COURT FILE NO.: 16-2739 SR

DATE: 2024/06/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

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

Plaintiff

– and –

Steve Konarski

Defendant

John G. Langlois, for the Plaintiff

Justin N. O’Rourke, for the Defendant

HEARD: May 31, June 1 and June 2, 2023, and by way of written submissions received on June 30, July 28 and August 18, 2023

Justice I.F. Leach

1This litigation, commenced by way of an original statement of claim issued on or about May 16, 2024, brought pursuant to the “simplified procedure” set forth in Rule 76 of the Rules of Civil Procedure, has proved to be anything but simple.

2To the contrary, as outlined in more detail below, it now has a prolonged and complicated history.

3This final judgment, (supplementing the partial judgment I rendered on August 5, 2020), is intended to address and resolve the remaining substantive issues between the parties, focusing in particular on claims for damages or financial entitlements the parties have advanced against one another.

Background and Context

[4]

Background and Context

The background to this litigation was described in the partial judgment I delivered in relation to this matter on August 5, 2020; a decision now reported as Kew v. Konarski, 2020 ONSC 4677, and elsewhere. This final judgment should be read together with that earlier partial judgment.

5However, by way of reiteration and for ease of reference:

a. This litigation stems from an unfortunate dispute focused on the treatment and disposition of five specific vehicles and/or various parts thereof that belonged to Robert Thomas Kew also known as “Bob Kew”, (a retired businessman, licenced mechanic and collector of automobiles), at the time of his unexpected death on March 31, 2015. The five vehicles and/or parts in question included:

i. a 1936 Dodge pick-up truck;

ii. parts associated with a 1954 Corvette vehicle;

iii. a 1956 Dodge Custom Royal vehicle;

iv. a 1960 Corvette vehicle; and

v. a 1992 BMW vehicle.

b. The plaintiff, Charlene Marie Kew, (who prefers to use her middle name “Marie”), is Mr Kew’s former wife and estate trustee. By way of broad summary:

i. It was her contention 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.

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

iii. To the extent those vehicles and parts could not or would not be returned to the estate in whole or in part, and/or returned in a condition similar to the condition they were in when entrusted to Mr Konarski, the plaintiff asked in the alternative that the estate be awarded damages based on Mr Konarski’s wrongful conversion of the estate’s property.

iv. At the time of the earlier trial proceedings before me, the plaintiff’s pleading, (as it stood at the commencement of trial, following several pre-trial amendments), claimed compensatory damages in the amount of $100,000.00, supplemented by a claim for punitive damages in the amount of $25,000. However, it was agreed and confirmed by counsel that the plaintiff’s claim for punitive damages had been abandoned prior to trial, (through correspondence sent by plaintiff counsel on or about March 19, 2018), in order to keep the matter within the then applicable $100,000 monetary limit of the Simplified Procedure outlined in Rule 76 of the Rules of Civil Procedure.

c. The defendant Mr Konarski denied the plaintiff’s allegations, and claimed that he in fact was the wronged party; i.e., 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. By way of a similarly broad summary:

i. Mr Konarski contended that he had a binding and legally enforceable agreement with Mrs 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 store 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.

ii. Mr Konarski alleged that 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.

iii. Mr Konarski also alleged 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 correspondingly sought a formal declaration that all right, title and interest of the plaintiff in the relevant property was thereafter vested in him, free and clear of any liens or encumbrances.

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

v. In the further alternative, if the court ordered a return of the relevant vehicles and/or parts to the estate, Mr Konarski sought compensation for his towing and storage services on a quantum meruit basis.

vi. Mr Konarski also denied 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 had made improvements to the vehicles in respect of which allowances should be made.

6The initial trial proceedings took place before me on October 7-11, 2019, and by way of written submissions received between November of 2019 and January of 2020.

PARTIAL JUDGMENT AND CONTEMPLATED DIRECTION OF REFERENCE

[7]

Partial Judgment and Contemplated Direction of Reference

In my already noted partial judgment delivered on August 5, 2020, I generally found for the plaintiff and against the defendant. In particular, for the lengthy and detailed reasons set out therein:

a. I found the plaintiff’s witnesses, (including the plaintiff, Jason Kew and Cody Kew, as well as an independent witness who operated a storage facility in the city of Stratford), to be credible and reliable. Conversely, I found that Mr Konarski was neither a credible nor reliable witness.

b. Contrary to the assertions of Mr Konarski, I found that there had been no legally binding agreement or contract between the parties; i.e., whereby Mr Konarski was to receive compensation for his provision of towing and storage services.

c. Contrary to the assertions of Mr Konarski, I found that he had acquired no right to withhold the relevant vehicles or parts from Robert Kew’s estate trustee, having regard to the underlying facts and relevant provisions of the Repair and Storage Liens Act, supra, and the Consumer Protection Act, 2002, S.O. 2002, c.30. Without limiting the generality of the foregoing, I found that the underlying facts did not bring Mr Konarski within the relevant statutory definitions of a “repairer” or “storer”; that required written estimates had not been delivered; that required written authorizations had not been obtained; that required notices had not been given; and that the doctrine of equitable fraud prevented Mr Konarski from relying on certain steps he had taken as sufficient notice for the purposes of the legislation.

d. Contrary to the assertions of Mr Konarski, I found that there was no basis for his claims based on unjust enrichment, insofar as there may have been enrichment of the estate and a corresponding deprivation of Mr Konarski, (e.g., through his provision of towing and storage services), but there was a juristic reason established by the plaintiff in that regard; i.e., Mr Konarski originally making a gratuitous gift of the services he was providing. Indeed, as I noted in my earlier judgment, if there was any injustice in this case, it lay in Mr Konarski’s attempt to transform his original gratuitous arrangement with the plaintiff and the estate of Robert Kew, his close friend of many years, into something quite different from what was intended and understood, with a view to profiting from the misfortune and grief of Mr Kew and his family. At the core of this case is Mr Konarski’s betrayal of the trust of the plaintiff and Robert Kew’s family, and their reliance on the legitimate expectations Mr Konarski had fostered.

e. Based on my factual findings, I also found that the plaintiff had established the essential elements of conversion and detinue.

f. For additional reasons, (including the demonstrated reality that the property in question consisted of vehicles and parts that inherently were collector’s items, which also had great sentimental value to the plaintiff and the estate beneficiaries), I also made an order directing that Mr Konarski return the relevant vehicles and parts to the plaintiff; specific items that admittedly were still within in his possession.

g. In relation to each of the relevant vehicles, I also summarized various factual findings I had made about the state of those vehicles when they were entrusted to Mr Konarski and granted declaratory relief in that regard.

8At the conclusion of the initial trial proceedings in this matter, it nevertheless was not possible to make a final judgment granting complete justice between the parties, as circumstances prevented resolution of damage entitlement and quantification issues. In particular:

a. Until the defendant Mr Konarski had completed efforts to comply with my orders directing him to restore the relevant vehicles and parts to the plaintiff’s possession, and the plaintiff Mrs Kew was then provided with an opportunity to carry out a proper inspection of what had and had not been returned, and the condition of what had been returned, it was not possible for the parties to lead evidence concerning further findings to be made in that regard.

b. Nor were the parties able to make corresponding submissions relating to whether and to what extent the plaintiff should be entitled to damages for detinue and/or conversion.

c. For similar reasons, it was not possible to address Mr Konarski’s assertions that he should be compensated, or at least receive credit, in relation to certain changes/improvements he claimed to have made to some of the vehicles and parts while they were in his possession.

9Consistent with preliminary views expressed at trial by counsel on behalf of the parties, and my own independent view of the situation, I accordingly contemplated the possible direction of a reference pursuant to Rule 54 of the Rules of Civil Procedure.

10However, I refrained from directing such a reference immediately, in my partial judgment, as I thought it inappropriate to do so before:

a. I received confirmation, (after completion of Mr Konarski’s efforts to comply with my order directing a return of the relevant vehicles and parts to the plaintiff), that there were remaining monetary damage claims requiring the direction of a reference; and

b. counsel had been given an opportunity to make submissions regarding whether and how I should make the contemplated order directing a reference.

11My partial judgment nevertheless did include, (among the directions I made to address the further steps required to complete this litigation), the following direction at sub-paragraph 113(a):

If the plaintiff has remaining claims for monetary damages after return of the relevant vehicles and parts, and those claims are incapable of being resolved by agreement, counsel for the plaintiff and counsel for the defendant shall confer again before each delivering, within eight weeks of the release of this judgment, written submissions, (maximum 15 pages), providing their views regarding the contemplated direction of a reference pursuant to Rule 54 of the Rules of Civil Procedure, including their views on:

i. whether or not the parties still consent, pursuant to Rule 54.02(1)(a), to my directing such a reference;

ii. if there is no longer such consent, counsel views on whether a reference can or should be directed pursuant to Rule 54.02(1)(b);

iii. counsel views as to whom a reference, if any, should be directed pursuant to Rule 54.03;

iv. if the parties have agreed that the reference should be made to “a person agreed on by the parties”, counsel views regarding the determinations that should be made, if any, pursuant to Rule 54.03(3); and

v. counsel views as to the terms of the order to be made directing a reference, pursuant to Rule 54.04.

[Emphasis added.]

12Unfortunately, I thereafter did not receive the written submissions I had directed and anticipated in that regard.

13On September 22, 2022, I received email correspondence from defence counsel, (sent with the consent of plaintiff counsel), and a number of documents attached to that email. In that regard, the email indicated and confirmed:

a. that the plaintiff had remaining claims for monetary damages that could not be resolved by party agreement;

b. that the parties were agreed that I should direct a reference, thereby essentially indicating consent, by affected parties, to the direction of a reference contemplated by Rule 54.02(1)(a) of the Rules of Civil Procedure; and

c. that the parties also had agreed that the reference should be directed to Mr Gregory J. Brimblecombe, thereby permitting direction of the contemplated reference to “a person agreed upon by the parties” pursuant to Rule 54.03(1) of the Rules of Civil Procedure.

14Attached to the email was biographical information for Mr Brimblecombe indicating, inter alia, that he was:

a. a qualified and practising lawyer, called to the bar in or around 1994, who previously worked for a decade as an insurance adjuster; and

b. someone who, in addition to or as part of his legal practice, acts as an appraiser and umpire in relation to “quantum disputes pursuant to the appraisal process and the Insurance Act”.

15In the circumstances, Mr Brimblecombe likely had experience relating to the valuation of vehicles and vehicle components, and the parties were agreed that he appeared “particularly suited” to conduct a reference such as that contemplated in my partial judgment.

16Beyond the above, counsel did not tender submissions as requested, either separately or as a joint submission. They instead filed a Consent, executed on behalf of both parties, to the making of an attached draft Order. Amongst other things, the draft Order indicated:

a. that it would be made after my reading of the parties’ Consent, draft Order and submissions, although I actually did not receive the latter;

b. that Mr Brimblecombe generally would be directed to conduct a reference “pursuant to Rules 54 and 55 of the Rules of Civil Procedure”;

c. that Mr Brimblecombe nevertheless also would be directed to conduct the reference “in accordance” with numerous specified paragraphs of my reasons for partial judgment, and “within the parameters of the pleadings”;

d. that Mr Brimblecombe also would be directed to conduct the reference, “at least in part”, by the parameters established by the declaratory findings of fact, outlined in my partial judgment, “concerning the condition of vehicles and the presence, absence, location and/or destination of vehicle components”;

e. that issues “to be decided” on the reference would include those described or outlined in numerous paragraphs of the draft Order echoing, inter alia, comments made in paragraphs 93, 94, 97, 98, 101, 104, 108 and 112 of my reasons for partial judgment;

f. that “all necessary inquiries shall be made, accounts taken and costs assessed”; and

g. that the plaintiff would have carriage of the reference.

DIRECTION OF REFERENCE

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Direction of Reference

On September 23, 2020, I responded to the aforesaid email correspondence from counsel, concerning the contemplated direction of a reference, by rendering a further endorsement, now reported as Kew v. Konarski, 2020 ONSC 5726, and elsewhere.

18As indicated in that endorsement, I had no doubt that counsel were intending to be helpful by providing me with a Consent and draft Order, rather than the submissions I had requested and directed.

19However, for the detailed reasons outlined in that further endorsement, (and which I will reiterate to some extent here for ease of reference), I also found their approach to be problematic for a number of reasons. Without limiting the generality of the foregoing:

a. As I emphasized to counsel, the direction of a reference is a significant delegation of judicial authority. Although Rules 54 and 55 of the Rules of Civil Procedure impose certain limitations in that regard and allow the ambit of possibilities to be expanded by party agreement, the ability to make final determinations of whether and how such judicial authority should be delegated remains firmly vested in the court. They are not determinations to be made directly or indirectly by the parties, even if they have reached an agreement in relation to such matters. That is why I requested and directed submissions in that regard, rather than party agreement and/or confirmed consent to a draft Order.

b. Such concerns were reinforced in this instance by my preliminary view that direction of the contemplated reference was appropriate regardless of whether or not the parties reached an agreement pursuant to Rule 54.02(1)(a) of the Rules of Civil Procedure; i.e., because I believed this particular situation engaged, in any event, the provisions of Rule 54.02(1)(b) permitting the court to direct a reference in situations “where a prolonged examination of documents or an investigation is required that, in the opinion of the judge, cannot conveniently be made at trial”. I thought that was an apt description of the situation in this case, insofar as necessary determinations concerning the plaintiff’s entitlement to monetary damages and their quantification were concerned.

c. Although the submissions I had requested and directed were to include counsel views regarding the determinations that should be made pursuant to Rule 54.03(3) of the Rules of Civil Procedure, (i.e., concerning remuneration of the contemplated referee and the liability of the parties for payment of that remuneration, if the referee was to be “a person agreed upon by the parties”), the draft Order provided by counsel was silent in relation to such matters. In that regard:

i. Concerns about a referee’s remuneration and liability of the parties to pay that remuneration obviously do not arise when a reference is directed to a judge, registrar or other officer of the court whose salary will be paid in any event by the federal or provincial government, regardless of the particular court-related tasks he or she is called upon to perform.

ii. However, the situation obviously will be very different when a reference is directed to “a person agreed on by the parties”, who is made an “officer of the court” only for purposes of the reference, pursuant to Rule 54.03(2) of the Rules of Civil Procedure. In such circumstances, unless such a person confirms that he or she is willing to provide his or her services on a gratuitous basis, the referee likely will have to be paid for his or her services by one or both parties.

iii. It also was important to remember that the issue of referee remuneration normally will not be addressed by standard provisions addressing how costs associated with the reference will be determined. In particular, such cost issues normally are focused only on whether and how one litigant should be obliged to provide his or her opponent with some measure of reimbursement for the costs that opponent has incurred in relation to a step in the litigation. That is something inherently separate and distinct from remuneration of a referee.

iv. In my view, unless the circumstances were such that remuneration of a contemplated referee was not an issue, (e.g., because he or she had committed to acting gratuitously, or would be paid for his or her services in some fashion other than payment by one or both parties), an order directing a reference reasonably needed to include provisions addressing such issues in some fashion; e.g., by one of the alternatives suggested by Rule 54.04(3) of the Rules of Civil Procedure. Such provisions provide all concerned with a reasonable assurance that completion of the reference will not be delayed or prevented by referee concerns that he or she will not be paid for his or her services.

v. In the absence of submissions by the parties, (or evidence of any agreement between the parties and Mr Brimblecombe), I was inclined to think that the approach contemplated by Rule 54.04(3)(c) of the Rules of Civil Procedures would be the most appropriate in this case. In particular:

1. It would provide Mr Brimblecombe with an assurance that this court would retain the ability to make a final determination quantifying his remuneration and ordering one or both parties to pay that remuneration; an ability that would be informed by provisions, in my order directing the reference, allowing Mr Brimblecombe to express his requests and views in that regard directly to the court in his report.

2. At the same time, such an approach would provide the parties with an assurance that my order directing a reference had not exposed them to an indeterminate liability not subject to final court review and determination.

3. I already had reserved costs of the trial and action for later determination, once the remaining substantive issues relating to damages had been addressed and resolved through the contemplated direction of a reference. The parties accordingly would be making cost submissions to me at some later date once the reference procedure had run its course. In the circumstances, it seemed to me that issues relating to quantification of the referee’s remuneration, and liability of one or both parties to pay that remuneration, could be addressed easily and efficiently at the same time.

d. While the submitted draft Order included a general direction that the referee was to conduct the reference “pursuant to Rule 54 and 55 of the Rules of Civil Procedure”, the draft Order was silent in relation to other required determinations to be made by a judge directing such a reference. In particular, it contained no provisions making it clear whether the referee would be required to report back to me as the judge directing the reference to confirm the report, as contemplated by Rule 54.08, or whether the report instead would be confirmed by the passage of time, or an opposed hearing procedure contemplated by Rule 54.09.

e. I also thought some of the provisions included in the draft Order, essentially replicating the broad provisions of Rule 54.04(1)(a), needed to be refined, tailored to the circumstances and/or clarified, in order to prevent uncertainty. For example:

i. Barring further submissions from the parties, I had difficulty seeing how this case would require an accounting.

ii. I did not think it appropriate to include a simple and unqualified direction that the referee was to “assess costs”. In that regard, I already had indicated, in paragraph 117 of my reasons for partial judgment, that costs of the trial and action would be addressed at the conclusion of the litigation. Moreover, in relation to such matters:

1. I saw no reason why costs of the trial and action generally should not have been reserved for my determination, as the trial judge.

2. It seemed to me that, as far as costs were concerned, the referee’s obligations and authority regarding cost issues should be limited to including, in his report, the referee’s views on whether either party should be obliged to pay the other’s costs associated with the reference and, if so, the quantum of the costs to be paid in that regard. (By “costs associated with the reference”, I meant costs including legal fees, disbursements and applicable HST associated with the reference but not the referee’s remuneration, for the reasons outlined above.) The referee would be in a much better position than I to formulate such views about costs associated with the reference, subject to his report in that regard being confirmed.

f. I did not think it advisable for the conduct of the contemplated referee in this case, or the issues to be decided, to be guided by oblique cross-references to provisions of my reasons for partial judgment which were not drafted for that purpose. In my view, clarity required a separate and clear restatement of such directions in the Order, to guide the referee.

g. I thought it appropriate to make further directions not addressed by the parties; e.g., placing certain limitations on the referee’s ability to expand the scope of this litigation, (e.g., by permitting pleading amendments and/or adding parties without further order of the court), and obliging the referee to ensure that any oral testimony provided during the reference was preserved to ensure its availability.

20In such circumstances, (i.e., where I had requested and directed the provision of submissions and no submissions per se had been provided), I normally have been inclined to remind counsel of my earlier direction, and extend the time for such submissions to be provided, before making any order directing a reference.

21In this case, however, I was mindful of the further indications, in the emailed correspondence from counsel, that the parties and Mr Brimblecombe already had made plans to move the matter forward in the very near future; i.e., in apparent anticipation of my simply signing the draft Order in accordance with the Consent filed by the parties. In particular, that emailed correspondence indicated that “preliminary dates [had] been set for engagement in this process, with the first such date being the exchange by the parties of briefs on or before October 15, 2020”.

22In the circumstances, I proceeded by treating the draft Order submitted by the parties as a joint submission; a submission which simply had not addressed certain issues, effectively leaving those issues to the discretion of the court.

23Having considered the matter from that perspective, I then made the following order:

a. Pursuant to Rule 54.02(1)(b) of the Rules of Civil Procedure, supplemented by the parties’ indicated agreement for the purposes of Rule 54.02(1)(a) of the Rules of Civil Procedure, a reference was directed to determine the issues indicated by further provisions of the order.

b. The reference was directed to Mr Brimblecombe, a “person agreed upon by the parties” within the meaning of Rule 54.03(1) of the Rules of Civil Procedure, and thereafter referred to as “the referee”.

c. Pursuant to Rule 54.03(3)(c) of the Rules of Civil Procedure, and subject to any written agreement to the contrary made between the referee and the parties, determinations regarding the referee’s remuneration and the liability of one or both parties for payment of that determined remuneration were to be reserved until the report on the reference was confirmed, with the court then making such determinations after receiving the non-binding views of the referee in that regard, (in and through his report), as well as party submissions.

d. Pursuant to Rule 54.04(1) of the Rules of Civil Procedure:

i. The nature and subject matter of the reference, to be conducted by the referee, was to focus on determination of the following general issues:

1. The monetary compensation, if any, which the plaintiff should receive from the defendant in relation to any vehicles or parts not restored to the plaintiff’s possession by the defendant, as directed by the order set forth in my partial judgment rendered on August 5, 2020.

2. In relation to vehicles or parts restored to the plaintiff’s possession by the defendant, (pursuant to the order set forth in my partial judgment rendered on August 5, 2020), the monetary compensation, if any, which the plaintiff should receive from the defendant for damages inflicted on vehicles or parts, or other diminution in value of such vehicles or parts because of the defendant’s action or inaction, during the period in which the vehicles or parts were in the defendant’s possession.

3. The extent, if any, to which the defendant should receive compensation from the plaintiff, or at least an offsetting credit to be applied to any monetary compensation otherwise owed by the defendant to the plaintiff pursuant to the determinations made in the previous two sub-paragraphs, for any proven changes made to vehicles or parts restored to the plaintiff’s possession by the defendant while such vehicles or parts were in the defendant’s possession, to the extent the referee found that such changes enhanced the value of the relevant vehicles or parts, thereby improving them.

4. The costs (if any) to be paid by either party to the other in relation to conduct of the reference, (but not other costs of the litigation), including legal fees, disbursements and applicable HST associated with conduct of the reference, but not including the remuneration of the referee or the liability of either party or both parties to pay that remuneration, which issues were to be reserved to the court for determination.

5. The quantum of remuneration sought by the referee in relation to conduct of the reference, and the referee’s views concerning the extent to which either party or both parties should be made liable to pay that remuneration, on the understanding that determinations in that regard were reserved to the court, barring any agreement to the contrary between the referee and the parties.

ii. In making the above determinations, the referee was to be bound by, and have regard to, the findings and declarations set forth in specified paragraphs of my partial judgment rendered on August 5, 2020.

iii. Additional matters to be considered by the referee, in making the above determinations, were to include but not be limited to:

1. whether or not the defendant had returned specific vehicles and parts to the plaintiff’s possession, (as directed in my partial judgment rendered herein on August 5, 2020), and if vehicles had been returned, whether or not particular components of those vehicles were present or absent when the vehicles were returned;

2. the condition of the relevant vehicles and/or parts at various times, (including the time when they were entrusted to the defendant’s possession and the time when they were returned to the plaintiff), and whether such vehicles and/or parts sustained damages not present when the defendant received the items;

3. the value of the relevant vehicles and/or parts at various times, (including the time when they were entrusted to the defendant’s possession and the time when they were returned or should have been returned to the plaintiff), having regard to any unique or unusual value the vehicles and/or parts may have had as antiques or collector items;

4. whether particular vehicles or parts reasonably needed to be repaired or replaced;

5. if particular vehicles or parts reasonably needed to be repaired or replaced, and that realistically was possible, the probable costs involved;

6. if particular vehicles or parts reasonably needed to be repaired or replaced, but that realistically was not possible, the extent to which any resulting deprivation of an asset, (e.g., complete non-return of a vehicle or part), or diminution in value of an asset, (e.g., return of a vehicle without a part or component), was capable of being quantified in monetary damages; and

7. the labour and expense (if any) incurred by the defendant in making any demonstrable changes to a particular returned vehicle or part while it was in his possession, and the extent (if any) to which such labour and expense resulted in any increased value to the relevant returned vehicle or parts compared to the value of the relevant vehicle or part when it was entrusted to the defendant’s possession.

iv. Subject to the above, the referee was to make all inquiries necessary to make the determinations required by this reference.

v. No additional parties were to be added to the proceeding without further order of the court.

vi. No further amendments were to be made to the pleadings without further order of the court.

vii. Where any witnesses on the directed reference were examined orally, such evidence was to be recorded so that a transcript of that evidence was capable of being made available, if and as necessary, on any appeal.

viii. The referee was to report back to the court, with the referee’s report to be subject to requested confirmation in accordance with the provisions and procedures set forth in Rule 54.08 of the Rules of Civil Procedure.

ix. Subject to the above, the referee was to have all powers given to a referee pursuant to Rules 54 and 55 of the Rules of Civil Procedure, and was to act in accordance with the procedures mandated therein.

x. The plaintiff was to have carriage of the reference, for the purposes of Rule 55 of the Rules of Civil Procedure.

24Counsel were directed to prepare a revised draft Order accordingly, and provide that to me for my review, finalization and signature. When that was done, (on September 28, 2020), I thereafter expected the reference to proceed in accordance with my directions and have the referee report back to me as directed, unless the parties were able to settle their remaining differences.

COMPLICATIONS IN WAKE OF DIRECTED REFERENCE

[25]

Complications in Wake of Directed Reference

After making my order directing a reference, in the manner outlined above, I nevertheless then heard nothing further about the matter until January 5, 2022.

26On that date, I was provided with correspondence apparently sent by counsel the previous day, (i.e., January 4, 2022), indicating that the parties were awaiting a “final decision” from me in relation to the matter, following the “decision of the referee, Mr Brimblecombe, dated December 20, 2021”, in respect of which the plaintiff was said to have delivered, on May 28, 2021, a “submission in the form of an appeal of the decision of the referee”.

27On January 7, 2022, I sent a lengthy responding letter to counsel. I will not replicate that correspondence in its entirety here, but its content included comments addressing the following matters:

a. I confirmed my receipt of the correspondence sent to me that day by counsel and indicated that I was quite surprised by its implicit if not explicit suggestion that the parties had been waiting on a further decision from me in relation to this matter.

b. I noted my view that the letter effectively indicated that there had been one or more significant communication failures in relation to this matter, as well as apparent misunderstanding and/or lack of awareness concerning the nature and consequences of a directed reference requiring a report back to the court, and the procedures mandated by Rule 54 of the Rules of Civil Procedure. In that regard:

i. I provided a brief summary and confirmation of the history of the litigation up to and including finalization, on September 28, 2020, of my order directing a reference in relation to this matter.

ii. I confirmed that, to my knowledge, I thereafter had been sent nothing further in relation to the matter, by anyone, until the letter from counsel dated January 4, 2022. In that regard, I had searched my email folders containing all matters relating to Stratford, as well as my general folder containing all emails I had sent dating back to September 28, 2020, and there was nothing therein to suggest my receipt of any further emails or correspondence regarding this matter, or my sending of any email acknowledging or otherwise addressing any such emails or correspondence – although the sending of such emails is my standard practice. I also had checked with the London judicial secretaries, (through whom counsel for this matter had been directing correspondence), and they too had confirmed that nothing further had been received or sent in relation to this matter since my signing of the formal order, (on September 28, 2020), directing the reference to Mr Brimblecombe and requiring him, inter alia, to report back to the court.

iii. I noted that there were many troubling aspects to the letter from counsel dated January 4, 2022, but they included the following:

1. It was the first time I had heard about any purported “decision” rendered by the referee, or any purported “appeal of the decision of the referee”.

2. The letter reflected apparent lack of awareness and/or understanding in relation to the nature of the directed reference and the relevant governing procedures set out in Rule 54 of the Rules of Civil Procedure. Without seeing what had been described by counsel as the “decision of the referee”, I could not tell whether that lack of awareness and/or understanding was confined to counsel or extended to the referee as well. For the time being, however, I noted and emphasized the following in that regard:

  a. Pursuant to the applicable procedures outlined in Rule 54, the referee would not formally “decide” anything in the circumstances. As indicated by Rule 54.06, my endorsement of September 23, 2020, and sub-paragraph 1(d)(viii) of the order formally signed on September 28, 2020, (expressly directing that the referee was to “report back to the court”, with the report then to be “confirmed in accordance with the provisions and procedures set forth in Rule 54.08 of the Rules of Procedure”), the referee in this case was only to make a report to the court containing his findings and conclusions. It was the court, and only the court, that then would make any binding decision in relation to the matter; i.e., by choosing to confirm or not confirm the referee’s report, whether in whole or in part. That reality also was reflected in Rule 54.07, which provides that a “report of a referee has no effect until it has been confirmed” via the further court procedures outlined in Rule 54.08, (in cases where a directed reference requires the referee to report back to the court), or Rule 54.09, (in cases where a directed reference does not require the referee to report back to the court).

  b. In the circumstances of this case, where the order directing the reference required and directed a report back to the court by the referee, Rule 54.08 applied, and there accordingly was no “decision” that could have been rendered by Mr Brimblecombe, and therefore no “decision” from which any purported “appeal” could or should have been taken.

  c. Moreover, Rule 54.08(1) expressly provided that, “where the order directing a reference requires the referee to report back”, (which was the case here), “the report or interim report on the reference may be confirmed only on a motion to the judge who directed the reference, on notice to every party who appeared on the reference…” [Emphasis added.] Rule 54.08(2) also expressly provided that “where the judge who directed the reference is unable for any reason to hear a motion for confirmation, the motion may be made to another judge”.[^1] [Emphasis added.]

3. In this case, having regard to such Rule 54 provisions and the relevant circumstances:

  a. Mr Brimblecombe accordingly should not have purported to “decide” anything, although it was impossible for me to determine whether or not he had done so without having received a copy of whatever Mr Brimblecombe provided to the parties, but not to the court, on or about December 21, 2020. If Mr Brimblecombe had made the determinations specifically requested by the ordered and directed reference, he should have made a report containing his findings and conclusions in that regard to the court; i.e., rather than sending any purported “decision” exclusively to the parties, which apparently is what had happened in this case. In particular, while the report certainly could have been copied to the parties, the referee’s primary reporting obligation was to the court.

  b. Following delivery of Mr Brimblecombe’s report back to the court, (which had not happened), either the plaintiff or defendant then could have brought a formal motion pursuant to Rule 54.08 of the Rules of Civil Procedure seeking formal confirmation of the report in whole or in part; a motion in respect of which the presiding judge then could have required further reasons from the referee if/as necessary, and a motion which could have been opposed by the responding party. Among the things to be noted in that regard:

    i. Rule 54.08 expressly indicated that, in cases where the order directing the reference requires the referee to report back to the court, (which was what had happened in this case), the referee’s report could be formally confirmed “only on a motion to the judge who directed the reference” or to “another judge” in circumstances where the directing judge was unable for any reason to hear such a motion for confirmation. Regardless of which judge heard such a motion, the provisions of Rule 54.08 clearly placed an obligation on the parties, rather than the court, to move the matter forward by such a motion if and when such a confirmation was desired. Indeed, the rule made clear that such a motion for confirmation by a party was the only way the matter could move forward to formal confirmation of the referee’s report. Without limiting the generality of the foregoing, the court was given no authority to move the matter forward to a formal confirmation of a referee’s report on its own motion.

    ii. Rule 54.08(1) also expressly required a party motion for formal confirmation of a referee’s report in such cases to be made “on notice to every party who appeared on the reference”. Implicit in that requirement was a reality that such a motion could be opposed by any such party, at the hearing of the motion. That was the opportunity and time for such a party to oppose any aspect of the referee’s report being transformed into a binding decision of the court by a confirmation order; a process which was inherently and fundamentally distinct from any “appeal” to the court from a “decision” of a referee. Not surprisingly, the rule provisions governing confirmation of a referee’s report in such circumstances accordingly made no provision whatsoever for any “appeal” from the report of a referee in circumstances where a report back to the court was required by the order directing the reference. In this context, an appeal, if any, would lie from the decision of the judge which heard and decided a motion to confirm the referee’s report back to the court.

  c. If and when Mr Brimblecombe had reported back to the court as required, and either of the parties had brought a motion to formally confirm that report back to the court, that motion to confirm then could have been scheduled for a hearing by me, (prior to my accident on March 1, 2021), or for a hearing by another judge pursuant to Rule 54.08(2) if the motion had been brought and/or otherwise needed to be heard following my accident and during my resulting extended medical leave of absence. In that regard, I noted again that either I, or another judge scheduled to hear the motion during my medical leave of absence, nevertheless also might first have directed the referee Mr Brimblecombe to give reasons or further reasons for his findings and conclusions if and as necessary, pursuant to Rule 54.08(1).

  d. In any event, it would only have been after the hearing of such a motion to confirm, if and when brought, (after delivery of the referee’s report to the court), that a further formal substantive decision of the court would have been required in relation to the matter.

4. To my knowledge, no report back to the court had been received by the court from the referee in this case, (to comply with the directions in that regard set out in my order of September 23, 2020), no motion had been brought by either party to confirm any such report, (as required by Rule 54.08), there accordingly had been no hearing of such a motion in that regard, (by myself or by another judge during my ongoing medical leave of absence), and no reserved decision accordingly was outstanding in the matter, despite what the correspondence from counsel had suggested.

c. My responding letter to counsel concluded with an indication that, if and when the ordered and required referee report back to the court was delivered to the court, and a Rule 54.08 motion was then brought on notice to confirm that delivered report in whole or in part, with the motion to be heard by me or by another judge pursuant to Rule 54.08(2) if/as necessary should I still be unavailable to hear the motion, appropriate hearing arrangements then no doubt could and would be made in the usual manner.

28Following that responding correspondence sent to counsel, I received a letter from Mr Brimblecombe, dated January 12, 2022, providing me with a copy of a document entitled “Reasons on Reference Held in Stratford on December 21, 2020”, signed by Mr Brimblecombe on April 28, 2021. In his letter, Mr Brimblecombe also indicated:

a. that he clearly had misapprehended what he was to do with the document, insofar as he had sent a copy to counsel but had not forwarded a copy to the court; and

b. that by sending me the document, he was intending to provide a “report back” in relation to the reference, pursuant to Rule 54.08 of the Rules of Civil Procedure.

29The “Reasons on Reference” provided by Mr Brimblecombe can be found in their entirety in the motion record delivered by defence counsel dated March 31, 2022, (addressed in further detail below), and therefore will not be produced in their entirety here. However, by way of summary and overview:

a. The document, not including the style of cause for this litigation, was subdivided into 15 paragraphs and was less than three pages in length.

b. Mr Brimblecombe indicated the witnesses who had been called by the parties to provide evidence during the course of the reference. In particular, it was noted:

i. that the plaintiff Marie Kew, Jason Kew, and an unnamed expert in “the retail value of classic Corvettes” and “the restoration costs of Corvettes” who “owned BBR, a company which restores Corvettes”,² were called as witnesses by the plaintiff; and

ii. that the defendant Steve Konarski and a “Mr McDougall”, an expert “in the replacement value of Corvettes”, were called as witnesses by the defendant.

c. Mr Brimblecombe made brief and passing references to some of the evidence provided by those witnesses, which frequently failed to make clear what particular vehicle was being discussed, but included the following:

i. Marie Kew had referred to parts ordered to “restore the [unspecified] vehicle”, her belief that licence stickers had been purchased for the vehicle so that it could be driven, (and not just for insurance purposes), and that “the declared value for insurance purposes of the [unspecified] vehicle was $35,000”.

ii. Jason Kew had referred to the engine in “the [unspecified] car” being “changed from the original 283 cubic inch motor to a 350 cubic inch motor”, as well as his belief that “the [unspecified] car had been driven during the year leading up to its transfer to the defendant’s property”, and that his father Robert Kew had ordered “dash pads, seats and a new top in order to change the interior to a black colour”.

iii. The unnamed plaintiff’s expert, (Mr Coomber), was said:

1. to have drawn distinctions between a “numbers car”, (e.g., where all components of a Corvette vehicle match with its original serial number), which the referee recharacterized as a “show car”, and a “driving car” that is in good condition but intended for use rather than mere show, and which typically has less value than a numbers/show car; and

2. to have “primarily focused on the cost of restoring Corvettes to show car condition”.

iv. Steve Konarski referred to the time and expense he claimed to have devoted to “bettering” the 1936 Dodge pick up, 1960 Corvette and 1992 BMW vehicles in various ways.

v. The defendant’s expert Mr McDougall was said to have given evidence “about a number of different vehicles”, including a 1964 Corvette Coup that was said to have a value of $55,000.00 and a 1965 Corvette Roadster Convertible that was said to have a value of $60,000.00, and to have opined that “a 1960 Corvette vehicle in decent driveable condition would fetch somewhere between $45,000 and $60,000 Canadian”.

d. Mr Brimblecombe indicated his view that the 1960 Corvette vehicle in this case had been a “driving car” and not a numbers/show car; e.g., given the absence of evidence of any intention to transform the vehicle into a numbers/show car, and indications that the vehicle did not have its original motor, may not have had its original wheels, may not have been painted in its original colour, and required refreshment of its interior and a new convertible top.

e. Mr Brimblecombe indicated his view that the 1960 Corvette vehicle in this case “would have had a value of $60,000 just before it was shipped to the Defendant Konarski”, and that the value of a number of items said to “remain with the Plaintiffs (sic)”, including “the existing body, spoke wheels, and the convertible top”, had a value of $10,000 in respect of which the defendant was to “have credit”, leaving the plaintiff with a “net claim assessed at $50,000”. In that regard, Mr Brimblecombe rejected the suggestion of any additional damages being awarded to the plaintiff for detinue and conversion, as he read my partial judgment as indicating that damages were to be limited to “compensation for any vehicles or parts not returned”, (which Mr Brimblecombe described as being “essentially … tantamount to conversion damages in relation to such items”), and “damages afflicted (sic) on returned vehicles or parts”.

f. Mr Brimblecombe noted that, although the plaintiff initially had been making claims “for damages to the other vehicles”, (i.e., vehicles other than the 1960 Corvette), “those claims were withdrawn”, such that there “accordingly [would] be no award in relation to the other vehicles”.

g. For indicated reasons relating to Mr Konarski’s failure to provide supporting documentation, and my findings of credibility, Mr Brimblecombe indicated that he was declining “to make any monetary award in the defendant’s favour” for various indicated expenses Mr Konarski allegedly had incurred while “bettering” the vehicle or vehicles.³

h. The document concluded with a finding that the plaintiff’s net damages were $50,000.00.

30Upon reviewing the aforesaid “Reasons for Reference”, I had immediate concerns about the clarity and adequacy of the referee’s report.

31Pursuant to the jurisdiction extended by Rule 54.08(1) of the Rules of Civil Procedure, I therefore sent the referee a further letter on January 26, 2022, requiring him to provide the court with further reasons for the findings and conclusions apparently indicated in his initial report, and to simultaneously provide counsel with a copy of those requested further reasons.

32In particular, after repeating the specified general issues for determination to be addressed on the reference, provisions of my order specifying my findings and declarations that were to bind the referee, and provisions of my order specifying matters the referee had been directed to consider, I requested further reasons for the referee’s findings and conclusions in relation to the following matters:

a. The referee was asked to clarify and/or indicate -- with numbering corresponding to that used in sub-paragraph 22(d)(i) of my endorsement of September 23, 2020, to identify the specified five general issues on which the reference was to focus -- his corresponding findings and conclusions in relation each of those issues. In that regard, I noted and/or requested the following:

i. While the referee’s initial report contained numbered paragraphs, it did not expressly indicate and make clear which of the five specified general issues particular paragraphs of the report were intended to address.

ii. While the content of paragraphs 1-12 of the initial report suggested that it was intended to address the first and/or second of the five specified general issues, it was not clear to me, (in part because of other uncertainties addressed below), whether paragraphs 1-12 were intended to address specified general issue number 1 or specified general issue number 2.

iii. While I gathered that paragraphs 13 and 14 of the initial report were intended to address specified general issue number 3, in a complete fashion, I requested the referee’s confirmation in that regard.

iv. The initial report appeared to be silent in relation to the fourth specified general issue that was to be addressed by the reference; i.e., the costs (if any) to be paid by either party to the other in relation to conduct of the reference, (but not other costs of this litigation), including legal fees, disbursements and applicable HST associated with conduct of the reference, (but not including the remuneration of the referee or the liability of either party or both parties to pay that remuneration, which issues were to be reserved to the court for determination). I asked the referee to provide, in his further reasons, his findings and conclusions in relation to those matters for my consideration.

v. Similarly, the initial report appeared to be silent in relation to the fifth specified general issue that was to be addressed by the reference; i.e., the quantum of remuneration sought by the referee in relation to conduct of the reference, and the referee’s views concerning the extent to which either party or both parties should be made liable to pay that remuneration, on the understanding that determinations in that regard were reserved to the court, barring any agreement to the contrary between the referee and the parties. I asked the referee to provide his findings and conclusions in relation to those matters for my consideration.

b. The referee was asked to indicate whether or not his indicated findings and conclusions, set forth in the initial report, took into account and were based on underlying determinations as to whether or not the defendant restored specific vehicles and parts to the plaintiff’s possession, (as directed in paragraph 82 of my partial judgment rendered herein on August 5, 2020), and if vehicles were returned, whether or not particular components of those vehicles were present or absent when the vehicles were returned. In the event that was the case, the referee also was asked to indicate what those specific underlying determinations were; e.g., providing indications as to what vehicles and/or parts were returned to the plaintiff by the defendant, and when that occurred. In that regard, I noted the following:

i. Such matters were to be considered in relation to the specified issues the reference was to address; e.g., as reflected in the two alternative underlying situations, (i.e., of vehicles/parts being restored or not restored to the plaintiff), indicated in sub-paragraphs 22(d)(i)(1) and (2) of my endorsement directing the reference.

ii. Such information had continued relevance to the rendering of a final judgment in relation to this matter, beyond the referee’s determinations regarding certain monetary damages that should be payable by the defendant to the plaintiff. Without limiting the generality of the foregoing:

1. Such information had relevance to determining whether relief granted to the plaintiff, (and certain damages in particular), formally should be based on the tort of conversion or the tort of detinue. As noted in my partial judgment rendered on August 4, 2020, there were differences in the relief available to a successful claimant depending on which tort applied, including distinctions regarding the date as of which particular damages should be assessed, which in turn might have a bearing on whether and to what extent pre-judgment interest should be awarded on particular damages.

2. If the defendant had failed to comply in any respect with my earlier order to return specified vehicles and parts, the existence and extent of any such failure, and the reasons for it, that also had potential relevance to cost determinations.

3. During the initial trial proceedings, the defendant Mr Konarski had provided sworn testimony indicating that he had never received certain parts. If such parts subsequently were returned by the defendant to the plaintiff, that too had potential relevance to the damages and costs to be awarded.

iii. I could not discern, from the referee’s initial report, precisely what vehicles and parts were and were not returned to the plaintiff by the defendant. In that regard:

1. Paragraphs 1-8 of the initial report appeared to relate solely to the 1960 Corvette vehicle that was in dispute, and some of its associated parts, but confirmation in that regard was requested.

2. In paragraph 8 of the initial report, the referee indicated a finding that there were “a number of items that remain[ed] with the Plaintiffs (sic)” in relation to a vehicle that was unspecified, (but apparently referred to the 1960 Corvette), and went on to mention its “existing body”, “spoke wheels” and “convertible top” in that regard. However:

  a. As indicated in my partial judgment, there was no dispute that the existing body of the 1960 Corvette was in the possession of the defendant; I found that four high-quality chrome and spoke rims and corresponding high-quality Corvette tires had been delivered to the defendant, despite the defendant’s denials in that regard; and I was not satisfied that the convertible top of the 1960 Corvette had ever been delivered to the defendant.

  b. I noted that the initial report did not make it clear whether or not the reference to “spoke wheels” included the aforesaid high-quality Corvette rims and tires that had been delivered to the defendant.

  c. I noted that the initial report also did not make it clear whether the referee was suggesting that all of the specific parts he had mentioned remained with the plaintiff at all times, (contrary to the findings in my partial judgment, at least insofar as the body, high-quality chrome spoke rims and high-quality tires of the vehicle were concerned), or whether the referee effectively was indicating that the defendant had returned the body and wheels, (i.e., the relevant high-quality rims and/or tires), to the plaintiff at some point after my partial judgment.

  d. The referee was asked to provide, in his further reasons, clarification and confirmation in relation to such matters.

3. The referee’s apparent reference to the “existing body” of the 1960 Corvette remaining in the plaintiff’s possession did not make it clear whether or not that term included various components of the vehicle that were attached to the body at the time it was delivered to the defendant, but in respect of which there were concerns about component removal; e.g., the hood of the vehicle addressed in sub-paragraph 91(1)(b)(iii) of my partial judgment, the various chrome components addressed in sub-paragraph 91(b)(vi) of my partial judgment, and the vehicle’s front and rear lights addressed in sub-paragraph 91(b)(vii) of my partial judgment. The referee was asked to provide, in his further reasons, clarification and confirmation in that regard.

4. The referee’s specific reference to the “existing body”, “spoke wheels” and “convertible top” of the 1960 vehicle remaining in the plaintiff’s possession seemed to suggest that no other parts or components of the vehicle referred to in my partial judgment, (e.g., its frame, engine, transmission, steering column, steering wheel, existing cracked/broken windshield, new replacement windshield, interior side panels, interior door latches, dashboard, instrument cluster, radio and all seat components), were ever returned to the plaintiff by the defendant. However, the referee’s initial report also used the term “including”, before going on to provide particulars of “items that remain[ed] with the plaintiffs (sic) that have value”, suggesting that other components of the 1960 Corvette might be in the plaintiff’s possession. The referee was asked to provide clarification in that regard; e.g., as to whether or not the items associated with the 1960 Corvette which “remain[ed] with the plaintiffs (sic)” were limited to the “existing body”, “spoke wheels” and “convertible top”, and whether the reference to “spoke wheels” was intended to encompass the high-quality chrome spoke rims and high-quality Corvette tires, or simply the spoked rims.

5. As for vehicles and parts other than those relating to the 1960 Corvette, the referee’s initial report indicated that the plaintiff withdrew “claims for damages to the other vehicles”, (emphasis added), and that the defendant pursued a counterclaim during the reference for certain work and/or improvements allegedly carried out in relation to the vehicles entrusted to him, including the 1936 Dodge pick-up truck and 1992 BMW. A reasonable inference from those indications was that the defendant returned, to the plaintiff, the vehicles and parts other than those relating to the 1960 Corvette. (It seemed unlikely that the plaintiff would have abandoned all claims to the other vehicles and parts if they were never returned, or that the defendant would have advanced counterclaims for improvements of vehicles he was not returning.) However, the referee was asked to provide clarification and confirmation in that regard in his further reasons.

c. The referee was asked to confirm whether or not I was correct in interpreting his initial report as indicating that he quantified damages in relation to the 1960 Corvette by taking its determined $60,000 market value as of the date it was delivered to the defendant, before then subtracting the determined $10,000 market value which “the items [associated with the 1960 Corvette] that remain with the Plaintiffs” (sic) had on the date of his initial report; i.e., April 28, 2021. If I was not correct in that interpretation, the referee was asked to clarify and confirm his relevant methodology, including the dates of relevant vehicle and/or part valuations, and why those dates were used. In any event, the referee was asked to confirm the relevant “date of delivery” underlying the indicated $60,000 market valuation. In that regard, I noted the following:

i. I drew the inference about the “historic” or past date being used in determining the $60,000 market value of the 1960 Corvette from the referee’s indication, in paragraph 8 of his initial report, that the vehicle “would have had a value of $60,000 just before it was shipped to the defendant”. (Emphasis added.)

ii. I drew the inference about the date being used in the referee’s apparent $10,000 valuation of relevant items associated with the 1960 Corvette remaining with the plaintiff because the relevant statements or indications in paragraph 8 of his initial report repeatedly spoke in the present tense; e.g., “There are a number of items that remain with the Plaintiffs (sic) that have value…” (Emphasis added.)

iii. Clarity regarding valuation dates had importance and relevance; e.g., having regard to the time value of money, and the need to ensure that the plaintiff was neither over-compensated nor under-compensated in that regard. For example, simple subtraction of one valuation from another may not have been appropriate, without further adjustments, if the starting value was dated and correspondingly should bear interest, while the sum to be deducted reflected a present cost of replacement thereby already reflecting an up-to-date time value of money.

d. The referee was asked to provide details of his findings and conclusions regarding the first six specified matters he had been directed to consider pursuant to sub-paragraph 22(d)(iii) of my endorsement dated September 23, 2020. In that regard, I noted the following:

i. As I read the initial report, the referee expressly considered the seventh matter identified in sub-paragraph 22(d)(iii) of that endorsement, and found, (in paragraphs 13-14 of his initial report), that the defendant had not proven any such claims in that regard.

ii. While I could appreciate that the referee may not have considered the first six matters in relation to vehicles or parts thereof in respect of which the plaintiff formally may have withdrawn her claims during the course of the reference, to the extent that was the case, I requested confirmation in that regard.

iii. I nevertheless inferred from the initial report that the plaintiff’s claims certainly were not withdrawn in relation to the 1960 Corvette and parts thereof, and provision of the referee’s findings and conclusions in relation to the first six specified matters he was to consider would have been helpful in considering possible alternative measures of appropriate compensation to the plaintiff for any loss or damages sustained in that regard. Without limiting the generality of the foregoing, it may have been appropriate, having regard to all the underlying circumstances, (including evidence of special value placed on the particular vehicle and/or its components which the court received at trial), to make an award of damages that included the current cost of restoring the vehicle fully to the condition it was in when it was delivered to the defendant.

e. The referee was asked to confirm whether or not I was correct in interpreting his initial report as indicting that his indicated determination regarding damages was strictly confined to his assessment of the monetary compensation that should be awarded to the plaintiff for lost market value of a vehicle or part returned or not returned to the plaintiff; i.e., without regard to possible additional damages awardable for conversion and/or detinue. If that was not the case, the referee was asked to clarify and confirm the precise basis underlying his determination regarding damages. In that regard:

i. I noted, (as I did in my original partial judgment), that damages awardable for demonstrated conversion and/or detinue are not limited to lost market value in relation to a returned or non-returned item. Damages also may be awarded over and above market value to reflect any special value placed on an item or items by a claimant, demonstrable consequential damages flowing from conversion, and damages payable for detention of an item even though it eventually may have been returned. In appropriate cases, punitive damages are also a possibility.

ii. I also noted that paragraphs 10-12 of the initial report seemed to indicate that the referee’s indicated determinations regarding appropriate damages deliberately did not extend to all forms of damages capable of being awarded by the court. However, confirmation as to what the referee had and had not done in that regard was requested, to help ensure that the court’s final determination of awardable damages did not inadvertently include any measure of “double-counting”.

f. To the extent the referee was unable to provide any further findings and conclusions in relation to the matters outlined above, he was asked to indicate and confirm that was the case and provide brief reasons as to why that was so. In that regard:

i. The referee was directed to not interpret anything in my request for further reasons as a direction to embark on further reference proceedings to address anything that may not have been addressed in the reference proceedings to date; e.g., as a means of facilitating provision of the supplemental reasons being requested.

ii. I noted that, to the extent the referee was unable to provide any of the supplemental reasons being requested, either or both parties would be able to make submissions to the court as to how such matters could and should be addressed upon either party bringing a motion to have the referee’s initial and/or supplemental report confirmed in whole or in part, and/or supplemented by the granting of further relief in the court’s final judgment.

33On February 28, 2022, Mr Brimblecombe responded to my extended request for further reasons with an apology for not having followed my directions, and with further reasons that might charitably be described as perfunctory. In particular, the substantive portion of the response reads, in its entirety, as follows:

At the time of the hearing, the Plaintiff withdrew all of their (sic) claims on vehicles other than the Corvette. By the time of the hearing, the Corvette had been returned to the Plaintiff. As a result, there was no award contemplated under General Issue No. 1.

The award that was made in relation to the Corvette was based on an assessment of the value of the Corvette from the time it was shipped to the Defendant to the time it was returned to the Plaintiff, and that award was contemplated under Specified General Issue No. 2.

Paragraphs 13 and 14 in my initial report were intended to address in complete fashion the claims referenced in Specified General Issue No. 3.

In relation to Specified General Issue No. 4, I was not inclined to award any costs of the hearing. There was divided success. There was nothing in the conduct of either party that would persuade me otherwise.

As it relates to Specified General Issue No. 5, I misapprehended the direction of the Court and simply enclosed an account to both parties split evenly between them. The parties have paid that outstanding account.

34In relation to the last point, Mr Brimblecombe also attached a copy of the relevant account.

MOTION FOR CONFIRMATION OF REFEREE REPORT

[35]

Motion for Confirmation of Referee Report

On or about March 31, 2022, defence counsel then brought a formal motion seeking an order “that the Reasons on the Reference dated April 28, 2021, along with the Supplementary Reasons on the Reference dated February 28, 2022, in this proceeding be confirmed”.

36As the Stratford trial co-ordinator received a later indication that the motion would be proceeding on consent, the motion was scheduled for a 30 minute “consent hearing” on July 19, 2022.

37However, as indicated in my further endorsement released on April 14, 2024, (reported as Kew v. Konarski, 2022 ONSC 2336), when the filed motion material thereafter was relayed to me by the Stratford trial coordinator for my review, it seemed clear to me that the motion was not amenable to the 30-minute hearing which had been scheduled by the trial co-ordinator for July 19, 2022, on the basis of indications that the matter would be proceeding on consent.

38In particular, the material filed strongly suggested that, while the parties were agreed that a Rule 54.08 motion should be brought to “move the matter forward”, they actually were not agreed that the referee’s report and supplemental report should be confirmed in the sense contemplated by Rule 54.07; i.e., whereby the report and supplemental report would be given the force of an effective order of the court following their formal confirmation by the court. To the contrary, it seemed quite clear from the material filed that the plaintiff intended to express disagreement in that regard and ask the court to reach different conclusions in my final judgment.

39I thereafter directed the holding of a case teleconference, (held on April 14, 2022), to express my concerns in that regard, along with my preliminary view that the referee’s report and supplemental report were problematic in a number of respects, particularly insofar as the referee apparently had failed to follow my detailed instructions and supply the information I specifically had requested, with a view to my then preparing and rendering an appropriate final judgment.

40In their comments, counsel confirmed that there were in fact several areas of outstanding disagreement between the parties, or at least ongoing uncertainty in that regard. For example, counsel were unable to confirm, during the conference, the extent to which disagreements might still remain concerning matters such as:

a. whether and/or to what extent the plaintiff had withdrawn all of her claims for monetary damages in relation to the vehicles and parts which had been withheld but returned after the rendering of my partial judgment;

b. the extent of the plaintiff’s ongoing claims for monetary damages sufficient to address the defendant’s apparent failure to return various components of the 1960 Corvette vehicle, and corresponding damage to that vehicle;

c. whether the plaintiff had waived or was pursuing a claim for punitive damages;⁴ and

d. whether the parties agreed with the referee’s ostensible resolution of cost issues relating to the reference, which had proceeded in a manner contrary to my directions.

41During the course of the teleconference, counsel agreed that they would like a further opportunity to meet and discuss areas of remaining disagreement; e.g, to confirm what had been agreed to date, determine what areas of disagreement remained, and determine whether those remaining issues could be resolved through further negotiation.

42In the meantime, all concerned agreed that the hearing time currently reserved for July 19, 2022, should be vacated, since:

a. agreement on all the remaining issues would obviate the need for hearing of the defendant’s Rule 54.04 motion; and

b. if areas of disagreement remained, they almost certainly would require well over 30 minutes to address.

43At my request, counsel also were to give further thought to the amount of time and procedure best suited to address and finally resolve the remaining issues.

44In that regard, my preliminary view was that the reference procedure had failed in a number of ways, (for the reasons noted above), that the presentation of further testimony and documentary evidence probably would be needed to provide the court with the additional information needed to address and resolve the remaining disputes, (particularly in relation to the proper assessment of damages relating to the 1960 Corvette vehicle), and that the most certain way of addressing and finally resolving the remaining issues would be the scheduling of some additional days of trial.

45However, further determinations in that regard obviously needed to be delayed until counsel had met to clarify and confirm exactly what issues the court still needed to address and resolve. In the result:

a. counsel were directed to have further discussions to confirm the remaining issues, (if any), and their position regarding further hearings to address their resolution;

b. the hearing time reserved for hearing of the defendant’s Rule 54.08 motion on July 19, 2022, was vacated, with that motion being adjourned sine die for the time being; and

c. pursuant to Rule 50.13 of the Rules of Civil Procedure, a further case teleconference was directed, to be scheduled by counsel in consultation with the Stratford and regional trial co-ordinators on a date at least two weeks thereafter.

46However, further correspondence exchanged between counsel and the court then obviated much of the need for the contemplated further case teleconference, which was also prevented in any event by further developments. In particular:

a. On May 17, 2022, I received correspondence from counsel indicating that the parties had been unable to resolve their differences, and were agreed that two or three days of additional trial time were advisable to address remaining disputes related to damages.

b. The contemplated further case teleconference could not be scheduled prior to commencement of a disciplinary suspension imposed on plaintiff counsel by the Law Society of Ontario; a suspension which effectively prevented plaintiff counsel from participating in any such conference.

c. In an effort to minimize further delay in relation to the already prolonged litigation, (i.e., delay that inevitably would result if scheduling of the contemplated 2-3 days of additional trial was postponed until such time as the contemplated further teleconference could take place after the practice suspension of plaintiff counsel had run its course), I directed the Stratford trial co-ordinator to schedule a trial of the defendant’s Rule 54.08 motion requesting confirmation of the referee’s initial and supplementary reports. In doing so, I contemplated further “on the record” discussion with counsel at the outset of that trial continuation if and as necessary, (i.e., if no further teleconference was held in the meantime), to confirm the remaining issues in dispute and receive further submissions from counsel as to how the matter should proceed.

47In the result, further trial time for this matter could not be scheduled in Stratford until a special three-day sitting set for May 31, June 1 and June 2, 2023. Nor was a further teleconference held prior to commencement of that trial continuation.

TRIAL CONTINUATION – CONTEXT CLARIFICATION

[48]

Trial Continuation – Context Clarification

When the matter was called forth again on May 31, 2024, I then had further discussion with counsel, at the outset of those three additional scheduled days of trial, to clarify and confirm the remaining issues in dispute, and to clarify the formal context in which we were proceeding. By way of summary in that regard:

a. It was agreed and confirmed that the formal context was my required determination of whether the referee’s initial and preliminary report should be confirmed in whole or in part in relation to issues remaining between the parties, (as requested by the motion brought by the defendant pursuant to Rule 54 of the rules of Civil Procedure), and the determination of residual issues between the parties, (not addressed by the reference), all of which was to be assisted through the presentation of additional trial evidence that then would be available if and as necessary to address and resolve those issues by way of a final judgment.

b. In relation to the five general issues that the referee specifically had been asked to address via my order directing the reference:

i. In relation to the monetary compensation, if any, which the plaintiff should receive from the defendant in relation to any vehicles or parts not restored to the plaintiff’s possession by the defendant as directed by my order for their return: counsel confirmed that this was still an issue, and therefore a matter for me to address as part of the trial continuation proceeding to consider whether the referee’s reports should be confirmed in whole or in part, or whether some order was appropriate.

ii. In relation to vehicles or parts restored to the plaintiff’s possession by the defendant pursuant to my order for their return, and the monetary compensation, if any, which the plaintiff should receive from the defendant for damages inflicted on such vehicles or parts, or other diminution in value of such vehicles or parts because of the defendant’s action or inaction, during the period in which the vehicles or parts were in the defendant’s possession: counsel confirmed that this was still an issue, and therefore a matter for me to address as part of the trial continuation proceeding to consider whether the referee’s reports should be confirmed in whole or in part, and/or whether the making of some other order was warranted.

iii. In relation to the extent, if any, to which the defendant should receive compensation from the plaintiff, or at least an offsetting credit to be applied to any monetary compensation otherwise owed by the defendant to the plaintiff pursuant to the determinations made in relation to the first two general issues, for any proven changes made to vehicles or parts restored to the plaintiff’s possession by the defendant while such vehicles or parts were in the defendant’s possession, to the extent there was a finding that such changes enhanced the value of the relevant vehicles or parts, thereby improving them: counsel for the defendant initially indicated that it was a “relatively minor issue”, in respect of which the defendant was content that I accept or confirm the referee’s reports in that regard, (i.e., as far as the defendant’s counterclaim was concerned), prior to plaintiff counsel indicating that any request for further consideration of such possible compensation or credit to the defendant was not being opposed. In the result, it was agreed that this too would be treated as a remaining issue to be addressed as part of the trial continuation proceeding; i.e., to determine whether the referee’s reports in that regard should be confirmed in whole or in part, and/or whether the making of some other order was warranted.

iv. In relation to the costs (if any) to be paid by either party to the other in relation to the conduct of the reference, (but not other costs of this litigation), including legal fees, disbursements and applicable HST associated with conduct of the reference, (but not including the remuneration of the referee or the liability of either party or both parties to pay that remuneration, which issues were to be reserved to the court for determination):

1. It was noted that the referee did not address such matters in his initial report dated April 28, 2021, but did do so in his supplementary report dated February 28, 2022, at which time the referee indicated that he was “not inclined to award any costs of the hearing” as there was “divided success” and “nothing in the conduct of either party” that would persuade him otherwise.

2. However, it was also noted that the referee premised his views regarding such costs on his substantive determinations, (i.e., as a basis for his finding of “divided success”), and a faulty premise that his determinations in that regard were not only correct but final; i.e., as opposed to something that needed to be reviewed by the court, which retained a discretion, (after the required report back), to “confirm or reject the report in whole or in part or make such other order as is just”, as per the provisions of Rule 54.08 of the Rules of Civil Procedure.

3. In the circumstances, I asked counsel if the parties would be content if I declined confirmation of that aspect of the referee’s reporting, and instead reserved each party’s costs of the reference procedure as something to be addressed in final cost submissions, with my decision in that regard to be made taking into account my final substantive decisions; i.e., with General Issue No. 4 remaining an issue only in that sense, as something to be addressed via final cost submissions. Counsel for both parties then agreed with that suggested approach.

v. In relation to the quantum of remuneration sought by the referee in relation to conduct of the reference, and the referee’s views concerning the extent to which ether party or both parties should be made liable to pay that remuneration, on the understanding that determinations in that regard were reserved to the court, barring any agreement to the contrary between the referee and the parties:

1. As noted above, the referee did not address such matters in his initial report, and instead indicated, in his supplementary report dated February 28, 2022, that he had misapprehended my direction and simply had rendered “an account to both parties split evenly between them”, which the parties then paid.

2. In the circumstances, I expressed my view to counsel that General Issue No. 5 appeared to be an issue no longer, at least in terms of the referee and the parties being content with the quantum of referee compensation set forth in the referee’s account, and both parties having contributed to full satisfaction of that account. Counsel generally agreed that General Issue No. 5 accordingly was no longer an issue that needed to be addressed during the trial continuation proceedings.

3. Having said that, it seemed and seems to me that the disbursement incurred by each party in relation to the reference procedure also forms a disbursement that forms a cost of this litigation that each party might seek to recover in the context of final cost submissions relating to the costs of the litigation; i.e., thereby falling within the general rubric of what was to be addressed in relation to General Issue No. 4. I therefore note and confirm my willingness to address such requests in that context; i.e., in the course of final cost submissions and determinations.

49In relation to the formal motion brought pursuant to Rule 54 of the Rules of Civil Procedure, (whereby the court has authority to confirm the referee’s initial and supplementary reports “in whole or in part or make such other order as is just”), the trial continuation proceedings accordingly were focused on what were described in my order directing the reference, (i.e., the Order that was finalized and signed on September 28, 2020), as General Issue No. 1, General Issue No. 2, and General Issue No. 3.

50For the sake of completeness, I nevertheless also confirm that it was never my intention that the matters referred to the referee, via my order directing a reference, would represent an exhaustive indication of the issues I would finally decide once I had the benefit of the referee’s views via the report (or reports) the referee was directed to provide for my consideration.

51Without limiting the generality of the foregoing, when I made my order on September 23, 2020, directing the reference, it was done with a view to having the benefit of the referee’s views on the specified issues prior to rendering final judgment. It was never my intention to confine the granting of final relief to those specified issues, particularly insofar as I already had received evidence about other matters, (e.g., the plaintiff’s desire for relief in relation to the additional hurt caused by Mr Konarski’s conduct, essentially representing a claim for compensation in the nature of aggravated damages), that were well-suited for judicial determination and assessment regardless of whether or not Mr Konarski returned the relevant vehicles and parts as directed.

52In my view, those additional matters remain within my purview for final decision, along with the matters that were the subject of the directed reference. It was for that reason that I expressly asked the parties, at the outset of the trial continuation, to also address any claims for damages or other relief beyond the matters that had been the subject of the directed reference.

STANDARD OF REVIEW

[53]

Standard of Review

In embarking on the decisions to be made in relation to this final judgment, I independently was mindful of authority indicating the standard of review to be applied in the context of motions brought, pursuant to Rule 54.08 of the Rules of Civil Procedure, seeking confirmation of a referee’s report in circumstances where the referee was directed to determine issues without a requirement to report back to the judge directing the reference.

54In particular, in such circumstances, (i.e., where there was no requirement for the referee to report back to the referring judge), judges approaching such motions generally are to deal with the matter as being substantially in the nature of an appeal; i.e., with the judge not interfering with the result, and not attempting to “retry” matters that essentially were the subject of trial and final determination by the referee, unless there has been some error in principle demonstrated by the referee’s reasons, (i.e., some error of law in respect of which the standard of review is correctness), some absence or excess of jurisdiction, or some patent misapprehension of the evidence.⁵

55However, those are not the circumstances underlying the present situation.

56As noted above, in my order directing the relevant reference, I specifically directed that the referee was to make a report back to me, and that any preliminary determinations made by the referee were subject to further confirmation proceedings before me.

57I also specifically directed that the referee was not only to be bound by and have regard to specified findings and declarations made in the partial judgment I rendered on September 23, 2023, but to consider the numerous additional matters I specified and outlined at length, and to make all necessary inquiries in that regard, before arriving at any determinations.

58In my view, (already noted above to some extent), the referee deviated in significant ways from the detailed terms of reference that were ordered; e.g., in purporting to finally decide matters, in failing to report back to the court, in failing to indicate or confirm consideration of the matters he specifically was directed to consider in sub-paragraph 22(d)(i) of my endorsement released on September 23, 2020, and in failing to provide clarification and additional reasons as requested/directed pursuant to Rule 54.08(1). The referee also appeared to deviate from my earlier factual findings; e.g., as to whether the relevant “spoke wheels” for the 1960 Corvette had been entrusted to the defendant.

59As noted below, while I think there were some aspects of the referee’s report that may justly be confirmed in the circumstances, there are other aspects of the report where I do not think it just or appropriate to do that; i.e., owing to the referee’s failure to abide by the terms of reference, the referee’s failure to provide requested additional reasons and clarifications, and/or because I think there are additional reasons to doubt the correctness of the referee’s preliminary determinations.

Motion at outset of trial continuation

[60]

Motion at Outset of Trial Continuation

At the outset of the trial continuation proceedings before me, plaintiff counsel brought a motion formally seeking various forms of additional relief.

61In that regard, the additional relief sought by the plaintiff was outlined in the plaintiff’s notice of motion dated April 18, 2023, and included requests for:

a. an order “granting this matter be traversed from Rule 76, Simplified Procedure”;

b. an order “granting security for judgment from the defendant”;

c. an order “granting security for costs from the defendant”; and

d. a “Restraining Order as against the defendant”.

62A complete account of counsel submissions in that regard, together with my decision made in relation to the motion and the reasons for that decision, will be found in the court record. For present purposes, and by way of a general overview and ease of summary reference, I nevertheless note the following:

a. In relation to the first request, (i.e., that the matter be “traversed” from the simplified procedure outlined in Rule 76 of the Rules of Civil Procedure), plaintiff counsel clarified in the course of his submissions that the plaintiff actually was asking to further amend the plaintiff’s already amended statement of claim to increase the quantum of compensatory damages sought from $100,000.00, (the limit of the mandatory simplified procedure jurisdiction that prevailed at the commencement of this litigation and prior to January 1, 2020), to $200,000.00, (the increased limit of the mandatory simplified procedure jurisdiction which came into effect on January 1, 2020), and to reinstate the plaintiff’s previously withdrawn claim for punitive damages. Defence counsel indicated that the first request in that regard was unopposed, (i.e., that the plaintiff’s claim for compensatory damages could be amended from $100,000.00 to $200,000.00 on consent) but submitted that reinstatement of the plaintiff’s claim for punitive damages would be inappropriate and unfair at that stage of the proceedings. For reasons orally delivered, (which included but were not limited to my view that punitive damage issues understandably were not the subject of discovery or examination and cross-examination in the trial proceedings to date, giving rise to prejudice to the defendant incapable of being remedied by costs or an adjournment), I granted leave amending the plaintiff’s claim for compensatory damages from $100,000.00 to $200,000.00, but denied the plaintiff leave to reinstate her previously pleaded but withdrawn claim for punitive damages.

b. In relation to the second request, (i.e., seeking “security for judgment” in the nature of Mareva injunction relief), I denied the request for reasons orally delivered, which included but were not limited to my view that final judgment not only had not yet been granted, but there was no evidence before me to indicate or even suggest that the defendant Mr Konarski was attempting or intending to remove assets from the jurisdiction or to deplete any of his assets, (including the very substantial Ontario farm property where he has resided since birth), out of the ordinary course of business.

c. In relation to the third request, (i.e., seeking “security for costs”), I denied the request for reasons orally delivered, which included but were not limited to my view that Rule 56 of the Rules of Civil Procedure provided no basis for seeking security for costs from a defendant, in accordance with a longstanding principle that defendants should not be obliged to post security as a condition of defending a claim.

d. In relation to the fourth request, (i.e., seeking a restraining order), I denied the request for reasons orally delivered, which included but were not limited to my view that there was no evidence to indicate that any such order was required in the circumstances; e.g., insofar as Mr Konarski, since commencement of this litigation, admittedly has had no contact with the plaintiff or her family apart from that required by the formal proceedings, the preliminary inspection of the relevant vehicle and parts (or at least some of them) while they remained at the defendant’s farm property, and the return of relevant vehicles and parts when they were retrieved from the defendant’s farm property.

63With those preliminaries addressed, the parties proceeded with the presentation of additional evidence for my consideration.

Further evidence presented (and not presented) during trial continuation

[64]

Further Evidence Presented During Trial Continuation

In relation to that further presentation of evidence, I think it appropriate to note and emphasize my view that certain information and documentation the plaintiff effectively asked me to consider were not introduced properly; i.e., in a manner making that information and documentation admissible and capable of formal consideration during the further trial proceedings before me. Without limiting the generality of the foregoing:

a. The written submissions delivered by plaintiff counsel, following the close of the evidentiary portion of the trial continuation proceedings, make repeated and extended reference to evidence supposedly tendered during proceedings before the referee. However, no steps were taken during the trial continuation before me to formally indicate and confirm the precise evidence that may or may not have been presented to the referee for his consideration, or properly tender any such evidence for my consideration. For example, I was presented with no transcripts or acknowledged copies of any tendered exhibits in that regard. While witnesses called during the trial continuation before me also may have provided evidence to the referee, I was provided with no means of formally confirming what may or may not have transpired in that regard. In my view, it accordingly would not have been appropriate or fair to approach my required determinations herein based on essentially bald and unsupported assertions, contained in written submissions tendered by counsel after the close of evidence during the trial continuation proceeding, that witnesses may have provided certain evidence to the referee. I therefore deliberately have disregarded such assertions in arriving at the final judgment set forth herein.

b. As discussed in further detail below, plaintiff counsel also informally attached numerous documents to the plaintiff’s final written submissions; documents said to be supportive of the plaintiff’s claims, but documents that were not formally presented, identified and made exhibits during the evidentiary portion of the trial continuation proceeding before me, which in turn would have allowed for such documents to have been the subject of examination and cross-examination during that trial continuation proceeding. I similarly thought it inappropriate, in arriving at my final judgment outlined herein, to consider such material not tendered in compliance with basic rules regarding the proper presentation of evidence.

65In terms of witnesses called to testify during the trial continuation proceedings before me, (and through whom further documents and items were properly presented, identified and marked as exhibits), I received further evidence from:

a. Jason Kew, (son of the plaintiff and the deceased), Marie Kew (the plaintiff), and David Coomber, (the plaintiff’s expert), who were called as witnesses by plaintiff counsel; and

b. James McDougall, (the defendant’s expert), Stephanie Konarski, (daughter of the defendant), and Steven or “Steve” Konarski, (the defendant), who were called as witnesses by defence counsel.

66I have reviewed and considered all of that witness testimony and those presented exhibits in detail and in their entirety, and the general overview of that evidence which follows should not suggest otherwise. I also will have more to say, in the course of these reasons, about certain aspects of that evidence.

67For present purposes, however, and only by way of initial overview of the further evidence presented by the above witnesses:

a. Matters addressed by Jason Kew in the course of his testimony included the following:

i. Through him, I was presented with a “Photo Brief”, admitted as an exhibit on consent. In that regard:

1. Among the items included in the brief was an appraisal of the 1960 Corvette vehicle performed by Gibson’s Collector Car Appraisal Service on or about July 10, 2007, (i.e., more than 7½ years before the vehicle was entrusted to Mr Konarski), which indicated that the vehicle was “nicely maintained”, (an impression certainly reinforced by four photographs of the vehicle included in the appraisal, depicting the vehicle in apparently pristine condition), and “basically redone some years ago to as close to original as possible”, with all floor areas and body mounts in excellent original condition, all glass and exterior trim being either excellent original parts or newer reproductions, the original bumpers having been re-chromed, the original four speed standard and “posi-trac” units intact, and the steering wheel and dash instruments all being in excellent original condition. The appraisal indicated that Robert Kew also had the vehicle’s original wheels and caps, as well as excellent new tires mounted on “Tru Spoke” real wire wheels. The appraisal also identified several other new components and “upgrades” to the vehicle, including an upgraded drivetrain and installation of a later and more powerful GM 350 cubic inch engine, (with numerous chrome and aluminum accessories added), and noted that various other mechanical components, (e.g., brakes, shock absorbers, suspension, steering, stainless steel dual exhaust and electrics), appeared to be “very well maintained and functioning as intended”. The vehicle was described as a great “driver” Corvette, and was estimated to have a replacement value, at the time, of $35,000.00 before taxes.

2. The brief also included a multitude of photographs taken of the various vehicles and components returned by Mr Konarski including, (at Tab 4 of the Brief), 33 pages of photographs taken of the 1960 Corvette vehicle and numerous detached components relating to that vehicle.

ii. In relation to the 1960 Corvette vehicle:

1. Through use of the aforesaid appraisal conduct in 2007, Jason emphasized the enhancements his father had made to the vehicle’s engine, including replacement of the vehicle’s original 283 cubic inch engine with a more powerful and higher performing 350 cubic inch engine, and the installation of chrome braided lines and chrome “breather”.

2. Jason also emphasized that his father had been somewhat obsessive about maintaining the 1960 Corvette; e.g., through regular polishing, cleaning and rust prevention, and regular inspections to detect and address even minor flaws. He adamantly denied that the vehicle had been subject to any visible “wear and tear” prior to its being entrusted to the defendant, emphasizing not only his father’s diligent inspection and maintenance practices in that regard, but also the fact that his father would never drive the vehicle in the rain or on surfaces, (such as gravel), that might have damaged the car. While acknowledging that the paint existing on the vehicle when it was left with the defendant may not have been absolutely perfect, (e.g., insofar as there may have been faint “spider” hairline crack lines near the front of the vehicle or other minor perfections brought about by natural causes), he also emphasized that an entire repainting of the vehicle was now definitely required, owing to the presence of numerous visible scrapes, chips, scratches, gouges and holes that had not been present when the car was entrusted to Mr Konarski.

3. Jason indicated and/or acknowledged that his father also remained focused on making changes and improvements to the vehicle up until the time of his death; i.e., such that its components were not and would not have been entirely original. For example, in addition to the changes already made to the vehicle’s engine, Jason noted that his father had been in the process of transforming the colour of the vehicle’s interior to black; efforts that would have included replacement of the vehicle’s cracked original dashboard and existing carpeting, (new versions of which already had been purchased, and which Jason personally observed being entrusted to Mr Konarski along with the existing components in that regard), and replacement of its original seats.

4. Jason repeated his assertions that the vehicle had been “all there” when it went into storage with Mr Konarski, and described at length the substantial number of components that had been removed from the vehicle by the time it was returned to the plaintiff, including but not limited to the vehicle’s frame, emblems, front and rear lights, various chrome components, (including the vehicle’s bumpers, side fixtures, rear trunk centre pieces, exterior door handles, light assemblies and other mounted chrome components), trunk latch and lock, windows, window assemblies, new replacement windshield, white metal trim for the front windshield, brakes, suspension, engine and engine components, transmission, drive train, heater, dash (old and new replacement), ignition, gauges, knobs, rear view mirror, seat cushions, carpet (old and new), interior door and side panels, interior door latches, and other interior components, with Jason more generally expressing a view that “essentially every part of the vehicle was stripped and taken” apart from the main body components and other miscellaneous returned components described below. Nor were the four high quality genuine Corvette or after-market rims (chrome with spokes) and corresponding high-quality Corvette tires, also entrusted to Mr Konarski, ever returned to the plaintiff.

5. Jason acknowledged, through his testimony and review of photographs, that the body of the vehicle had come back essentially intact, (e.g., insofar as the vehicle’s principal body, hood, doors, trunk and gas door were returned), but noted that the vehicle’s body also had become misaligned when removed from its original frame, such that the body components would have to be the subject of realignment once everything was remounted on another frame. In a detailed review of photographs, Jason also noted and highlighted, (as mentioned above), a multitude of scrapes, chips, scratches and gouges or holes in the fibreglass that had not been present when the vehicle was entrusted to Mr Konarski. Such damage was particularly prominent in areas where chrome components, window assemblies and other parts of the vehicle had been present prior to their being removed, apparently in a careless, aggressive/forceful or otherwise unprofessional manner that had inflicted widespread damage to the body of the vehicle. In that regard, Jason also described, in detail, the “rotisserie” device onto which the 1960 Corvette had been mounted between the time of the vehicle’s delivery to Mr Konarski and its eventual return pursuant to my earlier order; i.e., a device which clearly facilitated the vehicle being moved about, (including rotation around its central horizontal axis), by anyone intent on carrying out significant work in relation to the vehicle.

6. Jason also acknowledged that numerous other miscellaneous detached components had been returned with the vehicle, including the vehicle’s steering column, (bearing its crucial and valuable identifying serial number), steering wheel, metal brackets for the vehicle’s seats, (but not the vehicle’s seat cushions), instrument cluster, radio, wiring and other items.

7. Jason described, in emotional and what I perceived to be sincere and heartfelt testimony, the extraordinary sentimental value his father and family had placed on the 1960 Corvette vehicle; evidence which supplemented that which I received from him, in relation to such matters, during the original trial proceedings before me.[^6] For example, during Jason’s further testimony during the trial continuation proceedings before me, it was emphasized:

  a. that Robert Kew had been an avid collector of Corvette vehicles, purchasing and disposing of as many as seven during the course of his lifetime, but making a very conscious and deliberate decision to always retain the particular 1960 Corvette vehicle that had been entrusted to Mr Konarski, as Robert Kew had considered that particular vehicle to be the nicest vehicle in his collection, and the one holding the most sentimental value;

  b. that the 1960 Corvette was the vehicle in respect of which Robert Kew had spent considerable time making idiosyncratic adjustments and improvements, (especially in relation to the vehicle’s engine), with associated personal rebuilding and “handcrafting” that held significant sentimental value;

  c. that the 1960 Corvette vehicle had been the vehicle Robert Kew repeatedly had taken to numerous car shows, where it had won numerous prizes;

  d. that Robert Kew routinely would take that particular vehicle to less formal car displays, held at A&W restaurants, in a manner that became something of a “family tradition” that combined regular dinner outings with such displays of the vehicle;

  e. that Robert Kew similarly made a regular practice of driving his son Jason to and from school in that particular 1960 Corvette, knowing that his son’s classmates routinely rushed to see and admire the vehicle, which in turn fostered a shared sense of pride between father and son in that regard; and

  f. that the extraordinary significance and sentimental value placed on the 1960 Corvette by Robert Kew and his family were reflected in the fact that photographs of the vehicle had been engraved on his father’s tombstone.[^7]

8. When presented with a number of advertisements for vintage Corvette vehicles and parts during cross-examination, and corresponding suggestions as to the values that should be attributed to such items, Jason acknowledged that he personally had “a little bit if knowledge” and experience associated with reviewing such ads from time to time. However, based on that personal knowledge and experience, it was his understanding that the condition of such vehicles and their parts varied greatly, with advertisements giving little ability to make accurate or reliable determinations in that regard, (e.g., insofar as an advertised engine might function well or “blow up”), and that the price of such vehicles and their parts had been increasing greatly, (to the point of almost doubling in recent years), owing to the reality that such vehicles and parts were increasingly hard to find.

iii. In relation to other vehicles and parts entrusted to Mr Konarski, apart from those associated with the 1960 Corvette, Jason was asked no questions and provided no testimony relating to the 1992 BMW vehicle, (i.e., to suggest any possible concern about that vehicle being damaged while it was entrusted to Mr Konarski), but indicated the following in relation to the remaining vehicles and parts:

1. When the 1936 Dodge pick up truck was returned, “everything” about it generally “was the same” as when it was entrusted to the defendant, including the acknowledged pre-existing damage to the vehicle’s back corner, which was “basically the same as when it went into storage”. It started once the battery was charged, and generally “still drove the same”, although its brakes “weren’t working well” when it was returned.

2. The parts associated with the 1954 Corvette vehicle, (e.g., a shell and a frame), were returned in essentially the same condition they were in when they were entrusted to the defendant. The parts were said to have no considerable value, and “no relevance” to the plaintiff’s remaining claims.

3. When the 1956 Dodge Custom Royal vehicle was returned to the plaintiff, it generally was “the way it was” when it was entrusted to Mr Konarski; e.g., missing the chrome components, gold ornaments, windows, interior panels and rear seat, (all of which admittedly were retained throughout by the plaintiff and never entrusted to the defendant), but with its body and roof also unharmed, its front windshield intact, and its various other interior components generally present and “all there” despite some minor “disassembly”, insofar as the interior had been “kind of taken apart a little bit”. The only components associated with the vehicle said to be missing, and believed to still be in the defendant’s possession, were a set of “whitewall” tires with chrome spoked rims, and a small record player that was an unusual feature/option available with that particular vehicle.

b. Matters addressed by the plaintiff (Charlene Marie Kew) in the course of her testimony included the following:

i. In relation to damages said to have been sustained in relation to the vehicles and parts that had been entrusted to Mr Konarski, Mrs Kew candidly indicated that she was not sure about certain matters, (e.g., as to whether certain specified vehicle parts had been returned by Mr Konarski), but generally adopted and deferred to the testimony presented by her son Jason in that regard, emphasizing that he had “pretty well summarized it all”.⁸ She was able to confirm, in particular, that she now was in possession of the metal frames for the seats of the 1960 Corvette, although the seat cushions and upholstery in that regard had not been returned.

ii. Like her son, Mrs Kew also emphasized, in particular, the extraordinary sentimental value that had been placed on the 1960 Corvette vehicle, supplementing the testimony which I received from her, in relation to such matters, during the original trial proceedings before me.⁹ In that regard, she too noted that the value placed on the 1960 Corvette was reflected in the family’s decision to have the image of that vehicle engraved on Robert Kew’s tombstone.

iii. As for damages claimed in relation to vehicles other than the 1960 Corvette, Mrs Kew independently referred only to the “chrome wheels” and “whitewalls” associated with the 1956 Dodge Custom Royal that had gone missing; i.e., emphasizing that she knew that Robert Kew had such components for the vehicle and that she and her family no longer had them, in turn implying that they had been entrusted to the defendant and had not been returned.

iv. Beyond such claims focused on damages inflicted on the estate’s property, Mrs Kew’s testimony included references to:

1. the ongoing feelings of hurt, stress and other suffering experienced by her and her children (and principal estate beneficiaries), discussed in more detail below, because of the way in which Mr Konarski had betrayed their trust; and

2. additional expenses the estate has incurred, (e.g., the cost of continued preparation and filing of tax returns and payment of tax, and payment for storage of the vehicles at issue in this litigation, both discussed in more detail below), while final administration of the estate and conclusion of the litigation have been delayed.

c. As for the testimony provided by David Coomber:

i. Mr Coomber was properly qualified as an expert witness permitted to provide opinion evidence in relation to the restoration of vehicles and antique or show cars in particular, including the cost of parts and labour which might be required to restore such vehicles. Evidence concerning Mr Coomber’s extensive and long-standing experience and reputation in that regard included the following:

1. Mr Coomber has been performing such restorations, and the extensive mechanical and body work associated with such restorations, for more than 50 years; i.e., starting at the age of 23, in 1971. He originally did so as an individual, before continuing his operations in that regard through a more formalized business, (i.e., “Big Block Restorations” or “BBR”), which he operates with four other individuals in a 10,000 square foot facility located in Woodstock, Ontario. Although he simultaneously operated a refrigeration business for a time, Mr Coomber has focused exclusively on full time vehicle restoration for the past 18 years.

2. Although the repair and restoration work done by Mr Coomber and his business extends to other types of vehicles, (such as Camaros, Mustangs and Cougars), for most of the extended time Mr Coomber has been engaged in such work, and for at least 30 years, he has focused mostly on the repair and restoration of Corvette automobiles; work that includes the frequent acquisition of such vehicles for restoration or as a source of parts, the acquisition of individual parts, the dismantling of Corvette vehicles to perform a detailed inspection of components to determine their condition and safety, the restoration and repair of individual parts, (e.g., through sandblasting and other cleaning to remove rust or other deformities, before such items are resprayed, chromed or otherwise restored to prime condition), the sourcing of missing or irreparably damaged components via the internet and/or established contacts, (e.g., to find original parts in good condition, “new old stock” pieces and/or “after market” modern reproductions of original components), the completion of all necessary body repairs and mechanical work, followed by finally assembly or reassembly of the vehicle.

3. Mr Coomber estimated that he personally has worked on approximately 40 to 45 Corvettes over the course of his life, including the completion of approximately 12 to 15 full restorations in that regard. He estimates that he currently works on approximately four Corvette vehicles each year.

4. In the course of doing such repair and restoration work, Mr Coomber has accumulated substantial and up to date information about the pricing of such Corvette vehicles and parts, and the labour involved in such work. However, Mr Coomber also was careful to emphasize that such costs invariably depend on the particular vehicle and parts involved, as “each car is different”, (e.g., because of its comparative age and rarity, as well as its individual history, environment and resulting condition), and the work required to repair and restore a vehicle and its parts therefore will “depend on the vehicle”. As Mr Coomber put it, he may have “an idea” of what a particular vehicle’s value and condition may be, and the work needed to repair and restore it, but he and his team “never know until [they] get in” what actually may be wrong with the vehicle. In his view, there accordingly is no precise “market rate” for such vehicles, parts and restoration work.

5. While there are no professional certifications or accreditations available in relation to such vehicle restoration per se, and Mr Coomber himself is not a certified mechanic, his business employs such mechanics, certified by the provincial government, who not only perform body and mechanical work themselves but also routinely oversee and formally approve or “sign off” on the work personally done by Mr Coomber in that regard.

6. It was not disputed that Mr Coomber is widely regarded as “one of the best around”, (i.e., within a 300-mile radius of Woodstock, which includes the cities of Toronto, Detroit and Cleveland), when it comes to the restoration of Corvette automobiles and other vehicles. The Corvette vehicles he restores frequently are entered in vehicle shows as well as international competitions, where they invariably, on at least 20 occasions, have been awarded “first in class” or been placed among the “ten best in show” among the approximately 3,000 vehicles involved. At least two of the Corvette vehicles Mr Coomber has restored have been entered in “Concours” classic car shows, (featuring classic cars from all over North America, and widely regarded as displaying the “best of the best” in that regard), where they also won their “class”.

ii. Mr Coomber testified that he personally had inspected the body and other components of the 1960 Corvette convertible which had been returned to the plaintiff. The various observations he made and conclusions he reached in that regard included the following:

1. Various components of the vehicle were obviously missing and needed to be replaced. Among the many missing items Mr Coomber noted in that regard were the vehicle’s lights and light assemblies, (front and rear), light trim rings, chrome fittings, bumpers, bumperettes, body bows and brackets, frame/chassis, engine, transmission, four-speed shifter, radiator, radiator shroud and fan, thermostat, aluminum bell housing for the clutch and pressure plates, clutch fan, generator, front grill, door windows, window channel posts and anchors, window mechanics, (apart from a couple of remaining pieces), reinforcement brackets, radio aerial, gas tank, door panels, electrical wiring and seats.

2. Although the vehicle’s original frame had been removed and was missing, Mr Coomber nevertheless was able to say with confidence that it would have been in “good shape”, in terms of being free from corrosion. In particular, he emphasized that all but one of the original eight mounts or rods that connected the vehicle’s body to the frame, (components which take the force otherwise placed on the vehicle’s fibreglass body so that it does not break), were still in place and “in good shape”, with nothing but “very fine” surface rust. That in turn meant that the vehicle’s frame must similarly have been “in good shape”, as any corrosion present on the frame otherwise inevitably would have spread to those mounts. In this case, however, all of the remaining mounts were “just fine”, with “nothing” to indicate the presence of any corrosion whatsoever to hurt them. The only conclusion, in Mr Coomber’s expert opinion, is that the vehicle’s frame “would have been good” and free from corrosion. In that regard:

  a. Mr Coomber agreed that the two bolts produced by the defendant and put to Mr Coomber during cross-examination were original “C1” bolts of the type used in “first generation” Corvette vehicles such as the 1960 Corvette, to go through the floor of the vehicle behind its seats and help attach the fibreglass body to the vehicle’s frame.

  b. Mr Coomber also acknowledged that the two bolts produced to him were rusted; something that commonly occurred with the bolts used in that area of the vehicle, as rainwater occasionally would enter such convertibles through their notorious leaky soft top roofing, and make its way through the floor and out through those bolt holes by “following” the bolts.

  c. Mr Coomber nevertheless rejected the suggestion that such rust was in any way indicative of the vehicle’s frame being corroded, emphasizing that the routine rusting of such bolts “doesn’t mean the frame gets rusted”. That reality stems in part from the vehicle’s frame being “a lot thicker”; i.e., making it far more impervious to corrosion. Moreover, each of the bolt holes in question also was equipped with “a rubber square mount that goes on the frame and it stops the rust from going down through there”. Furthermore, as noted above, the surviving mounting rods which served as the principal connectors of the fibreglass body to the frame were sufficient to convince Mr Coomber that the vehicle’s frame actually had been in good shape in this particular case.

  d. While there appeared to be some surface rust apparent on the vehicle’s radio and the steel bracket anchoring the vehicle’s “grab bar”, Mr Coomber attributed that to the fact that such components were plated “very lightly” when they came from the factory.

3. Mr Coomber confirmed, (with the assistance of photographs), the existence of numerous areas where the vehicle’s body had sustained visible damage; e.g., ranging from jagged holes, (where someone apparently had caused breakage by the forceful removal of vehicle components), to other chips and scratches going beyond the incidental cracks one normally would see “here and there” on a fibreglass vehicle. He agreed that one particular scrape in the vehicle’s driver side door had been brought about by repetitive opening and closing while a hinge likely had not been aligned properly, although he inherently could not speak to whether that had occurred before or after the vehicle had been entrusted to the defendant. However, Mr Coomber rejected defence counsel suggestions that the more widespread defects in and around locations of the vehicle’s chrome mountings would have been caused by wind and sediments normally encountered while driving, (as such chipping usually did not occur at such heights in his experience), and/or by chrome components being installed prematurely after a paint job. He instead thought that such damage likely had been caused during removal of those chrome components; i.e., as chipping such as that seen in such areas only occurred in that manner, in his experience, via improper efforts to remove such chrome components.

4. Mr Coomber confirmed that there was visible “bubbling” of the vehicle’s painted surface in some areas. While that admittedly was a condition that could have been caused by chemical contamination present in primer or paint previously applied to the vehicle, Mr Coomber also indicated that was a condition also capable of being brought about by the vehicle being stored for a lengthy period of time in conditions of moisture and significantly changing temperatures; i.e., because of the vehicle’s fibreglass contracting and expanding in a manner different than the steel surfaces of other automobiles. Mr Coomber confirmed that the front end of the vehicle also had “spider” hairline cracks, although he emphasized that “every Corvette” has such hairline cracks, in his experience.

5. In any case, having regard to the various damaged areas noted above, the fibreglass of the vehicle now would have to be worked on, and the vehicle entirely repainted, to address and remedy all of that damage. In particular, it realistically would not be possible to simply paint the affected areas, after their repair, without those areas being visibly different from other areas of the vehicle. In that regard, Mr Coomber opined that the original colour of the vehicle had been red, (i.e., the same colour it was when it was entrusted to Mr Konarski), based on his inspection of the interior of the engine compartment, which was still “red from the factory”.[^10]

iii. To explain and illustrate the costing process involved in repairing and restoring such a vehicle, Mr Coomber provided an extensive “sampling” of the costs involved in acquiring necessary replacement parts for the plaintiff’s damaged 1960 Corvette. In that regard:

1. Mr Coomber emphasized that his presentation in that regard was indeed “only a sampling” of the pieces needed to repair and restore this particular 1960 Corvette vehicle, and that there were in fact “piles more” of such individual components that would be needed to complete that contemplated work, as per the quote he had provided.

2. Mr Coomber explained that scarce Corvette parts generally now are sourced from particular trusted or trustworthy suppliers he uses who are based in the United States; e.g., suppliers with whom a buyer like Mr Coomber has had prior positive dealings and/or who have nothing less than a 97 to 100 percent positive customer rating on eBay. Not only are such parts generally not readily available here in Canada, but those that are almost invariably are contaminated by rust or oxidization of aluminum brought about by our much harsher climate. Any costs saved from sourcing parts from Canada therefore usually are eliminated or more than offset by the further work required to clean and repair them. As Mr Coomber put it, he therefore sources parts from such trustworthy suppliers in the United States because the parts they provide are of reliable and “correct” quality, such that he generally can just put them on the vehicle and not have to “play with them”. Even then, however, the possibility of having to perform further cleaning and repair of sourced parts, (particularly used parts), cannot be eliminated.

3. Mr Coomber also explained why it sometimes was reasonably appropriate, for similar overall cost saving reasons, to source some replacement parts as an entire unit instead of trying to integrate remaining portions of that unit that are still with the vehicle to be repaired and restored. For example, in this particular case, Mr Coomber explained why it actually would be more expensive to attempt continued use of the remaining metal brackets for the two seats of the 1960 Corvette, (e.g., by trying to separately source cushions and upholstery to replace that which had been taken), as any “savings” made through use of those remaining brackets would be outweighed through the added labour required to carry out that additional specific sourcing, and to match those new components to the existing ones in an entirely compatible and properly restored manner. It was much easier, cheaper and faster to buy replacement seats as entire units. The same was true in relation to the side window mechanics of the 1960 Corvette; i.e., in the sense that, while some individual components remained with the plaintiff’s vehicle after it was returned, it did not make economic sense to source only the now missing components that had been removed.

4. Mr Coomber outlined and explained in detail, (through use of no less than 26 examples of replacement parts now needed for the plaintiff’s 1960 Corvette), why the initial cost component of a needed replacement part for a Corvette vehicle therefore usually is in American dollars, which then has to be grossed up to account for the exchange rate between American and Canadian currency. Added to that initial resulting acquisition cost are shipping and brokerage fees, a profit component reflecting the effort made to source the part, (with Mr Coomber and his “BBR” business charging less than the industry standard in that regard), and applicable HST. Mr Coomber candidly acknowledged that the applicable shipping and brokerage fees are not within the control of a purchaser and vary, such that his indications in that regard were necessarily estimates. He nevertheless thought they were reasonable and reliable estimates, based on his extensive experience with such charges.

iv. Drawing such observations, considerations and conclusions together, Mr Coomber presented a quote he had formulated, (initially as of April 19, 2022, but updated to provide a quotation as of May 31, 2023), indicating the total estimated costs of repairing and restoring the plaintiff’s 1960 Corvette vehicle. That quotation reflected an estimated $128,480.00 in replacement parts, and 800 hours of labour at $100.00 per hour,¹¹ for a total estimated restoration cost of $209,480.00 plus applicable HST, or $236,712.40. In that regard:

1. Mr Coomber emphasized that the costs of repair and restoration were higher than normal in this case because so many components of the vehicle had been removed and therefore necessarily had to be replaced.

2. Mr Coomber noted that the cost of restoring such a vehicle frequently normally might be reduced to approximately $100,000.00 to $150,000.00 if he and his team were provided with a 1960 Corvette vehicle “in poor shape” but containing a supply of largely repairable components they could work with; vehicles which, in his experience, could be sourced for approximately $50,000.00 to $60,000.00.

3. Even then, however, Mr Coomber emphasized that such “source” vehicles inherently are individual and unique, presenting a situation where one really has “no idea” of the true underlying condition of their components until the vehicle is taken apart and its individual components are inspected. There is simply no way to make accurate determinations in that regard by a superficial examination of the assembled vehicle’s exterior. Even if such a car presented superficially as being in “mint condition”, one still “wouldn’t have any idea of what’s really going on with the vehicle”, (e.g., in terms of its brakes, rims, bearings and engine), without “taking it apart”.

v. Mr Coomber clarified and confirmed that his quotation allowed for the cost of having the repaired vehicle fitted with a 350 cubic inch engine, (i.e., to replace the engine Robert Kew had installed in the vehicle, rather than the original 283 cubic inch engine it originally had), but without the additional upgrades and cosmetic adornments Robert Kew had installed, such as the chroming of various engine parts.

vi. Mr Coomber also clarified and confirmed that he fully intended to use and incorporate all of the various returned and remaining components of the plaintiff’s 1960 Corvette vehicle, (the total value of which Mr Coomber could not accurately value without more extended computer research, but the body of which he roughly estimated to have a value of at least $15,000.00), in the contemplated restoration work. Without his doing so, his estimate for the work definitely would be higher.

vii. Mr Coomber readily acknowledged that his contemplated restoration work would leave the plaintiff with a newly restored vehicle of high quality, restored “exactly how it’s supposed to be”, looking “nice”, (albeit without being “perfect” and painted with a “show quality” finish, or anything capable of being entered in a high level competition such as Concours),¹² and generally incapable of being purchased on the market for anything less than the restoration quote he provided. As mentioned on the quotation he provided, he admittedly aims for perfection in the restoration work he performs. However, he also indicated and emphasized that there effectively was no way to way to determine how much better the vehicle would be relative to its earlier state, (e.g., the state it was in when it was entrusted to Mr Konarski), without having the ability to fully inspect and properly determine the condition of the vehicle and its components in that earlier state; i.e., to provide a proper basis for comparison. Without that ability, he could not say, and had “no idea”, how much his contemplated restoration work would result in “betterment” of the vehicle. As he emphasized again when the possibility of betterment was put to him in cross-examination: “Comparable to what? What was there before, I don’t know. Maybe it’s better. Maybe it’s not.” He stressed that he simply could not comment on what was no longer there, and could only examine the state of what remained, although he could tell that the remaining components of the vehicle “were in good shape” and “better than you’d normally see”.

viii. In cross-examination, Mr Coomber was pressed on whether it was possible, and perhaps more sensible, to obtain an equivalent vehicle by not going through the process of repairing or restoring the plaintiff’s damaged 1960 Corvette by rebuilding it with variously sourced replacement components, but simply purchasing another 1960 Corvette; e.g., from a sourcing region in the southern United States admittedly preferred by Mr Coomber to ensure a higher level of vehicle and part quality, such as California, Arizona or New Mexico. In response, Mr Coomber emphasized once again that the market situation in that regard was not one in which the condition, quality and safety of such vintage vehicles was standard or capable of being assumed and relied upon. To the contrary, there are significant variations in that regard. In his words, when purchasing a used vintage Corvette, even from the southern United States, “we absolutely don’t know what the car’s gonna be like” or “what condition it is”, (e.g., without taking the engine, transmission, back end, brakes and electrical apart, to “go through everything”), and it “all depends on what you get”. He emphasized that “you have no idea” what problems and complications may be encountered in that regard, and that necessarily addressing such issues is “where the money comes in”. To reduce such quality concerns, he felt the minimum “starting point” would require the purchase of a used vintage Corvette vehicle with a probable cost of at least $100,00.00 CDN. Even then, however, one still would not know precisely what condition the vehicle was in until the vehicle was obtained and taken apart, with all its components being inspected and checked, before the completion of further necessary repairs and reassembly, all of which was likely to require a further $50,000.00 to $100,000.00 CDN to “ensure everything’s okay”, inevitably taking the costs involved back into the neighbourhood of the quotation provided by Mr Coomber. Moreover, the course of action suggested by Mr Coomber’s quotation, (i.e., restoring the plaintiff’s damaged vehicle with individually sourced and inspected replacement parts), inherently involved less risks and a more reliable assurance of quality without unexpected complications and additional expense. As Mr Coomber put it, proceeding by way of purchasing another 1960 Corvette for restoration represented a foray into a “no man’s land” of uncertainty, unknowns and unpredictable risks; e.g., buying a used vehicle without a warranty, in respect of which one really would have “no idea” about the true state of its engine, transmission, and other components. In contrast, the restoration work performed by Mr Coomber and his business is provided with a warranty, assuring quality and safety.

d. As for the testimony provided by James McDougall:

i. Mr McDougall was properly qualified as an expert witness permitted to provide opinion evidence in relation to the valuation of assembled Corvette automobiles in Canada. Evidence concerning Mr McDougall’s experience in that regard included the following:

1. Mr McDougall is a licenced mechanic, and has owned and operated a car dealership, (based in Goderich, Ontario), since 1976. His dealership has focused primarily on Honda and Nissan automobiles, but he also has dealt with classic cars, including Corvette vehicles.

2. He first started dealing in classic vehicles in the mid-1970s, and since then has purchased and/or sold approximately 200 to 300 such vehicles. He estimated that 75 to 100 of those vehicles have been Corvettes. He also noted his belief that those 75 to 100 Corvettes have included every year model of Corvette from 1954 to the present.

3. While he recalled having bought and sold “very few” 1960 Corvettes, he had sold “a lot” of 1961 Corvettes and did not think there were many distinguishing features between the two models.

4. Despite initially saying that he purchased such vintage vehicles “wherever [he] can find them”, Mr McDougall then clarified and confirmed that he has purchased his older vehicles “in Ontario mostly”, and never from the United States. He also confirmed that he has sold all such vehicles from his dealership in Goderich, Ontario.

5. Mr McDougall also confirmed that, with one exception, (i.e., a disassembled vehicle he purchased in parts and resold in precisely the same way without any reassembly), he has traded exclusively in Corvette vehicles that are fully assembled and generally operational or roadworthy.

ii. Mr McDougall referred to a number of particular transactions in which he had purchased and sold vintage Corvette automobiles, including:

1. a 1960 Corvette that had been completely taken apart and left disassembled since the 1970s, (although all the pieces were present), which had a solid but paint stripped body, an excellent frame and a rough interior, all of which he purchased for $25,000 here in Ontario in 2022 and then resold for $30,000.00;

2. a 1964 Corvette Coupe with a “wrong engine” in it, and which had “sat for a number of years”, but which he nevertheless felt was a “good driveable car”, which he had purchased at an unspecified time for $32,000.00;

3. a 1962 “Bloomington Gold” Corvette, (meaning that everything was judged to be of a high standard and “right” on the car, with “all numbers matching”), the purchase price of which Mr McDougall could not recall, although he remembered that it subsequently had been sold in Florida approximately six years ago for $62,000.00 USD, since which time the prices of Corvettes in the United States were said to have changed “drastically” upwards by at least 20 to 25 percent; and

4. a 1958 Corvette, generally described as a “very good” car that nevertheless “needed to be restored”, which mechanically “ran well” with a “good” frame and was “driveable”, which Mr McDougall purchased approximately two years ago for an unstated price and then resold for $36,000.00.

iii. More generally, Mr McDougall opined that one could expect to pay at least $25,000.00 to $30,000.00 for a 1960 Corvette capable of functioning and being driven on the road but otherwise in need of “total restoration”.

iv. When asked to comment on two specific “Kijiji” advertisements from 2021 offering Corvette automobiles for sale at specified prices, (i.e., the two advertisements found at Tab 6 of the Defendant’s Supplementary Document Brief marked as Exhibit 3 during the trial continuation, which incidentally were not put to Mr Coomber), Mr McDougall indicated:

1. that the $37,000.00 price sought in relation to the 1961 Corvette offered for sale offered “very good value” for that car, but only if everything indicated in the wording of the “write up” in the advertisement was correct and the vehicle was “as good” when he saw it as the “write up” says it was – with Mr McDougall similarly expressing reluctance to indicate any price at which he might try to resell the vehicle “without having everything in front of [him], including the car”; and

2. that whether the $25,000.00 price sought in relation to the 1959 Corvette reflected its value would “depend on how it looks underneath”, although he suspected that he would not be inclined to pay that much for the vehicle in question as it appeared to have the “wrong engine” and “wrong differential”, and more generally seemed to require “too much work”.

v. When asked to describe the impact on value of a 1960 Corvette vehicle being fitted with a 350 cubic inch engine rather than its original 283 cubic inch engine, Mr McDougall opined that it would “depend” on the purpose for which a person wanted the car. In particular, a car with entirely original parts might sell for more, but once all the parts were no longer original in any event, a more powerful engine might make the vehicle worth more, (albeit not that much more), to someone primarily interested in driving it.

e. In relation to Stephanie Konarski:

i. Her testimony during the trial continuation proceedings was relatively brief, and generally was confined to observations she was said to have made of the 1960 Corvette vehicle during a visit to her father’s farm property in the summer of 2015, before seeing it again many years later when that vehicle was being returned to the custody of the plaintiff.

ii. As for her initial observations in that regard, Ms Konarski says she first saw the 1960 Corvette in July or August of 2015, when she attended at her father’s large farm shed to retrieve certain seasonal items, (e.g., bicycles and lawnmowers), which she stores in that building. In that regard:

1. She recalled attending the building in the company of her young daughter, who was just learning to walk and whom she was minding at the time. In the result, she says she and her daughter were in the shed for approximately 20-30 minutes retrieving the items she wanted, as her daughter was “just a toddler” such that things “didn’t move very fast”.

2. She recalled seeing and noting the 1960 Corvette because it was “new” to the building, (in the sense she had not seen it there before), and she was obliged to “get around it” to retrieve her items.

3. In her view, the vehicle was in “poor shape”, and not roadworthy. She thought it was “like a project car”, in that it looked like it “required a lot of work”. She also recalled that the body seemed “rough”; e.g., with one particular area of paint that was “bubbling”, as if “somebody had tried to maybe patch it at one point”.

4. She had no recollection one way or the other as to the presence of other components of the vehicle, (such as its lights or chrome fittings), apart from a feeling that the vehicle appeared incomplete.

iii. Apart from the above observations, Ms Konarski says she also saw the 1960 Corvette vehicle when it was picked up from her father’s property in 2020 for return to the plaintiff. In that regard:

1. Ms Konarski confirmed that she was the one who took the photographs of the retrieval that were tendered in evidence by the defendant; i.e., the photographs located at Tab 3 of the Defendant’s Supplementary Document Brief, which was marked as Exhibit 3 during the trial continuation.

2. When asked if the 1960 Corvette looked any different on that occasion in 2020 than it had when she saw it in the farm shed in 2015, she noted that the vehicle was now “on the rotisserie thing”, but “other than that” she did not know one way or the other whether there were further differences.

iv. When asked in cross-examination to describe the colour of the 1960 Corvette, Ms Konarski thought it may have been red, but was unable to be more specific.

f. In his testimony provided during the trial continuation, Stephen Konarski addressed a variety of matters, which included the following:

i. In relation to the 1956 Dodge Custom Royal vehicle, Mr Konarski asserted that the vehicle was returned to the plaintiff on the same wheels it had when he received it, and that he had no knowledge of the record player that was said to have accompanied the vehicle.

ii. In relation to the 1960 Corvette vehicle:

1. Mr Konarski placed reliance on documents created by Robert Kew’s insurer, suggesting that the vehicle had been insured for $35,000.00.

2. Mr Konarski went through photographs taken of the vehicle at the time of its return, acknowledging areas of apparent damage which he alternatively and/or variously characterized as:

  a. “typical after some disassembly of the car”, and this particular car having been “disassembled and assembled a number of times”;

  b. “just typical of what the fibreglass would look like when the chrome and grill and stuff are removed”;

  c. indicative of “old repair” work;

  d. attributable to prior paint contamination, from “reducer” having been put in the paint in order to get it to “flow on the car” without proper calculation to allow for varying rates of humidity;

  e. “imperfections from multiple paint jobs”, which he suggested had been performed with cheap enamel paint in the 1970s, (rather than the more expensive and higher quality paint used now), and with no “respect” for the vehicle;

  f. pre-existing damage caused by the hood not being properly aligned with the body, prior to his receiving the car;

  g. pre-existing damage caused over time when the misaligned rear of the driver’s door would “jam into the top of body”, (thereby harming both the rear top of the door and the rear top of the relevant quarter panel in that area), rub continuously against the vehicle’s body along its top and bottom, and/or be “slammed around” inappropriately by someone;

  h. pre-existing chip damage around the gas door that was “typical of age” and/or caused by someone opening and closing the gas door while “not being careful with it”,

  i. missing chunks of fibreglass “typical with these cars because they’re over 50 years old”, such that their fibreglass was “extremely brittle” after having “dried out over many years”; and/or

  j. damage caused by “stone chips from the front wheel” and the vehicle having been “driven down a gravel road”, in a manner he suggested was “typical of many other collector cars of that era until people started to improve them and value them more”.

3. Mr Konarski emphasized his view that, despite the damages to the vehicle which had been highlighted, it still had a “decent body” that would be something “nice … to work with”.

4. Mr Konarski asserted, (apparently as intended support for his assertion that the vehicle had been painted repeatedly and badly), that the vehicle originally had been yellow when it originally left the factory; i.e., instead of the red colour it had when in the possession of Robert Kew.

5. Mr Konarski indicated that he personally had built the “pretty specialized” rotisserie on which the vehicle was mounted at the time of its return, emphasizing that he had put a lot of thought into that; i.e., making it especially for use on the 1960 Corvette, and equipping it with adjustable rod features to facilitate manipulation and alignment of the vehicle. He nevertheless also claimed to have mounted the vehicle on the rotisserie simply because its frame was “bad”, had “settled”, was “rotten”, and “wasn’t a solid frame anymore” because of extensive corrosion; a claim he attempted to support by producing two bolts, “rusted almost through”, which were said to be “body mount bolts” Mr Konarski had removed from the vehicle.[^13] He claimed that mounting the vehicle on the rotisserie, after its frame had been removed, was intended to prevent its “fragile” fibreglass from sustaining further damage and give it a better presentation; i.e., “looking down the road to add value to it”.

6. Apart from removing the vehicle’s supposedly “rotten” frame and mounting the vehicle on the rotisserie he had built, Mr Konarski repeatedly denied having done any work on the vehicle or having had any involvement in relation to its various visibly damaged areas; e.g., claiming that he “never did anything with it”, that he did not remove parts of the vehicle such as its lights, that he “knew nothing” about areas of missing paint, that he did not cause any of the visible scratches and chipping, that he handled the vehicle “pretty gingerly”, and that the vehicle was “just the way it is” and “like that”, (e.g., in terms of the chips, scratches, missing chunks of fibreglass, and missing components), when he received it.

7. Mr Konarski also expressly denied still having any of the plaintiff’s property.

iii. With the assistance and support of photographs taken when the vehicles belonging to the plaintiff were returned, (i.e., the photographs found at trial continuation Exhibit 3, Tab 3, pages 38-41), Mr Konarski identified various separated original components of the 1960 Corvette that had been returned to the plaintiff’s possession along with the vehicle itself. Those items included the vehicle’s steering column, (bearing its important and valuable serial number formally identifying the particular vehicle in question), steering wheel, original broken/cracked windshield, seatbelts, original “chocolate brown” instrument cluster, heater, heater control, “scab tires” on rims that were said to have been on the vehicle when Mr Konarski received it, a trim piece for the right/passenger side of the vehicle’s dash, parking brake control handle, car jack, cables, radio, radio speaker, power aerial motor, wires and part of a wiring harness.

iv. Mr Konarski confirmed that he was the one who had located the Kijiji advertisements found at trial continuation Exhibit 3, Tabs 4 through 6. As noted above, the advertisements found at Tab 6 were put to Mr McDougall, and are described in my overview of his testimony. The advertisements at Tabs 4 and 5 were not put to Mr McDougall, (or Mr Coomber for that matter), but included:

1. a two-page advertisement posted from Port Colborne, Ontario, offering “C-2 corvette parts 63-67” for a price of $500.00, with the parts including what was said to be a “good frame, rear window with trim, column and various old parts” taken from a vehicle which, (even according to Mr Konarski), appeared to have been “burnt”; and

2. a one-page advertisement posted from Saskatoon, Saskatchewan, offering a “Chev 350” engine from a 1974 Camaro for a price of $1,200.00.

v. Finally, Mr Konarski provided information, (outlined in greater detail below), concerning the work he claimed to have done on vehicles/parts that were returned to the plaintiff, and expenses he was said to have incurred in that regard.

Witness assessment

[68]

Witness Assessment

By way of general observations about the credibility and reliability of the witnesses who testified before me during the trial continuation proceedings:

a. Jason Kew, Charlene Marie Kew and Steven Konarski all testified before me at length during the initial trial phase of this proceeding, and I explained at considerable length in my reasons for partial judgment, released on August 5, 2020, why I regarded Jason Kew and Charlene Marie Kew as credible and reliable witnesses, why I did not regard Mr Konarski as credible and reliable, and why I accordingly was inclined to believe and accept the testimony of Jason Kew and Charlene Marie Kew where it diverged from that of Mr Konarski.

b. Nothing transpired before me during the trial continuation proceedings to fundamentally alter my views about the relative credibility and reliability of those three witnesses. Indeed, to some extent, the trial continuation proceedings reinforced my earlier impressions in that regard. Without limiting the generality of the foregoing:

i. Jason Kew once again testified in a straightforward and candid manner, frequently and readily confirming that he simply did not remember, did not know or was not sure of certain matters, (expressly emphasizing that he did not want to say things in respect of which he was unsure), while also fairly acknowledging various points put to him in cross-examination. He proactively indicated, (appropriately in my view), that expert opinion would be preferable to his knowledge or views about certain matters. He also proactively acknowledged and confirmed, during his examination in chief, that various vehicles and items had been returned by Konarski, essentially undamaged; i.e., in what generally appeared to be the same condition as they were in when they were entrusted to Mr Konarski. Such considerations reinforced my impression that Jason was doing his best to provide his testimony in an honest and fair manner, without embellishment, and persuaded me that he also was being truthful in relation to other matters in respect of which he was able to testify with more confidence, particularly when it came to Jason’s assertions regarding property damage inflicted on the 1960 Corvette vehicle by Mr Konarski. While some of Jason’s testimony proved to be unreliable in certain respects, (e.g., insofar as he initially asserted that Mr Konarski had failed to return the original cracked windshield and radio of the 1960 Corvette, although these were later shown, via photographs, to have been included amongst the collection of miscellaneous detached components returned by Mr Konarski), in my view those were relatively small lapses from a reliability perspective. In particular, the photographic evidence generally and objectively confirmed much of Jason’s testimony, including his indications that, when the 1960 Corvette vehicle was returned to the plaintiff’s possession, it was not only no longer complete, intact and in good condition with a body in near perfect condition and with no significant damage, (as per my earlier factual findings), but was also missing many of the components which, (also as per my earlier factual findings), had been with the generally assembled and intact vehicle when it was entrusted to Mr Konarski. The photos also confirmed Jason’s indications that there were multiple areas where the body of the 1960 Corvette clearly and quite noticeably had been damaged in various ways, including numerous scrapes, scratches and gouges; damages which were not present when the vehicle was entrusted to Mr Konarski. In the result, I generally was inclined to accept Jason Kew’s testimony, and certainly did so whenever that testimony differed from that of Mr Konarski.

ii. Marie Kew similarly testified, once again, in a straightforward and candid manner. In that regard, she too candidly and proactively indicated that she could not recall certain matters and had no personal knowledge about others. (e.g., emphasizing that she was “not gonna lie or make things up” even if doing so would have supported some of the claims being made), while also fairly acknowledging various points put to her during cross-examination. In the result, I generally was inclined to accept her testimony as well, and certainly did so whenever that testimony differed from that of Mr Konarski.

iii. For the lengthy reasons set forth at paragraph 78 of the partial judgement I released on August 5, 2020, (and the many sub-paragraphs therein, which extend over the course of many pages), I found that Mr Konarski was a witness severely lacking in credibility and reliability, and my negative assessment in that regard did not improve during the course of the testimony Mr Konarski provided during the trial continuation proceedings. In that regard:

1. Mr Konarski remained argumentative; e.g., going beyond denial of knowing anything about a record player accompanying the 1956 Dodge Royal vehicle to contend that it could not have fit inside the box in which it was said to have been placed, (despite emphasizing in cross-examination that he had never seen such a box), and expressly challenging my earlier factual finding that the frame of the 1960 Corvette was intact and free from corrosion or holes when it was entrusted to his care.[^14] He similarly challenged my factual findings that, when the vehicle was left with Mr Konarski:

  a. it was complete and in good condition with its specified components intact and in place, with Mr Konarski arguing that it instead had been found in “in pieces”;

  b. its body was in near perfect condition with no significant damage, with Mr Konarski arguing that it instead had substantial visible pre-existing damages; and

  c. its brakes were present and not seized, and that it was generally capable of being operated on the road and currently licenced for that purpose, with Mr Konarski arguing that the vehicle instead had no brakes.

2. The barrage of multiple alternative explanations for damage to the 1960 Corvette put forth by Mr Konarski, in addition to being based largely on speculation and conjecture, (i.e., insofar as Mr Konarski generally did not profess to have any direct personal knowledge of what was done in relation to the vehicle prior to it coming into his possession), and opinion evidence from a lay witness, (i.e., with no effort having been made to qualify Mr Konarski as any kind of expert possessed of experience or training qualifying him to provide opinion evidence), was premised largely on implicit if not explicit allegations that Robert Kew had treated his 1960 Corvette poorly; e.g., with inadequate regard to its proper repair and maintenance, and/or by storing and operating it in a cavalier fashion without regard to the resulting impact on its condition. In my view, none of those allegations were at all consistent with the other evidence I have received in this proceeding, (through documentary, photographic and testimonial evidence provided by the surviving members of Robert Kew’s family), which I have accepted and continue to accept, that Robert Kew “idolized” his 1960 Corvette as one of his most prized possessions, to which he devoted meticulous care and attention. In short, Mr Konarski’s allegations and suggestions in relation to such matters were fundamentally inconsistent with my other findings in that regard.

3. On a related note, in my view Mr Konarski’s disclaimers, denials and professions of ignorance relating to removal of the 1960 Corvette’s valuable components, and what happened to them, were nothing but brazen lies. In that regard:

  a. One stark reality that became abundantly clear during the course of the trial continuation proceedings, (and particularly through Mr Coomber’s extended and effectively unchallenged “sampling” presentation of what typically is involved in the process of acquiring parts for a vintage Corvette, along with advertisements providing a sample of the prices assembled vintage Corvette vehicles and/or their components in various unknown and unknowable conditions and states of repair may be able to command in the North American market), is that the inherently scarce (and increasingly scarce) parts of a vintage Corvette vehicle, if in reasonably good condition, actually may have a total value exceeding that of an assembled Corvette vehicle, when separated for individual sale to those wishing to repair/restore their own similar vehicles. For example, by my simple arithmetic, the cumulative total acquisition cost of the 26 “sample” components identified in Mr Coomber’s testimony, (now missing from the plaintiff’s 1960 Corvette vehicle and therefore in need of replacement), came to $60,403.00 CDN, or $68,255.39 CDN with applicable HST; i.e., totals exceeding the $50,000.00 to $60,000.00 cost of an assembled Corvette vehicle in “bad shape”, as per the testimony I accepted from Mr Coomber in that regard.

  b. In my view, the inescapable inference is that someone in possession of a vintage Corvette to which he or she has no personal affection or attachment, and no corresponding desire to retain or pass on as a preserved and intact antique, accordingly has great financial incentives to strip such a vehicle of its parts for profitable resale; i.e., removing and separating its individual components for sale to those who fervently desire to restore and maintain such vintage vehicles of their own, and who are willing to pay considerable sums for the hard-to-obtain parts they might need in that regard.

  c. In this case, the evidence presented during the initial trial proceedings established to my satisfaction, (and to a standard which in my view not only exceeded the requisite balance of probabilities standard but came much closer to satisfying the much higher standard of proof beyond a reasonable doubt, for the extensive reasons outlined in my earlier partial judgment), the appropriateness of making the following findings and formal declarations of fact in relation to Robert Kew’s 1960 Corvette, which were set forth in paragraph 91 of the partial judgment I released on August 5, 2020:

    i. The vehicle normally was stored inside, (usually in a garage with a cement floor, although it temporarily was being worked on in a wooden shed with a gravel floor) and was never driven in the rain or in winter.

    ii. When the vehicle was removed from the Wiarton property and taken to Mr Konarski’s property:

      1. The vehicle generally was complete and in good condition.

      2. The vehicle’s frame was intact, and free from corrosion or holes.

      3. The vehicle’s engine, transmission and hood were intact and in place, as was its steering column and steering wheel. All were functional. Significant work had been done on the engine to enhance its cosmetic appearance, including installation of a chrome driveshaft and braiding cover over the wiring.

      4. The vehicle’s brakes were not seized.

      5. The vehicle’s body was in near perfect condition, with no significant damage.

      6. All of the vehicle’s chrome components were intact, including its bumpers, side fixtures, rear truck centre piece, exterior door handles and light assemblies.

      7. All of the vehicle’s lights, (front and rear), were intact and in place.

      8. The vehicle’s existing windshield and frame were present, although the windshield was cracked/broken. However, a new replacement windshield, with its frame, were in a box that was located in the rear of the 1936 Dodge pick-up truck when that vehicle was left with Mr Konarski. The replacement windshield was left in the possession of Mr Konarski.

      9. The interior of the vehicle generally was intact, with no torn carpeting, and its interior side panels, interior door latches, dashboard, instrument cluster and radio were in place However, the vehicle’s ignition had been removed. Both of the vehicle’s three-piece seats, (bracket, seat cushion and back cushion), had been disassembled in connection with the seats being upholstered, but all six pieces were still sitting in the interior of the vehicle went it went to Mr Konarski, and were among the vehicle components left with Mr Konarski.

      10. There were four high quality “Corvette” or after-market rims, (chrome with spokes), and corresponding high-quality Corvette tires, available to be placed on the vehicle, but they were not on the vehicle at the time. The rims and wheels attached to the vehicle at the time of its removal from the Wiarton property were plain black “normal” rims, just for a rolling chassis, and “scab” tires. The quality rims/wheels for the 1960 Corvette were located in the rear of the 1936 Dodge pick-up truck when that vehicle was left with Mr Konarski and were among the items left with Mr Konarski.

      11. I was not persuaded, on a balance of probabilities, that a new convertible top for the 1960 Corvette vehicle, still in its box, was left with Mr Konarski.

      12. The vehicle was capable of being started and operated on the road, had its ignition been replaced and its seats been put back into position.

    iii. The vehicle generally was capable of being operated on the road and, in April of 2015, had a licence sticker allowing for its road operation into 2017.

  d. In the circumstances, the aforesaid issues concerning the state of the 1960 Corvette vehicle and its components when they were entrusted to Mr Konarski are formally res judicata, and Mr Konarski’s continued attempts to suggest a fundamentally different state of affairs during the trial continuation process were inappropriate. In any event, I found Mr Konarski’s efforts to suggest that he essentially was entrusted with a 1960 Corvette that was little more than a significantly damaged shell on a rusted and rotten frame, with various interior components all in need of removal, to be wildly and ludicrously inaccurate. In that regard, and without limiting the generality of the foregoing:

    i. In my view, the evidence overwhelming supports a conclusion that Bob Kew’s 1960 Corvette was complete and laden with valuable components when it was entrusted to Mr Konarski’s care, and that many of those extant valuable components, (e.g., its frame, engine, transmission, chrome driveshaft and braiding, brakes, bumpers, side fixtures, rear trunk centre piece, exterior door handles and light assemblies, front and rear lights, new replacement windshield, carpeting, interior side panels, interior door latches, dashboard and seat cushion), nevertheless had been removed and were missing, (along with the new replacement windshield and four high quality Corvette or after-market rims and tires that also had been entrusted to Mr Konarski’s care), when the vehicle was returned to the plaintiff.

    ii. Those components accordingly were present when Mr Konarski received the vehicle and were gone when the vehicle was returned, without any evidence whatsoever to suggest that the vehicle and its components were ever exposed to the threat of damage through the agency of intervening third parties. To the contrary, the evidence suggests that, at all material times, the vehicles were under Mr Konarski’s exclusive possession and control when they were being stored in his shed.

    iii. I also think it significant that the “rotisserie” upon which Mr Konarski mounted the 1960 Corvette, after removal of its frame, admittedly was not limited to providing stability. It was also specifically constructed by Mr Konarski to facilitate the vehicle’s variable rotation, and ease of accessibility to the vehicle’s various areas; i.e., precisely the sort of mechanism one would desire if intent on stripping the vehicle of its various components.

    iv. I also think it significant that, of all the components related to the vehicle’s now missing frame, Mr Konarski professed to retain only two corroded bolts that were said to have helped secure the body of the 1960 Corvette vehicle to that frame. In my view, there really is no sensible and honest explanation for Mr Konarski to have proceeded in such a fashion. In particular:

      1. The two bolts themselves are obviously corroded, useless and worthless items. There is no sensible reason why Mr Konarski would have retained those bolts if they were removed from the vehicle at a time when Mr Konarski supposedly considered the vehicle to be his alone.

      2. Conversely, if those bolts were removed from the vehicle’s frame at a time when Mr Konarski anticipated or knew of a dispute regarding ownership of the vehicle and its components, (including its valuable frame), in my view it makes little or no sense that he would have retained only the bolts for anticipated evidentiary purposes, (i.e., to provide only indirect evidence suggesting the condition of the frame he was removing and supposedly discarding), without also taking steps to preserve and/or create very direct evidence of the removed frame’s actual condition; e.g., through retention of the frame itself, or by taking steps to take extensive photographs of the frame in a manner similar to the extensive taking of photographs when the 1960 Corvette vehicle and other vehicles belonging to the plaintiff were being returned pursuant to my partial judgment.

      3. In the circumstances, I found Mr Konarski’s selective preservation and presentation of evidence in that regard, in the form of the two rusted bolts he was said to have removed from the plaintiff’s 1960 Corvette, to be highly suspicious. Without limiting the generality of the foregoing, I did not find his explanation of having “just thrown them in [his] toolbox” and “saved them” because he did so “the odd time” if he found something to be “really different or odd”,and thought he might want “to show somebody” some day, to be credible or persuasive.

    v. While there is no direct evidence indicating what Mr Konarski did with the 1960 Corvette vehicle and its parts after they were entrusted to his care and exclusive possession, in my view the circumstantial evidence overwhelming supports a finding that he engaged in part stripping of the vehicle with a view to redistribution and resale of those components for personal profit. Mr Konarski had ample and exclusive opportunity in that regard. Throughout his testimony, he also implicitly if not expressly asserted his professed familiarity with vintage automobiles; i.e., repeatedly commenting on their attributes, components and value. However, he clearly did not share the extraordinary affection Robert Kew and his family had for that 1960 Corvette vehicle, or the corresponding sentimental value they placed on it. In my view, Mr Konarski instead looked on that vehicle and its components only as an opportunity for personal financial gain.

    vi. In my view, Mr Konarski also was notably evasive when squarely asked about such matters in cross-examination. For example:

      1. When asked whether it was his position that the 1960 Corvette had been delivered to him in the general “shell” condition it was in when returned to the plaintiff, Mr Konarski actually did not answer the question. He instead referred to his acknowledged removal of the vehicle’s frame, and his removal of the interior components he had returned to the plaintiff.

      2. When asked “Where are all the parts to the 1960 Corvette?”, Mr Konarski initially responded by pausing, before then saying “That’s a really good question”, and going on to add “I would have returned them if I had them”; i.e., without Mr Konarski actually indicating whether or not he had any knowledge of what had happened to the vehicle’s missing components.

    vii. Whether Mr Konarski still retains all or some of the components of the 1960 Corvette with a view to their eventual resale, or has already parted with some or all of them by supplying them to others in exchange for compensation, in my view the fundamental reality underlying this unfortunate situation is that Mr Konarski has obtained significant financial gain through the tort of conversion, while inflicting serious and substantial damage to the estate’s property; i.e., Robert Kew’s 1960 Corvette. Moreover, Mr Konarski has continued to lie about that underlying reality during the course of his sworn testimony in this proceeding.

4. Not all of Mr Konarski’s assertions regarding the plaintiff’s 1960 Corvette were put to Mr Coomber during the course of cross-examination, but Mr Coomber expressly disagreed with most of those which were. I prefer and accept the testimony of Mr Coomber in that regard, having regard to his credibility and established expertise in relation to such matters, all of which reinforced my impression that Mr Konarski not only lacked credibility but was also an unreliable witness. For example:

  a. Mr Konarski continued to assert that the frame of the vehicle was extensively corroded and “rotten”, whereas Mr Coomber explained why that definitely would not have been the case based on his examination of the remaining components of the vehicle.

  b. Mr Konarski pointed to visible rust on the returned radio of the vehicle in support of his assertion that there was a “fair bit of rust on the inside of the car”, but Mr Coomber explained why that was not indicative of more significant and widespread corrosion; i.e., because that was only “surface” rust, attributable to the fact that such components were plated “very lightly” when they came from the factory.

  c. Mr Konarski asserted that certain parts of the vehicle were made of steel which had rusted, whereas Mr Coomber testified that those parts actually were made of aluminum, which does not rust.

  d. Mr Konarski asserted that certain chips on the vehicle’s body would have been caused by stones and other debris thrown up during use of the vehicle, (e.g., while it was supposedly driven over gravel roads, although I do not accept that Robert Kew ever operated the vehicle in that fashion and accept Jason Kew’s testimony in that regard), whereas Mr Coomber explained why such chipping would not have been caused in that way in any event, and instead appeared to have been caused during the removal of components from the vehicle.

  e. Mr Konarski asserted that the original colour of the vehicle had been yellow, (an assertion he variously attributed somewhat vaguely to “research” he had conducted, to having seen some yellow underneath the vehicle’s windshield, to an uncertain memory of possibly having seen the vehicle when it was “gold” at some point in the past, and/or to hearsay evidence of having “talked to the guy that changed it to red”, whose name Mr Konarski could not and did not provide), whereas Mr Coomber explained why the vehicle clearly was red when it originally left the factory.

5. For the reasons outlined in greater detail herein, I was not inclined to attribute weight to the Kijiji advertisements located by Mr Konarski advertising other vintage vehicles and vehicle components for sale; e.g., having regard to the fundamental reality is that such items have highly idiosyncratic histories and conditions which makes assessment of their value difficult if not impossible without further information and inspection.

6. For such reasons, I simply did not believe or accept Mr Konarski’s self-interested testimony in any respect, except to the limited extent it was corroborated by other objective evidence such as photographs.

c. David Coomber was, in my view, an extremely impressive witness. In that regard:

i. There were no indications that Mr Coomber lacked credibility. In particular:

1. While he was firm in his testimony and opinions, it seemed clear to me that firmness emanated from confident belief in the accuracy of his findings and assessments, based on his extensive and detailed experience with the sourcing and repair of Corvette vehicles and their components, rather than any partisan inclination to favour one side or the other. Without limiting the generality of the foregoing, given his acknowledged reputation for high quality restoration work, and the apparently busy nature of his business operations in that regard, (warranting a recent increase in his hourly rates), in my view there was nothing to suggest that Mr Coomber needed the contemplated repair and restoration work to be done in relation to the plaintiff’s 1960 Corvette.

2. Mr Coomber exhibited no hesitation in agreeing with certain points put to him in cross-examination; e.g., about certain vehicle damage being caused by benign forces, the existence of some noticeable corrosion evident on certain remaining components of the vehicle, and the high quality of the vehicle the plaintiff would have following completion of the contemplated restoration work to be done in relation to the 1960 Corvette. He was similarly forthcoming in confirming what was unknown and unknowable, including appropriate qualifications to his answers where necessary. However, what he did know and was sure about was stated firmly and without hesitation, in a manner reflecting confident belief that certain realities simply were what they were, based on his observations and experience. In the result, I garnered a definite impression that Mr Coomber was simply intent on being objective and fair.

ii. I also formed a definite impression that Mr Coomber was a very reliable witness. Without limiting the generality of the foregoing:

1. As noted above, Mr Coomber has decades of experience dealing, in a very detailed and focused manner, with the sourcing, condition, mechanics and performance of vintage Corvette vehicles and their parts, including an acquired ability to assess the comparative quality of such vehicles and parts sourced from various locations around North America.

2. In my view, the depth of that experience and resulting knowledge was reflected in the testimony of Mr Coomber, who was able to provide not only direct and detailed responses to questioning about matters falling within his expertise and of immediate significance to the issues I had to decide, but also corresponding explanations and qualifications for those responses that made sense to me.

3. In my view, Mr Coomber’s testimony also was not successfully or meaningfully challenged in cross-examination.

iii. In the result, I was inclined to assign a great deal of weight to Mr Coomber’s testimony.

d. As for James McDougall:

i. I found Mr McDougall to be a reasonable and straightforward witness, and in my view there was no reason to doubt or question his credibility. Without limiting the generality of the foregoing, he appeared to have no connection with the parties, (apart from being called as an expert witness), nor any interest whatsoever in the substantive outcome of this litigation. He also answered questions directly and without hesitation. Moreover, he proactively referred to qualifying considerations in his testimony that effectively were favourable to the plaintiff rather than the defendant; e.g., indicating that the Corvette purchase and sale transactions to which he was referring and the accuracy of prices for Corvettes being offered for sale were dependent on the particular condition of the underlying vehicles, and/or that prices demanded in relation to vintage Corvettes had changed drastically upwards since some of the transactions he was describing. In the result, I had the impression that Mr McDougall also was doing his best to be fair and objective.

ii. Subject to the caveats noted below, I also generally did not think there was reason to question the reliability of Mr McDougall’s testimony, at least in terms of accepting the accuracy of his described dealings in relation to particular Corvette vehicles and parts, at specified prices.

iii. I nevertheless had concerns about the weight to be attributed to Mr McDougall’s testimony, in relation to the particular issues I was called upon to decide. Without limiting the generality of the foregoing:

1. Although Mr McDougall certainly had experience and knowledge going beyond that of the trier in relation to values attributed to assembled Corvette automobiles in Canada, (sufficient to address that requirement for his qualification as a witness qualified to provide expert opinion testimony), it seemed to me that his experience relating to potential valuation of the 1960 Corvette vehicle at the heart of this case was more attenuated than it otherwise might appear at first blush. For example:

  a. When indicating his experience with the purchase and sale of classic cars, and Corvette vehicles in particular, Mr McDougall emphasized that he had purchased and/or sold approximately 75 to 100 Corvettes over time, as well as his belief that, in doing so, he had purchased and/or sold every year model of Corvette from 1954 to the present. In my view, that information effectively provides an indirect indication that many of the Corvette vehicles bought and sold by Mr McDougall actually were not vintage Corvette vehicles manufactured in or around 1960; i.e., the year in which the plaintiff’s 1960 Corvette vehicle was made. In particular, of the 75 to 100 Corvette vehicles Mr McDougall has bought or sold, simple mathematics indicates that at least 53 of those Corvette vehicles must have been manufactured in or after 1970, (i.e., between 1970 and 2023, the year in which Mr McDougall was testifying before me), if he had indeed purchased or sold a Corvette vehicle made in each and every year between 1954 and the present.

  b. Although Mr McDougall said he had dealt with what he felt were “a lot” of 1961 Corvettes, (without the precise number being specified), and felt they were similar to Corvettes manufactured in 1960, he also acknowledged that he actually has dealt with “very few” 1960 Corvette vehicles; a reality that not only suggests more limited familiarity with purchases and sales of that particular Corvette model, but that 1960 Corvette vehicles are more rare, (e.g., more so than 1961 Corvettes), with rarity being a factor that usually enhances value.

  c. In my view, the examples of vintage Corvette values offered by Mr McDougall as a possible basis for comparison was frustratingly limited in its “sample size”, and did not suggest ready comparisons with the value of a 1960 Corvette vehicle in fully assembled (or near fully assembled) and very good if not excellent condition; i.e., the suggested condition of the plaintiff’s 1960 Corvette when it was entrusted to the defendant Mr Konarski.

  d. As Mr McDougall also acknowledged, the geographic scope of his experience in dealing with the purchase and sale of Corvette vehicles generally has been limited to Canada, and his transactions in that regard naturally have been more focused on those closer to the location of his dealership in Goderich, Ontario. The geographic limits of Mr McDougall’s experience in that regard are perfectly understandable in the circumstances. However, when assessing the value of a well-maintained and fully assembled Corvette automobile, it seems to me that reliance on prices Mr McDougall was able to realize when selling such vehicles from his dealership in Goderich, Ontario, may very well not be indicative of the values capable of being realized when other more distant but still accessible resale locations are considered; e.g., locations such as various regions of the United States, noted by Mr Coomber in his testimony, where higher prices are paid for such vehicles and paid in American dollars.

  e. As Mr McDougall also acknowledged, he has dealt almost exclusively, (i.e., with one noted exception), in Corvette vehicles that are fully assembled and generally operational or roadworthy. In my view, it follows that, despite being a licenced mechanic, Mr McDougall has never disassembled or reassembled such vehicles in order to carry out more detailed inspections to assess the true condition of their underlying components and mechanics in any manner similar to that described by Mr Coomber. In other words, the prices and values assigned to the Corvette vehicles in respect of which Mr McDougall has had dealings were based on observations and inspections that inherently were more superficial than the valuations described by Mr Coomber.

2. As noted above, the testimony of Mr McDougall also repeatedly reflected a recognition, similar to that emphasized by Mr Coomber, that every vintage Corvette essentially and inevitably will have a different history of use, maintenance and repair, (now extending over a lengthy period of time), such that the resulting condition of each vintage Corvette necessarily will be distinct and fact dependent. For example, as noted above, when Mr McDougall provided examples of prices at which particular Corvettes he had dealt with had been bought or sold, he was careful to describe the specific attributes of the vehicles in question; e.g., the extent to which a vehicle was fully assembled or not, the vehicle’s apparent overall condition and state of restoration of its cosmetic and mechanical features, and the particular condition of various specific components of the vehicle, (such as its body, painted surfaces, interior and frame), as well as its operational status and roadworthiness. As also noted above, Mr McDougall was similarly careful to qualify his assessment of the prices being sought in relation to vintage Corvettes advertised for sale by emphasizing that whether the price demanded accurately reflected the vehicle’s value would depend on whether the actual state of the vehicle corresponded to its written description in the advertisement, and on a personal inspection of the vehicle to determine its actual condition. In my view, that underlying recognition of the idiosyncratic nature of such vintage Corvette automobiles has significant implications in relation to this case, both specific and general. In particular:

  a. It made the value of evidence of advertised vintage Corvette pricing, relied upon by Mr McDougall and the defendant, essentially dependent on underlying conditions and/or assumptions that effectively were incapable of being tested, challenged or assessed in this proceeding.

  b. It highlighted the difficulty in assigning a value to the plaintiff’s specific 1960 Corvette immediately prior to the damage inflicted upon it by the defendant; i.e., when the ability to make a thorough and detailed inspection of that vehicle and its components, to determine their precise condition immediately prior to the infliction of such damage, effectively was prevented and irrevocably destroyed by the defendant’s tortious conduct.

  c. It underscored, in my view, the inappropriateness if not folly of approaching the assessment of damages in this case, (and particularly the question of whether those damages should be based on the cost of replacement rather than repair), as if there was an underlying open market of readily available and effectively interchangeable “perfect substitutes” or “near perfect substitutes”, (to use the language of economists), for the inherently unique property which has been damaged by the defendant’s tortious conduct. There simply is no such market; e.g., bearing in mind that the last 1960 Corvettes came off their assembly line 64 years ago, that the resulting finite supply of 1960 Corvettes inevitably has dwindled with the passage of time, and that even two surviving and originally identical 1960 Corvettes produced immediately one after the other would now have had an intervening 64-year history of divergent use, maintenance and repair inevitably resulting in their each having a distinct, very fact dependent, and almost certainly different condition today.

3. For such reasons, I was not inclined to attribute significant weight to Mr McDougall’s testimony.

e. As for Stephanie Konarski:

i. In my view, Ms Konarski presented as a pleasant and cooperative witness. Despite having what may have been an understandable inclination to support her father, it appeared to me that there was nothing else to suggest that she lacked credibility. To the contrary, she provided her testimony in a candid and straightforward manner, and readily indicated the limits of what she was and was not able to remember.

ii. I nevertheless did have concerns about the reliability of Ms Konarski’s observations and memories. In particular:

1. As she herself acknowledged, she was not in her father’s shed to inspect the vehicles therein during the occasion she described from the summer of 2015. She admittedly was there for another purpose, (i.e., the retrieval of her seasonal items), and had occasion to look at the 1960 Corvette only because it was something she was intent on bypassing to get to her items, which were the focus of her attendance.

2. I also think it reasonable to infer that Ms Konarski was somewhat distracted by other responsibilities at the time; i.e., insofar as she simultaneously was minding a young toddler who was just learning to walk, and who no doubt needed to be safeguarded while walking around in a farm shed containing vehicles, equipment and other items.

3. Ms Konarski also admittedly was not in the farm shed for an extended period of time; i.e., perhaps as little as 20 minutes, during which she was focused on minding her daughter and retrieving her items.

4. In short, Ms Konarski had little opportunity or reason to make or remember any detailed observations about the plaintiff’s 1960 Corvette during the described visit to her father’s farm shed in the summer of 2015; something reflected in her inability to recall whether the vehicle’s lights or chrome fittings were intact, which in my view is something that would have been readily noticeable and memorable if Ms Konarski had paid any significant attention to the vehicle.

5. I also think it noteworthy that, despite apparently being present at her father’s farm property during return of the plaintiff’s vehicle for the purpose of taking photographs in that regard, (i.e., to help document the state of affairs on that occasion), Ms Konarski was completely unable to provide any indications about the state of the 1960 Corvette vehicle at that time, apart from the fact it was on a rotisserie. Nor was she able to recall even the colour of the vehicle with clarity. Such inabilities reinforced my doubts about Ms Konarski as a reliable witness; i.e., as someone generally inclined and/or able to make and recall accurate observations of what she may have witnessed.

iii. Beyond the above considerations, it seemed to me that Ms Konarski’s recollections concerning the state of the plaintiff’s 1960 Corvette in the summer of 2015 actually had little import in terms of the issues I had to decide, (e.g., as to what damages Mr Konarski may have inflicted on that vehicle after it was entrusted to his care), at least in terms of her suggesting that the vehicle was in “poor” or “rough” shape, unroadworthy or incomplete when she first saw it on the occasion she described. In particular, by July or August of 2015, the plaintiff’s 1960 Corvette had been in Mr Konarski’s exclusive and private possession for three to five months, which would have provided him with more than enough time and opportunity to begin stripping the vehicle of its components in a significant and substantial way, in turn leading to the sort of appearance described by Ms Konarski.

iv. In the result, I was not inclined to attribute much weight or significance to Ms Konarski’s testimony either.

Claims abandoned by plaintiff

[69]

Claims Abandoned by Plaintiff

As noted above, both the initial report and supplementary report of the referee include indications that the plaintiff formally abandoned certain of her claims at the time of the reference. In particular:

a. In his initial report dated April 28, 2021, the referee said this: “Initially, the Plaintiffs (sic) were making claims for damages to the other vehicles, [i.e., vehicles other than the 1960 Corvette vehicle addressed by the referee in the preceding paragraph], but those claims were withdrawn and accordingly there will be no award in relation to the other vehicles”.

b. In his supplementary report dated February 28, 2022, the referee said this: “At the time of the hearing, the Plaintiff withdrew all of their (sic) claims on vehicles other than the Corvette”.

70The accuracy of those indications was in no way disputed during the course of the trial continuation proceedings before me, and it was submitted on behalf of the defendant that those aspects of the referee’s reports should be confirmed.

71However, counsel for the plaintiff indicated that the plaintiff wished to advance certain claims in relation to vehicles other than the 1960 Corvette, and therefore was permitted to lead evidence in that regard; i.e., with a view to my making a determination, in the course of my final judgment, as to whether or not those aspects of the referee’s reports should be confirmed pursuant to Rule 54.08 of the Rules of Civil Procedure, and if they were not confirmed, whether some “other order as is just” might be appropriate in the circumstances.

72In my view, the aspects of the referee’s reports concerning withdrawal of “claims for damages to the other vehicles” should be confirmed, for reasons that include the following:

a. Again, there was no suggestion that the referee’s indications of such claims being withdrawn were inaccurate. Nor was there any evidence presented to suggest that the referee’s findings or conclusions in that regard were in any way incorrect.

b. In the course of the trial continuation proceedings, (including counsel submissions), I was presented with no explanation or justification for the plaintiff withdrawing or abandoning such claims before the referee but deciding to advance them again during the trial continuation proceedings before me. Certainly, such a change of position seems unrelated to any delayed disclosure of relevant information to the plaintiff. By the time of the proceedings before the referee, all of the plaintiff’s vehicles, (whether damaged or not), apparently had been returned to the plaintiff. Any property damage said to have been inflicted by the defendant on the vehicles, via part removal or otherwise, accordingly would or should have been apparent to the plaintiff by then, through the exercise of reasonable diligence.

c. I think it inappropriate to allow such claims to be advanced at this stage of the proceedings, bearing in mind the context noted and emphasized above. In particular, this is not simply a regular trial proceeding in relation to such claims. I instead am deciding such issues in the context of a Rule 54.08 motion for confirmation of the referee’s reports. To permit the plaintiff to advance such additional claims now, for “damages to the other vehicles”, essentially would permit the plaintiff to “leapfrog” over a mandated step in the underlying proceedings. In particular, it effectively would permit the plaintiff to remove such issues from the ambit of preliminary consideration by the referee, (where such issues were to be considered initially, pursuant to the terms of my order directing the reference), in order to raise them before me now without the benefit of the referee’s input.

73While that would suffice to reject such claims in the context of my final judgment, I will add that, in my view, the additional claims the plaintiff wished to advance in that regard were not substantiated in any event. Without limiting the generality of the foregoing:

a. The particular claims advanced by the plaintiff in that regard were relatively modest and, (as noted above), essentially were limited to assertions that, in relation to the 1956 Dodge Custom Royal vehicle:

i. another set of “chrome-spoked” rims and “whitewall” tires for the vehicle were delivered to Mr Konarski and not returned;

ii. a record player available as a special option with that particular model of vehicle, (which Robert Kew was said to have purchased for the vehicle), was delivered to Mr Konarski and not returned; and

iii. there had been some minor “disassembly” of the vehicle’s interior, (i.e., insofar as it had been “kind of taken apart a little bit”, with seat pieces loosened), although all of the interior pieces were still there when the vehicle was returned.

b. While I generally was disinclined to accept Mr Konarski’s evidence in relation to such matters, (for the reasons outlined above), I nevertheless also felt that that the evidence presented by the plaintiff to substantiate such claims fell short of establishing an entitlement to any damages in that regard on a balance of probabilities. Without limiting the generality of the foregoing:

i. As for the added set of “chrome-spoked” rims and “whitewall” tires that were said to have been delivered to Mr Konarski with the 1956 Dodge Custom Royal vehicle and not returned:

1. Jason Kew asserted that those items were “missing” after Mr Konarski’s return of vehicles and parts pursuant to my order, implying that the items had been entrusted to Mr Konarski and wrongly retained by him when vehicles and parts had been returned to the plaintiff. In my view, it nevertheless emerged in cross-examination that Jason effectively was making inferences or assumptions in that regard which may or may not have been accurate. In particular:

  a. Jason acknowledged that he actually was not certain whether or not he had been present when the 1956 Dodge Custom Royal vehicle was transferred from his father’s property to the property of Mr Konarski for storage.

  b. Jason also confirmed that he actually had no direct observations or memory of seeing the relevant rims and tires go to the defendant’s property, but instead was drawing inferences based on other things he had heard and seen.

  c. In that regard, Jason acknowledged that he simply knew “through [his] dad” that his father had been storing the 1956 Dodge Custom Royal vehicle at the property of his father’s neighbour, and that the relevant rims and tires had been stored there with the vehicle at one point. That information, combined with Jason’s view that the neighbour would not have withheld the rims and tires, that his mother and those helping her would not have left four “very obvious” rims and tires “sitting in the guy’s house”, and that the “mission” of his mother and those helping her to safeguard his father’s vehicles and parts was “to keep all the parts together”, had led Jason to believe that the relevant rims and tires had been transported to Mr Konarski’s property at the same time as the 1956 Dodge Custom Royal, and were retained by Mr Konarski when the vehicle was returned.

  d. In the result, Jason clearly was not only making inferences and/or assumptions, but basing them at least in part on hearsay information, and hearsay information that may have been out of date by the time the estate’s vehicles and parts were being left with Mr Konarski. In particular, even if Robert Kew had left the relevant rims and tires at the neighbour’s property at some point in time, that leaves open the distinct possibility that he may have removed them from that location for some reason before his death. In that regard, I note, for example, Jason’s admission in cross-examination that he was not sure if his father had ever had the relevant rims “re-chromed”, and Jason’s acknowledgment that his father may have been in the process of taking steps in that regard at the time of his death.

  e. I also note that, to the extent Jason was basing his inferences on a belief that the vehicles and their parts were all being kept together, other evidence I received in the course of the proceedings before me indicates that premise was not entirely accurate. Indeed, even in relation to the 1956 Dodge Custom Royal, there was no dispute that the plaintiff knowingly had kept various parts of the vehicle, (e.g., its chrome components, gold ornaments, windows, interior side panels and rear seat), at a location or locations separate and apart from the vehicle in question when it was being stored at Mr Konarski’s property.

  f. In short, the simple fact of the matter is that Jason had no direct evidence to indicate that the relevant rims and tires were with the 1956 Dodge Custom Royal vehicle when it was retrieved from the property of his father’s neighbour, nor any direct evidence to indicate that those items were ever left with Mr Konarski.

2. For her part, Marie Kew indicated in her testimony, (as noted above), that she knew there had been “chrome wheels” and “whitewalls” for the 1956 Dodge Custom Royal vehicle, and that neither she nor other members of her family had those items now. However, she also candidly confirmed that she could not remember after eight years if those items had been put in a vehicle and delivered to the defendant or not and, (as also noted above), that she was “not gonna lie or make things up” in that regard. In my view, her testimony also therefore fell short of establishing, on a balance of probabilities, that the relevant rims and wheels were ever entrusted to the defendant.

3. In any case, I was presented with no additional evidence to suggest, let alone support, any value of the relevant rims and tires Mr Konarski was said to have taken and not returned.

ii. As for the record player that was said to have been delivered to Mr Konarski and not returned:

1. Jason Kew asserted in the course of his initial trial continuation testimony that the item was in the trunk of the 1956 Dodge Custom Royal vehicle when it was delivered to Mr Konarski. In my view, it nevertheless emerged in cross-examination that Jason once again was simply making an inference or assumption in that regard, and one which may or may not have been accurate. In particular:

  a. As noted above, Jason could not recall whether or not he had even been present when the 1956 Dodge Custom Royal was transported from his father’s property to the property of Mr Konarski.

  b. Nor did Jason’s testimony include any indication or suggestion that he actually had seen the relevant record player go to the defendant’s property, whether in the trunk of the 1956 Dodge Custom Royal or otherwise.

  c. Jason instead once again effectively confirmed that he was drawing inferences or making assumptions based on other things he had heard and seen. In particular:

    i. Jason recalled that his father had a general practice or habit of usually keeping interior parts of his vehicles in those vehicles;

    ii. Jason saw the record player in its relatively small box when his father first purchased it, and felt it easily could have been put in the trunk of the 1956 Dodge Custom Royal;

    iii. After his father’s initial purchase of the record player in question, Jason saw that his father kept it for a time on certain shelving in the garage of the residence Jason shared with his father, after which Jason noted that it had been removed from the shelving by someone who must have been his father, as Jason and his father were the only ones with access to the garage in question, and Jason knew he had not moved the item; and

    iv. Jason therefore assumed that his father had removed the record player from the shelving in the garage and placed it in the interior of the 1956 Dodge Custom Royal vehicle, and inside its trunk in particular.

  d. In my view, such evidence falls short of establishing on a balance of probabilities that the relevant record player was ever in the trunk of the 1956 Dodge Custom Royal vehicle, or that it was in that trunk when the vehicle was entrusted to Mr Konarski. Apart from Jason’s lack of direct evidence in that regard, I also note that the assumptions upon which he was basing his inferences seem questionable. In particular:

    i. As he himself noted, his father admittedly did not always keep such interior vehicle components in the vehicles with which they were associated. In particular, in relation to the record player itself, Jason’s father admittedly did not place that item in the interior of the 1956 Dodge Custom Royal immediately, but kept it on shelving in the garage for some period of time.

    ii. I also note Jason’s indication that the record player in question was a “very delicate” item. While he emphasized that point to explain why it would not have been removed from its box, the delicate nature of that particular item suggests another reason why Robert Kew might not have simply left the item in the trunk of the vehicle, where it might have been temporarily forgotten and damaged by heavier items being placed on top of it.

2. Marie Kew offered no testimony in support of suggestions that Mr Konarski had retained the record player in question.

3. In any case, I was presented with no additional evidence to suggest, let alone support, any value of the relevant record player Mr Konarski was said to have received and not returned.

iii. As for the minor “disassembly” of certain interior components of the 1956 Dodge Custom Royal that was said to have occurred while the vehicle was in Mr Konarski’s possession:

1. The evidence I received in that regard from Jason Kew was rather vague, and certainly did not suggest that there had been any lasting or significant damage to any components of the vehicle’s interior, all of which admittedly were still present when the vehicle was returned to the plaintiff.

2. In any case, I was presented with no additional evidence to suggest, let alone support, any value to be attributed to the labour or other expense that might have been required to correct whatever degree of minor “disassembly” may have occurred in that regard.

74For all of the above reasons, no relief shall be granted for “damages to the other vehicles”; i.e., vehicles other than the 1960 Corvette.

Remaining Issue No. 1 – Monetary compensation to be received by plaintiff in relation to vehicles or parts not returned to the plaintiff’s possession

[75]

Remaining Issue No. 1: Non-Returned Vehicles or Parts

As noted above, one of the remaining issues the referee was asked to consider was the monetary compensation, if any, which the plaintiff should receive from the defendant in relation to any vehicles or parts not restored to the plaintiff’s possession by the defendant, as directed by the order set forth in my partial judgment rendered on August 5, 2020.

76That issue was intended to address the possibility of the defendant failing to return, in any manner whatsoever, any or all of the four specified vehicles he was ordered to return pursuant to sub-paragraph 82(a) of my partial judgment, (i.e., the 1936 Dodge pick-up truck, the 1956 Dodge Custom Royal, the 1960 Corvette and/or the 1992 BMW), and/or the parts associated with the 1954 Corvette vehicle. The plaintiff, in that scenario, would be entitled to compensation for the tort of conversion associated with complete and permanent deprivation of the property in question.

77That possible scenario was intended to stand in juxtaposition with a different one; i.e., wherein the defendant returned some or all of those specified vehicles and parts, but in circumstances where the plaintiff would be entitled to compensation associated with temporary deprivation of the specified item or items in question and/or the return of that property in a damaged condition. That alternative scenario was intended to be addressed by the second remaining issue the referee was asked to consider, addressed in further detail below.

78As noted above, at sub-paragraph 32(b)(iii), I could not discern with certainty, from the referee’s initial report, precisely what vehicles and parts were and were not returned to the plaintiff by the defendant. Nor did the referee’s supplemental report provide requested clarity and confirmation in that regard.

79However, my decision that the plaintiff shall not recover damages/compensation in relation to vehicles other than the 1960 Corvette also simplifies the matters to be decided in relation to the first remaining issue; i.e., insofar as the question effectively is reduced to one of whether the 1960 Corvette was returned to the plaintiff or not.

80In that regard, the referee provided a direct answer in his supplemental report; i.e., indicating that, “by the time of the hearing” before the referee, “the Corvette had been returned to the Plaintiff”. [Emphasis added.]

81In my view, that aspect of the referee’s supplemental report should be confirmed. In particular, property is merely considered to be damaged where damage falls short of destruction, and in my view the relevant property in this case, (i.e., the 1960 Corvette), was not destroyed. While the plaintiff’s 1960 Corvette was returned in a significantly damaged state, with many of its components missing, it was returned. Without limiting the generality of the foregoing, significant and substantial components which made the vehicle particularly identifiable from the perspective of the plaintiff and the estate’s beneficiaries, (i.e., the vehicle’s intact body), and identifiable from a more objective standpoint, (e.g., its steering column bearing the vehicle’s unique serial number), were returned to the plaintiff along with numerous other components.

82In my view, the plaintiff accordingly is not entitled to compensation in relation to the 1960 Corvette as a vehicle that was not returned to her possession.

83The referee essentially indicated that same conclusion in his supplemental report, in the following words: “As a result, there was no award contemplated under General Issue No. 1”.

84In my view, that aspect of the referee’s report and/or supplemental report should be confirmed as well, and the plaintiff’s claim to compensation in relation to the 1960 Corvette should instead be addressed by the second remaining issue.

Remaining Issue No. 2 – Monetary compensation to be received by the plaintiff in relation to vehicles or parts returned to the plaintiff’s possession

[85]

Remaining Issue No. 2: Returned Vehicles or Parts

As noted above, that second remaining issue which the referee was asked to consider, in relation to a vehicle like the 1960 Corvette restored to the plaintiff’s possession by the defendant pursuant to my order, was the monetary compensation, if any, the plaintiff should receive from the defendant for damages inflicted on the vehicle, or other diminution in value of the vehicle, during the period in which the vehicle was in the defendant’s possession.

86The referee did purport to make a determination in relation to that issue; i.e., suggesting that the plaintiff should receive a total of $50,000.00 in compensation for damages inflicted in relation to the plaintiff’s 1960 Corvette.

87I nevertheless think it inappropriate to confirm the referee’s report and/or supplemental report in that regard, for reasons that include the following:

a. In ordering the reference, I expressly and specifically directed that that the referee was to be bound by, and have regard to, the findings and declarations set forth in specified paragraphs of my partial judgment rendered on August 5, 2020. However, his reports contain no express indication that the referee considered and/or felt himself bound by those specific findings of fact and corresponding declarations, and there are indications he did not. For example, the referee makes reference to the plaintiff’s “belief” that licence stickers had been purchased for the 1960 Corvette vehicle so that it was capable of being driven on the road, suggesting that there was uncertainty in that regard and/or that the point was still in dispute, whereas I had made an express finding about such matters at sub-paragraph 91(b)(c) of my partial judgment. Similarly, the referee refers to the “spoke wheels” for the vehicle having remained with the plaintiff, whereas I made an express finding to the contrary at sub-paragraph 91(b)(x) of my particular judgment; i.e., finding that those four high quality “Corvette” or after-market rims and corresponding high-quality Corvette tires had been entrusted to the defendant. In my view, a reasonable inference is that that the referee proceeded without regard to and/or acceptance of my factual findings, and therefore on the basis of a factual understanding that was faulty and/or incorrect, at least in part. I nevertheless am left without any means of determining how far those factual errors may have extended.

b. As noted above, at sub-paragraph 23(d)(iii) of these reasons, in ordering the reference I also expressly and specifically directed that the referee was to consider, (amongst other things), the seven specific matters set out therein. The referee provided no indication or confirmation that he had done so, even after he was asked to provide clarification and confirmation in that regard pursuant to the request for further reasons made pursuant to Rule 54.08(1) of the Rules of Civil Procedure. Nor was that the referee’s only failure to provide further reasons in response to that detailed request. In the result, I once again am left without any means of determining whether or not the referee, in arriving at his conclusions regarding compensation for damage to the 1960 Corvette, carried out his analysis in accordance with my directions. Moreover, in my view, the referee’s apparent reluctance to provide such requested clarification and confirmation gives rise to a reasonable inference that the requested responses would have raised concerns in that regard.

c. In my view, the reasons the referee did provide, in his initial and supplemental reports, suggest errors of principle and/or law that also undermine his stated determinations. Without limiting the generality of the foregoing:

i. The plaintiff’s request for damages to her property assessed on the basis of repair/restoration cost was dismissed essentially out of hand by the referee; i.e., with brief comments that the plaintiff’s expert evidence in that regard contemplated restoration of the 1960 Corvette vehicle to “show condition” whereas the referee felt it had not been in that condition prior to the defendant’s wrongful interference with the plaintiff’s property. As noted in more expansive detail below, the applicable legal principles to be applied in determining whether such damages should be assessed on the basis of cost of repair/restoration or cost of replacement are more complex and nuanced and require consideration of factors to which the referee apparently never directed his attention. As also noted in more detail below, the possibility of “betterment” does not negate the possibility of such damages being assessed on the basis of cost of repair/restoration; it simply gives rise to other concerns about whether and how the possibility of “betterment” should be addressed, (e.g., by way of a possible deduction from the damages otherwise awardable in that regard), including consideration of the defendant’s onus of proof in relation to betterment, and whether sufficient evidence has been tendered to establish not only the existence of betterment but also its quantification. The referee engaged in none of that required analysis.

ii. Even when focused on assessment of such damages calculated on the basis of replacement cost, the referee seems to have proceeded on a basis suggesting other errors in principle. Without limiting the generality of the foregoing, even if one accepted that there was an open market capable of establishing the cost of a suitable replacement for the plaintiff’s 1960 Corvette and that such a suitable replacement is reasonably available, (both of which are doubtful in my view for reasons outlined herein), the referee seems to have restricted his focus entirely to objective market value, without any consideration whatsoever of the subjective value placed on the plaintiff’s particular 1960 Corvette vehicle by Robert Kew, his estate representative, and his estate beneficiaries. As indicated by the authorities noted herein, such an approach also is contrary to principle.

88In the circumstances, I decline to confirm those aspects of the referee’s reports, and feel compelled to address such matters de novo.

89As noted in more detail below, the plaintiff effectively sought various forms of compensation in that regard as a result of the defendant’s tortious conduct and acts of conversion in particular; i.e., focusing principally on a claim for compensation relation to the tortious property damage inflicted in relation to the 1960 Corvette, but seeking other damages as well.¹⁵

90I will address those various heads of suggested damages in turn.

GENERAL PRINCIPLES – CALCULATION OF TORTIOUS DAMAGE TO PROPERTY

[91]

General Principles: Calculation of Tortious Damage to Property

General principles applicable to the assessment of damages for tortious damage to property include the following:¹⁶

a. Victims of tortious interference with property interests generally are to be restored to their status quo ante in monetary terms.¹⁷ In other words, the basic principle of damage assessment is that the party complaining should be put in as good a position as he or she would have occupied if the wrong had not been done. Indeed, it has been emphasized that the dominant rule of law in this area is that principle of restitutio in integrum, and that subsidiary rules can only be justified if they give effect to that rule.¹⁸

b. In practice, damages for tortious interference with property interests are assessed by reference to diminution in value resulting from the defendant’s tort, which can sometimes be assessed by the difference in market value of the relevant property before and immediately after the defendant’s tortious conduct.¹⁹

c. Flexibility is nevertheless required in assessing the appropriate value to be used in particular cases, with courts refraining from “slavish adherence” to use of pre-tort market value of damaged property.²⁰ Indeed, diminution in value is normally assessed by reference to the reasonable cost of restoration necessary to bring damaged property back to its pre-damaged condition, with the cost of restoration often being accepted as the appropriate measure of the plaintiff’s loss for damage to property, without any reference to its pre-accident market value.²¹ In that regard, courts generally do not have a problem with a plaintiff’s insistence on having damaged property restored exactly to its pre-damaged condition, (as opposed to the plaintiff being obliged to accept damages measured by the cost of a supposed replacement), as such a desire is consistent with restitutio in integrum.²²

d. Difficulties in awarding damages calculated by reference to the cost of restoration may arise, however, in cases where the costs of repair greatly exceed the cost of a supposed replacement. In such cases, courts may limit the plaintiff’s damages to the cost of replacement, rather than award damages based on the costs of repair; an approach consistent with a plaintiff’s duty to mitigate losses sustained as the result of a defendant’s tortious conduct. In other words, in certain cases, the principle of restitutio in integrum sometimes may be subordinated to another principle; i.e., that of awarding damages that are reasonable as between the plaintiff and the defendant.However, courts remain flexible in determining what is fair and just in a given case, and a plaintiff will be entitled to the higher costs of repairs when it is the most reasonable means of achieving restitutio in integrum, having regard to all the circumstances of a particular case.²³ Factors to be considered in determining whether to assess damages on that basis, (i.e., the cost of repair/restoration rather than the cost of replacement), include the following:²⁴

i. the uniqueness of the property in question;²⁵

ii. the availability of a reasonable replacement on the open market;²⁶

iii. the difference between the cost of repair/restoration and the cost of replacement;²⁷

iv. the plaintiff’s interest in having the item repaired;²⁸ and

v. the benefits of reinstatement to the plaintiff weighed against the burden imposed on a defendant of having to pay the higher cost of repair/restoration.²⁹

e. Where a court exercises its discretion to award damages for tortious damage to property assessed on the basis of cost of repair/restoration rather than cost of replacements, doing so may give rise to concerns relating to “betterment”. In that regard:

i. It often will be impractical to repair damaged property with old and worn-out material, and it commonly occurs that a plaintiff, in “making good” damage to property, will not be able to restore himself or herself precisely to his or her “pre-loss position” without improving it. For example, substitution of new components for old may enhance the value of the property in question, compared to its pre-damaged state. Plaintiffs awarded damages assessed on the basis of repair/restoration costs therefore might end up with an asset more valuable after such repairs than they had before the defendant’s tortious interference with their property. In other words, such plaintiffs may be in a better position after satisfaction of such a judgment than if the damage had not occurred in the first place.³⁰

ii. Competing principled views have developed in relation to how the law should approach the “betterment” potentially enjoyed by such plaintiffs in such situations. In particular:

1. On the one hand, the principle of restitutio in integrum suggests that there should be an allowance or deduction made for such “betterment” in the assessment of damages based on the cost of repair/restoration, in order to ensure that the plaintiff does not obtain a windfall at the defendant’s expense. In other words, the damages otherwise awarded to the plaintiff, based on the cost of repair/restoration, arguably should be reduced by the value of the improvement of the plaintiff’s position.[^31]

2. On the other hand are numerous countervailing concerns that deductions for “betterment” are prejudicial to the interests of plaintiffs who have been wronged, and therefore should be avoided. In particular:

  a. the value of an asset is not necessarily enhanced after repairs or reinstatement;

  b. making such a deduction could compromise the plaintiff’s ability to carry out repairs and therefore be restored to the state of affairs prior to the defendant’s tortious conduct unless the plaintiff can afford to invest in the improvements; and

  c. such an approach raises concerns about plaintiffs effectively being forced to improve their property when they might not have intended to do so but for the defendant’s wrong, and/or being forced to invest money in enhancement sooner than they might otherwise have done.[^32]

3. English courts generally are committed to the latter view; i.e., holding that a plaintiff is entitled to recover the full cost of repair/restoration in such cases, irrespective of any improvement in the plaintiff’s position. In particular, if a plaintiff incidentally derives a greater benefit than mere indemnification through an award of damages based on the cost of repair/restoration, that is said to arise only from the impossibility of otherwise effecting such indemnification without exposing the innocent plaintiff to the risk of some loss or burden which the law will not place on him or her. Even in cases where a plaintiff thereby obtains “new for old”, the defendant wrongdoer is not permitted to diminish the plaintiff’s claim on that account.[^33]

4. Canadian courts have not consistently adhered to one approach or the other; i.e., with some holding that “betterment” of the plaintiff’s property may be taken into account to reduce damages otherwise awarded on the basis of repair/restoration costs, and some holding that a defendant is not entitled to the benefit of any deduction in respect of betterment where repairs were necessitated solely by the defendant’s wrongdoing.[^34] In other cases, a compromise has been adopted, with a deduction being viewed as appropriate where repairs will result in a net increase in the value of the plaintiff’s asset, but the plaintiff then receiving additional compensation for the losses effectively imposed on the plaintiff in being forced to spend money her or she otherwise would not have spent, or as soon as was required by the damages occasioned by the tort, in cases where appropriate evidence is available to make such determinations.[^35]

iii. In any event, while a plaintiff bears the burden of demonstrating the expenses associated with repair/restoration, it clearly is up to the defendant to establish the existence of any resulting betterment and its quantification. In other words, the onus is on a defendant to prove not only that repairs have resulted or will result in betterment but also the value of an alleged improvement, before any such deduction for betterment will be made from an award of damages based on the cost of repair/restoration.³⁶

PROPERTY DAMAGE QUANTIFICATION IN THIS CASE

[92]

Property Damage Quantification

The completing positions of the parties, in relation to assessment of the damages to be awarded for property damage inflicted on the plaintiff’s 1960 Corvette by the defendant, differed dramatically. In particular:

a. It was contended on behalf of the plaintiff that the only reasonable approach capable of satisfying the interests of justice, in this particular case, was to award the plaintiff an amount of damages equal to the anticipated costs of repair/restoration set forth in the quotation provided by Mr Coomber, updated as of May 31, 2023. No deductions in that regard were suggested or conceded, apart from those implicit in the limits of the prayer for relief set forth in the plaintiff’s pleading in its final amended form.

b. It was contended on behalf of the defendant that such damages should be assessed in the amount of $25,000.00 to $35,000.00, which was said to be a fair assessment of damages based on a suggested cost of replacement. In particular, it was argued that “replacement cost is the appropriate measure of damages in cases of tortious damage to chattels”, that it was “unnecessary to resort to an alternate measure of damages”, and that “the best and most reasonably way to make the plaintiff whole would be to purchase a complete, original driving 1960 Corvette, having substantially original General Motors parts, possibly, or likely, in better condition than the plaintiff’s vehicle, for a price in the order of $25,000 to $35,000”.

93In my view, the particular circumstances of this case warrant a finding that the requested costs of repair/restoration provide an appropriate assessment of the monetary award needed to compensate the plaintiff for property damage inflicted by the defendant’s tortious conduct, subject to the possible deductions or other adjustments addressed below. I have arrived at that conclusion for many reasons, but they include the following:

a. In my view, the plaintiff’s 1960 Corvette unquestionably was damaged, and damaged significantly, through the defendant’s wrongful and inexcusable interference with that property via the tort of conversion. Without limiting the generality of the foregoing:

i. The vehicle was entrusted to the defendant’s care with the maintenance history, components and condition outlined in detail in paragraph 91 of my partial judgment released on August 5, 2020.

ii. The vehicle was returned to the plaintiff with its body essentially intact but extensively damaged through chips, gouges and scrapes, (which I find to be attributable to the intervening conduct of the defendant), otherwise substantially dissembled, (through the intervening conduct of the defendant), and with the defendant having deliberately stripped the vehicle of many of its valuable components, and the defendant then retaining and converting to his own use all of those components apart from the vehicle’s aforesaid body and the components depicted in the photographs found in Exhibit 3 of the trial continuation, at Tab 3, pages 38 through 41 conclusive.

iii. In the result, the plaintiff entrusted the defendant with a carefully maintained and complete family heirloom, highly prized by Robert Kew, his estate trustee and estate beneficiaries, only to have the defendant grudgingly return that beloved item years later in a severely (but not irreparably) damaged condition.

iv. For the sake of completeness, I note my rejection of defence suggestions that the frame of the vehicle or its other components were in any way severely damaged or compromised by corrosion, misalignment of the vehicle’s body and/or prior cavalier operation, ill treatment or poor care and maintenance of the 1960 Corvette before the vehicle was entrusted to Mr Konarski. I similarly reject the suggestion that any significant deterioration of the vehicle’s paint was caused by prior improper painting, as opposed to the conditions in which the vehicle was stored for years while Mr Konarski retained the vehicle and refused to return it to the plaintiff’s possession.

b. I also am mindful throughout this remedial exercise that Robert Kew, his estate representative, and his estate beneficiaries are entirely blameless for this unfortunate state of affairs. In particular, the evidence presented during the initial trial and trial continuation proceedings made it abundantly clear, (and I accept), that Robert Kew, his estate representative and estate beneficiaries would not willingly have parted with the relevant 1960 Corvette vehicle on a permanent basis, and that the vehicle was entrusted to the care of the defendant, (perceived at the time to be a trustworthy friend of the family), only on a temporary basis and for reasons of pressing necessity. The defendant alone bears responsibility for abusing that trust with a view to personal gain, and for all of the resulting damages suffered by the plaintiff.

c. Insofar as it can be done through the payment of money, the plaintiff accordingly should be restored to the position she would have been in had the defendant not engaged in his tortious conduct and the tort of conversion in particular; i.e., ideally, to a situation where the plaintiff once again would be in possession of that highly prized 1960 Corvette, in an intact, complete and well-maintained condition. While over-compensation is always a concern, in my view the plaintiff certainly should not be obliged to bear the risk of under-compensation.

d. In my view, assessment of diminution in value and corresponding damages by reference to supposed differences in market value of the 1960 Corvette before and immediately after the defendant’s tortious conduct would be exceedingly problematic in this case. Without limiting the generality of the foregoing:

i. For reasons already outlined herein, in my view there simply is no relevant “open market” capable of providing reliable indications of value needed to assess corresponding damages on that basis in this particular case. The simple truth of the matter is that 1960 Corvettes are not ubiquitous, frequently bought and sold, or capable of being reasonably presumed to be in identical or similar conditions such that they can be regarded as reasonably close (let alone perfect) substitutes for one another. Such vehicles, because of their rarity and idiosyncratic histories of treatment and maintenance over the past 63 years, are inherently different and command different values based on their particular attributes and conditions.

ii. For related reasons, in my view there is no way of ascertaining, with any reasonable degree of accuracy, what the particular market value of the plaintiff’s 1960 Corvette would have been before it was damaged by the defendant’s tortious conduct. In that regard:

1. Although their content was emphasized by the defendant, I am not inclined to place much evidentiary weight on the vehicle values suggested by the appraisal document created in July of 2007, or the insurance documentation that was included in the defendant’s supplementary document brief. The former document was not only dated, but inherently untestable and untested hearsay, except to the extent Jason Kew independently confirmed some of the vehicle descriptions contained therein. As for the latter, while not irrelevant, the amount for which property is insured generally is regarded by our courts as evidence having “inferior weight” when it comes to determining value of property for the purposes of damage assessment. In particular, it is well known that property may be overinsured or underinsured for a variety of reasons, such that the insured value of property cannot be conclusive.[^37]

2. More importantly, there was no detailed inspection and documentation of the vehicle’s precise condition immediately before it was entrusted to the defendant, and the plaintiff cannot be faulted for that. Robert Kew obviously was not expecting to die when he did, and his family was not expecting their trust to be betrayed by someone whom they regarded as a loyal and benevolent friend of many years standing. As emphasized by Jason Kew in the course of his testimony, more steps undoubtedly would have been taken by the family to secure and preserve evidence of the vehicle’s precise condition when it was delivered to Mr Konarski, had the family been given any indication or foreshadowing of the defendant’s tortious conduct to follow.

3. The ability to inspect and document the precise condition of the plaintiff’s 1960 Corvette, before it was damaged by the defendant, was then prevented and/or frustrated by the defendant’s own misconduct; e.g., insofar as he avoided communication with the plaintiff and/or denied her access to the vehicle before it was damaged.

iii. In my view, there similarly was no evidence to establish the availability and price of any substitute 1960 Corvette, (let alone any alternate 1960 Corvette capable of being reliably characterized as similar to the plaintiff’s pre-damaged vehicle, without qualifying caveats relating to the need for inspection and verification of promotional descriptions), which the plaintiff might have been able to purchase with the damages to be assessed in this case, either immediately after discovery of the defendant’s tortious conduct or at any time since.

iv. Even if one accepted that a reasonably comparable substitute for the plaintiff’s damaged 1960 Corvette was available for purchase by the plaintiff, using an award of damages based on replacement cost, in my view the amount of damages being suggested by the defence in that regard is clearly far too low; e.g., falling far short even of the suggested comparables relied upon by the defendant. As noted above, Mr Coomber testified, (and I accept), that even a 1960 Corvette vehicle “in poor shape” but containing a supply of largely repairable components Mr Coomber and his team could work with, (if such a vehicle could be found), likely would cost at least $50,000 to $60,000, and that the minimum “starting point” for reduction of quality assurance concerns in that regard realistically would require the purchase of a used vintage Corvette vehicle with a probable cost of at least $100,00.00 before the completion of further necessary inspection, repairs and reassembly, all of which was likely to require a further expenditure inevitably taking the total costs involved back into the neighbourhood of the quotation provided by Mr Coomber. I accept that testimony of Mr Coomber. In my view, awarding damages based on a substantially lower notional replacement cost effectively would oblige the faultless plaintiff to incur the risks associated with purchasing a supposed substitute vehicle without any reasonable assurance of safety and quality; a scenario which unjustly would cast the plaintiff into the “no man’s land” of uncertainty, unknowns and unpredictability described by Mr Coomber.

v. Even if damage assessment based on market value differentials was possible in this case, in my view such an approach still would be inappropriate here, insofar as it would ignore the extraordinarily high subjective value placed on the relevant 1960 Corvette by Robert Kew and his family. Having regard to the testimony of Mr Coomber, (which I accept), the damage amounts suggested by the defendant’s evidence and submissions also would fall short of enabling the plaintiff to purchase a replacement vehicle with any kind of reasonable assurance that it would match the quality of the 1960 Corvette the plaintiff had before the defendant’s tortious conduct.

e. As noted above, courts do not slavishly adhere to damage assessments based on market value differentials in any event, and regularly assess damages to property by reference to the reasonable cost of restoration necessary to bring damaged property back to its pre-damaged condition; i.e., with the cost of restoration often being accepted as the appropriate measure of the plaintiff’s loss for damage to property, without any reference to its pre-accident market value. Nor do courts generally have any problem with a plaintiff’s insistence on having damaged property restored to its pre-damaged condition, as such a desire is consistent with restitutio in integrum. In this particular case, I think the plaintiff’s desire to have the estate’s particular 1960 Corvette restored rather than replaced is entirely understandable; e.g., having regard to the exceedingly rare if not unique nature of the vehicle, and the extraordinary sentimental value it holds for the Kew family.

f. More generally, in my view the various factors usually considered by courts to determine whether to assess damages based on cost of repair/restoration rather than cost of a supposed replacement militate in favour of the former. In that regard:

i. As for “the uniqueness of the property in question”, I already have commented on that to some extent. However, at the risk of repetition:

1. Not only are 1960 Corvette automobiles inherently rare collector items, but each of those surviving vehicles will have an idiosyncratic history and condition differentiating it from any other 1960 Corvette.

2. I think it noteworthy that the defendant, in presenting evidence of vehicles that were suggested to be comparable to the plaintiff’s pre-damaged vehicle, apparently was unable to locate a single 1960 Corvette being offered for sale on the internet or elsewhere. Moreover, the defendant’s own expert, Mr McDougall, noted that he had come across “very few” 1960 Corvettes in the 48 years or so that he has been dealing in vintage vehicles. In my view, that too underscores the unique character of the property tortiously damaged by the defendant.

3. It bears repeating and emphasizing that Robert Kew and his family placed an extraordinarily high subjective value on the particular 1960 Corvette that was entrusted to the defendant. In other words, they did not and do not place a premium on owning and maintaining simply any 1960 Corvette, but on owning and maintaining that vehicle in particular, as it is the one which holds such memories and personal significance from their perspective.

ii. As for “the availability of a reasonable replacement on the open market”:

1. As noted above, the defendant was not able to demonstrate the existence of a single alternative 1960 Corvette available for purchase on the internet or elsewhere, to replace the one damaged by the defendant.

2. As also noted above, the suggested comparables being advertised for sale and relied upon by the defendant were different model Corvettes manufactured in different years, and even the defendant’s expert Mr McDougall effectively indicated that the individual quality of those suggested comparables could not be confirmed or assured without a personal inspection.

3. In my view, it would be unjust to limit the plaintiff’s recovery for property damages to an amount sufficient to purchase a vehicle unlike the one that was damaged, and which might very well prove to be poorly maintained, mechanically defective, and/or in need of more expenditures that would not have been incurred had the defendant not wrongly interfered with the well maintained and reliable 1960 Corvette already in the plaintiff’s possession.

iii. As for “the difference between the cost of repair/restoration and the cost of replacement”, in this particular case the former is known but the latter is not, for the reasons already outlined herein. In my view, the most that can be fairly said in that regard is that the firmly established cost of repairs/restoration significantly exceeds the cost of purchasing suggested comparables put forth by the defendant, where the comparables were not 1960 Corvettes and were of a quality that could not be confirmed.

iv. As for “the plaintiff’s interest in having the item repaired”, I am satisfied on the basis of the evidence presented during the original trial proceedings and during the trial continuation that the plaintiff’s desire to repair/restore the damaged 1960 Corvette is genuine; i.e., that the estate representative and estate beneficiaries have a sincere desire to protect, restore and preserve that particular vehicle which meant so much to Robert Kew and his family, for their personal use, rather than simply pocket any damages awarded on the basis of repair/restoration cost. Considerable time and effort clearly have been devoted to locating an appropriate knowledgeable and skilled contractor able and willing to carry out the repairs, and Mr Coomber and his restoration business already have completed the inspections and other detailed preparatory investigation needed in that regard.

v. As for “the benefits of reinstatement to the plaintiff weighed against the burden imposed on a defendant of having to pay the higher cost of repair/restoration”:

1. Subject to consideration of possible “betterment”, (addressed below), the primary benefit to the plaintiff of reinstatement is that she generally would be put back in the position she was in prior to the defendant’s tortious interference with the 1960 Corvette; i.e., not only having that specific and rare 1960 Corvette vehicle, (prized by Robert Kew and his family as a treasured heirloom), but having it in a complete, intact and well-maintained condition with certainty of mechanical operation and safety. In other words, the primary benefit of reinstatement to be enjoyed by the defendant via such an approach, (once again subject to consideration of possible betterment), is restitutio in integrum; i.e., the primary benefit the law intends to confer in such circumstances. In my view, reinstatement is the most certain and appropriate means of achieving that objective in the specific circumstances of this case, and any other approach entails substantial deviation from that goal; e.g., in circumstances where there is no satisfactory evidence of a reasonably comparable substitute of assured quality and safety being available. Moreover, any such substitute would deprive the plaintiff, in any event, of the extraordinary subjective value placed on the particular vehicle damaged by the defendant.

2. As noted above, the firmly established cost of repairs/restoration significantly exceeds the cost of purchasing suggested comparables put forth by the defendant, and assessing damages based on the cost of reinstatement thereby would impose a greater financial burden on the defendant in that sense. In my view, it nevertheless is important to recognize that any such increased financial burden on the defendant will be offset by the benefit he has received through his retention and conversion of the valuable components he has removed from the plaintiff’s 1960 Corvette. Precise quantification of that benefit is impossible, owing to the defendant’s own clandestine misconduct in that regard, and his insistence on denying that he engaged in such misconduct. However, based on the evidence received from Mr Coomber, (confirming and emphasizing the extraordinary value of the components which were present when the plaintiff’s 1960 Corvette vehicle was entrusted to the defendant but which now are missing), the benefits secured by the defendant in that regard are substantial and seem likely to offset, in large measure, any award of damages for tortious damage to property based on the costs of restoration or reinstatement.

94As noted above, the expert testimony of David Coomber indicated, and I accept, that those costs of restoration, (as of May 31, 2023), would be $209,480.00 plus applicable HST; i.e., $236,712.40 inclusive of HST.

POSSIBLE DEDUCTIONS – COMPONENT ADJUSTMENTS AND BETTERMENT ISSUES

[95]

Possible Deductions: Component Adjustments and Betterment

In finalizing an assessment of compensatory damages that would be sufficient to address the property damage sustained by the plaintiff as a result of the defendant’s tortious conduct, I nevertheless think it appropriate to make an initial deduction for that portion of the restoration costs, outlined by Mr Coomber, associated with obtaining and installing a replacement roof component for the 1960 Corvette. In that regard:

a. During the course of his testimony, Mr Coomber made it clear that his updated estimate dated May 31, 2023, included the cost of sourcing and installing that roof component, (i.e., a “convertible soft top”), on the restored vehicle.

b. Mr Coomber’s testimony also indicated that the cost of that roof component, (i.e., a complete convertible top for the vehicle, including the associated “bows” and “finish upholstery” on top of it), would come to $7,540.00 CDN; a figure including the underlying United States dollar cost of purchasing that item from an American supplier, (adjusted into Canadian dollars at the prevailing exchange rate), and additional necessary costs associated with shipping, brokerage and profit charges, but not applicable HST. With applicable HST, the total cost of sourcing that roof component accordingly would be $8,520.20 CDN.

c. However, as indicated in sub-paragraph 91(b)(xi) of my partial judgment released on August 5, 2020, I was not persuaded on a balance of probabilities that a new convertible top for the 1960 Corvette, (which Bob Kew himself already had deemed necessary, and already had purchased but still left in its box at the time of his death), was ever left with Mr Konarski. Compensatory damages to address the property damage caused by Mr Konarski’s tortious conduct accordingly should not include the costs of restoring a component of the 1960 Corvette which he did not take.

d. In my view, deducting the sum of $8,520.20 from the total estimated restoration costs of $236,712.40, reducing that amount to $228,192.20, makes an appropriate adjustment to address such equities.

96In closing submissions, defence counsel suggested that, in calculating an appropriate sum that would compensate the plaintiff for property damage inflicted by the tortious conduct of Mr Konarski, a further adjustment of $15,000.00 CDN should be made in any event to reflect the value of miscellaneous additional components of the 1960 Corvette that were returned to the plaintiff; i.e., components generally depicted in the photographs found in Trial Continuation Exhibit 2, Tab 4, at pages 1-4, but which included items such as a steering column, an instrument cluster, a cracked windshield, a radio and speaker, and instrument wiring. In the course of his testimony, Mr Coomber estimated the total value of those returned components to be approximately $15,000.00 CDN. However, I do not think the additional adjustment suggested by defence counsel in that regard is necessary or appropriate in the circumstances, as Mr Coomber also confirmed that he intended to use those components in his contemplated restoration of the vehicle. In other words, an allowance for the value of those components already has been factored into the total restoration cost estimate provided by Mr Coomber.

97In my view, the far more significant issue, in terms of whether a property damage assessment based on restoration costs should be subject to further adjustment, is whether a further allowance and deduction should be made to address the possibility of the plaintiff being left, after completion of the contemplated restoration work to be performed by Mr Coomber and his employees, with a 1960 Corvette vehicle superior in quality and value to the 1960 Corvette vehicle that was left with Mr Konarski; i.e., that a further allowance or deduction should be made in relation to possible “betterment”. In that regard:

a. In my view, the plaintiff has met her burden of establishing, through the expert testimony of Mr Coomber, (which I accept), the expenses associated with repair/restoration of the damaged 1960 Corvette.

b. As noted above, in sub-paragraph 67(c)(vii) of these reasons, Mr Coomber testified (and I accept) that completion of that contemplated restoration work would leave the plaintiff with a newly restored vehicle of high quality, restored “exactly how it’s supposed to be”, looking “nice”, (albeit without being “perfect” and painted with a “show quality” finish, or anything capable of being entered in a high level competition such as Concours), and generally incapable of being purchased on the market for anything less than the restoration quote he provided. As mentioned on the quotation he provided, Mr Coomber nevertheless aims for perfection in the restoration work he performs.

c. Having regard to all the circumstances, (and while taking into account that the contemplated restoration work would still leave the repaired vehicle without additional upgrades and cosmetic adornments Robert Kew had installed, such as the chroming of various engine parts), I think it more likely than not that completion of the restoration work contemplated by Mr Coomber would leave the plaintiff with a 1960 Corvette vehicle in objectively superior condition, and with an objectively greater value, than the condition and value it had prior to the damage inflicted upon it by the defendant’s tortious conduct. Without limiting the generality of the foregoing:

i. While the evidence establishes that Robert Kew had considerable knowledge and skill in relation to auto mechanics, and was extremely diligent and devoted in terms of maintaining and improving his 1960 Corvette, I think it more likely than not that his abilities fell short of the experience and expertise in that regard possessed by Mr Coomber and the restoration team at BBR who work with Mr Coomber.

ii. Mr Coomber’s proposed restoration work contemplates complete disassembly of the 1960 vehicle, and inspection and repair of each individual component, (both in relation to remaining components and replacement components he will be obtaining from sources with demonstrable reliability), before the vehicle is then reassembled; i.e., to ensure that each component of the vehicle is restored as much as possible to a safe and near perfect condition. There is no evidence before me to suggest that Bob Kew ever personally carried out such an exercise in relation to his 1960 Corvette, or commissioned such work by others, even though he may have carried out detailed inspection and repair of various components of the vehicle.

iii. At least some of the components in the restored vehicle will be new rather than old in the sense that they will be replacement parts which are high quality “after-market” reproductions of original parts that are no longer available. At least some of the components in the restored vehicle will be new rather than old in the sense they are original 1960 Corvette parts, (i.e., parts dating back to the time of the original manufacture of such parts), but parts that have never been used before. Remaining components of the vehicle that are “old” and being re-used will be refurbished. In the result, most if not all components of the restored vehicle will have their useful “working life” extended by the restoration, compared to the state of the vehicle’s various components prior to the damage inflicted by the defendant’s tortious conduct. In my view, all of those considerations inherently will leave the reassembled 1960 Corvette in a better condition than it was prior to the damage inflicted upon it by Mr Konarski.

iv. At the conclusion of the contemplated restoration work to be performed by Mr Coomber, the plaintiff also will be left with a vehicle in respect of which its parts and servicing will be subject to a warranty provided by BBR, whereas there was no evidence of the plaintiff’s 1960 Corvette being the subject of any extant warranties when it was entrusted to the defendant.

v. In terms of objective value, I also think it reasonably clear that a hypothetical informed buyer of the plaintiff’s 1960 Corvette, taking such considerations into account, would pay more for the vehicle after completion of Mr Coomber’s contemplated restoration work than he or she would have paid for the vehicle in its pre-damaged condition.

d. In short, having regard to all the circumstances, I am satisfied on a balance of probabilities that there will be “betterment” of the plaintiff’s 1960 Corvette resulting from completion of the contemplated repairs.

e. For the reasons outlined above, that nevertheless is not the end of the analysis required by law, in relation to a defendant’s assertion of “betterment” resulting from completed or contemplated repair/restoration of property damaged by a defendant’s tortious conduct. In particular, as noted above:

i. such a defendant bears the onus of proving not only the existence of betterment resulting from repair/restoration, but quantification of that betterment as well; and

ii. no reduction will be made for betterment, in relation to compensation for tortious property damage assessed on the basis of repair/restoration costs, where there is no satisfactory basis for determining the amount to be deducted.

f. In my view, this is where defence arguments relating to “betterment” fail in the circumstances of this particular case, having regard to the underlying evidence. Without limiting the generality of the foregoing:

i. As emphasized by the testimony of Mr Coomber, (which I accept), there effectively is no way to way to determine how much better the restored 1960 Corvette vehicle will be relative to its earlier state, (e.g., the state it was in when it was entrusted to Mr Konarski), without having the ability to fully inspect and properly determine the condition of the vehicle and its components in that earlier state; i.e., to provide a proper basis for comparison. Without that ability, it is impossible to say how much the contemplated restoration work will result in “betterment” of the vehicle.

ii. In my view, the defence put forward no evidence to contradict or counter Mr Coomber’s evidence in that regard, or to suggest any satisfactory basis for determining an appropriate amount for “betterment” to be deducted from the monetary compensation otherwise awardable to the plaintiff for the tortious damage inflicted on her property.

iii. In the circumstances, I think any attempted quantification of such a deduction for betterment would be entirely arbitrary, and that such a deduction accordingly should not be made in this case. Where the nature and extent of any such betterment and corresponding benefit to be received by the plaintiff in that regard is unproven and in doubt, the law favours the faultless plaintiff and not the defendant, whose tortious conduct inflicted the underlying property damage and brought about that resulting uncertainty and corresponding risk of the plaintiff unfairly being under-compensated if such a deduction is made.³⁸

98For the above reasons, I am not satisfied that any further deduction or adjustment of a property damage assessment based on restoration costs should be made in the particular circumstances of this case.

OTHER DAMAGES CLAIMED BY PLAINTIFF

[99]

Other Damages Claimed by Plaintiff

In the course of evidence presentation and written submissions, the plaintiff and her counsel indicated that relief being sought by the plaintiff effectively included claims for:

a. exemplary damages;

b. aggravated damages; and

c. additional damages stemming from the torts of conversion and detinue, extending beyond compensation for property damage.

100In relation to exemplary damages:

a. In the context of a case such as this, (which effectively leaves aside situations where the possibility of exemplary damages is addressed by statute, and/or situations where government officials are said to have acted oppressively), the concept of “exemplary damages” is inherently focused on the possibility of the court awarding damages to a plaintiff that exceed the amount necessary to meet the loss or losses sustained by the plaintiff, and which target the profit a defendant has made through tortious conduct; i.e., conduct calculated to make a profit for the defendant which may exceed the compensation payable to the plaintiff. Such damage awards generally are intended to deter others like the defendant from a “cynical disregard” for a plaintiff’s rights, in situations where the defendant effectively has calculated that the money to be made out of his wrongdoing probably will exceed the damages at risk. They cover situations where a defendant seeks “to gain, at the expense of the plaintiff, some property which he covets -- which the defendant either could not obtain at all or not obtain except at a price greater than he or she wants to put down”.³⁹ More generally, such exemplary damage awards are employed to prevent a wrongdoer from profiting from his or her wrong; e.g., in situations where compensatory damage awards alone would amount to no more than a licencing fee to achieve monetary gain or other benefits through outrageous disregard of the legal or equitable rights of others.⁴⁰

b. Although the written submissions of plaintiff counsel do expressly touch on the suggested appropriateness of the court making an exemplary damages award in this case,⁴¹ the plaintiff’s claim for exemplary damages frequently was more implicit than express; e.g., with repeated references to the suggested injustice of the plaintiff being confined to a limited award of compensatory damages that effectively would allow the defendant Mr Konarski to profit from his conduct through the retention, sale and/or personal use of parts he has stripped from the plaintiff’s 1960 Corvette.

c. However, I find the making of an exemplary damages award per se to be problematic in the present circumstances, for a number of reasons. In particular:

i. As noted above, exemplary damages are not compensatory damages, insofar as they inherently are not focused on the amount of damages required to meet and address the losses sustained by a plaintiff as a result of the defendant’s tortious conduct. They are focused instead on the monetary gain, profit or other rewards thereby achieved by the defendant. Exemplary damages per se accordingly do not fall within the ambit of “damages suffered by the Plaintiff as a result of the conversion” committed by Mr Konarski, which is the wording used by the plaintiff in her prayer for relief seeking damages, (apart from punitive damages), from the defendant.⁴²

ii. On a related note, and for similar reasons, “exemplary damages” generally are regarded as a category of punitive damages, (i.e., damages designed to punish the defendant and thereby deter others from engaging in similar conduct)⁴³, and in my view the plaintiff must be held to her expressly indicated withdrawal/abandonment of claims for punitive damages for the reasons outlined above.

d. For reasons outlined herein, I nevertheless do think the gains unquestionably realized by the defendant in this case, (albeit incapable of precise quantification), are a relevant and proper consideration to the exercise of my discretion as to whether or not compensatory damages for the property damage inflicted through the defendant’s tortious conduct should be based on the cost of repair/restoration or the cost of the plaintiff purchasing a supposed replacement for the property which the defendant has damaged.

101In relation to aggravated damages:

a. In contrast to exemplary damages, aggravated damages, (which are awarded in tort for aggravation caused by the defendant’s high-handed or otherwise offensive and/or oppressive conduct), are indeed compensatory in nature. In particular, they “provide compensation for the injured feelings of the plaintiff where such injury has been caused by the tortfeasor’s malice or outrageous conduct”,⁴⁴ and are intended to compensate a plaintiff for the insult and injury to a plaintiff’s feelings and dignity “arising from the way in which the tort was committed”.⁴⁵ Such damages address conduct of a defendant that effectively adds to humiliation, anxiety or similar conditions experienced by the plaintiff as a result of the defendant’s actions, thereby taking into account the additional harm which the defendant’s conduct has caused to the plaintiff’s feelings.

b. In the circumstances, a claim for such damages would not fall within the ambit of the plaintiff’s withdrawn/abandoned claim for punitive damages, but would fall within the plaintiff’s claim for “damages suffered by the Plaintiff as a result of the conversion”, otherwise set forth in the plaintiff’s pleadings.⁴⁶

c. Without limiting the generality of the foregoing, I note that, while some cases state that a claim for aggravated damages must be expressly pleaded, it generally has been held that such a claim does not have to be specifically pleaded, provided the pleadings generally set out the facts supporting the claim and the defendant is not taken by surprise.⁴⁷ In this case:

i. The plaintiff’s pleadings have included express reliance on matters such as the defendant Mr Konarski:

1. being a long-time friend of the deceased, with knowledge of the deceased’s family members as well;

2. purporting to assist the deceased’s family gratuitously in the wake of the deceased’s death in consideration of his friendship with the deceased, without expectation of any charge or reward;

3. using his resulting knowledge of estate administration issues and the situation of family members to deliberately avoid provision of proper notice of what he was doing; and

4. generally seizing on the opportunity created by his friendship and resulting involvement in the situation following the death of his friend Robert Kew to take advantage of the circumstances, and convert property of the estate via false and misleading statements and other improper conduct.

ii. In my view, nothing in the underlying circumstances suggests that the defendant Mr Konarski or his counsel would have been or were surprised by the understandable feelings of betrayal and hurt inflicted upon the estate, as experienced and described more particularly by the plaintiff as the deceased’s estate administrator and former spouse, and the deceased’s children Jason Kew and Cody Kew as the estate’s two primary estate beneficiaries. Nor does anything in the underlying circumstances suggest that the defendant or his counsel would have been or were surprised by the plaintiff seeking justice and relief in that regard that would address those profoundly hurt feelings, over and above the compensation being sought by the plaintiff for the property damage resulting from Mr Konarski’s tortious conduct; i.e., justice and relief for the hurt feelings arising from the way in which Mr Konarski went about engaging in his tortious conduct. In that regard, I think it noteworthy that, notwithstanding the clear and express reality that the original trial proceedings before me proceeded on the basis that the plaintiff had withdrawn/abandoned her claim for punitive damages, no objection whatsoever was taken to the testimony of the plaintiff, Jason Kew and/or Cody Kew referring to their profound feelings of betrayal and hurt inflicted by Mr Konarski, whom they perceived to be a trusted and generous family friend lending gratuitous assistance in the estate’s hour of need, but who then abused that trust in a calculated and surreptitious way in an effort to profit from the situation at the estate’s expense.

d. In my view, while awards of aggravated damages are comparatively rare, such an award is warranted in the particular circumstances of this case. In that regard:

i. Compensatory damages that merely address the property damage resulting from Mr Konarski’s tortious conduct would do nothing to address the completely understandable hurt feelings experienced by the estate, (through its estate representative and principal beneficiaries), arising from the way in which Mr Konarski went about inflicting that property damage through his tortious conduct.

ii. In particular, Mr Konarski did not just take and convert property of the estate. As emphasized in my earlier partial judgment in this matter, (which I will not reproduce at length here), Mr Konarski inflicted that property damage on the estate through quite deliberate, calculated and clandestine abuse of a special position of trust, at a time when the estate’s representative and beneficiaries were in a situation of profound vulnerability. In doing so, he compounded the stress and challenges faced by the estate’s representative and beneficiaries, (a grieving family), and made their situation worse. In my view, their variously described feelings of profound betrayal, disgust, resulting inability to grieve properly, and overall added hurt brought about by Mr Konarski’s misconduct, (once it came to light), are entirely credible, understandable and substantiated.

iii. I also think it quite understandable that those described feelings of profound betrayal and hurt and resulting anguish apparently have not abated to any degree while this litigation has continued; e.g., while Mr Konarski has continued to lie about the estate property he has taken and retained, and while he has remained entirely unrepentant about his conduct. In that regard, I note, for example, the following:

1. Jason’s Kew’s additional testimony, during the trial continuation, emphasized that he and his family “never thought in a million years that a so-called friend of the family would be stripping [his] dad’s prized possession car and doing this”, after purporting to extend comfort while Robert Kew was dying in the hospital, and asking if he could do anything to help.

2. Marie Kew’s additional testimony, during the trial continuation, characterized the particular misconduct of Mr Konarski as a “holy nightmare”; e.g., insofar as Mr Konarski was “supposed to have been a friend for 30 some years”, but betrayed that confidence in a way that now causes her disbelief that she ever “fell for somebody like this”. She emphasized that Mr Konarski’s conduct has not only generally undermined her trust in others but also generally “just sickens” her, particularly insofar as it has caused additional hardship to her and her children, such that all of them “never had a chance to grieve” because of what Mr Konarski has done and the way in which he did it. Mrs Kew also emphasized that she has been unable to sleep, as she has been “so stressed” by Mr Konarski’s conduct while “still thinking about it”.

iv. As for quantification of an appropriate award of aggravated damages, to address those understandably hurt feelings, I am mindful that aggravated damages are assessed taking into account any aggravating features of the case, but that the principles of assessing quantum of such damages otherwise generally are those used to quantify other forms of non-pecuniary loss; i.e., since aggravated damages are designed to compensate for injured feelings.⁴⁸ In that regard, I also note that, while such assessments therefore generally fall within the discretion of the trier, they clearly are not to exceed the limits our law otherwise places on non-pecuniary damages.⁴⁹

v. In this particular case, having regard to all the circumstances, (including the particular aggravating circumstances mentioned herein and in my earlier partial judgment), while also bearing in mind that the other compensatory damages to be awarded in this case already may result in the estate receiving an effective “betterment” of its damaged property, (which has not been formally established in terms of quantification, and which neither can nor should be the subject of a deduction for reasons I have outlined but which also no doubt will provide a measure of indirect solace for hurt feelings), I think it appropriate in this particular case to formally assess and award aggravated damages in the amount of $15,000.00.

102In relation to additional damages sought by the plaintiff stemming from the plaintiff’s tortious conduct:

a. The amounts sought by the plaintiff in that regard, outlined in the plaintiff’s written submissions, related to:

i. fees the plaintiff was obliged to pay to the provincial government, (i.e., $256.00 in transfer fees and a $5.00 fee to obtain an associated record), in relation to the formal transfer of ownership of the returned vehicles back into the name of the estate;

ii. fees and taxes the plaintiff has been paying in relation to yearly tax reporting on the estate during its formally ongoing administration, including at least $12,492.38 in fees paid to an accountant and $131.51 paid to the Canada Revenue Agency in relation to income tax on interest accumulating in the estate’s bank account pending final administration;

iii. towing and storage fees, (the current total of which is said to be $6,840.00), associated with having the returned vehicles taken from the defendant to a long-term storage facility, where the plaintiff has felt the vehicles should remain pending completion of this litigation; and

iv. Stratford hotel room charges incurred by the plaintiff during the trial continuation.

b. I accept that some of those alleged costs, if incurred, arguably result from the defendant Mr Konarski’s tortious conduct. However, I also find such additional claims to be problematic for a number of reasons. Without limiting the generality of the foregoing:

i. In the course of her testimony during the trial continuation, Marie Kew provided evidence that included reference to her obligation to continue filing annual tax returns for the estate while its final administration was being delayed by the ongoing litigation, and to an associated accounting firm expense in respect of which she provided only a very general and inexact estimate; e.g., saying “I think it’s around, between two and three hundred every year”. Mrs Kew also made passing reference to the existence of “storage on the vehicles every month”. However, during the evidentiary portion of the trial continuation, I was presented with no further testimony in that regard, and no related documentary evidence of any kind, (e.g., documents properly tendered, identified and marked as exhibits), to clarify or support any claims by the estate in relation to such matters.

ii. Plaintiff counsel informally appended, to his written closing submissions, a table of “Collateral Expenses Incurred by the Estate”, together with copies of various additional documents which, (on their face at least), included:

1. invoices from an accounting firm in relation to the provision of tax related services; copies of cheques written by the plaintiff in relation to “income tax 2020” and “Bob’s income tax”;

2. an invoice for towing services; a storage space rental agreement; a cheque written by the plaintiff to pay “storage for 92 BMW, 60 Corvette, 56 Dodge, 36 Dodge”;

3. a cheque written by the plaintiff to pay a $5.00 fee to the Ministry of Finance in relation to “Ministry records for vehicles”;

4. a receipt for a fee paid to “MOT RUS-SO” bearing a handwritten note indicating that the fee relates to “estate for ownerships”; and

5. an invoice relating to charges spent for a stay in a Stratford hotel on the nights of May 31 and June 1, 2023.

iii. It nevertheless needs to be recognized and emphasized that none of those documents are properly in evidence before me. In particular, such documents were capable of being properly introduced into evidence during the trial continuation by presentation to a witness such as the plaintiff while in the witness box, (i.e., with the witness being asked to formally identify and speak to the documents before they could then have been formally marked as exhibits), after which they then could have been the subject of further clarifying testimony during examination in chief as well as cross-examination by defence counsel. However, no steps were taken in that regard, and, in my view, it self-evidently is inappropriate to place additional documents before the court as purported evidence by simply attaching them to written closing submissions, after the evidentiary portion of a trial has been completed.

iv. Even if such additional documents were properly in evidence, it seems clear on their face that at least some portion of the “collateral expenses” they were said to support relate to vehicles other than the 1960 Corvette, in respect of which claims were formally withdrawn/abandoned by the plaintiff. Without any further clarifying evidence to apportion such expenses properly between abandoned claims and claims still properly being pursued, any apportionment in that regard would be entirely arbitrary and inappropriate.

v. In my view, some of the additional “collateral expenses” addressed by the material appended to the plaintiff’s written cost submissions, (and the charges apparently incurred by the plaintiff for hotel accommodation in Stratford during the trial continuation in particular), are matters more appropriately characterized and addressed as disbursements incurred in pursuing this litigation, which might then be claimed as costs; i.e., as opposed to expenses which should be incorporated into any award of damages.

vi. From a substantive perspective, I agree with observations made by defence counsel in the defendant’s responding written “Closing Submissions” questioning the appropriateness of some of the “collateral expenses” claimed by the plaintiff, and independently have concerns of my own in that regard. In particular:

1. In relation to income tax paid by the estate, it should be remembered that such tax is payable on income of the estate; e.g., income enjoyed via accumulating interest. In other words, the estate inherently is receiving a benefit via such additional income, in respect of which it then has tax obligations. In such circumstances, I think it inappropriate to focus on the relatively modest tax burden incurred by the estate without also taking into account the greater offsetting benefit the estate has received in that regard.

2. While the estate cannot be finally administered pending the conclusion of this litigation, it is not clear to me why, (as defence counsel emphasized during the course of his responding written submissions), it apparently has been thought necessary in the usual and ordinary course of business and estate administration for accountants to remain involved at considerable expense in relation to a graduated rate estate for so long after the death of Mr Kew, or why more complicated accounting in relation to the estate could not have been completed subject to retention of a nominal non-interest bearing estate account for the deposit of sale proceeds generated by the vehicles returned to the estate. In short, there are legitimate concerns about mitigation of damages which were not addressed and could not be addressed, owing to the manner in which the plaintiff tendered or failed to tender desired evidence on which she sought to rely to support her claim for such damages.

3. From a damage mitigation perspective, it similarly is not clear to me why the estate apparently has felt it necessary to keep all of the vehicles in storage since the time of their return to the plaintiff’s possession. In that regard:

  a. It should be emphasized that the estate’s beneficial ownership of all those returned vehicles was confirmed by my earlier judgment, and that the estate accordingly was entitled thereafter to deal with its property in whatever manner it considered appropriate.

  b. While the plaintiff’s claim for property damage inflicted on the 1960 Corvette remained outstanding, and the plaintiff’s retention of that vehicle to facilitate its contemplated and desired restoration is understandable, claims relating to the remaining vehicles were formally withdrawn/abandoned. Again, if storage fees relating to the 1960 Corvette alone were being claimed, they should have been addressed by proper testimony and documentary evidence presented during the trial continuation to support such a claim, with proper steps being taken for expenses in that regard to be segregated and/or apportioned from expenses associated with the other vehicles.

  c. Even if there were some kind of lingering concerns regarding possible spoliation arguments in relation to vehicles other than the 1960 Corvette, (although I frankly have difficulty understanding what such concerns might be after my partial judgment, return of the vehicles in question, and the formal withdrawal/abandonment of claims in that regard), such concerns could have been addressed by measures short of full retention of those vehicles in storage; e.g., through the taking of extensive photographs depicting the vehicles and their condition after their return, and/or provision of an opportunity to the defendant to inspect and document the condition of the vehicles before their disposition, or request preservation of that property at the risk of the defendant having to bear responsibility of the associated costs of doing so.

c. Having regard to such concerns, I decline to award any damages relating to such “collateral expenses” claimed by the plaintiff, over and above the compensatory property-related damages and aggravated damages sought by the plaintiff.

SUMMARY OF CONCLUSIONS REGARDING ASSESSMENT OF PLAINTIFF DAMAGES

[103]

Summary of Conclusions Regarding Assessment of Plaintiff Damages

For the reasons outlined above, I assess the components of substantiated compensatory damages sustained by the plaintiff, as a result of the defendant’s tortious conduct, (and the tort of conversion in particular), as follows:

a. $228,192.20 for property damages sustained in relation to the plaintiff’s 1960 Corvette vehicle; and

b. $15,000.00 for aggravated damages.

104For the reasons outlined above, I am not persuaded by the evidence properly tendered and admitted during the trial continuation proceedings that the plaintiff has substantiated or should recover anything in relation to other alleged expenses in respect of which she has requested reimbursement, and which might fall under the rubric of compensatory damages; e.g., expenses relating to payment of taxes and related fees paid to accountants, towing and storage charges, and fees paid to the Ministry of Transportation.⁵⁰

105For the reasons outlined above, the plaintiff also is not entitled to claim or recover punitive and/or exemplary damages.

Remaining Issue No. 3 – Monetary compensation or offsetting credit to be received by defendant in relation to proven value-enhancing changes made to returned vehicles or parts

[106]

Remaining Issue No. 3: Value-Enhancing Changes

As noted earlier, the partial judgment I rendered on August 5, 2020, dismissed the principal aspects of the defendant Mr Konarski’s counterclaim, insofar as Mr Konarski was seeking relief that included:

a. confirmation of his ownership of the relevant vehicles and parts through operation of the Repair and Storage Liens Act, supra, and/or the principles of unjust enrichment and a declaration of constructive trust; and/or

b. compensation for his towing and storage services on a quantum meruit basis.

107However, as also noted in that partial judgment, principles relating to the torts of detinue and conversion include a requirement that, where goods detained but returned have been improved, and their value has been increased by the party detaining and/or converting them, the owner of the property generally must pay for that increased value upon repossessing the goods.⁵¹

108For that reason, one of the remaining issues the referee was asked to consider, and which the parties felt should be left open and addressed during the trial continuation proceedings, was the extent, if any, to which the defendant Mr Konarski should receive compensation from the plaintiff, (or at least an offsetting credit to be applied to any monetary compensation otherwise owed by Mr Konarski to the plaintiff), for any proven changes made to the vehicles or parts, restored to the plaintiff’s possession, while such vehicles or parts were in Mr Konarski’s possession, to the extent it was found that such changes enhanced the value of the relevant vehicles or parts, thereby improving them.

109In that regard, the referee was specifically directed to consider the labour and expense (if any) incurred by Mr Konarski in making any demonstrable changes to a particular returned vehicle or part while it was in his possession, and the extent (if any) to which such labour and expense resulted in any increased value to the relevant returned vehicle or parts compared to the value of the relevant vehicle or part when it was entrusted to Mr Konarski’s possession.⁵²

110At paragraphs 13 and 14 of his delivered “Reasons on Reference”, the referee made the following comments about such matters:

13. The Defendant has made a counterclaim for expenses incurred in bettering the vehicle (sic). We heard the Defendant’s evidence that he estimates he did about $1,200 worth of work to the ’36 Dodge, about a $1,000 worth of work to the BMW, and installed a master cylinder at the cost of $60 on the ’60 Corvette. He also built a metal jig and he estimated the value of that at between $2,000 and $2,500.

14. The Defendant provided no receipts or verification for any of the work he claimed that he completed or had completed by others. One would anticipate that there would be some record of the costs incurred to safety the ’36 Dodge, complete brake work on it, as well as an invoice for the $200 allegedly spent on the BMW with a mechanic, and an invoice for the master cylinder of $60 for the Corvette. None of these were presented and given Justice Leach’s findings on credibility, I decline to make any monetary award in the Defendant’s favour for these alleged expenses.

111When requiring the referee to give further reasons for his findings and conclusions, (i.e., in my request sent to the referee on January 26, 2022), I noted that paragraphs 13 and 14 of his initial “Reasons on Reference” seemed intended to address this issue in a complete fashion, but asked the referee to confirm that was the case.

112In his subsequent report to me dated February 28, 2022, the referee confirmed that paragraphs 13 and 14 of his initial report were “intended to address in complete fashion the claims referenced in Specified General Issue No. 3”.

113Apart from the referee initially purporting to decide that issue on a final basis, I frankly see no error in principle demonstrated by the referee’s reasons, no demonstrable absence or excess of jurisdiction, nor any patent misapprehension of the evidence. Without limiting the generality of the foregoing:

a. The referee indicated and confirmed his specific consideration of the matters he was directed to consider.

b. Having done so, the referee made a determination, for adequately stated reasons, that Mr Konarski had failed to prove/demonstrate the making of any changes to any of the returned vehicles or parts while they were in Mr Konarski’s possession.

c. The absence of any such proven/demonstrated changes self-evidently made it unnecessary to consider whether or not any associated labour or expense in that regard had resulted in any increased value to the relevant returned vehicles or parts.

d. The determination made by the referee that Mr Konarski should receive no compensation or credit in relation to his counterclaim accordingly was made in accordance with the terms of reference, and was the subject of adequate reasons that in my view contain no discernible errors warranting non-confirmation of the referee’s reporting in that regard.

114In my view, this aspect of the referee’s report and supplemental report therefore should be confirmed; i.e., Mr Konarski’s counterclaim should be dismissed in its entirety, and the final judgment to issue in respect of this matter should reflect that.

115For the sake of completeness, I nevertheless will indicate that, even leaving aside the referee’s reporting in relation to this issue, I independently would not have found Mr Konarski entitled to any compensation or credit in relation to his counterclaim, based on the trial continuation proceedings before me. In that regard:

a. As noted above, Mr Konarski provided information