Judgment of the Court
THE is an appeal by the defendant, Roman, from a judgment of the Court of Appeal for Ontario' dated February 23, 1968. The judgment appealed from reversed the judgment of Stewart J. who had dismissed the action with costs after a trial without jury. The judgment appealed from awarded the respondent $31,105.90 damages, suffered as a result of the wrongful detention of 7,143 shares of Consolidated Denison Mines Limited. The action was tried on an agreed statement of fact and for the purposes of this appeal a brief summary thereof will be sufficient.
On August 4, 1955, the plaintiff Crighton instituted an action, in which he had as his co-plaintiff The Toronto General Trusts Corporation in its capacity of executor of the Estate of the late William Ray Featherstone, deceased, against the defendant Roman. This action may for convenience be termed the joint action and in it the plaintiffs claimed, inter alia, the return to each of them of 25,000 shares of the capital stock of North Denison Mines Limited held by the defendant Roman and later represented by 7,143 shares of Consolidated Denison Mines Limited. The joint action came on for trial before Judson J., then a member of the Supreme Court of Ontario. By his judgment, (delivered on February 1958), the claim of the executors of Featherstone for delivery of the shares was allowed but the corresponding claim of the plaintiff Crighton was dismissed.
From this judgment Roman and Crighton appealed to the Court of Appeal for Ontario which dismissed both appeals. They then appealed to this Court which by a CR " judgment dated October 4, 1960, dismissed Roman's appeal h from the judgment in favour of the executors of Feather- C.J. stone and allowed Crighton's appeal. The judgment was entered on November 23, 1960, after a motion before the Court to settle its terms. (This judgment is reported sub. nom. Crighton v. Roman, Roman v. Toronto General Trusts Corp. ). Paragraphs 2 and 3 of the formal judgment read as follows:
2. AND THIS COURT DID FURTHER ORDER AND DECLARE that the respondent (defendant) Stephen Boleslav Roman is a trustee accountable to the appellant (plaintiff) John D. Crighton for twenty-five thousand (25,000) fully paid shares in North Denison Mines Limited or the equivalent thereof, being seven thousand, one hundred and forty-three (7,143) fully paid shares of Consolidated Denison Mines Limited found to be in the hands of the respondent (defendant) Stephen Boleslav Roman at the time of trial of this action, AND DID FURTHER ORDER AND ADJUDGE that the respondent (defendant) Stephen Boleslav Roman do forthwith deliver to the appellant (plaintiff) John D. Crighton the said shares or the equivalent thereof, being seven thousand, one hundred and forty-three (7,143) fully paid shares of Denison Mines Limited;
3. AND THIS COURT DID FURTHER ORDER AND ADJUDGE that the respondent (defendant) Roman do account for and pay to the appellant (plaintiff) Crighton all dividends upon the shares so ordered to be delivered, including the amount of Ten thousand, seven hundred and fourteen Dollars and fifty cents ($10,714.50) declared and paid prior to the date of this judgment;
During the period between the decision of the Court of Appeal in the joint action and the final judgment of this Court two dividends aggregating $1.50 per share were paid on the shares of Consolidated Denison Mines Limited and the judgment of this Court directed that Roman, who was found to have been a trustee and who had received these dividends, should account to Crighton for them. This he did on January 30, 1961. In compliance with the judgment of this Court, Roman delivered to Crighton, certificates for 7,100 shares on December 8, 1960, and for the balance of 43 shares on December 20, 1960.
Following the decision of this Court in the joint action, both plaintiffs in that action namely, The Toronto General Trusts Corporation as executors of Featherstone, and Crighton, commenced separate actions claiming damages for the wrongful detention of their shares between the date of the 2 [19601 S.C.R. 858, 25 D.L.R. (2d) 609.
S.C.R.
[19691575 original judgment at the trial namely, February 5, 1958, none and the date when the shares were actually delivered. As Roman had been held to be a trustee of the shares for the plaintiffs, the damages claimed were the difference between Caright the price actually realized by them for their shares and the highest price at which the shares were traded during the period namely, 16) on June 16, 1958. The executors of Featherstone proceeded with their action but, by consent, Crighton's action was stayed pending the outcome of the Featherstone action.
By a unanimous judgment of the Court of Appeal for Ontario delivered by Schroeder J.A. damages as claimed were awarded to the executors of Featherstone (the judgment is reported in [1963] 1 O.R. 312). This decision was appealed to this Court which, in a judgment delivered by my brother Martland, agreed with and adopted the reasons of Schroeder J.A. See [1963] S.C.R. vi, 41 D.L.R. (2d) 290. Following this decision, Crighton proceeded with his action which is now the subject of this appeal.
There are two points only in issue in this appeal. The first point is whether the fact that Crighton did not obtain a judgment in his favour with respect to the shares he claimed until his case had reached this Court differentiates his position in this case from that of the executors of the Featherstone Estate in their case. The appellant claims that it does and that Crighton is entitled to no damages. The respondent claims that it does not and that he is entitled to damages on the same basis as the executors of the Featherstone Estate were found to be. If the respondent's contention on this point is upheld, there is no dispute as to the amount of damages awarded by the Court of Appeal.
The second point is whether, assuming Crighton to be entitled to damages on the same basis as were the executors of Featherstone, the appellant should be relieved from paying them under the provisions of s. 35 of The Trustee Act, R.S.O. 1960, c. 408. The appellant claims he should be so relieved whereas the respondent says there is no ground for relieving him. This contention was not raised by the defendant in the action brought by the executors of Featherstone; it was not dealt with by Stewart J. as that learned Judge had held that the action failed; it was rejected by the Court of Appeal.
Cases cited
- 1 O.R. 312 1 O.R. 312
Statutes and regulations cited
-
Unresolved citations
- s. 35 of The Trustee Act