



COURT OF APPEAL FOR ONTARIO

CITATION: 665750 Ontario Inc. v. Atlantic Towing Inc., 2018
    ONCA 397

DATE: 20180424

DOCKET: C63970

Benotto, Brown and Miller JJ.A.

BETWEEN

665750 Ontario Inc. carrying on business as
    Camrob Enterprises

Applicant (Respondent on Appeal)

and

Atlantic Towing Inc. carrying on business as
    Chriss Towing, Chriss Towing Inc. and
Earl Lewis
    carrying business as The Recovery Board

Respondents (
Appellant
on Appeal)

Sean N. Zeitz, for the appellant Earl Lewis

Todd Robinson and Robyn Blumberg, for the respondent

Heard and released orally: April 20, 2018

On appeal from the judgment of Justice Jasmin Akbarali of
    the Superior Court of Justice, dated May 18, 2017.

REASONS FOR DECISION

[1]

Earl Lewis, carrying on business as The Recovery
    Board appeals the application judges finding that he is jointly and severally
    liable for the conversion of three vehicles.

[2]

Three vehicles owned or leased by Camrob were
    left at J.M. Auto Electric which wanted them removed. J.M. asked Chris
    Diamanti, the principal of Chriss Towing, to remove the vehicles. Diamanti
    towed the vehicles to a storage area and retained the appellant Earl Lewis to
    ascertain the ownership of the vehicles, register the liens and issue notices
    of intention to sell against Camrob. He did so.

[3]

Camrob brought an application alleging
    conversion and unjust enrichment and seeking a declaration that the liens were
    invalid. Diamanti had sold one vehicle, disposed of another for scrap and
    retained possession of the third, though he alleged it was in poor condition
    and could not be sold.

[4]

The application judge held that the appellant
    was jointly and severally liable in damages for conversion in the amount of
    $120,440.82 which included an increase to the original damage calculation for
    the HST she concluded would be payable on the deemed sale of the vehicles
    arising from the conversion.

[5]

The appellant submits that as agent he is not
    liable. Although it is conceded, as the application judge found, that

when an agent commits torts, an injured party is entitled to sue the
    agent, the principal or both,

he alleges that the judge erred by
    finding Diamanti liable for conversion and then automatically imputing that
    liability to him. Simply put, he alleges there was no intention on his part to
    exercise dominion over the vehicles.

[6]

Further, the appellant argues that the application
    judge erred by increasing the damages to include the HST.

[7]

We do not accept the appellants submissions
    with respect to conversion. The application judge found that the appellant was deeply
    involved in the events that transpired. Those events amount to wrongful
    interference with the goods of another. It was open to the application judge to
    make this finding on the basis of the appellants own evidence.

[8]

We agree with the appellant that the application
    judge erred in her application of the deemed sale methodology used to
    calculate damages for conversion. Ownership of the vehicle had changed before
    the actual sales of the vehicles. The respondent was not party to the actual sales
    and had suffered no damages in connection with HST. We agree with the appellant
    that the application judge erred in awarding damages for HST when none had been
    incurred.

[9]

We therefore allow the appeal in part and reduce
    the damages to $105,165.82 to reflect a reduction of the HST erroneously added.

[10]

As agreed by counsel, costs of the appeal payable to the
    respondent at $9,000 all inclusive.

M.L.
    Benotto J.A.

David
    Brown J.A.

B.W.
    Miller J.A.


