee or estate beneficiary, confirming Robert Kew’s death, the need to remove the relevant vehicles from the insurance policy issued to Mr Kew, and the need to have the relevant policy of insurance changed into the name of “the Estate of Robert Thomas Kew”. The letter asked for someone to call the brokers as soon as possible.

z. On September 11, 2015, Lant Insurance Brokers sent a further letter, addressed to “Mr (sic) The Estate of Robert Thomas Kew”, via regular mail to the plaintiff’s address in Southampton. The letter reiterated that the brokers had “received a request” to make a change to the collector vehicle policy issued to Robert Kew, and had issued endorsements removing coverage in relation to the 1936 Dodge pick up truck, the 1956 Dodge Custom Royal, and the 1960 Corvette. The letter went on to say that the changes would decrease the insurance premium required, and that a pro-rata credit refund would be sent separately.

aa. By September 13, 2015, the plaintiff had learned of steps taken by Mr Konarski to have ownership of vehicles, owned by Bob Kew’s estate and stored at Mr Konarski’s property, into Mr Konarski’s name. On that date, the plaintiff contacted the Perth County division of the Ontario Provincial Police, (“the OPP”), based in Sebringville, to provide her understanding of what had happened and what Mr Konarski had done, and to request a police investigation.

bb. The OPP requested further information from the plaintiff, and confirmed that the matter was being investigated. That written confirmation, sent to the plaintiff on September 23, 2015, included an indication that the OPP had been conducting research, that the matter was being treated as one involving possible fraud and/or possession of stolen property, and that the investigating officer intended to carry out further investigation before speaking with Mr Konarski. In the meantime, the plaintiff was expressly asked not to discuss the matter with Mr Konarski.

cc. On November 27, 2015, a court order was made in relation to Robert Kew’s estate. Amongst other things, the order appointed the plaintiff as the estate’s Interim Estate Trustee pending litigation, with duties and powers to undertake all measures necessary to maintain and manage Mr Kew’s estate assets.

dd. On February 3, 2016, a further court order gave directions regarding formal litigation in relation to Mr Kew’s estate, including determination of whether an unsigned copy of a will filed with the court by the plaintiff should be accepted as Mr Kew’s valid last will and testament. Amongst other things, the order indicated that Marie, Jason and Cody Kew would be plaintiffs in the litigation, while the defendants would be Ms Marzec and the surviving children from Mr Kew’s earlier marriage.

ee. On March 7, 2016, the OPP informed the plaintiff that, after investigating the matter and speaking to Mr Konarski, they had formed the view that the situation involved a civil dispute rather than a criminal matter. It was suggested that the plaintiff consult legal counsel regarding pursuit of a “civil resolution” to the dispute.

ff. On March 31, 2016, a formal Certification of Appointment of Estate Trustee During Litigation was issued to the plaintiff.

gg. On May 16, 2016, this litigation was formally commenced by the plaintiff’s issuing of a statement of claim.

hh. By September 20, 2016, a partial settlement had been reached in the separate estate litigation between Marie, Jason and Cody Kew as plaintiffs, and Bob Kew’s older children as defendants. In particular, the older children accepted an agreed payment in full satisfaction of their claims against their father’s estate, and executed a corresponding formal release. A separate settlement agreement was reached with Ms Marzec, and the court accepted the unsigned copy of Mr Kew’s will, (supplied directly to Mr Langlois by Mr Kew’s former lawyers), as Mr Kew’s valid last will and testament.

[15] Those factual findings provide an underlying narrative framing the more sensitive areas of dispute between the parties, to which I will return.

General principles

[16] I nevertheless think it helpful, at this stage in my reasons, to note and bear in mind, throughout the discussion that follows, legal principles and other considerations effectively highlighted by the various legal causes of action and legislation relied upon by the parties.

REPLEVIN

[17] In relation to the doctrine of replevin, such general principles and considerations include the following:

a. Replevin is one of the oldest forms of action at common law. Indeed, the word “replevin” is of Anglo-French origin, and a noun corresponding to the ancient French verb “replevir”, meaning to pledge security as a means of redeeming something taken by another. Over time, the common law came to recognize “replevin” as a summary process permitting a claimant, alleging wrongful taking or detention of property, to secure immediate and provisional return and possession of property in the hands of another, before trial, upon giving proper security and without first having to establish conclusive title to the property.[^14] All types of personal property and effects were capable of being “replevied”, including goods and chattels.[^15]

b. Again, the replevin remedy was “provisional”. It was never finally determinative of property rights as between parties. It merely secured possession of property in the hands of another party, pending a final determination in the court action as to entitlement to the goods. In other words, replevin was an interim remedy capable of being granted before trial, and not a “stand alone” cause of action or end unto itself. It was “a proceeding in a cause”.[^16] In particular:

i. interim orders for replevin were made on interlocutory motions, after commencement of an action, (and without any requirement of a prior demand for return of property and a refusal to return it), in cases where the court found there were substantial grounds supporting the plaintiff’s claim to the property;

ii. courts dealing with such interlocutory motions would not embark on a trial of the underlying issues raised in relation to the property; and

iii. where questions of ownership and entitlement to possession could not be readily determined without a trial, the interlocutory motion for a replevin remedy would be dismissed.[^17]

c. Over time, the common law doctrine of replevin came to be codified and supplanted by legislation addressing such situations. In Ontario, that initially took the form of self-contained statutes specifically focused on the replevin remedy, indicating when and how it could be granted. (See, for example, the Replevin Act, R.S.O. 1980, c. 449.) However, such situations now are addressed by section 104 of the Courts of Justice Act, R.S.O. 1990, which is supplemented by Rule 44 of the Rules of Civil Procedure. Where such legislative intervention has occurred, the legislation and rules of practice provide a complete code in relation to such matters, and proceedings for “replevin” per se no longer exist.[^18]

d. In particular, pursuant to s.104 of Ontario’s Courts of Justice Act, supra:

i. In an action in which the recovery of possession of personal property is claimed and it is alleged that the property was unlawfully taken from the possession of the plaintiff, or is unlawfully detained by the defendant, the court, on motion, may make an interim order for recovery of possession of the property; and

ii. A person who obtains possession of personal property by obtaining or setting aside such an interim order is liable for any loss suffered by the person ultimately found to be entitled to possession of the property.

e. Rule 44 of the Rules of Civil Procedure then sets out the mandated procedure for obtaining an interim order pursuant to s.104 of the Courts of Justice Act, supra; e.g., by indicating that such an interim order may only be obtained on motion by the plaintiff, supported by affidavit evidence addressing specified matters, and normally only after notice has been served on the defendant unless the court is satisfied that there is reason to believe the defendant may improperly attempt to prevent recovery of possession of the property, or that the order should be made without notice for some other sufficient reason.

[18] In the case before me, the court was asked to address the plaintiff’s claim for return of the disputed property, (i.e., the relevant vehicles and vehicle parts), only at trial. I was not asked to address possible return of the claimed property as an interim measure in advance of trial, and there was nothing before me to suggest that any interlocutory motion had been brought or any interim order had been made in that regard.

[19] In the circumstances, although “replevin” is a remedy formally and expressly sought in the plaintiff’s pleading, neither the common law doctrine of “replevin” nor the legislation which replaced the common law, (currently section 104 of the Courts of Justice Act, supra, and Rule 44 of the Rules of Civil Procedure), appear to have any relevance or application to the current situation. I accordingly do not intend to address them further in these reasons.

CONVERSION AND DETINUE

[20] As noted above, the plaintiff primarily seeks to recover the relevant vehicles and parts by a claim for detinue, seeking damages for conversion in the alternative.

[21] As the law generally regards conversion and detinue as related causes of action giving rise to alternative remedies, (as noted in more detail below), it seems appropriate to outline general principles and considerations applicable to each under the same subheading.

[22] In relation to conversion:

a. The tort addresses situations where one party deliberately deals with a chattel in a manner inconsistent with another party’s right to that chattel’s use and possession.[^19] It involves the intentional exercise of control over a chattel which so seriously interferes with the right of another to control it that the “intermeddler” may justly be required to pay damages equal to the chattel’s full value.[^20]

b. There are three essential elements which must be established to make out the tort of conversion:

i. the property forming the subject matter of a conversion claim must be specific personal property;

ii. the plaintiff must have a possessory interest in the relevant chattel; and

iii. the defendant must commit an intentional and wrongful act in respect of the chattel.[^21]

c. As far as the first essential element of conversion is concerned, in most cases the property forming the subject matter of a conversion claim will be a specifically identified or identifiable chattel. While specific exceptions have been created and applied by the courts from time to time, the general rule is that the tort of conversion applies only in relation to specific personal property.[^22]

d. In relation to the second essential element of conversion:

i. In order to maintain an action for conversion, a plaintiff must establish a sufficient possessory right to the chattel. In particular, the plaintiff must prove that, at the time of the conversion, he or she had actual possession of the chattel or a right to its immediate possession.[^23]

ii. An owner who has neither possession nor the right to immediate possession of goods accordingly cannot maintain an action, whereas a possessor without title, (such as a finder or bailee), may recover their full value.[^24]

iii. A defendant may show that the plaintiff is not entitled to possession of the relevant goods by reason of a valid subsisting lien which the defendant holds over the goods.[^25] However, a defendant without a valid lien, who attempts to address the plaintiff’s alleged non-payment for services by seizing and retaining property such as vehicles, and by transferring such property into the defendant’s name, may be liable in conversion.[^26]

e. In relation to the third and final essential element of conversion:

i. The plaintiff must show some deliberate act of interference or dealing with the chattel which is inconsistent with or repudiates the plaintiff’s right to the chattel.[^27] The defendant must have intended to exercise a dominion over the relevant property; the mere fact of possession, when unaccompanied by such an intention, is not sufficient.[^28] The crucial decision in most conversion disputes is whether or not the defendant’s dealings with the plaintiff’s goods were serious enough to amount to a denial of the plaintiff’s possessory rights. The interference must be substantial, not temporary or trivial.[^29] In that regard, it is useful to remember that the measure of damages for conversion ordinarily is the full value of the chattel, (a special rule of damages placing conversion in an exceptional position among tort remedies), which effectively forces an involuntary purchase on the “convertor”. That in turn provides an important clue for determining whether a tortious meddling with property is serious enough to justify the drastic sanction of compelling the wrongdoer to buy the plaintiff out.[^30]

ii. In this context, the “wrongful” nature of the defendant’s conduct does not mean “blameworthy”. The “wrongful” aspect of the tort of conversion is based upon the offending party acting in a manner that is inconsistent with the plaintiff’s right of possession.[^31]

iii. The defendant’s conduct must be “intentional”, in the sense of not being accidental. Negligent dealing with goods, or accidental destruction of them, does not constitute conversion.[^32] However, an intention to commit the tort of conversion is not required; the perpetrator need only have intended to do the physical act or to authorize the transaction that the court later finds amounted to a conversion.[^33]

iv. However, as conversion is a “strict liability” tort, the wrongful act committed by the defendant may be done in innocence or in good faith, and it is no defence that the defendant did not know, nor could not have known by the exercise of any reasonable care, of the plaintiff’s interest in the goods.[^34] Nor is being mistaken as to the consequences of one’s deliberate act any defence to liability for conversion.[^35]

v. The requisite intention, (i.e., to interfere or deal with a chattel in a manner inconsistent with a plaintiff’s right to the chattel, or which repudiates the plaintiff’s right to the chattel), is proved conclusively if the defendant has taken and used the relevant goods as his own.[^36] It is also established by the destruction of goods, (including their disappearance), or alteration of their nature.[^37]

[23] In relation to detinue:

a. Detinue focuses on the wrongful refusal to deliver up a chattel to the person entitled to it.[^38]

b. The essential elements which must be established to make out the tort of detinue are the same as those required to make out the tort of conversion. However, in relation to the tort of detinue, the “wrongful act” committed by the defendant is the defendant’s wrongful withholding of the relevant property.[^39]

c. To establish detinue, a plaintiff’s demand for the property and the defendant’s refusal to deliver it accordingly are prerequisites.[^40] In that regard:

i. the plaintiff’s demand must be unconditional in its terms, specify the relevant property, and be brought to the attention of the defendant – although where a defence to a detinue claim clearly shows that the defendant would not have complied with a demand by the plaintiff, the fact that a demand was not made is not a defence to the plaintiff’s detinue action;[^41] and

ii. the defendant’s refusal to deliver or return the property to the plaintiff must be absolute and unqualified.[^42]

d. Whereas the tort of conversion may be established without a defendant being in possession of property at the relevant time, the same is not true in relation to detinue. In particular, where the wrongful act of the defendant is his or her refusal to deliver up the relevant chattel to a plaintiff entitled to its possession, the defendant must be in actual possession of the chattel at the time of the refusal, or estopped from denying that he was still in possession.[^43]

e. Like conversion, detinue is a strict liability tort. Generally, it therefore is no defence that the defendant mistakenly believed that the property was his, or that the wrongful act of withholding was committed “in all innocence”. For example, it is irrelevant that the person dealing with the goods did not know and could not have known of the plaintiff’s interest in the goods.[^44]

[24] Where the facts support both an action in conversion and detinue, in relation to particular property, the plaintiff generally must choose his or her remedy, bearing in mind the following:

a. Where the essential elements of conversion have been established in relation to particular property, the remedy normally is a judgment for pecuniary damages. In that regard:

i. As noted above, the measure of damages for conversion ordinarily is the full value of the chattel, (a special rule of damages placing conversion in an exceptional position among tort remedies), which effectively forces an involuntary purchase on the “convertor”.[^45]

ii. In particular, the normal measure of damages is the value of the chattel at the date of conversion, (with the court generally having regard to market value, but also having the ability to consider any special value to the plaintiff), together with any consequential damages flowing from the conversion, provided they are not too remote to be recovered in law.[^46]

b. Where the essential elements of detinue have been established, a number of alternative remedies are available, including:

i. judgment for the value of the chattel and damages for its detention;

ii. an order for the return of the chattel or recovery of its value as assessed, and damages for its detention; or

iii. an order for return of the chattel and damages for its detention.[^47]

c. Judgment for the value of a detained chattel, as opposed to an order directing its return, may be appropriate where the chattel is an ordinary article of commerce. However, an order directing return of the chattel will be appropriate were the chattel is not ordinary and/or is of special value to the plaintiff.[^48]

d. Where the defendant fails to return such property, the value of goods claimed but not returned is assessed, (for the purpose of damages), as of the date of judgment.[^49]

e. Where the goods have been improved and their value increased by the party converting them, the owner generally must pay for that increased value upon repossessing the goods.[^50]

GENERAL PRINCIPLES OF CONTRACT

[25] As noted above, much of the present dispute turns on whether or not there was a legally enforceable agreement between the parties, whereby the plaintiff was to pay the defendant for services he provided in relation to the relevant vehicles and parts.

[26] While the fundamental principles of contract formation may be regarded by many as trite law, I think it helpful to recall and emphasize a number of them here, including the following:

a. Agreement is at the basis of any legally enforceable contract. There must be a consensus ad idem; literally translated as “consent to the same”, and figuratively translated in legal circles as “a meeting of the minds”. Without such a “meeting of the minds” between parties, there can be no legally enforceable contract.[^51]

b. The test of agreement, for legal purposes, is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. In particular:

i. It is not what an individual party believed or understood was the meaning of what the other party said or did that is the criterion of agreement; it is whether a reasonable person in the situation of that party would have believed and understood that the other party was consenting to the identical terms.

ii. The parties will be found to have reached a “meeting of the minds”, (i.e., to be ad idem), where it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty.[^52]

iii. The clear manifestation of agreement required by the common law is reflected in the notions of offer and acceptance. Without an offer and acceptance, (both of which must be clear, unambiguous and signify an intention to create legally binding relations on specified terms),[^53] there is no contract. If either or both is/are missing, there is no proof that the parties were ever ad idem; i.e., that they had reached a stage in their negotiations in respect of which it could be said that they had shown not only an intent to be bound together, but the nature, extent and manner of their being bound, so as to give rise to a legally recognizable and enforceable contract. The parties will not be bound unless they intend to be bound; nor will they be bound until they intend to be bound.[^54]

iv. Agreement alone accordingly is not sufficient to create a legally enforceable contract. Such a contract can only arise if there is the animus contrahendi, (i.e., an intention to contract), between the parties. In other words, the intent to not only agree but also create binding contractual relations is a fundamental criterion of contract formation. Without the expressed or implicit intention that a binding contract should emerge as a result of the language or conduct of the alleged parties, no contractual obligations can be said to exist and be capable of enforcement.[^55] In that regard:

1. Where agreements are reached in a commercial context, it may be presumed that parties intended to create legal relations.[^56]

2. However, situations involving agreements reached between those in domestic, family and similar “private” relationships, while capable of being treated as contractual and involving legal relations enforceable in the courts, tend to be regarded as non-contractual and “binding in honour only”; i.e., as nothing more than a private arrangement unsupported except by what might be termed “social” or “moral” sanctions.[^57]

v. In any event, an agreement to make an agreement is not enforceable. If parties have merely agreed that they will make a contract in the future, there will be nothing as yet that is legally enforceable, even if the parties have identified terms upon which such a later contract will be made.[^58]

c. If there is no single document to which reference can be made in order to decide if a contract exists between parties, but a “series of negotiations” instead, then everything that occurs between the parties relevant to the alleged contract must be considered by the court faced with the problem of deciding the issue. From what the parties have said, done or written, in combination if necessary, there must be established a bargain or agreement.[^59]

d. The court cannot make, for the parties, a bargain which they themselves did not make in proper time.[^60] If a contract was not clearly created by the language or conduct of the parties, the court cannot construct one.[^61] It is for the parties to use such language, or employ such conduct, as will make plain what they intended to contract.[^62] The parties must have evinced clear agreement on the essential terms of the contract; e.g., the price for goods and services, or the commencement date and term of a lease agreement.[^63] If the agreement is too vague to be enforced, then there is no legally enforceable contract.[^64]

[27] In this particular case, the dispute between the parties nevertheless extends beyond the question of whether or not there was a legally enforceable contract at common law. It also involves a consideration of the impact certain legislation may or may not have had on whether and how any such agreement was capable of being enforced.

[28] I turn to that legislation next.

[REPAIR AND STORAGE LIENS ACT](https://www.canlii.org/en/on/laws/stat/rso-1990-c-r25/latest/rso-1990-c-r25.html) and CONSUMER PROTECTION ACT, 2002

[29] As noted above, the defendant Mr Konarski relies in large measure on the provisions of the Repair and Storage Liens Act, supra, or “the RSLA”.

[30] That legislation in turn makes repeated reference to provisions of the Consumer Protection Act, 2002, S.O. 2002, c.30, or “the CPA”.

[31] It is important to note and bear in mind that the provisions of the RSLA and the CPA, and the regulations enacted pursuant to each of those two statutes, have evolved; i.e., with provisions of each being amended, added and/or deleted over time.

[32] For the purpose of addressing and resolving the dispute now before the court, one accordingly must have regard to historical versions of the RSLA, the CPA, and the regulations enacted pursuant to each; i.e., to the form in which they existed at the time of the underlying events, in the spring and summer of 2015, giving rise to the current dispute between the parties. In the circumstances:

a. I have regard to the historical version of the RSLA, as it existed during the period from November 20, 2014, to June 30, 2016;

b. I bear in mind that there apparently were no regulations enacted pursuant to the RSLA until July 1, 2016;

c. I have regard to the historical version of the CPA, as it existed during the period from April 1, 2015, to December 7, 2016; and

d. I have regard to the historical version of O.Reg.17/05, enacted pursuant to the CPA, as it existed during the period from April 1, 2015, to December 16, 2015.[^65]

[33] Those versions of the RSLA and the CPA, and regulations enacted pursuant to the CPA, clearly contain a number of provisions relating to the possible creation and enforcement of liens by those who provide repair and storage services.

[34] In relation to repairs, such provisions include the following:

a. Pursuant to s.3(1) of the RSLA, in the absence of a written agreement to the contrary, a “repairer” has a lien against an “article” that the repairer has repaired for an amount equal to one of the following, and the repairer may retain possession of the article until the amount is paid:

1. the amount that the person who requested the “repair” agreed to pay;

2. where no such amount has been agreed upon, the “fair value” of the “repair”; or

3. where only part of a repair is completed, the “fair value” of the part completed.

b. Pursuant to s.1(1) of the RSLA:

i. “repairer” means a person who makes a repair on the understanding that the person will be paid for the repair;

ii. “repair” means an expenditure of money on, or the application of labour, skill or materials to, an article for the purpose of altering, improving or restoring its properties or maintaining its condition, and includes:

1. the transportation of the article for the purpose of making a repair;

2. the towing of an article; and

3. the salvage of an article; and

iii. “article” means an item of tangible personal property other than a fixture.

c. Pursuant to s.3(2) of the RSLA, a repairer’s lien arises and takes effect when the repair is commenced, except that no repairer’s lien arises if the repairer was required to comply with ss. 56, 57, 58(1) and 59 of the CPA, if applicable, and the repairer has not done so. In that regard:

i. Pursuant to s.2(1) of the CPA, the CPA generally applies in respect of all “consumer transactions” if the “consumer” or the person engaging in the transaction with the “consumer” is located in Ontario when the transaction takes place. In that regard, pursuant to s.1 of the CPA:

1. “consumer” means an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes;

2. “consumer transaction” means any act or instance of conducting business or other dealings with a consumer, including a “consumer agreement”;

3. “consumer agreement” means an agreement between a “supplier” and a consumer in which the supplier agrees to supply “goods” or “services” for “payment”;

4. “supplier” means a person who is in the business of selling, leasing or trading in goods or services or is otherwise in the business of supplying goods or services, and includes an agent of the supplier and a person who holds themself out to be a supplier or an agent of the supplier;

5. “goods” means any type of property;

6. “services” means anything other than goods, including any service, right, entitlement or benefit; and

7. “payment” means consideration of any kind, including an initiation fee.

ii. Pursuant to s.2(2) and s.2(3) of the CPA, the CPA does not apply in respect of certain indicated types of consumer transactions and services specifically regulated by other statutes identified by name or description, to certain described financial services and products, or to the supply of public utility or gas transmission, distribution or storage. None of those particular provisions, excluding application of the CPA, would seem to have any relevance to the case at hand.[^66]

iii. Pursuant to s.3 of the CPA, in determining whether the CPA applies to an entity or transaction, a court is to consider “the real substance of the entity or transaction”, and in doing so may disregard “the outward form”.

iv. The provisions of the CPA specifically cross-referenced by s.3(2) of the RSLA - i.e., ss. 56, 57, 58(1) and 59 of the CPA – are all found within Part VI of the CPA, which includes, in s.55, further definitions applicable to that Part of the CPA.

v. As far as section 56 of the CPA is concerned:

1. Generally, pursuant to s.56(1) of the CPA, no “repairer” shall charge a consumer for any work or repairs unless the “repairer” first gives the consumer an “estimate” that meets the “prescribed” requirements. In that regard:

a. Pursuant to s.55 of the CPA:

i. “repairer”, (as used in the CPA), means a supplier who works on or repairs “vehicles” or other “prescribed” goods;

ii. “vehicle”, (as used in the CPA), means a motor vehicle as defined in the Highway Traffic Act, R.S.O. 1990, c.H.8, (or “the HTA”); and

iii. “estimate” means an “estimate of the total cost of the work on and repairs” to the goods being repaired.

b. Pursuant to section 1 of the HTA, the term “vehicle” is defined such that it “includes a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle and any vehicle drawn, propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or a street car”.[^67]

c. Pursuant to s.1 of the CPA, the term “prescribed”, when used in the CPA, means “prescribed by regulations made under [the CPA]”.

d. Pursuant to s.48 of O.Reg.17/05, enacted pursuant to the CPA, for the purposes of s.56(1) of the CPA, an “estimate of the total cost of work on and repairs to a vehicle” must be in writing and must set out the following information:

1. The name of the consumer.

2. The name of the repairer and, if different, the name under which the repairer carries on business.

3. The telephone number of the repairer, the address of the premises from which the repairer conducts business, and information respecting other ways, if any, in which the repairer can be contacted by the consumer, such as the fax number and email address of the repairer.

4. The make, model, vehicle identification number and licence number of the vehicle.

5. The odometer reading of the vehicle at the time of the estimate.

6. An exact description of the work to be done on and the repairs to be made to the vehicle.

7. An itemized list of the parts to be installed and a statement as to whether each part is a new part provided by the original equipment manufacturer, a new part not provided by the original equipment manufacturer, a used part or a reconditioned part.

8. The amount that the consumer will be charged for each part under paragraph 7; i.e., the preceding paragraph requiring an itemized list of the parts to be installed, in the manner described.

9. The number of hours to be billed for doing the work and making the repairs, the hourly rate to be charged, any flat rate that will be applied in respect of any of the work or repairs and the total charge for labour.

10. An itemized list of all other goods and services, such as storing the vehicle, picking up or delivering the vehicle or providing the consumer with another vehicle on a temporary basis, that are to be provided to the consumer in connection with the transaction and for which the consumer will be charged, and the amount to be charged for each such good or service.

11. If the consumer has declined the return of any parts to be removed in the course of work on or repairs to the vehicle, a statement to that effect and the resulting reduction, if any, in price.

12. The total amount to be billed to the consumer.

13. The date on which the estimate is given and the date after which it ceases to apply.

14. The date by which the work and repairs will be completed.

15. That the repairer will not charge the consumer an amount that exceeds the amount estimated under paragraph 12 by more than 10 per cent.

16. On an exceptional basis, s.56(2) of the CPA provides that, despite s.56(1) of the CPA, a repairer may charge for work or repairs without giving an estimate, (i.e., an estimate defined by and satisfying the provisions noted above), if and only if:

a. the repairer offers to give the consumer an estimate and the consumer declines the offer of an estimate;

b. the consumer specifically authorizes the maximum amount that he or she will pay the repairer to make the repairs or do the work; and

c. the cost charged for the work or repairs does not exceed the maximum amount authorized by the consumer.

vi. Section 57 of the CPA regulates the ability of repairers to charge a fee for an estimate. In my view, the provisions of s.57 of the CPA have no apparent relevance to the situation before me.

vii. Pursuant to section 58 of the CPA:

1. no repairer shall charge for any work or repairs unless the consumer authorizes the work or repairs; and

2. no repairer shall charge, for work or repairs for which an estimate was given, an amount that exceeds the estimate by more than 10 per cent.

viii. Pursuant to s.59 of the CPA, if an authorization required by section 56, 57 or 58 of the CPA is not given in writing, the authorization is not effective unless it is recorded in a manner that meets the “prescribed” requirements. In that regard:

1. As noted above, pursuant to s.1 of the CPA, the term “prescribed”, as used in the CPA, means “prescribed by regulations made under [the CPA]”.

2. Pursuant to s.49 of O.Reg.17/05, (enacted pursuant to the CPA), for the purposes of s.59 of the CPA, if an authorization that is not in writing is given to a repairer who works on or repairs vehicles, the following is required to be recorded in order for the authorization to be effective:

a. the name of the person giving the authorization;

b. the date and time of the authorization; and

c. if the non-written authorization is given by telephone, the telephone number of the person giving the authorization, and if the non-written authorization is given by a method other than telephone, information regarding how the person giving the authorization can be contacted using the other method.

d. Pursuant to s.3(2.1) of the RSLA, in cases where Part VI of the CPA applies, the amount of a repairer’s lien under s.3(2) shall not exceed:

a. the amount that the repairer is authorized to charge for the repair under s.58(2) and 64 of the CPA, if those provisions apply to the repairer;[^68] and

b. the maximum amount authorized by the person who requested the repair, if section 56 of the CPA applies to the person.

e. Pursuant to s.3(3) of the RSLA, a repairer has the right to sell an article that is subject to a lien in accordance with Part III of the statute, (dealing with “Redemption, Sale or Other Disposition”), upon the expiration of the sixty-day period following:

i. the day on which the amount required to pay for the repair comes due; or

ii. the day on which the repair is completed, if no date is stated for when the amount required to pay for the repair comes due.

[35] In relation to storage, (or storage and repair), relevant provisions of the RSLA and the CPA include the following:

a. Pursuant to s.4(1) of the RSLA, and subject to s.4(2) of the same legislation, a “storer” has a lien against an “article” that the “storer” has stored, or stored and repaired, for an amount equal to one of the following, and the “storer” may retain possession of the “article” until the amount is paid:

i. the amount agreed upon for the storage, or storage and “repair”, of the article; and

ii. where no such amount has been agreed upon, the fair value of the storage, or storage and repair, including all lawful claims for money advanced, interest on money advanced, insurance, transportation, labour, weighing, packing and other expenses incurred in relation to the storage, or storage and “repair”, of the “article”.

b. In that regard, pursuant to s.1(1) of the RSLA:

i. a “storer” means a person who receives an “article” for storage, or storage and “repair”, on the understanding that the person will be paid for the storage, or storage and “repair”, as the case may be;

ii. as noted above, “article” means an item of tangible personal property other than a fixture; and

iii. as noted above, “repair” means an expenditure of money on, or the application of labour, skill or materials to, an article for the purpose of altering, improving or restoring its properties or maintaining its condition, and includes:

1. the transportation of the article for the purpose of making a repair;

2. the towing of an article; and

3. the salvage of an article.

c. However, pursuant to s.4(2) of the RSLA, a storer is not entitled to a lien for a repair made to an article unless the “repair” is made by the storer on the understanding that the storer would be paid for the repair, or subsection 28(2) of the RSLA applies. In that regard:

i. Subsection 28(2) of the RSLA provides that, unless otherwise agreed, a “lien claimant” is entitled to recover the commercially reasonable expenses incurred in the custody, preservation and preparation for sale of an article that is subject to a lien, including the cost of insurance and the payment of taxes or other charges incurred therefor, and the expenses are chargeable to and secured by the article and may be included by the “lien claimant” in determining the amount to satisfy the lien.

ii. Pursuant to s.1(1) of the RSLA, “lien claimant” means a person who is entitled to claim a lien for the repair, storage, or storage and repair of an article.

d. Moreover, pursuant to s.4(3) of the RSLA, while a storer’s lien generally arises and takes effect when the storer receives possession of the article for storage, or for storage and repair, no storer’s lien arises with respect to repair if the storer was required to comply with ss.56, 57, 58(1) and 59 of the CPA, if applicable, and the storer has not done so. In that regard, see paragraph 32(c) herein.

e. Pursuant to s.4(4) of the RSLA, where the storer knows or has reason to believe that possession of an article subject to a lien was received from a person other than its owner, or a person having its owner’s authority, the storer, within sixty days after the day of receiving the article, shall give written notice of the lien:

i. to every person whom the storer knows or has reason to believe is the owner or has an interest in the article, including every person who has a security interest in the article that is perfected by registration under the PPSA against the name of the person whom the storer knows or has reason to believe is the owner; and

ii. in addition to the required notices described in the previous sub-paragraph, where the article is a vehicle:

1. to every person who has a registered claim for lien against the article under Part II of the RSLA, dealing with “non-possessory liens”;

2. to every person who has a security interest in the vehicle that is perfected by registration under the PPSA against the vehicle identification number of the vehicle; and

3. if the vehicle is registered under the HTA, to the registered owner.

f. Pursuant to s.4(5) of the RSLA, the notice required by s.4(4) of the RSLA must contain the following:

i. a description of the article sufficient to enable it to be identified;

ii. the address of the place of storage, the date that it was received, and the name of the person from whom it was received;

iii. a statement that a lien is claimed under the RSLA by the storer, in respect of the article; and

iv. a statement advising how the article may be redeemed.

g. Where a storer fails to give the notice required by s.4(4) of the RSLA, with the content mandated by s.4(5) of the RSLA, the storer’s lien as against the person who should have been given the notice is limited to the unpaid amount owing in respect of the period of sixty days from when the article was received, and the storer must surrender possession of the article to that person where the person proves a right of possession and pays that amount.

h. Pursuant to s.4(7) of the RSLA, a storer has the right to sell an article that is subject to a lien, in accordance with Part III of the RSLA, (dealing with “Redemption, Sale or Other Disposition”), upon the expiration of the sixty-day period following the day on which the amount required to pay for the storage, or storage and repair, becomes due.

[36] Pursuant to s.26(1) of the RSLA, a separate lien arises under the Act each time an article is repaired, stored, or stored and repaired.

[37] In relation to possible sale of an article, in respect of which a lien right is created pursuant to the RSLA:

a. Pursuant to s.15(1) of the RSLA, a lien claimant who has a right under the RSLA to sell an article shall not exercise that right unless the lien claimant has given notice of intention to sell the article. In that regard:

i. Pursuant to s.15(2) of the RSLA, such notice of intention to sell such an article must be in writing, and must be given, at least 15 days before such a sale, to:

1. the person from whom the article was received for repair, storage, or storage and repair;

2. where the article was received for repair, storage, or storage and repair from a person other than its owner:

a. the person who is the registered owner of the article, of the article is a motor vehicle; or

b. the person the lien claimant knows or has reason to believe is the owner, if the article is not a motor vehicle;

3. every person who has a security interest in the article under the PPSA that is perfected by registration against the name of the owner, (if the owner is a person entitled to notice under the previous two sub-sub-paragraphs herein), or the vehicle identification number, (if the article is a motor vehicle); and

4. every person who has registered a claim pursuant to Part II of the RSLA for a non-possessory lien against the name of the owner, (if the owner is a person entitled to notice under the first two sub-sub-paragraphs herein), or the vehicle identification number, (if the article is a motor vehicle).

ii. Pursuant to s.15(3) of the RSLA, such notice of intention must contain:

a. a description of the article sufficient to enable it to be identified;

b. a statement of the amount required to satisfy the lien, as of the time when the notice is given, and any costs of seizure;

c. a statement of the method of calculating, on a daily basis, any further costs of storage or preservation of the article that may be incurred between the time when the notice is given and the time when the sale is to take place;

d. a statement that the article may be redeemed by any person entitled to receive notice by payment of the amount determined under requirements “b” and “c” – i.e., the requirements described in the two preceding sub-sub-subparagraphs;

e. a statement of:

i. the name of the person to whom payment may be made;

ii. the address where the article may be redeemed;

iii. the times during which the redemption may be made;

iv. the telephone number, if any, of the person giving notice.

f. a statement of the date, time and place of any public sale at which the article is to be sold, or the date after which any private sale of the article is to be made; and

g. a statement that the article may be sold unless it is redeemed on or before the day of any public sale at which the article is to be sold, or the date after which any private sale of the article is to be made.

b. Pursuant to s.15(4) of the RSLA, the article may then be sold in whole or in part, by public or private sale, at any time and place, on any terms, so long as every aspect of the sale is commercially reasonable.

c. However, pursuant to s.15(5) of the RSLA, a lien claimant may purchase the article only at a public sale.

d. Where an article has been sold by a lien claimant, in accordance with the provisions of the RSLA, section 16 of the RSLA then provides detailed directions as to how the proceeds of sale are to be applied, and a procedure for the lien claimant to pay sale proceeds into court where there is a question concerning the right of any person to share in the proceeds of an article’s sale.

[38] As an alternative to a lien claimant’s sale of an article, to satisfy the lien, the RSLA also contemplates a lien claimant’s possible retention of the article, under certain prescribed circumstances and subject to certain prescribed preconditions. In that regard:

a. Pursuant to s.17(1) of the RSLA, a lien claimant who has a right to sell an article may propose, in lieu of selling it, to retain the article in satisfaction of the amount of the lien claimed, by giving notice of the retention proposal to the persons entitled to notice under subsection 15(2) of the RSA; i.e., the same persons entitled to service of notice of any lien claimant’s intention to sell an article.

b. Pursuant to s.17(2) of the RSLA, where a person entitled to receive such a lien claimant’s notice of proposed retention of an article in satisfaction of the amount of the claimed lien gives a written objection to that proposed retention, within 30 days of receiving the lien claimant’s proposal, the lien claimant generally must then sell the article in accordance with the provisions of section 15 of the RSLA. In that regard, the only exception to a mandated sale in such circumstances, (i.e., rather than retention of the article by the lien claimant), is addressed specifically by ss.17(3), and applies to cases where the court orders, (in response to an application brought on notice to every person who gave a written objection to the lien claimant’s proposed retention of the article), that the objection to the proposed retention was made for a purpose other than protection of the objector’s interest in the article, or the fair market value of the article is less than the amount of the lien claimant’s lien and the estimated expenses to which the lien claimant is entitled pursuant to the RSLA.

c. Pursuant to s.17(4), where no effective objection is made to the lien claimant’s proposed retention of the article, the lien claimant, at the expiration of the 30 day period mentioned in s.17(2), is deemed to have irrevocably elected to retain the article, and thereafter is entitled to hold or dispose of the article free from the rights and interest of every person to whom the written notice of the proposed retention was given.

[39] Pursuant to s.18 of the RSLA, where a lien claimant has sold an article pursuant to s.15 of the RSLA, or has been deemed to have elected irrevocably to retain the article pursuant to s.17(4) of the RSLA, the lien claimant is then deemed to have sold the article or retained the article in full satisfaction of the amount owing in respect of the lien.

[40] However, as a further alternative to sale or retention of the article by the lien claimant, the RSLA also contemplates possible redemption of an article that is subject to a lien created by the RSLA. In particular, pursuant to s.22 of the RSLA, the owner of the article and any person referred to in s.15(2), (i.e., any person entitled to notice of a lien claimant’s proposed sale or retention of the article), may redeem the article by paying the amount required to satisfy the lien at any time before:

a. the lien claimant has sold the article under section 15 of the RSLA;

b. the lien claimant is deemed to have irrevocably elected to retain the article under section 17 of the RSLA; or

c. the lien claimant has given the article to charity, which is a possibility contemplated and regulated by section 19 of the RSLA.

[41] The RSLA contains provisions specifically dealing with permissible methods of service in relation to documents required to be given under the Act, such as:

a. the special notice a storer is required to give, in accordance with s.4(4) and s.4(5) of the RSLA, where the storer knows or has reason to believe that possession of an article subject to a lien was received from a person other than its owner or a person having its owner’s authority;

b. the notice of intention of sale which lien claimants are required to give by s.15(2) and 15(3) of the RSLA; or

c. the notice of proposed retention of an article which lien claimants are required to give by s.17(1) of the RSLA.

[42] In particular, pursuant to s.27(1) of the RSLA, a document required to be given or that may be given under the RSLA is sufficiently given if it is given personally to the intended recipient, or if it is sent by certified or registered mail or prepaid courier to the intended recipient at:

a. the intended recipient’s address for service if there is one;

b. the last known mailing address of the intended recipient according to the records of the person sending the document, where there is no address for service; or

c. the most recent address of the intended recipient as shown on a claim for lien or change statement registered under the RSLA or as shown on a financing statement or financing change statement registered under the PPSA.

[43] Pursuant to s.27(2) of the RSLA, when a document is sent to an intended recipient by certified or registered mail, it is deemed to have been given on the earlier of:

a. the day the intended recipient actually receives it; and

b. the tenth day after the day of mailing.

EQUITABLE JURISDICTION

[44] To the extent I find that Mr Konarski had no rights vis-à-vis the plaintiff pursuant to an enforceable contract between the parties, and/or pursuant to the RSLA, he seeks to invoke this court’s equitable jurisdiction to obtain relief.

[45] In particular, he relies in the alternative on the doctrine of unjust enrichment, and asks that this court remedy any such unjust enrichment by:

a. the imposition of a constructive trust, (e.g., whereby the benefits of any remaining legal ownership of the relevant vehicles and parts by the plaintiff would be held on a constructive trust for the defendant); or

b. awarding damages to the defendant on a quantum meruit basis for the moving and storage services he provided to the plaintiff.

[46] The court unquestionably has jurisdiction to grant such relief.

[47] “Unjust enrichment” is a substantive law concept which imposes liability upon one person to make restitution to another. It is a separate head of obligation in law that is distinct from contract, tort, and liability arising out of fiduciary and other obligations.[^69]

[48] Through cases such as Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834, Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, and Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, the Supreme Court of Canada has developed and clarified the generally applicable requirements for a finding of unjust enrichment, and has provided further guidance as to when and how the doctrine should be applied. General principles in that regard include the following:

a. “Unjust enrichment” should not be viewed or approached as a device for doing whatever may seem fair between the parties.

b. A claim for unjust enrichment arises when three elements have been established, giving rise to :

i. an enrichment of the defendant by receipt of a benefit;

ii. a corresponding deprivation suffered by the plaintiff; and

iii. the absence of a juristic reason for the enrichment.[^70]

c. Courts should take a straightforward economic approach to determination of whether the first two required elements of unjust enrichment, (i.e., enriching benefit received by the defendant and corresponding detriment suffered by the plaintiff), have been established.[^71]

d. In relation to the third element of unjust enrichment, (i.e., absence of a juristic reason for the enrichment), courts consider whether the enrichment and detriment, morally neutral in themselves, are “unjust”. The “test” in that regard is flexible, and inherently raises moral and policy questions requiring courts to make value judgments. The factors to be considered may vary with the situation before the court, and different factors may be more relevant depending on the nature of the case. In every case, however, the fundamental concern is the legitimate expectation of the parties. Subsidiary questions, (e.g., in “family” cases), may focus on:

i. whether the plaintiff conferred the benefit as a valid gift, (the central element of which, at law, is intentional giving to another without expectation of remuneration – e.g., for reasons motivated by love, affection or some other reason for the voluntary assumption of a commitment), or in pursuance of a valid common law, equitable or statutory obligation owed to the defendant;

ii. whether the plaintiff submitted to or compromised the defendant’s honest claim; and

iii. whether public policy supports the enrichment.[^72]

e. The fact that legislation addressing certain situations and types of relationships between parties has not recognized or conferred rights claimed by a plaintiff does not, in itself, mean that the court should not use the equitable doctrine of unjust enrichment to address and remedy the situation. It is precisely where an injustice arises without a legal remedy that equity finds a role.[^73]

[49] Where the essential elements of a claim for unjust enrichment have been made out, the court has an equitable discretion when it comes to fashioning an appropriate remedy, including the ability to choose between the granting of monetary or proprietary relief.

[50] In some cases, (e.g., where a claimant has provided goods or services on some basis falling short of a legally enforceable contract, but the court is satisfied that the circumstances warrant a finding of unjust enrichment), Canadian courts have been prepared to permit recovery on the basis of quantum meruit, (“what one has earned”), or quantum valubat, (“as much as they were worth”), to address the plaintiff’s claim.[^74]

[51] In other cases, courts have recognized that a monetary award to address unjust enrichment might be insufficient or inadequate, and that there may be reason to grant a plaintiff the additional rights that flow from recognition of a property right; i.e., through imposition or recognition of a constructive trust, accompanied where necessary by vesting orders. However:

a. the remedial notion of constructive trust must not be conflated with the existence of unjust enrichment – for example, by mistaken assumptions that a remedy of constructive trust inevitably must follow once unjust enrichment has been established;

b. the special discretionary and proprietary remedy of a constructive trust requires a sufficiently substantial and direct link between the plaintiff’s contribution underlying the claim for unjust enrichment and the property in respect of which the constructive trust is claimed, with a minor or indirect contribution generally being insufficient;

c. the extent of any interest recognized by a constructive trust must be proportionate to the direct or indirect contribution of the claimant, and reflect that contribution;

d. the requirements for the granting of a constructive trust remedy should not be minimized; and

e. generally, where a monetary award is sufficient, there is no need for a constructive trust.[^75]

[52] Although the above comments address and outline the equitable jurisdiction and doctrines invoked by Mr Konarski during the course of the trial, in my view there was a further equitable doctrine implicitly if not expressly invoked by and on behalf of the plaintiff.

[53] In particular, it was suggested repeatedly, (in the plaintiff’s pleading, during the course of testimony from plaintiff witnesses, during cross-examination of Mr Konarski, and again in submissions by plaintiff counsel), that there was a perceived injustice in Mr Konarski relying on purported technical compliance with requirements of the Repair and Storage Liens Act, supra, in circumstances when such compliance allegedly was brought about by conduct on the part of Mr Konarski that was deliberately duplicitous and surreptitious.

[54] For example, it was argued that it would be unfair to permit Mr Konarski’s use of the RSLA’s provisions to require, generally and/or as a perquisite to the return of vehicles and parts entrusted to him, the payment of substantial accumulated charges which were never specified and never brought to the plaintiff’s attention; e.g., by the provision of any delivered invoice or other notice actually directed to the plaintiff’s attention.

[55] On a related note, it was argued that it would be unfair to permit Mr Konarski to rely on legislative provisions normally allowing delivery of required notice by registered mail, and the absence of any timely response to such a notice, (including objection or redemption contemplated by the RSLA), in circumstances where:

a. the notice sent by registered mail, relied upon by Mr Konarski deliberately was addressed to Robert Kew, and only Robert Kew;

b. Mr Konarski and his paralegal Mr Lamb knew full well, at the time, that Robert Kew was deceased and therefore obviously unable to retrieve, receive and/or respond to the registered mailing;

c. Mr Konarski knew or ought to have known that, in the circumstances, registered mail addressed to Robert Kew would be capable of being retrieved only by someone legally authorized and permitted to retrieve such registered mail on behalf of Robert Kew or his estate;

d. Mr Konarski knew that there were complications being experienced in relation to the administration of Mr Konarski’s estate, delaying the appointment of an estate trustee and the ability of the plaintiff to retrieve or act upon any such registered mail addressed to Robert Kew; and

e. Mr Konarski nevertheless deliberately refrained from informing the plaintiff or others with a potential interest in Robert Kew’s estate that he was claiming payment for services rendered in relation to the vehicles and/or parts, that he was asserting rights pursuant to the Repair and Storage Lien Act, supra, and that he had sent a formal notice in that regard by registered mail addressed to Robert Kew, until the time for any redemption of the relevant property had passed and Mr Konarski had taken further steps to have title to the property vested in himself pursuant to the legislation.

[56] The plaintiff and her counsel stopped short of recognizing and identifying, by name, the relevant jurisdiction they were asking the court to invoke to prevent such an injustice.

[57] In my view, however, it was clear that they effectively were relying on the doctrine of “equitable fraud”; a doctrine reflected in the ancient maxim that “Equity will not permit a statute to be used as an instrument of fraud”.

[58] In that regard, our courts recognize that taking advantage of legal rights created by statute, with nothing more, cannot be characterized as unfair or “equitable fraud”. To do so would be, in effect, to characterize competent legislation as unjust. A court accordingly cannot interfere with a legislative scheme merely because it does not approve of a result produced by the relevant statute.[^76]

[59] Courts of equity nevertheless also have the ability, in appropriate cases, to grant in personam relief preventing specified individuals from employing and relying upon legislated rights in an unconscionable way.

[60] That longstanding jurisdiction was articulated by Lord Westbury in McCormick v. Grogan (1899), L.R. 4 H.L. 82 (U.K.H.L.), at p.97:

The Court of Equity has, from a very early period, decided that even an Act of Parliament shall not be used as an instrument of fraud; and if in the machinery of perpetrating a fraud an Act of Parliament intervenes, the Court of Equity, it is true, does not set aside the Act of Parliament, but it fastens on the individual who gets title under that Act, and imposes upon him a personal obligation, because he applies the Act as an instrument for accomplishing a fraud. In this way, the Court of Equity has dealt with the Statute of Frauds, and in this manner, also, it deals with the Statute of Wills.

[61] Although Lord Westbury referred elsewhere in the McCormick v. Grogan decision to a need for demonstration of fraud in the classic sense of misconduct involving a malus animus, (i.e., “evil intention”, the intention to do harm, or the intention to do an illegal or immoral act), what came to be known as the doctrine of “equitable fraud” was recognized as having a wider application over time; an application that no longer requires the demonstration of any improper motive.

[62] For example, the modern scope of the “equitable fraud” doctrine was described as follows, in a much-quoted statement from Kitchen v. Royal Air Force Association, [1958] 2 All E.R. 241 (Eng.C.A.), at p.249:

No degree of moral turpitude is necessary to establish fraud within the section. What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define two hundred years ago, and I certainly shall not attempt to do so now, but it is, I think, clear that the phrase covers conduct which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other.

[63] The doctrine of equitable fraud, available on that expanded basis, has been recognized and employed repeatedly by Canadian courts into modern times; e.g., to prevent unjust reliance on rights otherwise conferred by legislated limitation periods, statutes regulating insurance benefits, and legislation dictating priorities in bankruptcy and insolvency situations.[^77]

[64] I see no reason in principle why that equitable jurisdiction is incapable of being exercised, in appropriate circumstances, in relation to any established unconscionable reliance on the RSLA.

Evidence – Additional and Conflicting evidence, and further findings of fact

[65] Before carrying out my required analysis, with all of the above legal, equitable and legislated principles and considerations in mind, I return to a consideration of the additional and conflicting evidence I received.

[66] Again, that unavoidably requires a consideration of myriad details concerning the nature of the ongoing interactions of the parties, and the nature and condition, over time, of the underlying vehicles and parts which are at the centre of this litigation.

ADDITIONAL EVIDENCE

[67] With the exception of Mr Melanson, all of the witnesses presented at trial had an inherent bias, insofar as they had a person interest in the outcome of this litigation. In particular:

a. Jason and Cody Kew are now the only remaining beneficiaries of Bob Kew’s estate, and therefore have an obvious interest in estate assets being maximized and estate liabilities being minimized.

b. While the plaintiff may not have a direct beneficial interest in the estate of Bob Kew, she obviously has a natural interest in maximizing the benefits to be realized from the estate by her children Jason and Cody.

c. The defendant clearly will benefit to the extent he is found to have had legitimate claims against the estate, (e.g., in terms of any entitlement to receive compensation for the services he rendered), and a resulting valid title to the vehicles and parts he retained as a means of addressing that alleged entitlement.

[68] As for Mr Melanson, his testimony was clarified and expanded through cross-examination, but in my view was not really challenged in any meaningful way. The evidence he provided included the following:

a. In addition to automotive cleaning and sales, Mr Melanson’s business provides vehicle storage services.

b. In particular, his business stores vehicles in a facility depicted in the exterior and interior photographs filed in evidence, and described in more detail by Mr Melanson. The relevant facility is new, modern and large; i.e., 8,000 square feet, divided into two 4,000 square foot “bays”, one of which is used for Mr Melanson’s business. That bay obviously is maintained in a clean, tidy and uncluttered fashion. It has a concrete floor, and has radiant heating which keeps the interior at a temperature between 15 and 20 degrees Celsius throughout the winter. It also has a security system.

c. Those storing vehicles in the facility are required to enter into a standard “Vehicle Storage Contract” for the provision of vehicle storage on a “month to month” basis. The basic template of that contract was filed in evidence. Its provisions include stated obligations on the customer to maintain comprehensive insurance on the vehicle being stored, and to provide a minimum 15 days notice before terminating the contract. While the contract indicates that it is only intended to address vehicle storage, and does not cover maintenance of vehicles while they are in storage, (e.g., in relation to washing, battery charging or tire inflation), it allows for the possibility of such services. In that regard, Mr Melanson testified that his business, like other vehicle storage competitors, does in fact provide “battery maintainers”.

d. The contract template includes blanks for insertion of details concerning the customer and his or her contact information, a description of the stored vehicle, (including its vehicle identification number or “VIN”), and the agreed monthly storage fee, which varies depending on whether the vehicle being stored is a motorcycle or car. In relation to the latter, Mr Melanson testified that the monthly flat rate for storage in relation to cars was $135 plus tax per month, at the time of trial.[^78] However, customers paying for at least six months of storage “up front” are given a discount, reducing the monthly storage rate to $120 plus tax.[^79] Most customers pay such fees through the provision of post-dated cheques. However, those storing vehicles over the winter frequently take advantage of the discount arrangement. Mr Melanson testified that the storage prices charged by his business were set in a manner to ensure that they were competitive; e.g., by looking at vehicle storage rates charged by regional competitors, (e.g., in Kitchener and Cambridge), offering storage in similar facilities, (e.g., heated buildings with security systems, providing battery maintainers), but who nevertheless usually charged higher rates of $175 to $199 per month.

e. Mr Melanson confirmed that his business usually has a limited inventory of cars available for sale, (e.g., about five at a time), and stores approximately 10 cars and 2 motorcycles during a normal season.

[69] In my view, there was no reason to think that Mr Melanson was anything but an entirely credible and reliable witness. He not only had no reason to lie, but for obvious reasons also was thoroughly knowledgeable about his business operation. I accordingly accept his evidence in its entirety.

CONFLICTING EVIDENCE

[70] Much of the conflicting evidence presented at trial was centred on dealings and communications between the parties, relevant to the manner in which the plaintiff came to be assisted by the defendant, the manner in which the relevant vehicles and/or vehicle parts came to be in the possession of Mr Konarski, and the basis on which he received them.

[71] However, I also received a great deal of conflicting evidence relating to the nature, state and condition of the vehicles when they passed into the possession of Mr Konarski; e.g., in terms of vehicle components that were present or missing at the time, and components that may have been removed from the vehicles by Mr Konarski after he received them.

[72] Relevant portions of the evidence provided by the plaintiff in relation to such matters included the following:

a. According to the plaintiff, she and her husband came to know and develop a close relationship with Mr Konarski and members of Mr Konarski’s family. In that regard, the plaintiff testified that, after she and Bob Kew initially met and became acquainted with Mr Konarski, the Kew and Konarski families began to socialize and see much more of each other over time. For example, in addition to frequent telephone conversations, the two families would attend each other’s homes for social visits, with the adults visiting while their children played together. Bob and Marie were invited to parties hosted by Mr Konarski and his wife Karen, and would stop in to see them from time to time; e.g., to visit and “have coffee or whatever”.

b. The plaintiff says that the close friendship between Bob Kew and Mr Konarski, which lasted for 30-35 years, accordingly was accompanied by a longstanding personal friendship between her and Mr Konarski as well. For example, she described how she and Mr Konarski had remained in regular contact with each other even after her divorce from Bob Kew, and after Mr Konarski’s divorce from his wife Kathy. In that regard, the plaintiff says that Mr Konarski would speak to her regularly by telephone, talking “like an old time friend”, sharing information about his family, and discussing information and concerns about Bob and/or Bob’s relationship with Ms Marzec; e.g., warning the plaintiff on one occasion that Bob was angry and had purchased a gun.

c. While the plaintiff readily acknowledged that Mr Konarski had occasionally provided services for Bob, (e.g., delivering a vehicle to a London high school and helping to retrieve and import a collector vehicle), and/or for her and Bob, (e.g., providing oil undercoating for vehicles), she firmly rejected the characterization that Mr Konarski had ever “worked for” either of them. She emphasized that she, Bob Kew and Mr Konarski were close friends, and testified that services were exchanged informally and frequently between Bob and Mr Konarski, with the two men going “back and forth doing stuff” for each other. In that regard:

i. The plaintiff rejected suggestions, put to her in cross-examination, that there had been any kind of accumulation of debt owed by Bob to Mr Konarski in relation to Mr Konarski’s provision of such services.

ii. In particular, she recalled a specific conversation she had with Mr Konarski at “Elsie’s Diner” in Springmount, during relocation of vehicles following Bob’s death. The plaintiff was intent on paying all of Bob’s debts, had her cheque book with her, and specifically asked Mr Konarski if Bob had owed him anything in respect of which he required payment. Mr Konarski replied “Oh, a nickel here, a nickel there, but there’s no issue”, and said that could be left “til later”.

d. The plaintiff says that, when her son Jason called her on the morning of March 31, 2015, to indicate that Bob was not expected to survive, she “automatically picked up the phone” to call Mr Konarski and let him know. She says she did so because she thought she, Bob and Mr Konarski were close friends, that Mr Konarski accordingly would want to know and might want to attend at the hospital, which he was welcome to do. She says that she did not instruct or ask Mr Konarski to come to the hospital, as she felt that decision “was up to him”. However, Mr Konarski responded by indicating that he would meet the plaintiff at the hospital in Kitchener.

e. According to the plaintiff, she, Cody and Jason were joined at the hospital by Mr Konarski, who engaged in supportive hugs before seeing Bob.

f. When asked if the ability of visitors to see Bob had been limited to two persons at a time, the plaintiff said she did not recall being the case, as she had a definite memory of her, Jason, Cody and Mr Konarski all being beside Bob at one point.

g. As the plaintiff described it, the discussions about whether Bob should be removed from life support, in which Mr Konarski participated, were quite stressful and difficult. On the one hand, she says that she, Jason, Cody and Mr Konarski all knew and were quite sure that Bob would not want to be resuscitated in circumstances where there was little or no hope for any quality of life, and that “Bob wouldn’t have wanted to live like a vegetable”. On the other hand, as the plaintiff put it, “You don’t want to take the plug off somebody if there’s a little bit of hope”. The plaintiff testified that, in the end, it effectively was a group decision, agreed upon by her, Jason, Cody and Mr Konarski, to have Bob removed from life support.[^80] The plaintiff denied suggestions put to her in cross-examination:

i. that while waiting with Mr Konarski in the hospital prior to Bob’s death, she had asked Mr Konarski how much he thought the Kintore farm property was worth;

ii. that she was asking about the possibility of removing Bob from life support even before Bob’s physician had made any recommendations in that regard;

iii. that the physician asked questions about who had authority to make decisions for Bob, and the identify of those who would be beneficiaries of Bob’s estate; and

iv. that she had indicated, to the physician, a belief that she had power of attorney documents back in Southampton, appointing her as Bob’s attorney in relation to his property and personal care.[^81]

h. The plaintiff says that, during discussion of concerns that Ms Marzec might take or harm Bob’s property, Mr Konarski shared such concerns and agreed that it would be a good idea to remove and relocate any items of value currently located at the Wiarton property, in case the house there was burned or Ms Marzec attempted to inflict more damage on Bob’s vehicles. In the result, the plaintiff says, the decision to remove and protect such property was a joint decision made by her, Jason, Cody and Mr Konarski.

i. The plaintiff testified that Mr Konarski offered to assist with the moving of Bob’s vehicles, and that she was grateful to accept and receive Mr Konarski’s help in the circumstances.

j. According to the plaintiff, it initially was contemplated that all items removed from Bob’s Wiarton property would be relocated to the Kintore farm property, with some vehicles being left outside there, (in cases where their protection from the elements would not be required or worthwhile – such as cars that were not collector items), but with any vehicles or other items of value being stored and protected inside that property’s two large commercial buildings. However, it was quickly realized that, at the time of Bob’s death, those two commercial buildings already contained so many items, in such a state of disorganization, that significant work would be required to rearrange those items and clear space for storage of the additional vehicles to be transferred there from Wiarton. Moreover, although she and her husband Tom began such efforts almost immediately after Bob’s death, and worked hard at such preparations thereafter, it was also realized that, in the short term at least, there would not be sufficient room in the Kintore farm buildings to house all of the valuable vehicles, (i.e., those which could not be left outside), being removed from the Wiarton property. It was then, the plaintiff says, that Mr Konarski also offered to assist by storing such “excess” vehicles temporarily at his property in Sebringville. In that regard:

i. The plaintiff says that Mr Konarski had prior knowledge that the commercial buildings at the Kintore farm property already were filled with items owned and stored there by Bob, as Mr Konarski had visited the property many times and seen the situation there. However, she says Mr Konarski also heard her and Tom discussing the challenges of clearing space in those buildings to make room for vehicles, being relocated from the Wiarton property, which needed to be stored inside.

ii. The plaintiff was certain that it was Mr Konarski who then offered to store such “excess” vehicles at his property in Sebringville, as he currently had storage space available there. She then gratefully accepted his offer.

iii. As for how long the vehicles and parts would be stored at Mr Konarski’s property:

1. The plaintiff testified that she initially indicated to Mr Konarski that only a month of storage would be required, but he had responded by saying “It’s okay, you don’t need to move them out ‘til the fall”, before then specifically mentioning September.

2. In that regard, although the plaintiff says there was never any precise date set for the end of the storage arrangement, she was quite certain that Mr Konarski made it clear that the “excess” vehicles and parts could remain stored at his property into September of 2015. In particular, Mr Konarski indicated that, while there currently was storage space available in his “shed”, he would need that space in the “fall” for his “equipment” and “stuff”, and mentioned “September” accordingly.

3. While Mr Konarski did not expand further on his reasons for wanting the relevant vehicles and parts of his shed in September, and the plaintiff knew at the time that Mr Konarski was not an active farmer, the plaintiff did know that Mr Konarski made and supplied steel “bale racks”; i.e., steel beam devices, (capable of having wheel axles placed underneath to form a sort of wagon), used to hold and/or move bales of harvested hay crops. It was the plaintiff’s understanding that Mr Konarski would be needing his storage space for such purposes in the fall.

iv. The temporary storage facility, being offered by Mr Konarski until September, was consistent with the relatively short timeframe, contemplated by the plaintiff, for relocating such vehicles to the Kintore farm property once she and her husband Tom were able to clear additional storage space at that location. The plaintiff did not want to leave the excess vehicles at Mr Konarski’s property for very long.

k. While the plaintiff appreciated and accepted Mr Konarski’s offers to help with moving vehicles and parts from Wiarton, and to provide temporary storage for vehicles and parts initially incapable of being stored at the Kintore farm property, (which came to include the 1936 Dodge pick-up truck, the 1954 Corvette parts, the 1956 Dodge Custom Royal, the 1960 Corvette convertible and the 1992 BMW), she was adamant that there never was any agreement or understanding that Mr Konarski would be paid for providing such help with moving and temporarily storing the relevant vehicles and/or parts. In that regard:

i. Although she was pressed on the point, the plaintiff was quite certain that it was Mr Konarski who raised the possibility of his assisting with the moving of vehicles by offering to provide such help, without being asked to do so. As she emphasized, “there’s a difference between asking and offering”, and she clearly recalled that Mr Konarski offered to provide such assistance.[^82]

ii. While firmly denying that Mr Konarski had said anything about not wanting “to become involved” in moving the vehicles, the plaintiff readily recalled and acknowledged Mr Konarski saying, when offering his help, that it was his busiest time of year, that he accordingly could not work on moving Bob’s vehicles “forever”, and could only give the plaintiff “a couple days” of his time in that regard. It was for that reason, the plaintiff says, that she and her husband later did everything they could, (e.g., in terms of advance preparations and having equipment ready when needed), to ensure that the time Mr Konarski spent helping them would be kept to a minimum.

iii. The plaintiff nevertheless was adamant that Mr Konarski never said anything, at the time of his offer to help with moving of the vehicles, and the plaintiff’s grateful acceptance of that offer, or thereafter, (prior to Mr Konarski’s later taking of title to the stored vehicles), indicating or suggesting that his services were “not going to be free”, that his shop time worth $50.00 per hour would need to be “replaced”, and/or that he needed to pay a worker $30.00 an hour to be at his shop if he was going to be absent and needed to be compensated for that.

iv. To the contrary, the plaintiff says, there was nothing in the circumstances to suggest that Mr Konarski was doing anything but offering to provide help simply because he had been a “friend of 30-some years”, and because he and Bob had been “so close”.

v. Moreover, the plaintiff says, that impression and understanding was reinforced by Mr Konarski also initially refusing to even accept reimbursement for his associated gasoline expense, or let the plaintiff pay for his gasoline and meal expenses directly, until the plaintiff insisted on doing so. Even then, when the plaintiff pressed Mr Konarski in relation to such reimbursement, (e.g., during a stop at “Elsie’s Diner” in Springmount, when she had her chequebook ready to pay whatever amount Mr Konarski may have requested or needed in that regard), Mr Konarski repeatedly indicated that he was reluctant to accept such payments, saying “Just wait ‘til later”.[^83]

vi. The plaintiff flatly and firmly denied that there had ever been any agreement or understanding that Mr Konarski would be paid for helping to move the vehicles.

vii. Similarly, the plaintiff testified that there had never been any agreement or understanding that Mr Konarski would be paid for the provision of temporary storage services, emphasizing – in relation to both moving and storage services - that Mr Konarski “got along good” with her whole family, had a practice of telling the family (and Jason in particular) to call if they ever needed anything, and was regarded as “family” in return. In the circumstances, it was the plaintiff’s understanding that Mr Konarski clearly was providing such moving and temporary storage services gratuitously, in the wake of Bob’s unexpected death, as “a friend helping friends” in the circumstances.

viii. The plaintiff was adamant that there simply had never been any mention or discussion of Mr Konarski expecting or intending to charge and be paid storage fees.

ix. According to the plaintiff, Mr Konarski had mentioned, during the course of a conversation with her about the estate, how she personally could “rip the estate off” and “make money” by hiding things and/or charging the estate whatever she wanted for storage of the estate’s vehicles at the Kintore farm property, such as $50.00 per vehicle per day, as Bob’s older children had no contact with Bob and would not realize what was happening.[^84] However, the plaintiff had no interest whatsoever in any such conduct, and it was not discussed further.

x. The plaintiff voluntarily added that, had Mr Konarski indicated at the time that he wanted to be paid for his services, she would have paid him. However, according to her, there was simply no mention, agreement or understanding in that regard at the time. Similarly, there was never any mention of Mr Konarski rendering any bill or invoice for his services.

l. In her testimony, the plaintiff provided the following recollections about the state of the relevant vehicles and/or parts at the time of their delivery to Mr Konarski’s possession:

i. She recalled and was quite sure that the 1936 Dodge pick up truck, 1956 Dodge Custom Royal, and 1960 Corvette were all in a condition wherein they were capable or nearly capable of being operated on public roads. In support of her view in that regard, she testified, (without contradiction), that Bob Kew had secured licensing stickers for each of those three vehicles that were “good until 2017”, and that Bob had a sensible practice of not spending money for such licensing unless he anticipated operation of such vehicles on public roads.

ii. In relation to the 1936 Dodge pick up truck:

1. The plaintiff confirmed that Bob generally kept the vehicle stored inside a “van type of thing”, with a roll top door.

2. The plaintiff also confirmed her understanding that, at the time of the vehicle’s transfer to the defendant’s property, the truck had a small dent in it that had been caused by the roll top door accidentally coming down on it at some point, when Bob had been backing the vehicle out of the storage van. Bob had told her that had happened. However, she personally did not know exactly where the dent may have been located on the vehicle.

3. The plaintiff denied suggestions that the truck’s rear bumper had been “ripped off” after being hit by a snowblower. She was sure the bumper was still on the vehicle at the time of its transfer to the defendant’s property. She readily acknowledged not knowing whether that bumper may have been damaged at the time.

iii. In relation to the 1954 Corvette:

1. The plaintiff agreed that the “vehicle” was essentially a collection of parts, including a frame and body, as opposed to being a generally assembled vehicle.

2. The plaintiff says that, unlike the other vehicles relocated to the defendant’s property, the parts associated with the 1954 Corvette were left outside at the Wiarton property when Bob was alive.

3. At the time of the transfer of those items to the defendant’s property, the plaintiff knew they were Corvette parts, but did not come to know they were associated in particular with a 1954 Corvette until later, during the course of this litigation.

iv. In relation to the 1956 Dodge Custom Royal:

1. The plaintiff says the vehicle was stored inside, at property belonging to one of Bob’s neighbours (“Peter”) in Wiarton; a neighbour who did not take money for providing that storage.[^85]

2. The plaintiff denied suggestions that the vehicle had no glass or interior at the time of its transfer to the defendant’s property. However, she proactively indicated that, while the front seat of the vehicle was intact when the vehicle was left with Mr Konarski, the rear seat of the vehicle had been removed, and was in the plaintiff’s possession.

3. The plaintiff acknowledges that the chrome and “gold” parts for the vehicle had been removed at the time of the vehicle’s transfer to the defendant’s property. In particular:

a. She says Bob had done that, because they had the relevant parts “re-chromed years ago” at a significant cost; i.e., approximately $10,000.

b. The plaintiff indicated during her examination in chief, and readily confirmed in cross-examination, that the relevant chrome and gold parts had not been stored with the defendant. She instead had retrieved and retained possession of the relevant chrome and gold parts to store them in a safe place, (i.e., with the chrome parts being taken to a dry attic at her husband Tom’s Port Elgin property, while the “gold” parts were taken to her home and stored in a dresser), so they would not get damaged by movement, bumping or moisture.

c. However, the plaintiff also was sure that the “clips” for those parts nevertheless had been left “in the back of the car” when the vehicle was left with Mr Konarski.

4. The plaintiff testified that the vehicle’s tail lights also had been intact and in place at the time of the vehicle’s transfer to the defendant’s property, and that later photos showing the state of the vehicle made it clear those tail lights had been removed.

v. In relation to the 1960 Corvette:

1. The plaintiff emphasized that Bob “idolized: that vehicle in particular, and never drove it in the rain. While agreeing that the vehicle was located in a wood shed with a gravel floor at the time of Bob’s death, (and therefore just before it was moved from the Wiarton property), the plaintiff testified that was simply because Bob recently had been working on it; i.e., in that wooden shed. The vehicle otherwise was always stored inside a garage; i.e., with a cement floor.

2. While acknowledging that certain components of the vehicle were damaged, removed or displaced, (as noted below), she disagreed with the suggestion that the vehicle was “all ripped up” at the time of its relocation to Mr Konarski’s property.

3. According to the plaintiff, the vehicle also had its frame, lights and exterior chrome fittings, (e.g., side fixtures, rear trunk centrepiece, bumpers, etc.), intact and in place at the time of its transfer to the defendant’s property, and she was shocked to see that such components were among those that had been removed by the time she was able to view the vehicle again, at the defendant’s property, during the course of this litigation. Without limiting the generality of the foregoing, the plaintiff was adamant that there was nothing wrong with the vehicle’s frame when the vehicle was taken to the defendant’s property, and that there certainly had not been any significant deterioration brought about by the vehicle simply being kept in a wooden shed with a gravel floor for a few months.

4. The plaintiff believed the vehicle’s door handles and latches were intact at the time of the transfer.

5. The plaintiff also swore that there were proper “Corvette tires” on or with the vehicle when it was transferred to the defendant’s property, and that she similarly was shocked to see, during her later viewing of the vehicle at the defendant’s property during the course of this litigation, that there appeared to be nothing but “scabbed tires” on or near the 1960 Corvette.

6. The plaintiff was sure that the vehicle had its engine at the time of the transfer.

7. According to the plaintiff, the vehicle’s interior also was largely intact at the time of the transfer, and not at all in the “tampered” state depicted in photographs, (found at Tab 8 of Exhibit 2), taken later when the vehicle was at the defendant’s property.[^86] In that regard, the plaintiff indicated that, amongst other things, the vehicle’s interior door panels were in place at the time of the transfer, as were a functioning steering column and wheel; i.e., used by her daughter Cody to steer the vehicle from inside during its move.

8. At the same time, however, the plaintiff acknowledged that, when the vehicle was moved, its driver seat was missing or at least not in place at the time, as she recalled that Cody had been required to sit on a pail, bucket or other object while steering the vehicle from the inside. The plaintiff could not recall with certainty whether or not the vehicle’s passenger seat was in the vehicle at the time.

9. The plaintiff also acknowledges that, at the time of the vehicle’s transfer to the defendant’s property, its ignition had been removed – which is why it could not be operated and had to be pushed during its relocation.[^87] She did not think the vehicle’s brakes were seized at the time of the move, and recalled that the defendant had in fact provided assistance in relation to a Jetta vehicle with seized brakes.

10. The plaintiff also acknowledged that, at the time of the vehicle’s transfer to the defendant’s property, the existing windshield on the vehicle had been “smashed”. However, she was surprised to see that the vehicle’s windshield had been entirely removed when she was able to view the vehicle again, at the defendant’s property, during the course of the litigation. She also was quite sure that there was a “brand new windshield” for the 1960 Corvette vehicle, still in its box, that was located in the rear of the 1936 Dodge pick up truck when that vehicle was delivered to the defendant’s property. She was quite certain that new windshield “never went to the [Kintore] farm”.

11. The plaintiff thought there may also have been a convertible top for the 1960 Corvette in the rear of the 1936 Dodge pick up truck when that vehicle was delivered to the defendant’s property. However, she admittedly was not sure about that, (as she “didn’t think we’d be going through this” at the time), and accordingly did not want to say otherwise.

vi. In relation to the 1992 BMW, the plaintiff testified that the vehicle, while at the Wiarton property, generally was stored “inside”, in the sense that it was placed inside a more temporary type of plastic shelter in the nature of a Quonset hut, with a doorway capable of being closed and sealed with a zipper.

m. According to the plaintiff, she and her husband Tom worked intermittently, between early April and late May or early June of 2015, to clear additional interior storage space at the Kintore farm property while looking after their other responsibilities, including management of the plaintiff’s hotel operation in Southampton. During that time, the plaintiff says, she and Mr Konarski continued to exchange text messages and speak “quite often” by telephone, and that Mr Konarski repeatedly expressed interest in the administration of Bob’s estate, and the complications that were being experienced in that regard. In that regard, according to the plaintiff:

i. She advised Mr Konarski from the outset about the difficulties being encountered; e.g., in locating a will signed by Bob.

ii. She informed Mr Konarski, within the first week after Bob’s death, that she had retained Mr Langlois to provide legal advice and representation in relation to Bob’s estate.

iii. She also told Mr Konarski that she was paying bills owed by Bob and his estate. She says that Mr Konarski, who was already familiar with the plaintiff’s lending of money to Bob while he was alive, expressed concern about the plaintiff ever being repaid for such expenditures.

iv. She recalled Mr Konarski repeatedly asking and joking about who the estate’s executor would be, and expressing the view that Bob’s older children from his earlier marriage were going to be “vultures”.

v. She also recalled Mr Konarski saying that administration of the estate was going to be a “real mess” that would “take up to five years” to resolve.

n. The plaintiff testified that, by late May or early June of 2015, she and her husband Tom had cleared sufficient interior storage space at the Kintore farm property to receive and store the excess vehicles and parts that had been stored temporarily at Mr Konarski’s property in Sebringville. She and her husband accordingly embarked on efforts to speak with Mr Konarski, let him know that they now were ready to receive the excess vehicles and parts, and make arrangements for their transfer. In that regard:

i. The plaintiff says that, when she first called and spoke with the defendant by telephone in late May or early June of 2015, to confirm that room had been made at the Kintore farm for the vehicles and parts Mr Konarski had been storing, and to make arrangements for their transfer, the defendant indicated that it “wasn’t a good time” for that to be done as he was “doing bale racks” and “going for steel”. As the plaintiff and her husband Tom did not want to attend at the defendant’s property unless he was there, the plaintiff asked the defendant to call and let them know when he was ready for them to “come down”, and the plaintiff indicated that he would do so.

ii. According to the plaintiff, when she and her husband Tom then did not hear from Mr Konarski again for a number of weeks, they tried repeatedly but unsuccessfully to reach him by text and telephone, using the plaintiff’s phones at her hotel and home, and Tom’s phone.

iii. The plaintiff testified that, when she eventually was able to speak with Mr Konarski by telephone, he expressly indicated to her that he had gone “off the grid” as he “didn’t want to talk to anybody”.[^88]

iv. According to the plaintiff, her attempts to make arrangements for moving the vehicles stored with Mr Konarski repeatedly were frustrated by various obstacles, such as:

1. the conversation being diverted towards other matters, such as the defendant providing the plaintiff with news about his family, asking about estate administration matters, and/or making suggestions in relation to the estate’s administration;[^89] and

2. the defendant repeatedly indicating that it was not a convenient time for the plaintiff and her husband to come to his property.

v. The plaintiff expressly denied suggestions that she was ever being evasive or trying to avoid the defendant in relation to storage of the relevant vehicles and parts; e.g., by failing to stop in and speak with Mr Konarski to discuss the stored vehicles and parts at times over the spring and summer when she supposedly was driving past his property repeatedly. In that regard, the plaintiff emphasized that she actually was not driving past or near the defendant’s property very much over that time period; e.g., as she was quite occupied with the “busy season” at her Southampton hotel, the trips she and her husband made south to the Kintore farm property were focused on intense efforts to get work done there before returning home, and she had no reason at the time to think that Mr Konarski was unable or unwilling to respond to her inquiries via telephone and/or text, especially as he was communicating with her periodically using both methods.

vi. The plaintiff also expressly denied allegations by Mr Konarski that she in any way made her retrieval of the stored vehicles and parts from his property contingent on Mr Konarski attending at the Kintore farm property to help with efforts to clean up what was there. In that regard:

1. As noted above, the plaintiff emphasized that she and her husband were making every effort to minimize the demands on Mr Konarski’s time.

2. The plaintiff says they were receiving a great deal of help at the Kintore farm property from Jason, other relatives and neighbours, and did not need the defendant’s assistance there. They only needed additional help in relation to moving the relevant vehicles and parts from Wiarton, and making arrangements for their temporary storage. Apart from other occasional advice, (e.g., provided by Mr Konarski over the telephone), that was the only help provided by the defendant.

vii. In the result, the plaintiff says, the vehicles that had been stored at Mr Konarski’s property remained there into September of 2015. While the plaintiff was frustrated by her inability to make arrangements with Mr Konarski to retrieve the vehicles, she also did not think the relevant passage of time presented any concern from Mr Konarski’s perspective; e.g., given his responses to her inquiries, and his original indication that the vehicles could remain at his property until the fall if necessary.

o. However, the plaintiff immediately became concerned after receiving, in September of 2015, the correspondence and premium refund cheque from Lant Insurance Brokers described above. The plaintiff testified that, following receipt of those documents:

i. The plaintiff initially called the brokers to question them about what was happening, and was told that the vehicles specified in the brokers’ correspondence, (all of which had been stored at Mr Konarski’s property), had been “sold”. The plaintiff responded by telling the brokers that the vehicles had not been sold, and that the suggestion of their having been sold was a new development, about which she knew nothing.

ii. The plaintiff then telephoned Mr Konarski to inform him that “somebody” apparently had bought the vehicles stored with him, and Mr Konarski responded by saying “Oh, I wonder who that was”, without giving any indication or admission that he had taken ownership of the vehicles.

iii. After receiving legal advice, the plaintiff called Lant Insurance Brokers again to ask the brokers if they knew who supposedly had bought the vehicles, and was told that the new owner of the vehicles was Mr Konarski.

iv. After receiving that indication, the plaintiff then telephoned Mr Konarski again to advise him that the insurance brokers were saying he was the new owner of the vehicles. According to the plaintiff, Mr Konarski expressed no surprise, and instead indicated that “it was done legally”, that it was a “done case”, that the vehicles were “already in [his] name”, and that the vehicles were now his.

p. The plaintiff testified that she was completely shocked by Mr Konarski’s response, and did not understand how or why Mr Konarski had taken the vehicles as his own, as there had “never ever” been any discussion whatsoever about Mr Konarski charging or being paid for the help he had provided, or the manner in which the defendant might submit a bill for his services.[^90] Nor had she ever received any bills or invoices for transportation or storage fees in that regard, or any other type of documentation suggesting that such charges were requested or owing. Nor had Mr Konarski ever asked for the vehicles stored at his property to be removed. At all times prior to the revelation that Mr Konarski had taken ownership of the vehicles, the plaintiff thought he had been acting simply as a trusted friend. In that regard:

i. The plaintiff acknowledged that, during one of her regular attendances at the Wiarton property to retrieve and review any mail still being sent there by regular post, (as the plaintiff continued to pay Bob’s bills from her own resources), she had seen a standard notice from Canada Post advising that a registered letter addressed to Robert Kew had arrived and was being held for pick up by Robert Kew.

ii. However, the plaintiff also testified that, when she then attempted to retrieve the registered letter from the Wiarton post office, she was informed by the “lady” there that the letter could not be given to the plaintiff, and that Bob himself had to “come and sign for it”. As Bob obviously was unable to do that, and the plaintiff had not yet received any formal appointment as estate trustee, in relation to Bob’s estate, the registered letter in question could not be retrieved by the plaintiff, and the plaintiff accordingly was unable to determine who the registered letter was from and what it was about.

iii. According to the plaintiff, she thereafter mentioned the registered letter notice to Mr Konarski, during one of their telephone conversations, and Mr Konarski’s only response was “Oh, I wonder who that could be from”; i.e., providing no indication or confirmation that a registered letter had been sent on his behalf to “Robert Kew” by Mr Lamb.

iv. The plaintiff testified that she in fact never did receive the registered letter sent by Mr Lamb on the defendant’s behalf, even after she was formally made an estate trustee of Bob’s estate. By that point, she says, the registered letter had been returned to its sender, as Bob had not been alive to sign for it in time.

v. In cross-examination, the plaintiff flatly denied that she had ever told Mr Konarski that she had received a registered letter from the “Koodo” mobile phone service, addressed to Bob. She testified that Koodo telephone bills sent to Bob were never sent by registered mail, that to her knowledge there was never any registered mail sent to Bob by Koodo, and that there was only one registered letter sent to Bob, which she could not pick up.

q. The plaintiff testified that she contacted the police, and asked them to investigate the matter, the same day that she learned Mr Konarski had taken ownership of the vehicles.

r. The plaintiff was adamant that, had it ever been suggested by Mr Konarski that he would charge Bob’s estate $50 per vehicle per day for storage, she definitely could and would have found somewhere else to temporarily store the vehicles and their parts, at a more reasonable price, or “left them outside and tarped them”.

[73] Relevant portions of the evidence provided by Cody Kew included the following:

a. She recalled first meeting Mr Konarski when she was very young, and still living with her parents at the Kintore farm property. She also recalled playing with Mr Konarski’s son Spencer, and visiting the Konarski home with her parents from time to time.

b. From her perspective, her parents had known and been friends with Mr Konarski since she was a baby, in a relationship that appeared to be a “lifelong” friendship.

c. Cody was well aware of her father’s intense interest in mechanics, his apparent ability to repair almost anything to make it look like new, and his passion for collecting things, and cars, frames and other car parts in particular. His car collection was regarded as his “best asset”.

d. Cody frequently would watch her father fix and build cars and airplanes, (including a Dodge Charger he restored and gave to her, consistent with his stated practice of presenting each of his children with a vehicle), and says her father always would talk with her about the particular vehicles he was working on whenever they were together. In that regard, she grew particularly close with him later in life, when he lost his driver’s licence for a time and asked Cody to drive him to various destinations.

e. As for events surrounding her father’s fatal accident and death:

i. Cody’s account of how she was advised of the accident, and how she personally came to attend at the Kitchener hospital on March 30 and 31, 2015, was consistent with the general background facts outlined above.

ii. Cody recalled Mr Konarski attending at the hospital with her, her mother and Jason. She acknowledged that there could have been times when the four were not altogether, but could not remember that with certainty. Her recollection was that they were all “pretty tight knit”, and “pretty much in the same room” with her father or together in the nearby waiting room where they spoke with her father’s doctor.

iii. In that regard, Cody also recalled Mr Konarski participating in the discussions that ensued when her father’s doctor indicated that her father was failing, that nothing more could be done for him, and that he had a “50/50” chance of survival. In that regard, Cody testified:

1. that her mother asked the doctor for further information about what was going to happen, whether there was any chance that her father would “pull out” of his situation, and for the doctor’s recommendation as to what he would do;

2. that discussion continued after the doctor left, with everyone “all kind of talking about it”, and her mother asking everyone “What would you do?”;

3. that the discussion included her mother asking Mr Konarski what he thought they should do in the situation;

4. that they “all just kind of came to the realization … there was nothing [they could] do”, and that her father “wouldn’t want to live like a vegetable”; and

5. that the situation was “overwhelming” and “pretty hard”, but there eventually was a “collective agreement” by everyone that the best thing to do was to let matters unfold naturally; i.e., by removing her father from life support and seeing what would happen.

iv. Cody testified that there was additional group discussion, at the hospital, about “how messy everything was gonna be”, and whether anybody, including her father’s other children and Ms Marzec, might know where her father’s will was located.

v. While Cody also remembered discussion of what would happen when others found out that Bob had died, she testified that such discussions did not include any talk of possible claims by her father’s other children, as no one knew, at the hospital, the nature of her father’s estate arrangements.

f. Cody’s testimony included details of the funeral and burial, including the awkwardness involved in meeting with her half-siblings, (with whom she was not close, and most of whom she did not know well), the people who served as pallbearers, (i.e., her brother Jason, her half-brother David, Mr Konarski and employees from the funeral home), and how her mother “took care of everything” and paid for it because no one else knew what they were doing. Cody says that, although Ms Marzec attended at the funeral home at the time of the service, she did not attend the service itself, and instead asked for and received a private viewing after people had gone.

g. As noted above, Cody also recalled other concerns and unpleasantness in relation to Ms Marzec, and reasons why she, her mother, her brother Jason and Mr Konarski had shared concerns about what Ms Marzec might due to her father’s property after learning that her father had died. She says such concerns were reinforced by the realization that her father’s assets were scattered over a number of locations, and overt threats Ms Marzec apparently made to Jason when he called Ms Marzec to let her know that Bob Kew had died. Cody emphasized that a number of things belonging to her father also had “sentimental value”, and there was a real concern that they not be damaged.

h. In the result, Cody says, there was a shared “goal” and “priority”, after her father’s death, of trying to protect his property by getting it all “into one spot”, as much as possible and as soon as possible; i.e., to a “safe location” where it not only would be secure, but also facilitate necessary steps in her father’s eventual estate administration such as conducting a proper inventory of estate assets and appraisals. Cody says it was decided that “safe location” would be the Kintore farm property, where Jason was residing and therefore had an ability to ensure that “nobody”, including Ms Marzec, “could touch anything”. However, it was also realized, after they had started into the process of moving cars from her father’s Wiarton property, that “there wasn’t enough room at the farm”.

i. It was in that context, Cody says, when she and her family were “still grieving” her father’s loss, that Mr Konarski offered to let some of her father’s vehicles be stored at Mr Konarski’s property. In that regard:

i. Cody candidly and proactively indicated that she could not remember specific details of everything that was happening in the wake of her father’s death, and that she admittedly did not have much direct involvement in the discussions that took place regarding moving of her father’s vehicles. She nevertheless would “overhear some things”, concerning organization of efforts to clean up the Kintore farm property to receive vehicles and arrangements for moving such vehicles, that were being said during various telephone and in-person conversations; e.g., between her mother and Tom, her mother and Mr Konarski, and Tom and Mr Konarski. She also generally recalled calls being made to Jason to advise him of such plans.

ii. Included in Cody’s recollection of such discussions was a very specific memory, including recollections of where people were positioned at the relevant time, of a particular conversation that took place at the Wiarton farm property. In that regard:

1. Cody says that she, along with her mother, her mother’s husband Tom, Jason and Mr Konarski were attending at the Wiarton “log house” property to move cars belonging to her father. Cody says that she participated in such efforts on only one or two occasions, (because the amount of her bereavement leave from her employment was limited), and recalls being there when the 1936 pick-up truck and 1960 Corvette were being moved. However, she could not recall with certainty whether those two vehicles had been moved on the same occasion. She testified that Mr Konarski definitely was present on the day when the 1960 Corvette was being moved, helping to push vehicles, strap them down, and essentially “anything he could do to help”.

2. Cody says that, at the time of the relevant conversation, she, Tom, her mother and Mr Konarski were “out front of the log house”, with vehicles that had been moved onto trailers. In particular, Cody says that:

a. She personally had been helping Tom while he was strapping down a car on one of the trailers.

b. Tom was still on the trailer with the vehicle.

c. Cody herself had moved to the back end of that trailer.

d. Cody’s mother was standing to the front of Cody, facing her, and Mr Konarski was standing to the left of Cody’s mother as he and Cody’s mother were speaking to each other near the front of the trailer.

e. Jason nevertheless was temporarily absent from the group, as he was “out looking for his dog”.

3. It was then, Cody testified, that Mr Konarski said he was “able to store some vehicles”, adding “Just make sure that they’re out by fall, before harvest”. Cody acknowledged that she did not really remember anything about the conversation that may have passed between her mother and Mr Konarski leading up to that point.

4. Cody proactively indicated, and confirmed during cross-examination, that she did not know and could not explain why her recollection of that particular conversation was one of the “random memories” from the relevant time period that was “sticking in her head”. She nevertheless firmly denied that it stemmed from having discussed such things with her mother during the course of this dispute and litigation. In particular, she had a definite and firm memory of “exactly where” everyone had been standing at the time of the conversation.

iii. Cody testified that, in relation to conversations she heard between her mother and Mr Konarski, she “never heard any discussion about money or that kind of stuff”.

iv. Cody nevertheless did recall that her mother also “told everyone” to let her know if her father “owed money” to anyone, in relation to vehicles or “anything”.

j. In her testimony, Cody provided the following recollections about the state of the relevant vehicles and/or parts at the time of their delivery to Mr Konarski’s possession:

i. In relation to the 1936 Dodge pick up truck:

1. Cody said that her memory of particulars was admittedly vague. However, she was “almost a hundred percent positive” the vehicle was stored in the back of a van or something like a “cube truck”.

2. She also recalled that, during efforts to move the vehicle, it initially was “rolled down” from its storage place but it then was started and “running”, after a “little trick” of some sort, (e.g., pouring oil on something to facilitate its ignition), was performed.[^91]

3. Moreover, she recalled that there was “no rust” on the vehicle, and that it was “road worthy”.

ii. In relation to the 1956 Dodge Custom Royal, Cody candidly testified that she “unfortunately” remembered that particular vehicle “hardly at all”, and did know if she would be able to identify it if she saw it.

iii. In relation to the 1960 Corvette:

1. Cody testified that the vehicle was “still in good condition”. In particular, she remembered that “the body was good on it”, that it “had the white Corvette tires with the rims and everything in it”, that it “wasn’t smashed up”, and that it didn’t have a “terrible frame” or anything like that. It simply “wasn’t running”, because its ignition had been “taken out”; an observation consistent with what her father previously had told her about removing that ignition because Ms Marzec had vandalized the vehicle, and he feared that she would take it as well.

2. Because the vehicle would not start, Cody recalls that it had to be pushed onto a trailer for its relocation. It was for that reason that she had a recollection that the vehicle’s tail lights definitely were intact at the time of the move. Cody nevertheless admittedly could not recall whether the vehicle’s front lights also were intact at the time.

3. Because of the necessary pushing, Cody also recalled that the 1960 Corvette was one of the “heavy vehicles” she was helping to move, and that it took all four of the people there to push the vehicle up onto the trailer. Cody was sure that the vehicle had an engine in it at the time of the move.

4. While she was not sure whether the vehicle had then been pushed onto the moving trailer in a frontwards or backwards fashion, she believed it may have been pushed from its front at some point because its heavy engine was at the front and that might have made the pushing easier.

5. She had no specific recollections of the vehicle’s interior, and no memory of her or Mr Konarski sitting in the vehicle to steer it while it was being pushed. She nevertheless agreed that she may have sat in the vehicle at some point to steer it, and that she may have sat on a bucket or other object while doing so. However, she did not agree with suggestions that the vehicle may not have had any door latches.

iv. In relation to the 1992 BMW:

1. Cody recalled that her father owned “a few” BMWs, and believed that their respective colours were green, red and grey, and that the red one had a diesel engine. She nevertheless candidly acknowledged that she could not say very much else about those vehicles.

2. She did recall her father once saying something to her about there being scratches on the 1992 BMW, but could not remember how he said they had occurred; e.g., whether the scratches had been made deliberately by Mr Marzec.

3. However, Cody testified that she otherwise had no specific recollections about the 1992 BMW that had been stored at Mr Konarski’s property.

[74] Relevant portions of the evidence provided by Jason Kew included the following:

a. He says he first met Mr Konarski when he was very young, and perhaps too young to remember. At the time, Jason was living with his parents at the Kintore farm property, where he lived most of his life; i.e., up until a few years before the trial.

b. Jason recalled that, as he was growing up, his parents seemed to be good friends with Mr Konarski and his wife. In that regard, Jason recalled visiting the home of Mr Konarski and his family, and playing videogames and baseball with Mr Konarski’s son Spencer. According to Jason, the Konarski farm was the place he recalled going to more than anywhere else while growing up.

c. Over time, Jason came to view Mr Konarski as his father’s closest friend. Jason also knew that his mother and Mr Konarski were close, and spoke frequently by telephone.

d. Jason testified that he too came to have a personal relationship with Mr Konarski. In that regard:

i. Jason noted that he actually used to work for Mr Konarski, at Mr Konarski’s farm property. In particular, Jason used to assist Mr Konarski with his bale rack business; e.g., by helping with the cutting of steel and the painting of assembled racks after Mr Konarski had welded them together.

ii. Jason said that Mr Konarski would call the Kintore farm at least three times a week, looking for Bob. However, Bob was not at the Kintore farm a lot of the time when Mr Konarski called, and Mr Konarski then would speak with Jason at length over the telephone.

iii. Jason said that Mr Konarski also would stop into the Kintore farm unexpectedly, on a weekly basis, and then have similarly extended conversations with Jason, (i.e., “not just for five or ten minutes”), to the point where Jason sometimes found it difficult to “shoo him away” when Jason had his own things to do.

iv. Jason formed the impression that Mr Konarski, lacking a good relationship with his own children, was “almost … trying to treat me as one of his own”.

e. Jason was well aware of his father’s passion for collecting vehicles; e.g., testifying that, aside from a milk delivery business his parents operated until he was 13 or 14 years old, his father’s “big interest was cars” and Corvettes in particular. In that regard:

i. Jason clearly seemed to share that interest in automobiles with his father to some extent; e.g., insofar as Jason was keenly aware of the many vehicles owned by his father at the time of his death, and was able to list and identify, at length, their many makes or models and year of production.

ii. In the course of his testimony, Jason also noted that he had regular and frequent discussions with his father about particular vehicles, and what his father was doing in relation to them; i.e., in terms of repairs restorations that were underway, and/or his father’s stated intentions in that regard.

f. As for events surrounding her father’s fatal accident and death:

i. The circumstances in which Jason learned of his father’s accident, attended at the scene, helped to get his father and his damaged vehicle back to the Kintore farm, and then take his father for medical treatment and hospitalization, are reflected in the general background facts noted above.

ii. Jason testified that, after a physician at the Kitchener hospital had informed him, his mother his sister Cody and Mr Konarski simultaneously about his father’s poor condition and prognosis, there was a discussion amongst the four of them about the fact that there “was really no hope”, and what should be done in the circumstances. In the result, Jason says, all four reached a “combined” agreement and decision that his father should be taken off life support. When that was done, his father then passed away.

iii. According to Jason, there also was discussion at the hospital, amongst the same four people, about a shared concern that Bob Kew’s secluded property in Wiarton was at risk of being damaged, destroyed or stolen. Ms Marzec was the primary focus of those concerns, given her perceived instability and prior threats to burn or otherwise damage and destroy property. However, there was a more general concern that anyone was capable of removing and taking his father’s vehicles from the Wiarton property, although one was stored with a Wiarton neighbour.

iv. In that regard, Jason also recalled Mr Konarski making comments not only about Ms Marzec but about Jason’s half-siblings as well; e.g., saying that “the vultures would be out”, trying to “get their hands on” some of his father’s estate. Jason testified that Mr Konarski went so far as to suggest that some of Bob’s vehicles should be hidden, or “stripped down” to remove and hide their engines and other parts, to make the vehicles worth less so that nobody would want them.[^92] However, Jason said that he and his family had no interest in doing that, making it clear that they were “doing this legit”, and that the estate administration was “nothing to mess around with”. Jason firmly denied and rejected defence suggestions that his mother was the one who had made such comments, emphasizing that his mother would never jeopardize losing her credibility in relation to his father’s estate administration, and had a “lot more to lose” from engaging in such improper behaviour than it would have been worth to hide or strip vehicles or parts.

v. Jason testified that concerns about Ms Marzec in particular were reinforced when, feeling duty bound to inform Ms Marzec of his father’s death, he telephoned and spoke with Ms Marzec a few days after his father’s death to let her know what had happened, and she responded with anger, (apparently because she thought Jason’s comments were some form of cruel fabrication or joke, as it was “April Fool’s Day”), as well as threats to kill Jason, burn down his father’s house in Wiarton, and “stuff of that nature”.

vi. For all such reasons, Jason said, there was a general agreement, amongst himself, his mother, his sister Cody and Mr Konarski, that it was important to get his father’s vehicles in Wiarton to a place of safety.

g. Jason’s testimony included details of the funeral and burial, including the conduct of Mr Konarski and Ms Marzec. In that regard:

i. Jason was emphasized that it was a very difficult time, and a period of great loss to Jason and his family.

ii. Jason recalled that Mr Konarski was asked and agreed to be one of his father’s pallbearers, as Mr Konarski was considered “a close family friend, and essentially best friends with [his father]”.

iii. Jason also remembered Mr Konarski, at the funeral and through to the burial, indicating “over and over again” that he was “only a phone call away” if there was “anything he could do to help”, or “anything” that might be needed. At the time, it seemed to Jason that Mr Konarski was “almost trying to be or fill the void of being a father figure to try to help”.

iv. As for Ms Marzec, Jason testified that, after the service, she had requested and was granted an opportunity to have the casket re-opened for a private viewing.

h. As for arrangements and actions taken to move and secure his father’s vehicles:

i. Jason testified that the discussions in that regard focused on taking and storing his father’s cars “in whole”, but there was also a recognition that “a bit of time” was needed to “make some space” and “make enough room” at the Kintore farm to receive all the vehicles.

ii. It was in that context, Jason says, that Mr Konarski “voluntarily said” that vehicles could be stored at his property because he had “lots of space as long as they were out of there in time for harvest”, which was months away. The suggested arrangement would solve the problem of finding adequate storage, as only a month or two would be needed to clear sufficient storage space at the Kintore farm.

iii. Jason said that offer of help, made by Mr Konarski, was consistent with Mr Konarski’s ongoing indications, which continued after the funeral, that he was only a phone call away if Jason needed or wanted to talk, and would make himself available if a favour or anything else was needed. According to Jason, “there was no discussion of money”, and the manner in which Mr Konarski was talking to everyone seemed to be that of a “family friend just trying to help us”. Jason recalled his mother offering to pay Mr Konarski some money “right there on the spot” for the couple of months of storage he was offering, even before the cars were moved off the Wiarton property, and Mr Konarski responding by saying “No, don’t worry about it”. Jason also had a memory of Mr Konarski refusing to accept payment for his gasoline, when that was offered by his mother. More generally, Jason recalled his mother also repeatedly asking Mr Konarski if he was owed any money by Bob, (as Jason’s father sometimes was “hurting for money” and it was known that there were “favours back and forth”), and Mr Konarski had responded by saying “No, just a nickel here and a dime there – it doesn’t matter”. At the time, Jason testified, it seemed like Mr Konarski’s help and offers of assistance were true acts of “normal, genuine friendship”, and a “genuine friendly favour”. While Jason acknowledged that Mr Konarski could have suggested an arrangement whereby he would render and invoice and be paid for his services at a later date, that was not consistent with the nature of the discussions at the time. Based on those discussions, the manner in which Mr Konarski was talking, and the way in which Mr Konarski was trying to “help out”, Jason believed that Mr Konarski was not accepting payment for his services, and was instead just trying to do what a normal family friend of 30 years would do to help out the estate, and “take the stress off” his family, by a genuine friendly gesture.

iv. Jason testified that he travelled to and from Wiarton independently in his own truck to assist with the moving arrangements. He admittedly was not present every time his mother, Mr Peters and Mr Konarski went to the property. However, Jason says he definitely was present when the 1936 Dodge pick-up and 1960 Corvette vehicles were loaded onto trailers for their relocation to Mr Konarski’s property – although he admittedly was not present with others at the property for part of that time, as he went to look for his dog. Although he acknowledged not being present when the 1956 Dodge Custom Royal and 1992 BMW were moved, Jason said he had been up to the Wiarton property quite a bit after his father’s death, to help out.

i. In his testimony, Jason provided the following recollections about the vehicles and parts stored with Mr Konarski, and their state or condition at the time of Bob Kew’s death and their subsequent removal from Wiarton:

i. In relation to the 1936 Dodge pick up truck:

1. Jason testified that the vehicle generally was in “mint” condition, and that there was “nothing wrong with it whatsoever” apart from some minor damage the vehicle sustained before its removal from Wiarton. In particular, Jason said something had “hit the back corner of the box”, and that there was something wrong with one of the “wood racks” on the vehicle.

2. Jason also noted that the vehicle was “very mechanically sound”, with the engine having been rebuilt just before the vehicle was purchased by his father.

ii. In relation to the 1956 Dodge Custom Royal:

1. Jason testified that this was one of his father’s best and most valuable vehicles, that it was very rare, (being one of only three such cars registered in Canada), that it had a celebrity connection, (insofar as it had been owned by an actor in the “Love Boat” television series and featured on a cover of “People” magazine), and that his father accordingly was very proud of the vehicle.

2. Jason says that, at the time of the vehicle’s removal from Wiarton, it generally was “complete”, although certain parts had been temporarily removed. In particular, its chrome components had been removed and “re-chromed”, and his father had not “got around” to putting them back on the vehicle. Jason confirmed that he and his family were in possession of the removed components, which his mother had in storage.

3. As for the interior of the vehicle, Jason believed the door panels and back seat of the vehicle were intact, and had no recollection of the back seat having ever been removed. He nevertheless acknowledged in cross-examination that he was not sure about that, and that his mother might very well have the door panels and back seat in her possession as well.

iii. In relation to the 1960 Corvette:

1. Jason testified that it too was one of his father’s best and most valued vehicles; one that was particularly prized. Bob Kew repeatedly had taken that particular vehicle to “all the car shows”, where it had won a number of “best in class” awards and plaques; e.g., at the Thamesford Car Show and “Calithumpian weekend”. His father also routinely drove the car to collector car events hosted by A&W restaurants. In that regard, the vehicle had been a particular focus of outings and many “happy times” between Jason and his father, and accordingly held great sentimental value.

2. Jason said that his father had done significant work on the vehicle’s components and engine “to make the motor look nice”; e.g., by installing a chromed drive shaft and braided covering over all of the wiring. His father also always kept the vehicle’s chrome components in “good shape”, such that there was no reason to remove them.

3. According to Jason, the vehicle was “complete”, and in good condition the summer before his father’s death. However, at the time of his father’s death and subsequent removal of the vehicle from Wiarton, his father had been “doing a bit of work to the car” to prepare it and “fix up some stuff on it” for the following summer when the car would once again be on the road; e.g., by changing the colour of the vehicle’s interior. To that end, his father had been in the process of “getting the seats re-done”, (i.e., re-upholstered), and the seats and their metal brackets had been removed accordingly. Jason admittedly could not recall whether or not the vehicle’s interior panels and door handles/latches had been removed as well, at the time of the move. However, he did recall that, although his father also had expressed an intention to remove the vehicle’s dash, and “put a new top on it”, his father “hadn’t got around to that” by the time of his death.

4. Jason testified that, at the time of the vehicle’s relocation from Wiarton, its steering wheel was in place and its “motor was all intact”. He firmly denied suggestions that the vehicle’s engine had been removed.[^93] However, he confirmed that the vehicle’s ignition had been removed, because its key was missing. The vehicle’s existing windshield also was cracked, although his father already had purchased a replacement windshield that had not yet been installed.

5. Jason confirmed that his father had quality Corvette or similar after-market wheels and rims for the vehicle, with chrome spokes on them. Jason could not recall whether or not they also had a Corvette symbol on them. However, Jason did have a definite memory that, when the vehicle was moved from Wiarton, those higher quality wheels/rims were not on it. He says the vehicle was instead equipped with plain, black, “normal” rims, “just for a rolling chassis”, and that the higher quality rims and wheels for the 1960 Corvette, (which would have been placed back on the vehicle when it returned to the road), definitely were in the back of the 1936 Dodge pick-up truck when that vehicle also went to Mr Konarski’s property. In that regard, Jason was quite sure that the higher quality wheels and rims for the 1960 Corvette had been stored with Mr Konarski.

6. When asked to look at the photographs taken of the 1960 Corvette at Mr Konarski’s property, found at Tab 8 of Exhibit 2:

a. Jason quickly indicated that the rims and wheels on the vehicle, at that time of the photographs, were not the ones that were on the vehicle when it was removed from Wiarton. Jason was firm in indicating that such rims and wheels had never been on the vehicle before.

b. Jason noted that the vehicle’s bumpers and tail lights, along with its truck latch and emblem, apparently had been removed following its departure from Wiarton.

iv. In relation to the 1992 BMW:

1. Jason testified that he simply was not sure whether Ms Marzec had “keyed” or “scratched” the vehicle before it was moved from Wiarton. He nevertheless confirmed that the 1992 BMW was the vehicle depicted in the photographs taken later at Mr Konarski’s farm, (and found at Tab 11 of Exhibit 2), at which time there were a number of visible scratches on its hood.

2. Although the tires depicted in the same photographs of the BMW vehicle appeared to be bald or balding, Jason rejected suggestions, put to him in cross-examination, that his father would have driven the vehicle from time to time with the tires in that state. Jason did not think his father would have driven a vehicle around with such bald tires.

j. Jason testified that, after the relevant vehicles and parts had been stored with Mr Konarski, most of his family’s communications to and from Mr Konarski went through his mother and did not involve him – although there was the “odd time” when Jason would hear from Mr Konarski directly. However, Jason says that all communication with Mr Konarski stopped once he and his family learned that ownership of the stored vehicles had been “switched over” into Mr Konarski’s name. In that regard:

i. Jason emphasized that he was completely surprised that Mr Konarski was attempting to charge for the storage he was providing, trying to charge so much, and knowingly had sent his “bill” for storage charges to Jason’s father, when he obviously knew that his father was deceased. In retrospect, Jason felt that Mr Konarski, knowing exactly what was going on with administration of Bob’s estate, and the trouble being encountered with getting an executor appointed, used it all to his advantage in an effort to take the relevant vehicles from Bob’s family.

ii. More generally, Jason testified that he was “absolutely blown away” by the realization that Mr Konarski could be such a close friend with his parents, serve as his father’s pallbearer, make such supportive statements and offers after his father’s death, and act like such a sympathetic and supportive family friend and father figure, before doing “something like this”. In the result, Jason said, his trust in others, where money was involved, had been shattered.

iii. Jason said that he had found Mr Konarski’s conduct especially hurtful because his father’s vehicles had great sentimental value to him. He also could not understand why Mr Konarski had then “antagonized” him, after this dispute had materialized, by sending text greetings on Christmas and New Year’s Eve.

[75] As noted above, the plaintiff also relied on the sworn evidence of Thomas or “Tom” Peters, set forth in his affidavit of April 27, 2018. In that regard:

a. While that affidavit was admitted into evidence in its entirety, subject to ultimate determinations of credibility and reliability, I note at the outset that many of its assertions are inherently “hearsay upon hearsay”; i.e., insofar as Mr Peters not only did not testify at trial, but was clearly describing, at various points in his affidavit, events he apparently was not present to observe personally. For example:

i. The affidavit sworn by Mr Peters includes assertions about the relationship between the plaintiff and Bob Kew prior to the latter’s imprisonment and the couple’s divorce, when Mr Peters presumably was not on the scene.

ii. Although the affidavit included a description of the relationship between Bob Kew and Mr Konarski, Mr Peters also noted that he met Mr Konarski in person for the first time only after Bob Kew’s death, in turn suggesting that Mr Peters never had an ability to directly observe interactions between the two men.

iii. Although Mr Peters said in his affidavit that Bob Kew had many girlfriends following his divorce from the plaintiff and release from prison, including Joanne Marzec, and provided an account of how Bob Kew and Ms Marzec would visit each other in Wiarton and London respectively, I think it inherently unlikely that Mr Peters was present to make any direct observations in that regard.

iv. The affidavit includes information about the circumstances surrounding Bob Kew’s fatal accident, hospitalization and death, but Mr Peters admittedly was not in Ontario when those events happened, as admittedly was out of province attending his own father’s funeral.

v. In his affidavit, Mr Peters similarly provides indications of what Ms Marzec is supposed to have said to the plaintiff “and others”, providing an indirect indication that Mr Peters was not party to the initial conversations he was describing.

vi. Similarly, the affidavit sworn by Mr Peters includes assertions about what Mr Konarski is supposed to have said to others who testified at trial, (i.e., the plaintiff, Cody Kew and Jason Kew), without always making it clear whether Mr Peters was present at the time or simply repeating what he had heard in that regard from others.

b. In the circumstances, I am inclined not to give any weight to such “hearsay upon hearsay” assertions by Mr Peters in his affidavit. I similarly place no weight on portions of the affidavit that are inherently argumentative; e.g., with Mr Peters opining that “a close family friend has manipulated the legal system for personal gain”, questioning how Mr Konarski would feel if someone “illegally removed his children’s inheritance”, and characterizing the amounts claimed by Mr Konarski as “outrageous”. I instead have focused only on what appear to have been factual assertions based on the direct observations and experience of Mr Peters.

c. By way of general background information in that regard:

i. Mr Peters provides a general description of his relationship with the plaintiff, as well as his personal knowledge of Bob Kew and the continued interaction between Bob Kew and the plaintiff, (e.g., in relation to “synergistic” business activities and other matters), notwithstanding the couple’s divorce.

ii. Mr Peters also provides a general description of Bob Kew’s various activities, including his “passion for antique vehicles but especially Corvettes”.

iii. Mr Peters provided indications that Mr Konarski appeared to be a close friend of the plaintiff in the years before Bob Kew’s death, as Mr Konarski would phone the home of Mr Peters and the plaintiff on a regular basis to speak with the plaintiff, and would chat with Mr Peters as well when Mr Peters answered the telephone.

d. In relation to matters concerning administration of Bob Kew’s estate, and movement and storage of vehicles and parts belonging to the estate, the sworn information provided by Peters included the following:

i. Mr Peters swore that discussion after Bob Kew’s funeral, where Mr Konarski served as a pallbearer, was focused on safeguarding and preserving