July 17, 2025
What damages can you recover if a supposed friend wrongfully retains something you gave them for safekeeping and strips it of parts before you can recover it?
THE ISSUE
As a general rule, a court will award you the lesser of the cost of repair or the fair market value of the item in its original condition.
But when are there exceptions to this general rule?
THE CASE
In Kew Estate v. Konarski, the defendant stripped parts off of a 1960 Corvette. Evidence showed that there is such a market for parts to maintain and restore these vintage cars that the value of the parts are many times greater than the market value of a finished vehicle.
The Ontario Court of Appeal awarded the value of the parts stripped off of the vehicle. In doing so, they adopted a test set out in an academic article by one of Canada’s leading professors and writers in the area of the law of damages[1]. The test says that the analysis of when courts may award the higher amount is guided by five principles:
1) the uniqueness of the property;
2) the availability of a replacement;
3) the size of the difference between the cost of repair and the cost of replacement;
4) the plaintiff’s interest in having the property repaired; and
5) the benefits of repair to the plaintiff weighed against the burden imposed on the defendant of having to pay the higher quantum.
Each of these principles is important. Not mentioned, but implied in the court’s decision, is the desire to punish the wrongdoer, and promote deterrence of future wrongdoing, but stripping the wrongdoer of any potential profits from their actions.
Although there is a risk that the innocent party will be overcompensated by this award of damages, as the court notes “the law favours the faultless plaintiff”.
TAKEAWAYS
- The law of damages is complex.
- Although there are general rules, the exceptions to those rules are equally important.
- Courts favour people with the “moral high ground”, such as innocent plaintiffs.
- Punishment and deterrence may be legitimate factors in setting damages.
WHAT WEILERS LLP CAN DO FOR YOU
The litigation team at Weilers understands the principles of damages, both the general rules and the exceptions. Our Counsel Brian Babcock has taught the law of remedies at the Bora Laskin Faculty of Law for many years. Brian helps keep us current and is consulted regularly for the benefit of our clients.
If you have had wrong done to you and think a lawsuit might be the right response, give us a call. We might be the right lawyers for you.
[1] Elizabeth Adjin-Tettey, “Measurement of Damages for Interference with Property Interests in Torts and Contracts” (2003) 26 Advoc. Q. 391, at p. 395)