



COURT OF APPEAL FOR ONTARIO

CITATION:
Georgian
    Bluffs (Township) v. Moyer, 2012 ONCA 700

DATE: 20121017

DOCKET: C53734

Sharpe, Gillese and Watt JJ.A.

BETWEEN

The Corporation of the Township of Georgian
    Bluffs

Plaintiff (Respondent)

and

James Moyer

Defendant (Appellant)

M. Paul Downs and Paula Downs, for the appellant

R. H. Thomson, for the respondent

Heard: October 5, 2012

On appeal from the judgment of Justice R.M. Thompson of
    the Superior Court of Justice, dated April, 19, 2011.

BY THE
    COURT:

[1]

The appellant owns a rural, 100-acre property located in the respondent
    Township. He inherited the property from his father, along with his fathers
    habit of storing a large volume of discarded vehicles, equipment, construction
    material and other items on the property. Some of this material was dispersed
    over a municipal road allowance adjacent to the appellants property.

[2]

The respondent Township decided to take action to eliminate what it
    regarded as a nuisance and eyesore. Its representatives entered onto the road
    allowance and a portion of the appellants property and removed chattels, including
    vehicles and other objects from the road allowance as well as some chattels,
    namely discarded wooden pallets, from the appellants property. The Township
    added to the appellants property tax bill the cost of removal and clean-up of
    the road allowance and commenced this action claiming,
inter alia
, an
    order requiring the appellant to remove all the wrecked, discarded and
    abandoned vehicles and other objects and debris from his property. The
    appellant defended that claim and counterclaimed for damages for trespass and
    conversion, punitive damages, and an order removing from his tax bill the cost
    of the removal and clean-up related to the road allowance.

[3]

The trial judge dismissed the Townships claim for an order requiring
    the appellant to clean up his entire property. He found that the appellant had
    established that his use of the property qualified as a legal non-conforming
    use with respect to the bylaw provisions relied on by the Township. The trial
    judge also found that the Township was not entitled to add the road allowance
    clean-up costs to the appellants property tax bill. The trial judge found that
    the Township had trespassed upon the appellants property and removed chattels
    belonging to the appellant but he rejected the claim in conversion on the
    ground that the appellant had failed to establish that the chattels removed had
    any value. The trial judge also rejected the appellants claim for punitive
    damages.

[4]

As a remedy for the trespass committed by the Township, the trial judge
    fashioned what he described as an equitable resolution. He ordered that the
    appellant be entitled to retrieve three vehicles that had been towed from the
    road allowance without any storage or towing charges and that he not be
    required to compensate the Township for the cost of its clean-up of the road
    allowance.

[5]

In a subsequent endorsement dealing with costs, the trial judge
    concluded that the litigation never should have occurred and that each party
    should bear its own costs of the action.

ISSUES

[6]

The appellant raises several grounds of appeal asking us to award
    damages for conversion, damages for trespass, and punitive damages, and to
    grant leave to appeal costs and award him costs of the action.

ANALYSIS

(1)

Conversion

[7]

The trial judge dismissed the claim for damages for conversion on the
    basis that the chattels that he found had been removed from the appellants
    property  namely, wooden pallets  were worthless.

[8]

In our view, there is no basis for us to interfere with the trial
    judges finding as to the value of the pallets. There was evidence to support
    that finding. The appellant had collected the pallets from factories as they
    were no longer usable and could not be repaired. He had paid nothing for the
    pallets and he made no effort to resell them.

[9]

While the appellant argues other items were removed from his property,
    there is no finding to support his contention that those items were removed
    from his property rather than the road allowance. Moreover, there was no
    credible evidence provided by the appellant as to the value of the chattels he
    says were removed from his property.

[10]

We
    do not agree that the circumstances of this case fall within the principle
    identified in
Lamb v. Kincaid
(1907), 38 S.C.R. 516, that a wrongdoer
    cannot escape or limit liability by destroying the evidence needed to ascertain
    the value of converted goods. The removal and destruction of the pallets by the
    Township did not preclude an assessment of their value as there was evidence
    from which the trial judge could fairly conclude that the converted property
    had no value.

[11]

However,
    the Township did remove and destroy property belonging to the appellant and we
    agree with the submission that although the property had no market value, the
    appellant is entitled to an award of nominal damages for the Townships
    wrongful act of conversion. Subject to what we say below with respect to costs,
    as a practical matter, we consider that nominal award to be subsumed in the
    set-off of damages against towing, storage and clean-up costs discussed under
    the next heading.

(2)

Trespass

[12]

The
    appellant argues that although the trial judge held that the Township
    trespassed upon his property and that he was entitled to damages on account of
    that trespass, the trial judge failed to award any damages.

[13]

We
    disagree. The trial judge found that the trespass was not minimal but on the
    other hand, not grossly intrusive and that the physical damage associated
    with it was negligible.

[14]

It
    is undisputed that the appellant was liable for the cost of removing objects
    and cleaning up the road allowance. In addition, the judgment allowed the
    appellant to retrieve vehicles the Township rightfully removed without towing
    or storage charges. In effect, the judgment set off the clean-up, towing and
    storage charges against the damages for trespass.

[15]

In
    our view, it was open to the trial judge to fashion a remedy along those lines.
    Although the Township had not claimed the clean-up costs in the action, those
    costs were clearly in issue at the trial as they related to to the dispute
    about adding the costs to the appellants property tax bill. We recognize that
    there may have been an issue as to whether the Townships action in adding the
    costs to the appellants tax bill protected the claim from being barred by the
    running of the limitation period. However, even if the appellant had a possible
    defence to the claim, there was on the record a legal obligation from which he
    was released. We are not persuaded that the trial judge erred in finding that
    the release of that claim, combined with the release from towing and storage
    charges for the three vehicles, was adequate compensation for the Townships
    infringement of the appellants property rights.

(3)

Punitive Damages

[16]

The
    findings of the trial judge do not justify an award for punitive damages. He
    expressly refused to find that the Townships conduct was malicious,
    high-handed, arbitrary, oppressive, deliberate or callous. On the contrary, he
    found that the trespass occurred through incompetence and a failure to
    understand the limits of the Townships authority. The trial judge concluded
    that although the trespass was not minimal neither was it grossly intrusive and
    the resulting physical damage was negligible.

[17]

These
    findings were open to the trial judge and we see no basis to interfere with his
    conclusion that the conduct of the Township did not rise to level warranting
    the sanction of punitive damages.

(4)

Costs

[18]

In
    his costs endorsement, the trial judge found:

This action should never have occurred. It was caused by an incompetent
    employee of the Township who simply did not know what his job was or the
    limitations to his legal powers, coupled with the stubbornness of a citizen who
    did not like government authority.

[19]

We
    see no reason to disagree with that assessment. However, we disagree with its
    implications with respect to costs.

[20]

The
    action that should have never occurred was an action brought by the Township.
    The appellant successfully defended himself against the most significant
    element of the claim advanced by the Township  namely, an order that he remove
    all objectionable items from his 100-acre property. The appellant also
    succeeded in having the clean-up costs struck from his property tax bill, in
    establishing that the Township had trespassed upon his property, and, as we
    have found, in establishing that the Township had converted chattels he owned.
    In other words, the appellant was successful on every substantive issue raised
    in the litigation and it was only his counter-claim for damages that met with
    limited success.

[21]

In
    the light of the overall success achieved by the appellant with respect to the
    illegality of the Townships actions, the trial judge erred in principle by
    denying him costs. In
Northwood Mortgage Ltd. v. Gensol Solutions Inc.
(2005), 3 B.L.R. (4th) 322 (Ont. C.A.), at para. 6, this court stated that an
    order depriving a successful party of costs is exceptional. This case does not
    present a compelling reason to depart from the usual rule.

[22]

The
    appellant submitted a bill of costs for the claim and counterclaim in the
    amount of $93,862.13 on a substantial indemnity basis and $72,413.63 on a
    partial indemnity basis and disbursements of $2312.77. Those amounts must be
    reduced to take into account the fact that substantial portions of the
    counterclaim were unsuccessful.

[23]

We
    do not agree that this is a case for substantial indemnity costs. While offers
    to settle were submitted by the appellant, it is not possible to say that the
    result he achieved was superior to the terms of those offers. Nor do we
    consider the conduct of the Township to be such as to call for a substantial
    indemnity award for reasons similar to those outlined above with respect to
    punitive damages.

[24]

In
    our view, taking all the circumstances to account, an award of $50,000 and $2312.77
    for disbursements, inclusive of taxes, is appropriate.

DISPOSITION

[25]

Leave
    to appeal costs is granted and the appellant is awarded his costs of the trial
    in the amount of $52,312.77, inclusive of taxes and disbursements.  The appeal
    is otherwise dismissed. The appellant is also entitled to costs of the appeal
    fixed in the amount of $15,000 plus $4047.73 for disbursements, both figures inclusive of taxes.

Robert J. Sharpe

E.E. Gillese J.A.

David Watt J.A.

Released:
October 17, 2012


