Case Name:
Arnew v. 538274 Ontario Ltd.
Between
James Lee Arnew and 1037753 Ontario Inc., Plaintiffs
(Respondents), and
538274 Ontario Limited, Hassan Bahceli and Emine
Bahceli, Defendants (Appellant)
[2008] O.J. No. 5386
2008 ONCA 888
Docket: C47109
Ontario Court of Appeal
Toronto, Ontario
D.R. O'Connor A.C.J.O., D.H. Doherty and
M. Rosenberg JJ.A.
Heard: December 19, 2008.
Oral judgment: December 19, 2008.
Released: December 23, 2008.
(9 paras.)
Damages -- For torts -- Affecting property -- Personal property -- Trespass or conversion -- Real property -- Trespass -- Appeal by defendant from quantum of damages awarded in plaintiff's trespass action allowed in part -- Evidence supported awards for trespass to chattels and land where defendant converted chattels belonging to plaintiff's business for use by competitor and attempted to put plaintiff out of business by replacing plaintiff with competitor in place of business -- Damages awarded of $35,000 for trespass to chattels and $5,000 for trespass to land supported by evidence -- Aggravated damage award of $10,000 to individual plaintiff not appropriate, as trespasses committed against corporate plaintiff.
Damages -- Types of damages -- General damages -- Aggravated damages -- Appeal by defendant from quantum of damages awarded in plaintiff's trespass action allowed in part -- Evidence supported awards for trespass to chattels and land where defendant converted chattels belonging to plaintiff's business for use by competitor and attempted to put plaintiff out of business by replacing plaintiff with competitor in place of business -- Damages awarded of $35,000 for trespass to chattels and $5,000 for trespass to land supported by evidence -- Aggravated damage award of $10,000 to individual plaintiff not appropriate, as trespasses committed against corporate plaintiff.
Appeal by Bahceli from the quantum of damages awarded for trespass in Arnew's action against Bahceli and his business, a pizza operation. The judge found Bahceli wrongfully converted chattels owned by Arnew's business for his use in the pizza operation. The chattels were in fact turned over to a competitor of Arnew's. Arnew gave evidence it cost $35,000 to replace the chattels. The judge also awarded $5,000 for trespass to land, finding some actual damage where Bahceli's trespass was a pre-emptive strike aimed at putting Arnew out of business. He characterized the actions as deliberate and designed to replace Arnew's operation with that of a competitor, and to prevent Arnew from reopening his business elsewhere. Aggravated damages to Arnew were assessed at $10,000.
HELD: Appeal allowed in part. There was enough evidence to support the judge's awards for trespass to chattels and to land. Given that the trespasses were against the corporate plaintiff, there was no basis for an award to Arnew of aggravated damages.
Appeal From:
On appeal from a judgment of Justice Richard Gates of the Superior Court of Justice dated April 16, 2007.
Counsel:
Myron W. Shulgan, Q.C., for the appellant 538274 Ontario Limited.
Raymond G. Colautti, for the respondents.
[Editor's note: A correction was released by the Court January 8, 2010; the change has been made to the text and the correction is appended to this document.]
ENDORSEMENT
The following judgment was delivered by
1 THE COURT (orally):-- Counsel for the appellant no longer challenges the trial judge's finding that the appellant committed trespass against the land and property in issue. Counsel submits, however, that on the evidence, the trial judge should have awarded only nominal damages for these trespasses. Counsel also argues that the trial judge erred in awarding the individual plaintiff aggravated damages.
2 The trial judge fixed the damages for trespass to chattels at $35,000. The trespass in this case amounted to a conversion of the plaintiff's chattels used by him to run his pizza operation by the appellant. The chattels were in fact turned over to a competitor of the plaintiff.
3 There was evidence of the replacement cost of these chattels. That evidence in fact came from the appellant. While we accept that the evidence was perhaps not as a exact or detailed as it might have been, we are satisfied there was enough there to support the trial judge's award of $35,000 for the trespass to chattel.
4 The trial judge awarded $5,000 for trespass to land. We accept that this amount is somewhat greater than what could properly be regarded as a nominal award. There were, however, factors accompanying this particular trespass from which the trial judge could infer some actual damage to the corporate plaintiff. These factors included:
* the trespass was a "pre-emptive" strike aimed at putting the plaintiff out of business; and
* the appellant's actions were deliberate and designed to replace the plaintiff's business operation with that of a competitor. The appellant's actions were also designed to prevent the plaintiff from immediately reopening its business elsewhere and going into competition with the competitor that the appellant was seeking to assist.
5 In these circumstances, we are not prepared to interfere with the relatively modest damage award for trespass to property. We think these factors did support the inference of some actual damage.
6 As to the award of aggravated damages, we note that the trial judge's findings of fact with respect to both the trespass to land and property support the conclusion that the trespass was committed against the corporate plaintiff and not the individual plaintiff who was the president of the corporate plaintiff. The trial judge's finding is consistent with the way in which the trespasses were pleaded by the plaintiff.
7 The trial judge's award of aggravated damages was made in favour of the individual plaintiff. Given that the trespasses were against the corporate plaintiff and that only the corporate plaintiff was entitled to damages for those trespasses, it follows that there is no basis for an award of aggravated damages to the individual plaintiff. That part of the trial award must be deleted.
8 Consequently, the appeal is allowed and the damages are reduced by $10,000 to $40,000.
9 There will be no order as to costs.
D.R. O'CONNOR A.C.J.O.
D.H. DOHERTY J.A.
M. ROSENBERG J.A.
* * * * *
Correction
Released: January 8, 2010
The changes are reflected in the name of the numbered company. It should read "538274 Ontario Limited".
cp/e/qlkjg/qlcnt/qlaxw/qlsxs/qlsxs