Conversion (Tort)

BMW Canada Inc. (Alphera Financial Services Canada) v. Mirzai, 2018 ONSC 180

[17] The tort of conversion involves the wrongful interference with the goods of another, such as taking, using or destroying those goods in a manner inconsistent with the owner’s right of possession: DaimlerChrysler Canada Inc. v. Associated Bailiffs & Co. Ltd., 2005 CanLII 24234 (ON SC).

[18] The crux of the tort of conversion is the defendant committing a wrongful act with respect to the property. Evidence must show or permit an inference to be drawn that the defendant acted in such a way as to deny the Plaintiffs title or possessory right. (Simpson v. Gowers(1981), 1981 CanLII 1884 (ON CA), 32 OR (2d) 385 (C.A.) at 387, per MacKinnon A. C. J. O.).

[19] The tort is one of strict liability, and accordingly, it is no defence that the wrongful act was committed in all innocence. The defendant cannot claim contributory negligence or some fault on the part of the plaintiff: Boma Manufacturing Ltd. V. Canadian Imperial Bank of Commerce, 1996 CanLII 149 (SCC), [1996] 3 SCR 727 at para. 31. Diplock L.J. asserted this principle in Marfani & Co. v. Midland Bank, Ltd., [1968] 2 All E.R. 573, at pp. 577-78:

. . . the moral concept of fault in the sense of either knowledge by the doer of an act that is likely to cause injury, loss or damage to another, or lack of reasonable care to avoid causing injury, loss or damage to another, plays no part.

[20] In Westboro Flooring and Decor Inc. v. Bank of Nova Scotia, 2004 CanLII 59980 (ON CA), [2004] O.J. No. 2464, the Court of Appeal confirmed that all that is required re intent is the defendant acts in a manner that is inconsistent with the owner’s title or possessory right, and any blameworthy conduct beyond that is not essential (at para. 14 – 16, per Simmons, J.A.). The philosophy behind strict liability is that a defendant cannot use or convey anything which is no title to use or convey.

[21] There are four essential elements for the tort of conversion.

i. The defendant commits a wrongful act;

ii. Involving the Plaintiff’s chattel

iii. By handling or disposing of the chattel;

iv. With the intention of denying or negating the Plaintiff’s title or other possessory interest.

2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980 (CanLII)

[51] The appellant submits the respondent abandoned its assets by not removing them before December 6, 2007. Abandonment was raised at trial but was not addressed in the trial judge’s reasons. As a result, it falls to this court to determine the issue of abandonment based on the trial judge’s findings of fact.

[52] Abandonment is a defence to conversion. It occurs when there is a “giving up, a total desertion, and absolute relinquishment” of one’s interest in chattels: Simpson v. Gowers (1981), 1981 CanLII 1884 (ON CA), 121 D.L.R. (3d) 709, at p. 711 (Ont. C.A.), quoting R.A. Brown, The Law of Personal Property, 2nd ed. (1955), at p. 9. The party alleging abandonment bears the onus of proving, on a balance of probabilities, an objective intent to abandon the chattels. The determination of whether there is a sufficient intent to abandon is a question of fact governed by factors such as the length of time, nature of the chattels, conduct of the parties, and context of the case: 1083994 Ontario Inc. v. Kotsopoulos, 2012 ONCA 143, at paras. 17-18.

[53] Here, the respondent attempted to either negotiate a sale of his assets to the appellant or a time he could retrieve them. The respondent’s lawyer sent letters shortly after the termination of the lease indicating the respondent intended to remove the chattels. The respondent attempted to retrieve the chattels multiple times, each time being thwarted by the appellant. As such, there were no facts to suggest abandonment of chattels or trade fixtures in the instant case.

Ahmed v. DePaulis, 2020 ONSC 2550 (CanLII)

[75] As this Court set out in Murray v. Toth, 2012 CarswellOnt 12711 (Ont. S.C.J.) at para. 22, the elements of tort of conversion are as follows:

a) The plaintiff has a possessory interest in the property;

b) The personal property is identifiable or specific;

c) The defendant intentionally committed a wrongful act in respect of the property inconsistent with the plaintiff's right of possession; and

d) The plaintiff suffered damages.

[76] In 1694879 Ontario Inc. v Krilavicius, 2017 ONSC 2396, at para. 111, Kristjanson J. confirmed that an action for damages for conversion exists in all cases of wrongful distress, whether illegal, excessive or irregular, citing S. Graff and B. Kenworthy, in H. Haber, ed., Tenant’s Rights and Remedies in a Commercial Lease, A Practical Guide, 2nd ed. (Toronto: Canada Law Book, 2014) at p. 304.