TOUCH ME NOT – Tort of Conversion and other tort liabilities for interfering with the property of another
Have you come across instances when you or someone you know has been wrongfully deprived of their personal property? What was the best advice you could offer in these situations? Perhaps, you asked them to report the incident for theft or robbery. However, a person who wrongfully interferes with the property of another can be held liable under the Tort of Conversion which is a civil wrong, and they may not even have intended to do any wrong!
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[1]
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[2]
Conversion deals only with personal property, mobile objects or tangible goods and, accordingly, does not apply to real property and any interest of land. Additionally, Conversion is generally regarded as a strict liability tort wherein even if the wrongful interference is without illicit intentions or with innocent intentions, liability may be inferred. The philosophy behind strict liability is that a defendant cannot use or convey anything which they have no title to use or convey.[3] This is the practical inference of the expression nemo dat quod non habet (one cannot give what one does not own).
Intent that must be proven is the intent to exercise dominion and control over the plaintiff’s property in a manner inconsistent with the plaintiff’s right. However, intent or purpose to do wrong is not necessary to establish conversion, merely intent to seize property.[4] As such, conversion is an intentional tort.
The tort of conversion is fully considered and explained in the leading case of BMW, et al v. Mirzai[5] (BMW Canada) which also outlines the essential elements of the tort at paragraph 21 –
[21] There are four essential elements for the tort of conversion.
- The defendant commits a wrongful act;
- Involving the Plaintiff’s chattel;
III. By handling or disposing of the chattels;
- With the intention of denying or negating the Plaintiff’s title or other possessory interest.
If liability is determined under the tort of conversion the damages resulting from it will be based upon the actual value of the object converted at the time that the object was converted in a similar manner to that for the calculation of actual damages arising from other torts. See BMW Canada case.
The tort of conversion can easily be confused with the tort of trespass to chattels. However, the difference between conversion and trespass to chattels lies in the degree of interference with the property. The degree of interference in the tort of conversion must be so serious that the tortfeasor may be required to pay the full value of the property. On the other hand, in a tort of trespass to chattels the tortfeasor is responsible only to the extent of the damage done from dispossessing the another of the chattel, using or intermeddling with a chattel in the possession of another or damaging it, as against the full value of the chattel. It’s important to know that in addition to the tort of conversion or trespass of chattels, failure to return property to its rightful owner may result in liability for the tort of detinue.
In summary, a person not in lawful possession of a chattel may commit conversion by intentionally dispossessing the lawful possessor of the chattel, intentionally using a chattel in his possession without authority to use it, receiving a chattel pursuant to an unauthorized sale with the intent to acquire it himself or for another, disposing of a chattel by an unauthorized sale with the intent to transfer interest in it or refusing to surrender a chattel on demand of the rightful owner of such chattel.
If you have questions regarding commercial and civil law matters, please contact Osuji & Smith Lawyers and Tanaaz Padania, and we will be happy to assist you.
Author: Tanaaz Padania, Lawyer
[1] DaimlerChrysler Canada Inc. v. Associated Bailiffs & Co. Ltd., 2005 CanLII 24234 (ON SC)
[2] Simpson v, Gowers (1981), 1981 CanLII 1884 (ON CA), 32 OR (2d) 385 (C.A.) at 387, per MacKinnon A.C.J.O.).
[3] Fridman, Law of Torts in Canada (third). Carswell; London, Ontario, 2010, page 127.
[4] Chem-Age Indus. v. Glover, 2002 SD 122 (S.D. 2002)
[5] BMW, et al v. Mirzai, 2018 ONSC 180.
