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

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