Detinue

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-12-25
CLNP Page ID:	2446
Page Categories:	Tort Law
Citation:	Detinue, CLNP 2446, <>, retrieved on 2024-12-25
Editor:	MKent
Last Updated:	2024/12/06

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Kew v. Konarski, 2020 ONSC 4677 (CanLII)

[23] In relation to detinue:

a. Detinue focuses on the wrongful refusal to deliver up a chattel to the person entitled to it.[38]

b. The essential elements which must be established to make out the tort of detinue are the same as those required to make out the tort of conversion. However, in relation to the tort of detinue, the “wrongful act” committed by the defendant is the defendant’s wrongful withholding of the relevant property.[39]

c. To establish detinue, a plaintiff’s demand for the property and the defendant’s refusal to deliver it accordingly are prerequisites.[40] In that regard:

i. the plaintiff’s demand must be unconditional in its terms, specify the relevant property, and be brought to the attention of the defendant – although where a defence to a detinue claim clearly shows that the defendant would not have complied with a demand by the plaintiff, the fact that a demand was not made is not a defence to the plaintiff’s detinue action;[41] and

ii. the defendant’s refusal to deliver or return the property to the plaintiff must be absolute and unqualified.[42]

d. Whereas the tort of conversion may be established without a defendant being in possession of property at the relevant time, the same is not true in relation to detinue. In particular, where the wrongful act of the defendant is his or her refusal to deliver up the relevant chattel to a plaintiff entitled to its possession, the defendant must be in actual possession of the chattel at the time of the refusal, or estopped from denying that he was still in possession.[43]

e. Like conversion, detinue is a strict liability tort. Generally, it therefore is no defence that the defendant mistakenly believed that the property was his, or that the wrongful act of withholding was committed “in all innocence”. For example, it is irrelevant that the person dealing with the goods did not know and could not have known of the plaintiff’s interest in the goods.[44]

[24] Where the facts support both an action in conversion and detinue, in relation to particular property, the plaintiff generally must choose his or her remedy, bearing in mind the following:

a. Where the essential elements of conversion have been established in relation to particular property, the remedy normally is a judgment for pecuniary damages. In that regard:

i. As noted above, the measure of damages for conversion ordinarily is the full value of the chattel, (a special rule of damages placing conversion in an exceptional position among tort remedies), which effectively forces an involuntary purchase on the “convertor”.[45]

ii. In particular, the normal measure of damages is the value of the chattel at the date of conversion, (with the court generally having regard to market value, but also having the ability to consider any special value to the plaintiff), together with any consequential damages flowing from the conversion, provided they are not too remote to be recovered in law.[46]

b. Where the essential elements of detinue have been established, a number of alternative remedies are available, including:

i. judgment for the value of the chattel and damages for its detention;

ii. an order for the return of the chattel or recovery of its value as assessed, and damages for its detention; or

iii. an order for return of the chattel and damages for its detention.[47]

c. Judgment for the value of a detained chattel, as opposed to an order directing its return, may be appropriate where the chattel is an ordinary article of commerce. However, an order directing return of the chattel will be appropriate were the chattel is not ordinary and/or is of special value to the plaintiff.[48]

d. Where the defendant fails to return such property, the value of goods claimed but not returned is assessed, (for the purpose of damages), as of the date of judgment.[49]

e. Where the goods have been improved and their value increased by the party converting them, the owner generally must pay for that increased value upon repossessing the goods.[50]