Court File and Parties

COURT FILE NO.: CV-20-00646892-000 DATE: 20230614 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHRISTOPHER VAN DYKE and J-RICHARD FLYNN, Applicants – and – ROMAN KORYTSKI and AVIVA CANADA INC., Respondents

BEFORE: E.M. Morgan J.

COUNSEL: David Fogel, for the Applicants Ian Perry, for the Respondent, Roman Korytski John Lea and Connor Walton, for the Respondent, Aviva Canada Inc.

HEARD: June 13, 2023

Reasons for Decision

[1] On or about June 11, 2018, for $33,200.00, the Applicants purchased a boat from the Respondent, Roman Korytski. They received Bills of Sale (one in each of their names) from Mr. Korytski reflecting that sale price.

[2] The item sold by Mr. Korytski and purchased by the Applicants is described as follows:

Yamaha 212x jet boat with Hull Identification Number YAMCR115B111, serial number 0770366, and engine serial number 1834624 and 2011 MFI trailer with license plate J2187L and Vehicle Identification Number 4J2BDPY21B1104006 (the “Boat”).

[3] The Applicants believed that Mr. Korytski was the owner of the Boat at the time of sale. In early 2019, they went to sell the Boat through a boat retailer, Mobile Marina, who discovered that the Boat had been stolen. They also discovered that the Hull Identification Number on the Boat had been altered to hide the fact that it was stolen.

[4] The Applicants then discovered that an insurance claim had been made several years previously by a prior owner, Tony Fidalgo, and that the Respondent, Aviva Canada Inc. (“Aviva”), had paid out $51,000 in respect of that claim. Mobile Marina advised the Applicants that it would not facilitate the sale of the Boat until the issue of its ownership was resolved.

[5] Aviva takes the position that it is the owner of the Boat by right of salvage. Although the Applicants at first contested this position, they no longer do so. At the hearing of the Application, counsel for the Applicants made it clear that what the Applicants now seek is compensation from Mr. Korytski; they take no issue with Aviva’s ownership claim.

[6] Mr. Korytski does not really contest the allegation that he did not have valid title to pass on to the Applicants. But he says that he was himself an unknowing buyer of the stolen Boat. Mr. Korytski has brought a separate application against the prior owners of the Boat that he has been able to identify, seeking contribution and/or compensation from each of them down the chain (Court File No. CV-23-00700157-0000) (the “Korytski Application”).

[7] Counsel for Mr. Korytski submits that it is in the Korytski Application that the title issues will ultimately be sorted out for the Boat. The Korytski Application is still in its early stages. Only one of the several parties named in the Korytski Application has actually responded, and at least one or two others still have to be located or have only been served by email and have not otherwise been heard from.

[8] Mr. Korytski’s counsel requested an adjournment of today’s hearing so that the present Application could be joined with the Korytski Application. Applicants’ counsel opposed that request. From the Applicants’ point of view, the Korytski Application is, in effect, a deflection of the breach of contract claim brought against Mr. Korytski, which the Applicants have a right to have a court determine on its own merits.

[9] I did not grant the adjournment, as I agree with Applicant’s counsel that the issues in the two proceedings do not really overlap. The present Application is strictly about the contract of sale and the state of accounts between the latest “purchaser” of the Boat – i.e. the Applicants – and the immediate predecessor who “sold” them the Boat – i.e. Mr. Korytski. The various claims between titleholders, or claimants to title, that came before Mr. Korytski are the subject of the Korytski Application, not the present Application.

[10] There is no doubt that Mr. Korytski’s purported sale to the Applicants violated the nemo dat principle and was a breach of contract. Mr. Korytski took the Applicant’s money in return for a promise to convey title to a Boat that he did not own and could not convey. He has no cogent defense and owes the Applicants damages for the breach of contract. I leave to be determined in the Korytski Application whether Mr. Korytski can, in turn, recoup all or a portion of what he owes the Applicants from those who preceded him in what appears to be a chain of false sales.

[11] The Applicants claim that Mr. Korytski owes them not just reimbursement of the sale price, but the present fair market value of the Boat. They rely on a series of cases that suggest that in certain circumstances that might be the way to calculate their damages. After all, had he conveyed good title as he contracted to do, the Applicants would own a Boat that is worth today’s fair market value.

[12] The Applicant’s problem, however, is that the record contains no reliable evidence of today’s fair market value. They have produced no valuation report and brought no expert to testify as to the Boat’s value. Rather, what they have submitted is an affidavit by the spouse of one of the Applicants. She deposes as to what she thinks the value is.

[13] With respect, I cannot accept a non-expert, interested party’s opinion of value. Her affidavit does not qualify as expert opinion evidence, and to the extent that it contains an opinion of value it is inadmissible. And even if I were to admit this non-expert evidence, I would give it no weight as it is self-serving. Regardless of whether the law would permit current market value to play a role in assessing damages, the record before me contains no evidence of current market value on which a court can rely.

[14] In any case, the Sale of Goods Act, which codifies the nemo dat rule, provides for a refund of the sale price in the event that title does not pass to the purchaser. In my view, it is reimbursement of the sale price of $33,200 that represents the proper and, in effect, the only practical way to quantify damages in this situation.

[15] The Applicants also claim $9,318.43 from Aviva for the expenses they have incurred in storage, repair, and maintenance of the Boat. Since they now acknowledge Aviva’s claim to ownership of the Boat, it is their view that Aviva will have the benefit of the expenses that the Applicants occurred in keeping it in working order.

[16] Counsel for Aviva responds that the Applicants have had use and enjoyment of the Boat since taking possession of it from Mr. Korytski. Accordingly, it is Aviva’s position that it is the Applicants who should bear the expense of its upkeep for that period of time.

[17] Further, Aviva’s counsel points out that the record does not reveal whether the repair expenses were incurred through some fault of the Applicants’ in their use and storage of the Boat. In this context, it is not possible to determine who, other than the Applicants as possessor and user of the Boat for the period of time in question, is responsible for those expenses having to be incurred.

[18] I agree with Aviva’s counsel that the Applicants cannot recover the expenses related to the Boat’s upkeep during the period of their possession of the Boat. During that time, the Applicants did not reveal to Aviva where they were keeping the Boat, and so Aviva could not have stored, maintained, and repaired the Boat on its own. The Applicants possessed the Boat for some time, and must bear the costs of that interim possession.

Disposition

[19] Mr. Korytski shall pay the Applicants damages in the amount of $33,200, plus pre-judgment and post-judgment interest from June 11, 2018 at the Courts of Justice Act rate.

[20] The parties may make written submissions on costs.

[21] I would ask that counsel for the Applicants send brief submissions by email to my assistant (with copies to counsel for Mr. Korytski and counsel for Aviva) within two weeks of today, and that counsel for Mr. Korytski and counsel for Aviva each send equally brief submissions to my assistant (with copies to counsel for the Applicants) within two weeks thereafter.

Date: June 14, 2023 Morgan J.