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Aitken v Gardiner (1956) 4 DLR (2d) 119 (ON SC)


Gardiner (D) purchased shares certificates without knowing they were stolen from Aitken (P). D sold some of them


What is the appropriate remedy for conversion?


The plaintiff may recover value of chattel at time of conversion (general rule) and potentially also consequential losses caused by the conversion (to compensate the plaintiff if the thing increased in value between the time it was taken and the time of the trial).


D argued that he was only liable for sold certificates and damages should be valued at time of conversion (their value had increased by time of trial).

In an action for conversion the general principle of law, although not an inflexible one, is that the jury can give no more damages than the value of the goods at the time of conversion (per: 3 CED Ont 2ns ed p 168).
** Per Salloway v McLaughlin and Caxton Publishing v Sutherland Publishing: called for the assessment of "damages at time of conversion."
** However, in Salloway the D had profited from converting the shares then buying them back at a lower price.

Salmond on Torts: If property increases in value after the date of conversion then:
** 1. due to actions of the D, then P has no title to increase past conversion;
** 2. and would have anyway, P is entitled to recover increase and original value (except if the plaintiff knew or ought to have known about conversion)

A person who owns shares intends to profit from them. Deprivation of the opportunity to obtain the profit is a proper element in considering the loss which the plaintiff suffered by the conversion.


Spence J held that D were liable in conversion or detinue “sur trover” (old action) and ordered those remaining returned and damages for rest.

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