



COURT OF APPEAL FOR ONTARIO

CITATION: Canada Forgings Inc. v. Riverside
    Excavating (Niagara) Ltd., 2015 ONCA 433

DATE: 20150615

DOCKET: C58547

MacPherson, Epstein and Roberts JJ.A.

BETWEEN

Canada Forgings Inc.

Plaintiff (Respondent)

and

Riverside Excavating (Niagara) Ltd.,
International Marine Salvage
    Inc.
and Remo
    Benedetti Jr.

Defendants (Appellant)

Michael Bordin, for the appellant

Alan J. Butcher, for the respondent

Heard: June 11, 2015

On appeal from the judgment of Justice Dale Parayeski of
    the Superior Court of Justice, dated February 26, 2014.

ENDORSEMENT

[1]

The appellant International Marine Salvage Inc. (IMS) appeals from the
    judgment of Parayeski J. of the Superior Court of Justice dated February 26,
    2014, granting judgment to the respondent Canada Forgings Inc. (CF) in the
    amount of $270,735 for committing the tort of conversion of several very large
    metal die blocks.

[2]

The appellant does not appeal the trial judges conclusion that it
    committed the tort of conversion. It does appeal, on three grounds, the trial
    judges damages assessment.

[3]

First, the appellant contends that the trial judge erred in awarding
    replacement costs for the 26 missing die blocks. It says that the trial judge
    did not distinguish between missing die blocks that were actually replaced by
    CF (four in number) and die blocks which have never been replaced and never
    would be (the 26 for which the trial judge awarded damages). If the trial judge
    had made this distinction, the proper measure of damages would have been the
    value of the die blocks as scrap metal.

[4]

We do not accept this submission. The die blocks were an unusual,
    bordering on unique, product. The trial judge described them in this fashion:

The die blocks in this case are heavy, sometimes weighing
    thousands of pounds. Once used, the pairs of blocks are stored outside. If they
    have not been irreparably damaged in the forging process, they may be reused if
    the same part is reordered by a customer. They may also be reused by flooding
    the cut impressions so that clean faces are restored, and into which new cuts
    can be made which correspond to new parts.



The evidence is that the plaintiff stores die blocks, sometimes
    not actually using them for decades, because doing so makes business sense.



The evidence is that the die blocks have utility as described.
    They were in useable condition. Although they were stored outdoors, the
    evidence was that this does not cause them to materially deteriorate. They were
    oiled to protect them to some extent, and were labelled with recorded numbers.

[5]

In short, CFs storage yard was not a dumping ground for obsolete,
    useless die blocks. It was not the equivalent of an automobile or old tire
    graveyard site. The die blocks were stored, not buried, on CFs yard. They were
    cared for, inventoried, arranged in rows, and numbered. It is true that they
    might not be used for many years. And it might turn out that some of them would
    never be used. But all of them were useable and there was evidence that some of
    them were in fact used. It follows that the trial judge did not err by awarding
    damages on the basis of replacement cost.

[6]

Second, the appellant submits that the trial judge misapprehended the
    evidence and committed a palpable and overriding error in finding that IMS
    purchased approximately 90% of the missing die blocks.

[7]

We disagree. The trial judge reviewed the evidence and reached these conclusions:

I am satisfied on the plaintiffs evidence that it is more
    likely than not that Remo Benedetti Jr. was the only thief involved.



I am satisfied that it is more likely than not that IMS was the
    only recipient of the stolen dies.

[8]

In our view, the evidence supports his conclusions. In any event, the
    important legal point is that they are far removed from being palpable and
    overriding errors.

[9]

Third, the appellant asserts that the trial judge erred in compensating
    CF $7500 for lost time and productivity as a result of IMSs conversion of CFs
    die blocks.

[10]

We
    are not persuaded by this submission.

[11]

In
    its Notice of Appeal, the appellant stated that the trial judge made six
    factual and legal errors. An error relating to the validity and quantum of
    reimbursement for CFs employees costs connected to the conversion of the die
    blocks is not one of those errors. In any event, we see, as did the trial
    judge, a direct connection between these employee costs and IMSs receipt of
    the stolen die blocks which is the basis for the now uncontested finding that
    IMS committed the tort of conversion. As the trial judge accepted, CFs
    employees engaged in activities to investigate and substantiate this loss
    rather than doing their usual duties.

[12]

We
    make a final observation. On all three issues, the trial judge made a very
    careful analysis, often against the backdrop of a sparse and difficult
    evidentiary landscape. On each issue, the trial judge found in favour of CF and
    awarded damages  but in each instance significantly below the amount sought by
    CF. In other words, his damages award strikes us as carefully considered and
    fair.

[13]

The
    appeal is dismissed. The respondent is entitled to its costs of the appeal
    fixed at $15,000, inclusive of disbursements and applicable taxes.

J.C. MacPherson J.A.

Gloria Epstein J.A.

L.B. Roberts J.A.


