THE FOLLOWING BLOG POST WAS WRITTEN BY IRYNA HUK, STUDENT-AT-LAW AT DE VRIES LITIGATION LLP

When a sentimental estate asset is wrongfully altered or destroyed, courts must decide whether the appropriate remedy is to award the estate the value of a replacement or the cost of restoring the original. The decision in Kew Estate v. Konarski, 2025 ONCA 357 illustrates that in some circumstances, misappropriating emotionally significant estate assets may not only justify the cost of restoration, but it can also open the door to aggravated damages.[1]

After Mr. Kew’s sudden passing, the family entrusted a close friend, Mr. Konarski, with four vintage vehicles, including a 1960 Corvette – so meaningful that it was engraved on Mr. Kew’s headstone. Instead of safeguarding it, Mr. Konarski fraudulently transferred ownership to himself and sold the car’s parts, leaving only the body, with a few remaining pieces.

A representative of the estate sued Mr. Konarski, who was found liable for the torts of conversion and detinue and was ordered to return the vehicles to the estate. Three of the cars were returned in good condition. As for the 1960 Corvette, the court held that the appropriate measure of damages was the cost of restoring the vehicle to its original condition. Damages were assessed by the diminution in value, determined by the reasonable cost of restoration.[2]

While the court acknowledged that restoration could exceed the cost of replacement, it outlined five key factors to determine whether restoration was appropriate:

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.[3]

In weighing these factors, the trial judge found restoration costs to be fair. The car had exceptional sentimental value to the plaintiff, and the cost of restoration was largely due to rare parts – the same factors that motivated Mr. Konarski to strip the car. It was noted by the court that any financial gain received by the appellant could offset the higher damages and awarding the lesser cost of replacement could leave Mr. Konarski with a windfall. Expert evidence also showed that replacing and repairing a similar car would cost nearly as much as restoring the original.

On appeal, Mr. Konarski argued the judge gave too little weight to the fact that the estate never restored the Corvette and later sold its remains. The Court of Appeal found this irrelevant and refused to consider new evidence, concluding it did not justify changing the outcome. What mattered was the plaintiff’s intention at the time of trial, which the court found to be genuine. The Court recognized that financial priorities could change—particularly when the awarded damages had not yet been received.

Mr. Konarski also argued that damages should be limited to the car’s market value at the time of conversion, citing 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980.[4] The Court dismissed this argument, finding the cited case did not apply to the facts here. Mr. Konarski’s further argument that restoration was disproportionate and contrary to public policy was also rejected. The trial judge had thoroughly considered the factors outlined above, concluding that the Corvette was unique, sentimental and limited in the market; thus, the restoration and the costs associated with it were reasonable, even if they result in a betterment.

Lastly, the Court of Appeal upheld a $15,000 award in aggravated damages. Mr. Konarski had exploited a position of trust when the family were in a state of vulnerability and prolonged their distress through litigation. While aggravated damages weren’t specifically pleaded by the plaintiffs, the trial court held that it wasn’t required, provided that the defendants’ conduct “causes a loss of dignity, humiliation, additional psychological injury, or harm to the plaintiff’s feelings,”[5] and the defendant is not taken by surprise.[6] In this case, given the seriousness of Mr. Konarski’s misconduct, the Court found there could be no such surprise.

Kew Estate v. Konarski demonstrates how an estate can recover wrongfully taken property after a death and how the value of such assets could be restored.

[1] Kew Estate v. Konarski, 2025 ONCA 357 (CanLII) [Kew Estate].

[2] Kew Estate, at para. 14.

[3] Id.

[4] 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980.

[5] McIntyre v. Grigg, 2006 CanLII 37326 (ON CA), 83 O.R. (3d) 161 (C.A.), at paras. 50-51

[6] Lewis N. Klar et al., Remedies in Tort (Toronto: Thomson Reuters, 2021), at § 30:9; Tom v. Truong, 2002 BCSC 643, [2002] B.C.T.C. 643, at para. 107, aff’d 2003 BCCA 387, 16 B.C.L.R. (4th) 72.