What happens when a trusted family friend sells off a priceless vintage Corvette — not just any car, but a labour of love? The recent Ontario Court of Appeal decision in Kew Estate v. Konarski shows how the law treats rare property damages when the stakes are more than just dollar figures.
How do you make a case about property damage interesting? Add a pristine 1960s Corvette misappropriated and sold for parts by a family friend. In the case of Kew Estate v. Konarski, 2025 ONCA 357 (CanLII), the deceased was a passionate collector of vintage cars. After he passed, a family friend, Mr. Konarski, was entrusted to keep the vehicles safe. Little did the family know, Mr. Konarski had sold most of the deceased’s Corvette for parts. It turns out these parts are very difficult to find and quite expensive – hence the temptation.
Trial Decision
At trial, Mr. Konarski was found liable in the torts of conversion and detinue. These occur when someone wrongfully takes, holds, sells, or damages property belonging to someone else. In this case, Mr. Konarski was found responsible for selling parts of the Corvette without permission. In such cases, there is legal authority which states that the measure of damages is the cost to replace the property. However, this is not set in stone, as confirmed by the Ontario Court of Appeal in Kew Estate v. Konarski.
At trial, the task of assessing damages for the Corvette became complicated. The trial judge initially appointed a referee to assess the car’s value at the time it came into Mr. Konarski’s possession. However, there were some deficiencies in the referee’s report, and he failed to address some of the Court’s questions. The trial judge, therefore, assumed jurisdiction of the quantum of damages.
The trial judge considered whether to award damages based on the cost to replace the Corvette versus the cost to repair. The legal factors to consider are as follows:
- Uniqueness.
- Availability of a replacement.
- The difference between replacement price and restoration cost.
- Whether the plaintiff had a genuine interest in repairing the property.
- Balancing the risk of overcompensation from repair versus replacement.
There was no question that the Corvette was rare and therefore unique. More importantly, it had significant personal value to the deceased and his family. They even chose to have a Corvette engraved on his tombstone, showing how meaningful the car was to them. This case wasn’t just about the loss of property; it involved real people with genuine emotional connections to the vehicle.
One could not be assured that a replacement vehicle would be similar in quality to the subject Corvette, and they may very well have needed additional work. Suitable replacement vehicles were hard to find in any event. Since the quality of a replacement vehicle was a wildcard, it was difficult to ascertain how much it would cost to make it similar to the lost Corvette.
The trial judge also found that the family had a genuine interest in repairing the Corvette, given its high subjective value. They had taken some steps to that end.
The trial judge acknowledged the risk of overcompensating the plaintiff if the vehicle was repaired versus replaced. The repaired Corvette might end up being of greater quality than the original. However, the judge placed importance on the highly sentimental value of the vehicle. The judge also commented that the increased cost of repair was something that the defendant benefited from directly – the lucrative market for vintage Corvette parts. The defendant was not well position to complain about having to fund the parts to restore the vehicle. In theory, he could even walk away with a net profit if he only had to fund a replacement vehicle.
Appeal Decision
On appeal, Mr. Konarski argued that damages should have been assessed on the value of the replacement vehicle. In part, the defendant tried to introduce new evidence that the estate’s family had sold the remains of the Corvette prior to the appeal date – as proof that they had no genuine interest in restoring the vehicle. The Court of Appeal rejected that attempt, noting that the time to assess the plaintiff’s intentions was at trial, and circumstances could arise afterwards which may influence their decision to restore or sell the vehicle.
The defendant/appellant argued that the proper assessment of damages ought to have been the cost to replace the Corvette. He relied on precedent set by 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980, 138 O.R. (3d) 562. That case assessed the value of damages as the date of the conversion and held that “a tortfeasor will be forced to purchase the converted asset from the plaintiff. The general measure of damages is the market value of the converted asset as of the date of conversion.”
However, the Court of Appeal did not accept that this was a hard and fast rule for assessing damages. Due to the rarity of the subject Corvette, and the manner in which the defendant had parted out the vehicle, the Court upheld the trial judge’s decision to base damages on the restoration cost. The Court commented:
The value of the sum of the parts would appear to be greater than the whole. This, undoubtedly, is the reason that Mr. Konarski parted the car out in the first place.[2] He would have been motivated by, and likely profited from, the same market dynamic that produces what he now claims to be a disproportionate award. In reality, it is a just measure of damages.
…
… There may well be betterment. But the trial judge found that it was appropriate, given Mr. Konarski’s conduct, that he bear that risk and that “the plaintiff certainly should not be obliged to bear the risk of under-compensation.” I agree. Where the extent of the betterment is unproven and in doubt, the law favours the faultless plaintiff and not the defendant who sought to profit substantially by taking and selling the plaintiff’s property.
Ultimately, the Court of Appeal upheld the damages award for the restoration costs exceeding $200,000.00 (reduced due to the simplified procedure limit).
The defendant also challenged the trial judge’s aggravated damages assessment of $15,000.00. The plaintiff did not expressly plead aggravated damages. The Court of Appeal upheld the award as a plaintiff is not required to expressly plead aggravated damages, so long as the defendant is not taken by surprise. Notably, the aggravated damages award was based on the “hurt feelings experienced by the estate beneficiaries” as a result of Mr. Konarski’s conduct. The Court upheld the award, even though the beneficiaries were not parties in the action: “To conclude otherwise would mean that aggravated damages could never be awarded to an estate litigant.”
Takeaways
For insurers and lawyers, this decision is a reminder that assessing damages for unique property is rarely straightforward. Replacement cost may not be enough — courts can award restoration costs, especially when sentimental value is high and the defendant’s conduct egregious. Courts may award the cost to repair property, even when there is risk that the plaintiff would be overcompensated when compared to a replacement item.
The Court also demonstrated some flexibility when it comes to depreciation/betterment. In property claims, defendants tend to expect an automatic deduction for depreciation/betterment. However, the Court reminded us that the defendant must prove and justify the amount to be deducted. The Court’s reasoning may be particularly helpful to insurers pursuing subrogated claims.
See Kew Estate v. Konarski, 2025 ONCA 357 (CanLII) https://canlii.ca/t/kc247
