COURT FILE NO.: CV-06-00307532-0000 DATE: 20240605

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHAEL FORSTNER Plaintiff

– and –

MANBIR SINGH SANDHU, GURPREET SINGH SANDHU and COMPUTER WINDOW INC. Defendants

Counsel: Jason E. Bogle, for the Plaintiff Melvin Rotman and Yoven Jaimangal, for the Defendants

Heard: October 30, 31, November 1, 2, and 3, 2023

A.P. Ramsay J.

I. Overview

[1] The genesis of this case involves computer services rendered by the defendants in 2002, some 21 plus years ago, and an ensuing altercation in front of the defendant store.

[2] More particularly, this case involves a telephone voice system, though the evidence is not clear as to whether it was hardware or software; the pleadings allege it was hardware. In the statement of claim, the plaintiff Michael Forstner alleges that in late 2002, he “purchased computer dialing hardware” (the “Dialer”) from the Royal Bank of Canada (“RBC”). The plaintiff contends that he dropped off his computer with the Dialer at the defendant store, Computer Window Inc. (“Computer Window”), and followed up several times for its return to no avail. An altercation eventually ensued between the plaintiff and the individual defendants Manbir Singh Sandhu and Gurpreet Singh Sandhu, who are married to each other, in front of their store in August 2004. The plaintiff was allegedly struck in the ear by the defendant wife, allegedly sustaining damage to his ear and hearing loss. The plaintiff was later charged with assault and pled guilty to causing a disturbance.

[3] The plaintiff commenced this action seeking damages arising out of conversion of the computer and Dialer, general damages for pain and suffering in the amount of $500,000 for assault, battery, and mental anguish, aggravated damages in the amount of $150,000, and punitive damages in the amount of 100,000. The plaintiff also seeks damages for loss of income and “loss of opportunity to earn”.

II. Withdrawal of Counterclaim

[4] At the commencement of trial, counsel for the defendants indicated that the defendants would not be pursuing their counterclaim.

III. Witnesses

[5] Mr. Forstner testified on his own behalf. He also called his friend, Joe Adelman, who helped him to bring the computer in for servicing.

[6] Mr. Sandhu and Mrs. Sandhu testified at the trial.

[7] The defendants also called Amweekul Singh, a former consultant with Computer Window and a witness to the altercation, as well as a former employee, Vishal Sharma.

A. Plaintiff’s Witnesses

Michael Forstner

[8] For the most part, Mr. Forstner resisted answering questions, even the most straightforward ones, with a straight answer. Often, he would provide a back story or engage in unnecessary discussions. During his testimony, Mr. Forstner would lose his train of thought or provide answers which were completely unresponsive, though the court is of the view that this was not intentional. Mr. Forstner’s evidence was at times peopled by events and things which he says happened to him in the past. It was evident from these stories that he had helped a great many people and, from his comments, had been taken advantage of by others throughout his life.

[9] However, this is a trial. The court must only consider evidence relevant to the issues. Mr. Forstner gave evidence at times that was demonstrably inaccurate but insisted the facts were true. For example, he testified that between 2007 and 2013, he guarded the Mayor and Prime Minister (Justin) Trudeau. When asked by defence counsel if he was aware that Mr. Trudeau only became the Prime Minister in 2016, Mr. Forstner indicated that he was not sure about that but says he was in charge of crowd control, then went on to add that he “used to also guard President Lyndon Johnson’s house”. Nonetheless, I do not believe his unresponsiveness was deliberate or intentional but rather his manner of responding.

[10] It is not surprising that the witnesses would have problems with their memories given the passage of time, but Mr. Forstner’s insistence on certain facts, discussed below, made him not only an unreliable historian but also undermined his credibility. As noted below, his evidence on material issues was, at times, internally inconsistent, and at times contradicted by the documentary evidence, which further undermined his credibility on those issues.

[11] Mr. Forstner says that in 2002, he had a business, AAA Dust Busters Duct and Chimney Cleaning Services Inc. (“Dust Busters”), an HVAC cleaning service, which had been servicing the Greater Toronto Area for several years. He did some consulting for another business, Canadian Duct Cleaning, on a paid basis. He did not recall consulting with several other duct cleaning companies.

[12] He owned two computers at the material time: one for his daily work and activities, and another that he used in his business and which had the Dialer. He testified that the Dialer had been purchased recently from RBC for $28,750. The year of his interaction with Computer Window was elicited through leading questions, that is, 2002. He was asked, “So what did you do with your computer and voice dialer?” He spoke to Mr. Sandhu and told him that “this was an important piece of equipment; it’s what keeps my business going”. He says he told Mr. Sandhu that he “only wanted one person touching this because it is not your ordinary computer”.

[13] There were a number of leading questions which only impeded the court’s ability to make a determination on what year Mr. Forstner purchased the computer (discussed further below), relative to when he brought it in, and when the altercation ensued. Mr. Forstner says he had the computer for five weeks when the issues started with the Dialer, which began calling customers twice.

[14] The evidence on the timing of the altercation did not come from Mr. Forstner. The altercation incident occurred in August 2004. His counsel interjected without objection as he started to give this evidence, indicating that this evidence was part of an agreed statement of facts. No agreed statement of facts exists, but counsel for the defendants indicated that there were some facts that were noncontentious. This ought not to have been one of them, as, as it happens, the timing of when certain events took place is critical to the court’s determination of the certain significant facts and the credibility of the witnesses.

[15] In the result, it is not clear at times what Mr. Forstner’s actual evidence was on certain material issues.

[16] In any event, he testified that he wanted something to operate to bring in customers, and he learned that the “My Voice” computer, or the Dialer, had four telephone lines, could make four thousand calls a day, and “it was guaranteed to bring 2.5 percent of interested calls back”, as was the item that was brought in. The Dialer was having trouble connecting with his computer and he dropped it off at Computer Window for servicing. Mr. Forstner was asked leading questions as to what happened when he took his computer and the Dialer to the store. It is not clear to the court whether the Dialer was installed on the computer. Mr. Forstner testified that he was very busy in 2002. He was training his friends, the Farouke brothers, and their whole family, as well as other families. There were four people working with him, and they were doing four or five jobs every day.

[17] Mr. Forstner says that after being assured by Mr. Sandhu that only he would work on the computer, he returned four or five days afterwards and “it wasn’t ready”. He says he was told to come back after a week. He returned two weeks later and brought in his “normal computer”, which had information about his customers on it. Mr. Forstner says his “regular” computer was returned to him, but “not the auto Dialer”. He says he repeatedly followed up with Computer Window, including with several friends such as Joe Adelman, Adil Farouke, and Abdul Farouke.

[18] On the day of the altercation, Mr. Forstner testified that he was on his way somewhere else but thought it would be a “a good day” to get his computer back. He and the owners got in a fight. He phoned the police, but the two officers handcuffed him. He was thrown in jail. Prior to that, he alleges that Mrs. Sandhu, whom he had not noticed, came up and slapped him at the side of the face. Elsewhere he says that he was struck in the ear (though he did not identify which one) by Mrs. Sandhu, who demanded that he leave the premises.

[19] He was charged with assault and pled guilty to causing a disturbance in August 2004.

Joe Adelman

[20] Mr. Adelman is retired. He has been a friend of Mr. Forstner for about four decades. He did the logos for the Dust Busters business.

[21] Mr. Adelman testified that Mr. Forstner had two computers, one of which was a voice activation computer, and one was not. He had an issue with the voice computer. He helped Mr. Forstner bring the voice activation computer to Computer Window at Kipling Ave and Steeles Ave and dropped the computer in the shop because he was disabled. After the computer was dropped off at the store, he left.

B. Defendants’ Witnesses

Manbir Singh Sandhu

[22] Mr. Sandhu owned Computer Window. His dealings with Mr. Forstner started in 2004, though he could not recall exactly. Mr. Forstner used to come in for services and to buy products. He recalls Mr. Forstner coming in with the Dialer but testified that it was a normal PC computer, which had a software and a modem to connect to a phone line to call multiple people. He says it was “just a regular computer” in terms of the hardware. He could not recall the date that he came in. He says that Mr. Forstner wanted it tested, which they did, and they told him that there was no issue with the hardware or the Windows software, and says he told him that any issues was with the other software.

[23] Mr. Sandhu says Mr. Forstner came in with that computer only once, and it took him about a week to look it over. One of his technicians went to Mr. Forstner’s home to deliver the computer with the Dialer. The technician mentioned that he had a security guard accompany upstairs.

Gurpreet Singh Sandhu

[24] Mrs. Sandhu is married to Mr. Sandhu. She worked at Computer Window. She had no contact with Mr. Forstner before the 2004 incident. On the day of the incident, she parked in front of the store, where there were a lot of people standing in front. She says Mr. Forstner was coming at her, swearing and spitting at her. He followed her. He started to open the door, and he was hitting her with his shoulder and elbow.

Vishal Sharma

[25] Mr. Sharma was a part-time assistant technician at Computer Window in 2004. He had been with the store since 2002, volunteering for about a year as he learned. He recalled that Mr. Forstner attended multiple times at the store to purchase things. He further recalled that Mr. Forstner “was always hyper”.

[26] Mr. Sharma testified that he was sent to Mr. Forstner’s home to bring him the Dialer and computer. He claimed he went upstairs and set up the computers, because Mr. Forstner had some back issues, as well. He could not recall if Mr. Forstner had multiple computers fixed at Computer Window and he could not recall any other computer.

[27] He asked that security go with him to Mr. Forstner’s apartment. He told Mr. Forstner the operating system was working well and advised him to contact the software company to get the proper support to run the software. He told Mr. Forstner that there was was nothing wrong with the computer. In cross-examination, he testified that he set up the computer for him and showed him that all the operating systems were working.

Amweekul Singh

[28] Mr. Singh is a former employee at Computer Window. Back in 2004, he was a web designer, coder and programmer doing freelance work for Computer Window and other businesses.

[29] Mr. Singh says that he was present outside the store on August 21, 2004. He has a recollection of the events in August 2004, because it was “a very interesting situation and I have never been involved in that”. He was waiting outside Computer Window to meet with Mr. Sandhu. At the time, he had been a new immigrant to Canada and had known Mr. Sandhu for a short period of time. He was hoping Mr. Sandhu could help him get some work. Shortly after the incident, Mr. Singh gave a statement to a lawyer.

[30] During his cross-examination, counsel for Mr. Forstner told him that he made certain statements in chief that were either never made or were a mischaracterization of his evidence in chief, though I do not suggest it was intentional. There was no material difference in his statement and his evidence at trial, and as the inconsistent statements were not properly put to him on cross-examination, I do not find that his evidence was undermined on the significant facts.

IV. Analysis

A. Piercing the Corporate Veil

[31] The corporate veil will only be pierced when a corporation is used by those who control it as an instrument of fraud or for some other improper purpose akin to fraud. Refusal to pay a debt, whether through impecuniosity because it is not seen as due and payable, or for some other business or even perverse reason, does not constitute a basis for piercing the corporate veil: Northwood Mortgage Ltd. v. Gensol Solutions Inc. (2005), 3 B.L.R. (4th) 322 (C.A.).

[32] Mere control or ownership is not sufficient to lift the corporate veil: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at pp. 433-34. There must additionally be some element of fraud, improper purpose, or improper activity which caused the plaintiff’s loss: see Aubin v. Petrone, 2020 ABCA 13, 100 Alta. L.R. (6th) 10, at paras. 23-26; Yaiguaje v. Chevron Corporation, 2018 ONCA 472, 141 O.R. (3d) 1, at para. 70, leave to appeal refused, [2018] S.C.C.A. No. 255.

[33] In Kosmopoulos v. Constitution Insurance Co. of Canada, [1987] 1 S.C.R. 2, the Supreme Court of Canada referred to the leading authority on piercing the corporate veil, noting, at para. 12:

As a general rule a corporation is a legal entity distinct from its shareholders: Salomon v. Salomon & Co., [1897] A.C. 22 (H.L.). The law on when a court may disregard this principle by “lifting the corporate veil” and regarding the company as a mere “agent” or “puppet” of its controlling shareholder or parent corporation follows no consistent principle. The best that can be said is that the “separate entities” principle is not enforced when it would yield a result “too flagrantly opposed to justice, convenience or the interests of the Revenue”: L.C.B. Gower, Modern Company Law (4th ed. 1979) at p. 112. I have no doubt that theoretically the veil could be lifted in this case to do justice, as was done in American Indemnity Co. v. Southern Missionary College, supra, cited by the Court of Appeal of Ontario. But a number of factors lead me to think it would be unwise to do so. [Emphasis added.]

[34] In Rich v. Enns (1995), 102 Man. R. (2d) 271 (C.A.), Twaddle J.A., speaking for the Manitoba Court of Appeal, stated, at para. 13:

It is unnecessary to cite authority for the proposition that a corporation is a distinct legal person. Its rights and obligations are its own, not those of its members, and that is so even where it is a corporation owned and controlled by a single shareholder. The corporation and the shareholder are not interchangeable. The shareholder has no right to enforce the corporation’s contract.

[35] In this case, Mr. Forstner claims damages against the defendants jointly and severally for his various claims. I am satisfied that the claim for conversion against the individual defendants must fail. Mr. Sandhu, as principal of the corporate defendant, is not the alter ego of the company. Absent evidence of fraud, a sham, or other improper purpose, there is no basis on this record to lift or pierce the corporate veil with respect to the claim against the individual defendants for conversion arising from the alleged non-return of his Dialer.

[36] I would dismiss the claims against Mr. and Mrs. Sandhu in their personal capacity with respect to conversion arising out of the alleged failure to return the computer with the Dialer, for the reasons stated above.

[37] If I am wrong, for the reasons below, I am not satisfied, on the evidence, that Mr. Forstner has established on a balance of probabilities that there was conversion of his computer and/or Dialer by any of the defendants.

B. Tort of Conversion

[38] The plaintiff seeks damages for conversion against all defendants jointly and severally arising out of the alleged failure to return the Dialer. He says the Dialer “was converted for a purpose not intended by the owner of the auto dialer”, and the Dialer was not returned to him.

i. Liability

(a) Does the evidence establish that the plaintiff purchased the Dialer for $28,750?

[39] Mr. Forstner has not established, on a balance of probabilities, that he purchased the alleged equipment, whether it be a “My Voice” computer, Dialer hardware, or even software, from RBC for $28,750 in 2002. This finding is important as it also impacts the reliability and credibility of the evidence with respect to the timing that events unfolded. The sole document that Mr. Forstner is relying on as proof of the purchase of the computer and Dialer is a document said to be a copy of a certified cheque.

[40] The parties could not appear to agree on what the equipment or item was that is the subject of this lawsuit. The documentary evidence tendered at trial stating the date and the payee contradict Mr. Forstner’s evidence regarding when he made the purchase and from whom. According to his evidence, after he purchased the Dialer from RBC, it worked for about five weeks before it started dialing customers twice. With the assistance of Mr. Adelman, he brought the computer with the Dialer into Computer Window for servicing. Indeed, Mr. Adelman does support his evidence that he brought a computer into Computer Window, but I note only the one.

[41] Mr. Forstner’s evidence to support the purchase of the Dialer is a copy of a purported certified cheque. The pleadings and his testimony on the date of the purchase of the Dialer, as well as from whom he purchased it, contradicts the sole document upon which he is relying. At paragraph 8 of his statement of claim, the plaintiff pleads as follows: “In late 2002 the Plaintiff purchased a computer dialing hardware (hereinafter Dialer) from the Royal Bank of Canada for a sale price of twenty-eight thousand seven hundred and fifty (28,750 CAD) dollars.”

[42] Mr. Forstner has not resiled from that date. On cross-examination at trial, he testified that the Dialer was purchased at the end of 2002. He has produced a copy of a certified cheque from Dust Busters dated September 12, 2000, in the amount of $28,750 made payable to a numbered Ontario limited corporation.

[43] Mr. Forstner insisted during his evidence that he purchased the My Voice computer from RBC, and indeed that is what is alleged in his pleading. The cheque does not indicate RBC as the payee but rather the numbered Ontario limited corporation. There are no other records or invoices. The parties agreed the cheque is authentic. It is not clear what that means. There are handwritten annotations on the document. The parties did not advise the court whether the document was a true copy of the original certified cheque. The document is stamped with the word “CERTIFIED” and below that is the date “SEP 15 2000 ” (emphasis added), followed by the name of the bank and the location. There are redactions along the bottom of the document. There was no evidence from anyone as to the nature of the redactions. The document, depicted below, also references an invoice number and the re: line reads: “MIVOICE PHONE SYSTEM”.

[44] No plausible explanation was offered as to why the cheque is dated two years before the Dialer was supposedly purchased. Mr. Forstner suggested that there was an error. That explanation is not plausible as the stamp, said to be from RBC, is also dated “2000”, and the cheque is not made payable to RBC. As for the last-mentioned issue, it was not addressed by either party at trial. In the result, the court can only conclude that the copy of the certified cheque originated two years before what Mr. Forstner contends is the purchase date and the funds were paid to an Ontario limited corporation. While the question as to from whom he purchased the Dialer is not relevant to the determination of the issues before the court, the contradictory evidence underscores the issues regarding his credibility.

[45] According to Mr. Forstner’s evidence, he brought the My Voice computer in shortly after he purchased it. As noted, his evidence is that it was five weeks after he had it, it started to re-dial customers. If his evidence is accepted, that would mean that in October 2000 he brought the computer in to Computer Window for servicing.

[46] I find that on the evidence, Mr. Forster’s purchase of a “MiVoice phone system” was in 2000, some two years before he said it occurred, and four years before the other witnesses had any involvement with the computer. In the result, while I am not satisfied on the evidence that Mr. Forstner purchased the My Voice computer in 2002, I am satisfied that he purchased equipment from a corporation in September 2000.

[47] I am also not convinced, on the evidence, that Mr. Forstner brought the computer into Computer Window in November 2002 This evidence contradicts his own evidence as to the timing of the purchase and how soon after that that he brought the computer and Dialer into to be serviced. Given his evidence as to the importance of the equipment to his business, it also makes no sense that he would wait almost two years before the serious confrontation occurred on August 21, 2004, a date which all appear to agree on.

[48] The timing of the altercation, the charges against him in August 2004, and Mr. Forstner’s own attempt to lay his own private charges afterwards, that same year, is more plausible from the evidence. In late October 2004, Mr. Forstner attempted to file a complaint against Mr. Sandhu for the return of his computer. He was cross-examined at trial about statements in the transcript of the pre-enquête hearing before Justice of the Peace DeBartolo on October 26, 2004. Mr. Forstner advised the justice that he had brought in his computer to put more memory in it. It is not clear to the court what computer is being referred to. Certainly, in their statement of defence, the defendants do plead that in June 2004, Mr. Forstner “dropped off a Pentium III 800 mz computer to Computer Window Inc. to have the memory in the computer upgraded.” At the trial however, Mr. Sandhu did admit that Mr. Forstner also brought in another computer with similar specs with the auto dialer software.

[49] At the pre-enquête hearing, Mr. Forstner indicated that he purchased the computer in November 2002 and said that he had a receipt for the original purchase of his computer for $28,000. His evidence at trial is that it was September, which dovetails with the month on the cheque, but not the year. He also indicated that the store had had his computer for two years. When cross-examined on why he has never provided the invoice or bill of sale referenced on the cheque he wrote, his explanation made no sense, especially given the nature of the business which he professed had been a successful one. He says he thought a receipt for the cheque was like an invoice. Although the cheque, which he made out, cites an invoice number, he says that he was sitting in RBC and “they” told him to do this; that he thought this was the format; and that he did not know anything different.

(b) Has the plaintiff established that any of the defendants are liable for conversion?

[50] I do not find that the plaintiff has established that the defendants, or any of them, are liable for the tort of conversion arising from the failure to return Mr. Forstner’s My Voice computer, for the following reasons.

[51] The tort of conversion involves a wrongful interference with the goods of another, including the taking, using, or destroying of these goods in a manner inconsistent with the owner’s right of possession: Marfani & Co. v. Midland Bank Ltd., [1968] 2 All E.R. 573, at pp. 577-78; Tar Heel Investments Inc. v. H.L. Staebler Company Limited, 2022 ONCA 842, at para. 18; and Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727, at p. 746.

[52] The tort is one of strict liability and although dispossession must arise because of the defendant’s intentional act, “it is no defence that the wrongful act was committed in all innocence”; Boma, at p. 746; Tar Heel Investments Inc.

[53] Contributory negligence does not apply to a claim for damages arising from conversion: Boma; Teva Canada Ltd. v. TD Canada Trust, 2017 SCC 51, [2017] 2 S.C.R. 317, at para. 3; Nesbitt Burns Inc v. Canada Trustco Mortgage (2000), 131 O.A.C. 85 (C.A.), at para. 37; Khosla v. Korea Exchange Bank of Canada, 2009 ONCA 467, at para. 6; and Teva Canada Limited v. Bank of Nova Scotia, 2012 ONCA 486, 353 D.L.R. (4th) 326, at para. 10.

[54] In Kayani v. Toronto-Dominion Bank, 2014 ONCA 862, 378 D.L.R. (4th) 729, the Court of Appeal set out the elements of the tort of conversion as follows:

i. a wrongful act from a wilful interference or without legal justification; ii. involving a chattel which is owned by another; iii. consisting of handling, disposing or destroying the chattel inconsistent with the rights of the chattel’s owner; and iv. with the intention or effect of denying or negating the title of another person or to such chattel’s use or possession.

[55] With respect to the My Voice computer, Mr. Sandhu admitted that Mr. Forstner brought the computer in for testing. Therefore, Computer Window had possession of and control over the computer when it was brought in. Mr. Sandhu admits that Mr. Forstner brought in two computers, and one was picked up and the other delivered to him. He has no recollection of when the computers were dropped off but recalls there were multiple computers. The timing however is not clear. He was not there when he told them to go and deliver the Dialer, but he testified that was “the only PC we had”.

[56] Several witnesses indicate that Mr. Forstner’s computer with the Dialer software was returned to him. Mr. and Mrs. Sandhu indicate that the software was the issue, not the hardware. Mr. Sharma says he delivered the computer and showed Mr. Forstner that it was working fine. Even Mr. Forstner’s lone witness, Mr. Adelman, says he brought in the computer with the voice activation to the store. There is a glaring discrepancy as to what year the computer was purchased, when it was dropped off, and the proximity to the ensuing altercation. Mr. Forstner says it was September 2002. Mr. Sandhu says his relationship with Mr. Forstner started in 2004. He says the altercation was on August 21, 2004, but he was lead on the date just as Mr. Forstner was lead on the year. Mr. Adelman was not asked about the year. I infer from Mr. Sharma’s evidence, as he was not asked directly, that he returned the computer in 2004, as he was working at the store part time.

[57] In his pleadings, his testimony, and his counsel’s questioning of other witnesses, Mr. Forstner has sought to highlight his physical disability, that is, that he walks with a cane. According to his friend, Mr. Adelman, that is why he helped him to drop off his computer at the store. It is therefore quite striking that Mr. Forstner, whose testimony tended to be lengthy and replete with information, provides no similar evidence with respect to taking the second computer in. Added to this, given the court’s finding on when the item was purchased (that is, in 2000), his timeline makes no sense. Mr. Sandhu does not deny that Mr. Forstner has dropped off two computers at the store at different times. His statement of defence refers to a computer being dropped off in June 2004.

[58] Mr. Forstner testified that his computer was returned, and his Dialer was not. Mr. Sandhu’s evidence is that his technician returned the computer to Mr. Forstner’s home, and that the Dialer was a software program on the computer.

[59] The tort of conversion cannot be maintained if the alleged tortfeasor is holding or dealing with the property with the consent of the owner: Raza, at paras. 27-28. There was no “wrongful act”. The defendants had a legal right initially to have possession and control of the computer. Moreover, Mr. Forstner has not satisfied me, on the evidence, that the Dialer or My Voice was separate hardware.

[60] Mr. Forstner says that only his “normal” computer was delivered by an employee to his apartment. I find that on a balance of probabilities, only one computer was dropped off at Computer Window. Mrs. Sandhu testified that she told the technician to return the computer; he was reluctant owing to Mr. Forstner’s behaviour in past dealings with him and wanted security. She says the Dialer was a software program. She was there in the store when the computer was taken by the technician and returned to Mr. Forstner. She denied that he brought in two computers on the same day. She was never asked whether he brought in another computer a week later or at some other time. Mr. Adelman, who assisted Mr. Forstner in bringing in his computer, only testified to assisting Mr. Forstner with bringing in one computer. Mr. Adelman was not asked about any other follow-up visits to Computer Window to enquire about the computer or about assisting Mr. Forstner with bringing in a second computer.

[61] Even if the Dialer or My Voice system was a software on the computer that was taken to Computer Window for repairs, Mr. Forstner has not established that the defendants kept the computer. Multiple witnesses, even Mr. Forstner himself, admit that the defendants returned a computer to his home. While Mr. Forstner disputed whether the technician actually brought the computer upstairs, and the issue appears minor, I prefer Mr. Sharma’s version of events. He says he returned the computer and had security with him. Mr. Sharma testified that there was an “Asian lady” and pets in the apartment, in response to the challenge that he did not in fact bring the computer upstairs. Mr. Forstner attempted to call his wife to testify but did not arrange for a Korean interpreter. Mr. Forstner acknowledged that when the computer arrived there was security, and he did not know why.

[62] On the evidence, the computer with the Dialer was returned to Mr. Forstner by the defendants’ technician in August 2004. There is no evidence that the defendants, or any of them, have kept, disposed of, or otherwise destroyed Mr. Forstner’s computer. The testing of his computer, which Mr. Sandhu admitted was carried out, was authorized by Mr. Forstner. The jurisprudence establishes that dealing with another’s chattel in a manner authorized by the rightful owner is consistent with the owner’s right of possession and does not qualify as wrongful interference: 373409 Alberta Ltd. (Receiver of) v. Bank of Montreal, 2002 SCC 81, [2002] 4 S.C.R. 312, at para. 9. And, while it appears academic, Mr. Forstner has not established, on a balance of probabilities, that the defendants intended to deny or negate his title to or his use or possession of the My Voice computer.

ii. Damages

(a) What is the measure of damages for conversion in this case?

[63] Although the tort of conversion has not been made out by Mr. Forstner, even had it been, I would dismiss his claim for damages for the reasons which follow.

[64] The proper approach to an assessment of damages in a case involving the tort of conversion, in a similar situation involving the wrongful distress or conversion of property, was set out by the court in the leading case of Chan v. Farrell Estate, 2001 BCCA 92, 42 R.P.R. (3d) 1.

[65] A party deprived of their chattel is ordinarily entitled to its full value. Damages for conversion are to be assessed as of the date of conversion. The measure of damages is the fair market value of the goods converted on that date. A party who proves conversion is also entitled to compensation for any special damage that the law does not regard as being too remote.

[66] Mr. Forstner is claiming what he allegedly paid for the Dialer in the amount of $28,750 from RBC. The issues with the cheque are highlighted above. The invoice referenced in the cheque is not produced.

[67] Generally, damages are assessed as of the time of loss: S.M. Waddams, The Law of Damages, 2nd ed. (December 12, 2023) at § 1:6, online: (Proview) Thomson Reuters Canada. The measure of damages must restore the plaintiff in the position that they were in: Chan; Buchanan v. Cook (1958), 11 D.L.R. (2d) 638 (Sask. C.A.) at p. 639; Nan v. Black Pine Manufacturing Ltd. (1991), 80 D.L.R. (4th) 153 (B.C.C.A.); and Tremear v. Park Town Motor Hotels Ltd..

[68] Where a plaintiff’s property has been damaged, destroyed or lost, the courts have considered various values which could be assigned to the property to determine a damages award, such as the market value, replacement value or actual value: Bendera v. C.E. & V. Holdings (1983), 43 B.C.L.R. 96 (C.A.); Buchanan; and Canadian National Fire Ins. Co. v. Colonsay Hotel Co., [1923] S.C.R. 688. Mr. Forstner has not provided any credible evidence of the amount he paid for the My Voice computer, the estimated market value of the My Voice computer at the time the alleged conversion took place, or the costs of replacing the My Voice computer at the time of the loss.

[69] Where there is no evidence that the property will be replaced, where the evidence indicates that the replacement of the property cannot be economically justified, and where the property has no specific value other than its economic value, then replacement cost simpliciter cannot be the measure of damages: Chan, at para. 31.

[70] Even if the defendants were found liable for conversion, which I have found they are not, I find that given the nature of the chattel involved, a computer with a telephone voice dialer, the proper measure of damages would be the replacement cost. In the absence of any evidence as to what the value of the Dialer would be and given the nature of the property involved and the leap that technology has taken, the proper measure of damages would be the salvage or recoverable value of the property. I would have therefore assessed Mr. Forstner’s damages to be nominal to nil.

(b) Loss of income and opportunity to earn

[71] Mr. Forstner says that his business has suffered significantly because of the defendants’ refusal to return the computer Dialer.

[72] In his statement of claim he pleads that he was unable to set up the system by himself, so he brought it in to Computer Window for repair.

[73] Mr. Forstner has not satisfied the court on a balance of probabilities that, assuming the defendants wrongfully retained his computer, he has suffered a loss of income or a loss of opportunity to earn income because of the failure of the defendants to return the computer.

[74] Assuming the plaintiff is able to maintain his various claims, the onus is on the plaintiff to prove his damages. In Vancouver Canucks Limited Partnership v. Canon Canada Inc., 2015 BCCA 144, 76 B.C.L.R. (5th) 80, the British Columbia Court of Appeal noted, at para. 146, as follows:

A party claiming a loss bears the onus of proving that a loss has occurred and the value of that loss. Where there is evidence available to prove its loss, it is incumbent on the plaintiff to lead it. If it fails to do so, leaving no basis for assessment, the court may, as in Williams v. Stephenson (1903), 33 S.C.R. 323 and Cotter v. General Petroleums Ltd., [1951] S.C.R. 154, decline to make an award of damages.

[75] Mr. Forstner has not explained why his business ground to a complete and utter halt on the strength of the Dialer alone. He had testified that he was very busy and had several people working with him. He testified that he had his “normal computer” which had the dates, history, spreadsheets, names, addresses, services performed, and personal details of his customers, e.g., whether they had pets. He also testified that a woman from Scarborough did his spreadsheets and an accountant who returned source documents, but he conceded he had a copy of his documents. He claimed that he also took this computer in after it froze on him, and it was returned. In fact, on the evidence, Mr. Forstner’s business did in fact continue to operate, in whatever form, in Ontario until at least 2007, when he left the province to go to Alberta. He has not produced any evidence to substantiate a loss of income or loss of opportunity to earn income.

[76] Mr. Forstner claims that his business stopped because he “didn’t have My voice”. There is no explanation as to why he could not mitigate his damages, if any. At most, he had only had the My Voice computer for five weeks. He was so busy before he had the My Voice computer that he was giving jobs to others. Before he purchased this computer, he got business by placing ads in newspapers.

[77] Mr. Forstner testified that he stopped doing business and stopped filing taxes after his computer was not returned. Mr. Forstner says that despite the significant passage of time, his business continues to suffer loss as a result of the My Voice computer not being returned to him. His evidence is contradicted by the documentary evidence.

[78] On the evidence, Mr. Forstner incorporated his business about a year after he took his computer in for servicing. The parties filed a Corporation Profile Report for the business. The profile indicates that the company was incorporated on October 22, 2003. The last reported annual return is noted to be in 2007, filed on May 17, 2008. The document has not been produced. The court finds that Mr. Forstner’s business, in its new form, continued to operate until at least 2007, and that he moved to Calgary, Alberta in 2007 to pursue other opportunities.

[79] Mr. Forstner also filed his resume which shows him as the “owner” of Dust Busters in Toronto from 1990 to 2007. After 2007, his resume indicates that he had several jobs in Calgary, Alberta in security from 2007, coincidentally the last filing date noted on the Corporation Profile, to 2013. He testified that he was in Alberta for nine years. There is no evidence before the court as to Mr. Forstner’s earnings before the computer was taken in, and after, nor how profitable or otherwise the corporation was after it was incorporated. The corporation is not a party to the lawsuit.

[80] Mr. Forstner has not satisfied the court, on a balance of probabilities, that he has sustained any loss of income or loss of opportunity to earn, assuming he is able to prove there was conversion.

C. Assault and Battery

i. Liability

[81] The altercation took place on August 21, 2004.

[82] In August 2004, Mr. Forstner was convicted of causing a disturbance.

[83] On August 21, 2024, Mr. Sandhu came to the strip mall where Computer Window was. He found Mr. Forstner waiting at the door. He alleges that he tried to unlock the door and Mr. Forstner prevented him from doing so. Mr. Forstner took his keys, shouted racial slurs, pushed him with his body, spit on him and took his phone to prevent him from calling the police. Mr. Sandhu testified that his wife came, but he was interrupted by his lawyer and did not continue about what happened when his wife got there.

[84] Mr. Forstner’s claim of battery is solely against Mrs. Sandhu. The court is satisfied that there was an altercation. Mr. Forstner candidly admits that he and Mr. Sandhu exchanged swear words. There is conflicting evidence as to when Mrs. Sandhu happened on the scene. The competing versions on this point are not relevant to the question to be determined, that is, whether she hit Mr. Forstner in the right ear causing his hearing loss. On this point, all except Mr. Forstner deny that Mrs. Sandhu struck Mr. Forstner.

[85] Mr. Forstner was charged with assault but pleaded guilty to causing a disturbance. The conviction has little, if any, bearing on whether Mr. or Mrs. Sandhu struck Mr. Forstner in the ear, which is the basis for his claim for assault and battery. As Mr. Forstner pled guilty, there was also no trial on the merits. At most, the conviction may be conclusive in this civil case that he caused a disturbance, but he may still point to the defendants and say they are negligent for the tort of assault and battery: Caci v. MacArthur, 2008 ONCA 750, 93 O.R. (3d) 701.

[86] The defendants sought to rely on the conviction and on Mr. Forstner’s evidence at the pre-enquête hearing. The evidence of the pre-enquête is not sworn. To the extent that he was not impeached, at times, when ng any prior statements from the transcript were put to him, or parts of it were read into the record, essentially as a prior consistent statement, and regardless of the lack of any objection, I have given those problematic passages little if any weight. I have only considered the evidence from the pre-enquête which were used to impeach his evidence.

[87] The real issue is whether Mrs. Sandhu struck Mr. Forstner in the ear. While I do not accept Mrs. Sandhu’s evidence that she arrived at the store after her husband, her evidence that she did not strike Mr. Forstner is supported by Mr. Singh, who witnessed the incident. In fact, the fact that neither Mr. Forstner nor Mr. Singh initially saw her supports her account that she arrived after her husband. When she parked her car, Mr. Forstner walked to her car and was swearing. She did not see her husband. She was not present when they were fighting. She claimed Mr. Forstner came up behind her. She denied she hit him. She suggests that it was Mr. Forstner who was the aggressor. He swore and spit at her and followed her. She claimed he started hitting her with his elbow and shoulder as she tried to open the door.

[88] The altercation originated with Mr. Forstner and Mr. Sandhu. Mr. Forstner claimed he was driving by to go help someone with a construction project when he saw Mr. Sandhu. He says that the altercation took place outside in the parking lot. He did not see Mrs. Sandhu; he only saw Mr. Sandhu. He denied grabbing Mr. Sandhu’s phone or keys or that he had been blocking the entrance to the store, as Mr. Singh testified. He says he was sworn at and called names.

[89] I rely primarily on the evidence of Mr. Singh as to what transpired the day of the altercation, whom I found to be a credible witness. While any frailties in his memory is understandable given the passage of time, on the key issues, his evidence was consistent with Mr. Sandhu’s evidence, corroborating who was the aggressor, the events during the exchange between the altercation, and corroborating that there was no assault perpetrated by either Mr. or Mrs. Sandhu.

[90] Mr. Singh testified that as he was waiting at Computer Window to speak with Mr. Sandhu, there was another car parked. He recalls that Mr. Sandhu came, and he was there with his wife. They had a van. In chief he testified that as Mr. Sandhu pulled out his keys and went to unlock the door, the man who was already waiting there in the car came out and started yelling as soon as he got out of the car. During his cross-examination Mr. Singh volunteered that he did not know from what vehicle the man came. He says Mr. Sandhu was trying to unlock the door and the man was trying to prevent him from doing so. He recalls that the man “snatched” the keys and believes the keys fell when he did so. He believes Mr. Sandhu had a phone with him at the time, and the man did the same thing to the phone.

[91] Mr. Singh recalls the man being quite heavy and that “he was pushing Manbir around with the front of his belly, I would say”. However, at the same time he says he does not recall them touching each other. He recalls Mrs. Sandhu intervening. He did not know where she came from. Mr. Sandhu, Mrs. Sandhu, and the man were in his field of view. When asked if he observed Mrs. Sandhu striking the man in the right ear, causing him to move from Computer Window, Mr. Singh responded: “No. So, this gentleman is – or, at that time, I would say four or five times the size of her. So, I don’t know if she would even try to push him or hit him because there is no way he is going to budge. I am a six-foot three guy. I am lean, I am not heavy. But I was scared of him. I wouldn’t even want to touch him”. Mr. Singh says the man left the doorway when the Sandhus had yelled back that they had called the police. The man left and Mrs. Sandhu moved inside, and that is when he himself was eventually able to get inside the store.

[92] Mr. Singh thought it was “a scary situation”. He testified that the man was spitting in their faces and was pretty aggressive.

[93] From all the evidence, the altercation escalated to the point where the police were called, and Mr. Forstner was arrested. Mr. Forstner has not satisfied the court, on a balance of probabilities, that he was struck by Mrs. Sandhu in the ear. During the trial various witnesses, including Mr. Forstner, commented about his size. Mr. Singh’s comment about the effect of the escalating scene in front of him underlines the extent of the danger that was unfolding. As he himself testified, even he was afraid of Mr. Forstner.

ii. Damages

(a) General damages for pain and suffering

[94] Mr. Forstner’s claim for general damages is based on being struck in the ear and suffering hearing loss. He says that his right ear is nothing like it was before he got whacked; his left ear is fine.

[95] Even were I to accept that Mrs. Sandhu struck Mr. Forstner, he has not established, on a balance of probabilities, that the incident is the cause of any hearing loss.

[96] On the other hand, there is evidence before the court which points to a potential alternative culprit. Mr. Forstner had been in the music industry since the age of 16. He started in a band at the age of 21. At times he had a 21-piece orchestra behind him. He was in the entertainment business from 1961 to 1990. He was in a rock opera in 1979. He has seen an audiologist. He disagrees that the audiologist says that it was his lifestyle that affected his hearing.

(c) Punitive damages

[97] The plaintiff is seeking punitive damages in the amount of $100,000. I would dismiss the claim for punitive damages for the reasons above.

(d) Aggravated damages

[98] The plaintiff is seeking aggravated damages in the amount of $150,000 for the non-return of the Dialer. I would also dismiss the claim for aggravated damages for the reasons above.

V. Costs

[99] If the parties are not able to agree on costs, I will consider written submissions based on the following schedule:

i. The defendants shall deliver their costs submissions, including a Bill of Costs, Costs Outline, and dockets (or computer-generated dockets) no later than 30 days from the date of these Reasons. ii. The plaintiff shall deliver responding submissions and supporting materials within 30 days thereafter. iii. Reply submissions, if necessary, shall be delivered no later than five days thereafter. iv. The costs submissions, excluding the Costs Outline, Bill of Costs and any supporting case law, must be no longer than five pages, double-spaced. v. Any authority referred to may be hyperlinked to a free online source for decisions. vi. The costs submissions should also be provided in Word format and emailed to Ms. Diamante. All submissions and supporting materials on costs must also be uploaded to Caselines to the trial bundle.

A.P. Ramsay J.

Released: June 5, 2024