Conversion (Damages)

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Date Retrieved:	2024-04-29
CLNP Page ID:	2253
Page Categories:	Tort Law
Citation:	Conversion (Damages), CLNP 2253, <https://rvt.link/7h>, retrieved on 2024-04-29
Editor:	MKent
Last Updated:	2023/08/11

Valles v Advantagewon Inc, 2015 CanLII 29533 (ON SCSM)

72. The plaintiff is entitled to such damages as will place him the position he would have been in but for the tort of conversion. The court may estimate damages where the evidence permits a reasoned estimate as opposed to mere speculation or guesswork: Martin v. Goldfarb (1998), 1998 CanLII 4150 (ON CA), 41 O.R. (3d) 161 (C.A.), leave to appeal denied [1998] S.C.C.A. No. 516.

73. At first glance, the most obvious measure of damages in this case would be the additional cost of transportation incurred by Mr. Valles as a result of the loss of his 2008 Dodge. However the damages case was not put on that basis and there is no evidence of what he did for transportation after this loss. Instead he claims the value of the vehicle, plus an amount connected to his continued liability for his car loan, plus the loss of a contract.

74. At the time of this loss approximately 26 months out of his car loan term of 72 months had elapsed, leaving 46 months. His biweekly payments were $169.29 which amount to a monthly figure of $366.80. The total of payments after this loss, for which he remains liable and continues to make payments, is $16,873. But in the absence of evidence of what alternative transportation arrangement he has made, that figure might amount to overcompensation since he could have been cheaper arrangements for those 46 months.

75. He claims the actual value of the vehicle was $12,000 but based on the evidence of asking prices for generally similar vehicles that figure may well be too high. A fairer estimate would probably be in the range from $5,000 to $10,000, allowing that the vehicle had new rims and tires.

76. Based on the evidence presented, in my view the most appropriate measure of damages for the loss of the vehicle is an estimate based on the high end of the scale of values just reviewed, in the amount of $10,000, and no further or separate amount based on the loss of financing costs.

77. Mr. Valles also claims that he lost a contract in the amount of $9,753.89 exclusive of HST. The tax is not a loss to him and the base amount is simply a lost revenue amount without regard for its profit component. The amount claimed would have be reduced because having the contract cancelled after only one-third was completed by definition must have saved him some labour and materials costs (see Exhibit 1, Tabs L & M). The evidence does not readily permit any precise conclusion as to an appropriate figure based on that approach.

78. But in the absence of evidence concerning what alternate transportation arrangements he made after this loss, or of what options might have been available to him, I am not prepared to grant this item in any amount and find it is not proved.

79. Dealing with the allegation of a failure to mitigate, the onus is on the defendants to prove such a failure on a balance of probabilities. Advantagewon submitted that Mr. Valles ought to have made a payment into court pursuant to the Repair and Storage Liens Act to get his vehicle back pending adjudication of amounts owing. It is unclear what amount would have had to be paid into court: the evidence indicates there were four separate liens registered against his vehicle (2400918 Ontario Inc. and Advantagewon each registered one lien under the RSLA and another under the PPSA). The evidence does not reveal whether Mr. Valles could have afforded such a payment into court.

80. I find the defence of failure to mitigate is not made out.

81. The defendants are jointly and severally liable to the plaintiff for damages in the amount of $10,000.