Twan v. Hudson's Bay Company

93 O.R. (3d) 582

Ontario Superior Court of Justice,

Divisional Court,

T.D. Ray J.

December 23, 2008

Torts -- Unlawful confinement -- Store security officer asking plaintiff to return to store after plaintiff left without paying for newspaper -- Plaintiff complying and producing identification -- Plaintiff refusing to sign trespass notice and attempting to leave when told that she would be held until police arrived -- Security officer restraining plaintiff and [page583] placing her in handcuffs -- Security officer not having reasonable grounds to arrest plaintiff -- Section 494(3) of Criminal Code not requiring security officer to hold plaintiff until police arrived -- Arrest and detention unlawful -- Criminal Code, R.S.C. 1985, c. C-46, s. 494(3).

When the plaintiff left the defendant's store without paying for a newspaper, she was confronted by a security officer who asked her to return to the store. She complied and produced identification documents which included her name, address and photograph. However, she refused to sign a trespass notice. She was told that if she did not sign the notice, she would be held until the police arrived. She attempted to leave and was restrained and, after a scuffle, put in handcuffs. The plaintiff brought a Small Claims Court action for damages for unlawful confinement and false arrest. The trial judge granted judgment in favour of the plaintiff for $4,500 for unlawful confinement and dismissed the false arrest claim. The defendant appealed.

Held, the appeal should be dismissed.

The plaintiff was arrested by store security personnel when she was restrained and placed in handcuffs. There were no reasonable grounds for the arrest. The security officer had all the information she required. Refusal to sign a trespass notice is not grounds for an arrest. It was not the case that by virtue of s. 494(3) of the Criminal Code, the security officer had to hold the plaintiff for the arrival of the police. The arrest and the forcible detention were unlawful. The trial judge's assessment of damages was not unsupported by the evidence.

APPEAL from judgment for plaintiff.

Cases referred to R. v. Asante-Mensah, [2003] 2 S.C.R. 3, [2003] S.C.J. No. 38, 2003 SCC 38, 227 D.L.R. (4th) 75, 306 N.R. 289, J.E. 2003-1330, 175 O.A.C. 317, 174 C.C.C. (3d) 481, 11 C.R. (6th) 1, [2004] G.S.T.C. 104, 39 M.V.R. (4th) 155, 57 W.C.B. (2d) 522, consd Other cases referred to Ferguson v. Jensen; O'Brien v. Jensen (1920), 1920 147 (SK CA), 33 C.C.C. 218 (Sask. C.A.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991 Statutes referred to Canadian Charter of Rights and Freedoms Courts of Justice Act, R.S.O. 1990, c. C.43, s. 29 Criminal Code, R.S.C. 1985, c. C-46, ss. 494(2), (3), 495(2) Trespass to Property Act, R.S.O. 1990, c. T.21, s. 9(2) Authorities referred to Moreland, R., Modern Criminal Procedure (New York: Bobbs- Merril, 1959)

Self-represented, plaintiff. Norman Groot, for defendant.

[1] T.D. RAY J.: -- This is an appeal from the decision of a deputy judge of the Small Claims Court at Ottawa, dated December 20, 2007, in which he gave judgment in favour of the respondent, Ms. Twan (the "respondent"), for $4,500 damages for unlawful [page584] confinement plus prejudgment interest and costs fixed at $1,500. He dismissed her claim for false arrest.

[2] The appellant contends that there is no cause of action known as unlawful confinement. That after arresting the respondent, the appellant was required under the provisions of s. 494(3) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code") to detain the respondent until the police arrived; and finally, that the damages and costs are excessive.

[3] The respondent who was self-represented filed some written submissions and copies of authorities for the purpose of resisting the appeal. She also cross-appeals on the ground that damages ought to have been assessed at $10,000 rather than $4,500.

[4] An appeal from the Small Claims Court for an award in excess of $500 is to be taken to a single judge of the Divisional Court. The standard of review is correctness on a question of law, and palpable and overriding error regarding findings of fact. A more stringent standard of review is applicable where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 211 D.L.R. (4th) 577).

[5] The learned deputy judge heard the following witnesses: the respondent, Ms. Evans (a security officer employed at the time by the appellant) and an Ottawa police officer who in the result declined to charge the respondent with theft of a 65- cent newspaper and instead gave her a Provincial Offence Notice under the Trespass to Property Act, R.S.O. 1990, c. T.21 (the "TPA").

[6] The learned deputy judge found on the evidence before him that on February 9, 2004 at approximately 12:30 p.m., the respondent went to the appellant's retail outlet to make a payment on her account -- which she did. Prior to leaving, she put a 65-cent newspaper under her arm and left without paying for it.

[7] The respondent was confronted by Ms. Evans outside the retail store at a fast food outlet in the mall area and asked to return to the store in order for her to be given a trespass notice. The respondent co-operated, returned to the store and produced identification documents which included her name, address and photograph.

[8] Ms. Evans, the security officer, completed the trespass notice and asked the respondent to sign it. She refused. She asked to leave the store to pick up her food at the fast food outlet (which she had paid for earlier) and to speak to her boyfriend. Ms. Evans followed her out of the store and accompanied the respondent as she willingly returned to the store and into the security officer's office. [page585]

[9] The evidence was that Ms. Evans called the police because of the respondent's continued refusal to sign the notice.

[10] Ms. Evans' evidence was that she had been involved with approximately 1,000 arrests over her two-year employment. Her evidence was that the Hudson's Bay Company's policy manual provided that if the individual in question signed the trespass notice, then they would be free to go. But if they refused, then the police were to be summonsed and the individual detained until the arrival of the police.

[11] The respondent asked how long she would have to wait, and was told anywhere from ten minutes to five hours. The respondent got tired of waiting. Upon attempting to leave, she was restrained with the assistance of another security officer. After some rolling around on the floor, she was put in handcuffs. It was during this episode that the respondent alleged she had been assaulted.

[12] The learned deputy judge found that Ms. Evans was justified in apprehending the respondent which he found was a lawful arrest, but that once she supplied sufficient identification information concerning the respondent, that she ought to have been permitted to leave. The learned deputy judge found as a consequence that the scuffling, restraints and confinement under these circumstances was totally unnecessary. He found that the confinement was forcible, that unreasonable force was used and therefore the confinement was unlawful.

[13] The appellant relied on the provisions of s. 494 of the Code and particularly s. 494(2)(b) and (c) as a complete defence to his client's actions as follows:

494(1) Any one may arrest without warrant (a) a person whom he finds committing an indictable offence, or (b) a person who, on reasonable grounds, he believes (i) has committed a criminal offence, and (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

(2) Any one who is (a) the owner or a person in lawful possession of property, or (b) a person authorized by the owner or by a person in lawful possession of property,

may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer. [Emphasis added] [page586]

[14] The appellant referenced R. v. Asante-Mensah, [2003] 2 S.C.R. 3, [2003] S.C.J. No. 38, 2003 SCC 38 as authority for justification of his client's actions with the respondent. The facts in that case were similar in principle but involved taxis without permits or "scoopers" who were on the airport authorities' property soliciting fares in the face of the airport's express refusal that they be there.

[15] As a result of a confrontation and physical restraint of one of the scoopers, the issue was whether a citizen in making an arrest that is otherwise lawful under s. 9(2) of the TPA can use reasonable force.

[16] Section 9(2) provides that where a person (not a police officer) makes an arrest under the Act,

. . . he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. . . .

[17] As noted above, s. 494(3) of the Code provides similarly that he or she "shall forthwith deliver the person to a peace officer".

[18] Binnie J. in R. v. Asante-Mensah, supra, confirmed that reasonable force is available to a citizen as an incident to arrest under the above provisions. However, after noting the provisions of s. 495(2) of the Code, which prohibits a warrantless arrest with respect to lesser offences unless necessary to establish the identity of the person arrested, he left open "a proper case where an occupier who is sued in tort as a result of a TPA arrest is called upon to demonstrate that the arrest as well as the force used to effect it was reasonable in all the circumstances" (Supra, para. 76.),

[19] It appears, therefore, that R. v. Asante-Mensah is not the final word.

[20] The right to detain a citizen, whatever the basis, must be treated seriously and given limits and restraints consistent with our societal values of freedom. The Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, ("Charter") is an expression of the seriousness with which we value our freedom.

[21] An arrest has been defined as something more than mere words. There must be some actual restraint (Moreland, Modern Criminal Procedure (New York: Bobbs-Merill, 1959, p. 21)). If a person consents to accompany the police to the police station, this will not constitute an arrest (Ferguson v. Jensen; O'Brien v. Jensen (1920), 1920 147 (SK CA), 33 C.C.C. 218 (Sask. C.A.)).

[22] The respondent came back into the store willingly on two occasions. She co-operated fully with Ms. Evans up to the point of being asked to sign the trespass notice. It was only [page587] after Ms. Evans called the police and was told the wait could be up to five hours that she decided to leave -- and was physically restrained. I find that the arrest occurred when the respondent was restrained and placed in handcuffs. There were no reasonable grounds for the arrest. Ms. Evans had all the information she required -- including photo ID.

[23] The contention that by virtue of s. 494(3) of the Code, the appellant had no discretion and had to hold the respondent for the arrival of the police is unsupportable. The respondent was not under arrest, there were no grounds and she ought to have been permitted to leave.

[24] The claim by Ms. Evans that she called the police and restrained the appellant because she refused to sign the document she (Ms. Evans) prepared was not grounds for an arrest. There is nothing in the TPA that requires a signature on a document. The arrest was not justified.

[25] This involved a 65-cent newspaper, but rapidly became an exercise in power and control. Sight was lost of the underlying issue. The evidence showed that the respondent was not only a customer of the appellant but apparently up until the moment of arrest a valued customer. She had been advanced $1,500 for purchases and was in the process of making a payment towards this account.

[26] I assume that the appellant decided in that moment that having the respondent as a customer was no longer of value. Certainly, once she was in handcuffs, any attempt at proportionality by the appellant had been abandoned.

[27] The theft involved a 65-cent newspaper. The police who eventually arrived declined to charge the respondent with theft on the de minimis principle.

[28] For different reasons from the learned deputy judge, I agree that the arrest of the respondent was wrongful and her forcible detention unlawful.

[29] While the learned deputy judge's reasons are sparse concerning his assessment of the respondent's damages, the evidence before him would not render his assessment unsupported. I am not prepared to disturb his findings in this regard.

[30] The appellant contends that the costs award of $1,500 was beyond the jurisdiction of the learned deputy judge. Section 29 of the Courts of Justice Act, R.S.O. 1990, c. C.43 imposes a limit on an award of costs in Small Claims Court. Such an award cannot exceed 15 per cent of the amount claimed. The plaintiff claimed $10,000. The maximum costs award would therefore be $1,500 -- the amount ordered by the learned deputy judge. I am not prepared to disturb his exercise of discretion. [page588]

[31] The appeal is therefore dismissed. Costs are fixed at $1,000.

Appeal dismissed.