CITATION: Brown v. Hudson’s Bay Company, 2014 ONSC 1065

COURT FILE NO.: DC-13-94-00 ML

DATE: 2014-02-17

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

COLLINGTON BROWN

Self-Represented

Plaintiff

• and -

THE HUDSON’S BAY COMPANY (HBC), LINDA MERCADANTE, JANE DOE a.k.a. LAURA WHITWORTH, BRAMALEA CITY CENTRE, CANSTAR SECURITY SERVICES INC., MICHAEL MAGNAYE, RYAN HARNEST, AMANDA ELIZABETH BALNE, SHAUN McGRATH, AND RAPHAEL WAUCH

Barry Cox (assisted by Nicola Brankley, Student-at-law), for the Respondents Bramalea City Centre, Canstar Security Services Inc., Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath, and Raphael Wauch

Respondents

HEARD: August 30, 2013 at Brampton, Ontario

Price J.

Reasons For Order

[1] On May 3, 2003, Collington Brown, a former law student-turned-insurance agent, who hoped eventually to return to law school, entered a Hudson’s Bay Company store to return a vacuum cleaner that he had bought there several months earlier. While waiting for the Assistant Manager to consult another manager about whether to accept the vacuum cleaner and give him a refund, Mr. Brown was brought to the ground by several mall security officers whom he says falsely arrested him and inflicted a sustained beating upon him, which left him traumatized and disabled. Mr. Brown’s ensuing lawsuit to recover damages for his injuries has entangled the parties for over a decade in a dispute over the legality of the force used on him when he refused to leave the store.

[2] On July 25, 2013, Daley J. required Mr. Brown to pay $30,000.00 into court as security for the defendants’ costs of discoveries and a pre-trial conference. Mr. Brown seeks leave to appeal from that decision to the Divisional Court.

[3] For the two reasons that follow, I find that there is good reason to doubt the correctness of Daley J.’s decision. One is that Daley J. does not review the evidence that led him to accept the defendant’s position that there was good reason to believe that Mr. Brown’s action is frivolous and vexatious, as required by rule 56.01(1)(e) of the Rules of Civil Procedure[^1]. He also does not refer to evidence which, in the present case, supports a contrary conclusion. In particular, he does not refer to testimony given by the mall security officer, Shaun McGrath, at discovery, where Mr. McGrath admitted that Mr. Brown was arrested when he was already on the ground, or Mr. Brown’s evidence that the security officers beat him when he was not resisting their efforts to subdue him, which may support a conclusion that excessive force was used in effecting his arrest.

[4] Daley J.’s reasons disclose that he relied on a finding made by Ricchetti J. in a motion by other defendants for summary judgment in the action. Ricchetti J. found that Mr. Brown was the author of his own misfortune by refusing to leave the store when directed to do so. Although Daley J.’s reliance on another judge’s finding of fact may be an error in law, it would not, by itself, justify granting leave to appeal from his decision if a review of all of the evidence disclosed good reason to believe that the action is, in fact, frivolous and vexatious.

[5] In the present case, while the evidence supports Ricchetti J.’s finding, which Daley J. adopts, that Mr. Brown refused to leave the store when the plain- clothed Hudson’s Bay Company’s Loss Prevention Officer directed him to do so, which gave the mall security officers grounds to arrest Mr. Brown for trespassing, that evidence is not determinative of whether their arrest was lawful. As noted above, one of the mall security officers admits that Mr. Brown was told that he was under arrest when was on the ground. Additionally, the force used to arrest Mr. Brown may have been excessive.

[6] The second reason for concluding that Daley J.’s decision is not correct is that without expressly finding that there was reason to believe that the action was frivolous and vexatious, Daley J. states that Mr. Brown faced a high threshold to prove that his action has merit. It is not clear, from the reasons given, whether Daley J. was imposing this burden on Mr. Brown in the first stage of the analysis required by rule 56.01(1)(e), where the onus is on the defendants to prove that there is good reason to believe that the action is frivolous and vexatious, or in the second stage of analysis, where the onus is on the plaintiff to show that his action has merit. Because Daley J.’s reasons leave uncertainty as to whether he correctly applied the shifting onus required by the two-stage analysis under rule 56.01(1)(e), Mr. Brown must be given leave to appeal from his decision.

[7] Permitting Daley J.’s decision to stand could deny Mr. Brown access to justice and create uncertainty as to who bears the onus, in a motion for security for costs, of demonstrating that the action does or does not have merit. Additionally, a finding that Mr. Brown’s action is frivolous and vexatious based solely on the fact that there were lawful grounds for his arrest, would devalue the equally important question of whether his arrest under the Trespass to Property Act[^2] was conducted in a lawful manner and with reasonable force. These are matters of public importance that deserve the attention of the Divisional Court, and Mr. Brown will therefore be granted leave to appeal to that court from Daley J.’s decision.

BACKGROUND FACTS

[8] On May 3, 2003, Collington Brown entered a Hudson’s Bay Company store to return a vacuum cleaner that he had purchased there. He says that he had telephoned in advance and spoken to a manager, who had invited him to return the appliance for a refund. When he arrived at the store, an Assistant Store Manager, Linda Mercadante, was initially not prepared to give him a refund. When the conversation became heated, the Bay’s Loss Prevention Officer, whom Ms. Mercadante had asked to be on standby, summoned mall security.

[9] When Ms. Mercadante offered Mr. Brown “a loaner,” he declined, explaining that he had suffered a back injury which made it difficult for him to transport a vacuum cleaner back and forth to the store. Mr. Brown recorded much of his conversation with Ms. Mercadante and Ryan Harnest, the first mall security officer to arrive at the scene, on his cell phone. Mr. Brown asserts that after the recording ended, and in response to his request that Ms. Mercadante find the manager he had spoken to earlier on the telephone, Ms. Mercadante finally relented and asked him to give her five minutes while she consulted another manager. Ms. Mercadante acknowledged at her examination for discovery that she consulted the manager of another HBC store for guidance but it is unclear when she did so.

[10] Mr. Brown alleges that when Ms. Mercadante left, several mall security officers assaulted him, brought him to the ground, and inflicted a sustained beating on him. He says that the beating left him traumatized and disabled.

[11] Mr. Brown commenced an action against the Hudson’s Bay Company and its employees, Bramalea City Centre (the mall), and Canstar Security Services Inc. and their employees. The Hudson’s Bay Company and its employees moved successfully before Ricchetti J. for summary judgment dismissing the action against them, based on an absence of evidence that the Bay or its employees had initiated Mr. Brown’s arrest or participated in it. That order was upheld by the Court of Appeal.

[12] The remaining defendants, Bramalea City Centre, and Canstar Security Services Inc. and its employees, Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath, and Raphael Waugh (“the moving defendants”), moved before Daley J., pursuant to rule 56.01(1)(e), for an order requiring Mr. Brown to provide security for the moving defendants’ costs.

[13] On July 25, 2013, Daley J. ordered Mr. Brown to pay $30,000.00 into court as security for the costs the moving defendants were likely to incur at the discovery and pre-trial conference stages of the action. In doing so, he held that the moving defendants had demonstrated that there was good reason to believe that Mr. Brown fell within the enumerated ground set out in rule Rule 56.01(1)(e) of the Rules of Civil Procedure[^3]. That sub-rule requires a defendant to show that there is good reason to believe that the action is frivolous and vexatious and that the plaintiff does not have sufficient assets in Ontario to satisfy an order for costs against him. In the course of his reasons, Daley J. stated, at para. 29 of his reasons, “On the evidence offered by the plaintiff, I find that he could not meet a costs order in this action and as such, the plaintiff bears the onus of meeting a high threshold that satisfies the court of his chances of success in this action.”

POSITIONS OF THE PARTIES

[14] Mr. Brown moves for leave to appeal to the Divisional Court from Daley J.’s decision. He argues that Daley J. failed to require the defendants to show, as required by rule 56.01(1)(e), that there was good reason to believe that his action is frivolous and vexatious. Instead, he says, Daley J. imposed the onus on him to satisfy the court of his chances of success in the action. Mr. Brown argues that the effect of Daley J.’s order is to prevent a meritorious action from proceeding based solely on a person’s financial inability to satisfy a costs order.

[15] Mr. Brown submits that Daley J.’s decision conflicts with other decisions of the Court, including that of Coastline Corporation Ltd. v. Canaccord Capital Corporation, in 2009,[^4] which interprets the onus that lies on a moving party under rule 56.01(1)(e). He further submits that there is good reason to believe that Daley J.’s decision was wrong in law, and that a plaintiff’s right to have a meritorious action tried on its merits is a matter of sufficient importance to the public to warrant its consideration by the Divisional Court.

[16] The defendants submit that Daley J. explicitly adopted Master Glustein’s reasoning in Coastline Corporation Ltd., and found that there is good reason to believe that Mr. Brown falls within the enumerated ground set out in rule rule 56.01(1)(e). They argue that the jurisprudence, including Coastline Corporation Ltd., supports Daley J.’s application of a higher threshold of proof. They argue that once the ground in rule 56.01(1)(e) is established, and Mr. Brown fails to satisfy the court that he is impecunious, the onus is on Mr. Brown to demonstrate that his action has a reasonable prospect of success.

ISSUES TO BE DETERMINED

[17] An appeal to the Divisional Court is available from an interlocutory order of a judge of the Superior Court of Justice, with leave as provided for in the Rules.[^5]

[18] The test for leave to appeal to the Divisional Court is set out in rule 62.02(4). Leave is to be granted if the moving party meets either of the following two criteria:

(a) There is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave be granted; or

(b) There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[19] The issues to be decided in this appeal, then, are whether there is a conflicting decision by another judge or court on the matter involved in the proposed appeal, whether there is good reason to doubt the correctness of Daley J.’s order, and whether the proposed appeal involves matters of general importance to the public, including the administration of justice.

ANALYSIS AND EVIDENCE

a) General Principles

(i) Conflicting Jurisprudence

[20] The “conflicting decision” test under rule 62.02(4)(a) refers to a conflict in the jurisprudence in respect of a principle of law applied in the decision from which leave to appeal is sought, and as applied by decisions by other courts, and the desirability of the Divisional Court reconciling the apparently conflicting decisions.[^6]

[21] In order to determine whether there is conflicting jurisprudence, I must look to the principles that guided Daley J.’s exercise of discretion. An exercise of discretion that leads to a different result because of different circumstances is not a “conflicting decision” within the meaning of the rule.[^7]

[22] As I noted in MacKinnon v. A.J. Bus Lines, in 2010, the application of rule 56.01 involves a two-step inquiry. In the first, the moving party must show that the party whom it seeks to compel to post security falls into one of the categories enumerated in rule 56.01(1). Second, if the moving party establishes that the responding party falls within one of the enumerated categories, the court must determine whether it would be just to make an order for security for costs.[^8] I will examine Daley J.’s decision to determine whether he applied principles in the exercise of his discretion that are contrary to the principles set out in the jurisprudence interpreting rule 56.01(1).

b) Reason to Doubt the Correctness of the Decision

[23] In determining whether there is good reason to doubt the correctness of Daley J.’s decision, and particularly whether the evidence supports a finding that there is good reason to believe that the action is frivolous and vexatious, I must examine the full evidentiary record. In making this determination, I am mindful that:

a) Daley J.’s decision was based on the motion records and transcripts that were before him, not viva voce evidence.

b) My decision as to whether to grant leave to appeal is based on the motion records and transcripts that were before me. It is not based on a transcript of testimony given before Daley J.

c) It is not possible for me to know precisely what evidence was brought to Daley J.’s attention and how it might differ from the evidence that the parties highlighted in their argument before me.

d) Mr. Brown was self-represented both at the hearing before Daley J. and at the hearing before me. A self-represented litigant is not always as adept as counsel in identifying the parts of the evidence that are most relevant to the issues.

[24] In these circumstances, the best that can be done is to look to Daley J.’s reasons for clues as to what evidence he relied on, and to look to the evidentiary record to determine whether, on all of the evidence, there is reason to doubt the correctness of the decision that Daley J. made.

(iii) Question of Public Importance

[25] The second part of the test in rule 62.02(4)(b) requires that the question raised in the appeal be one of such importance that leave should be granted. To be of importance, the matter must transcend the immediate interests of the parties and involve issues of public importance, relevant to the development of the law and the administration of justice. Where the issues are fact-driven, they do not generally raise concerns of general public interest.[^9] In the present case, Mr. Brown relies on the issues of access to justice that arise from Daley J.’s approach to rule 56.01(1) and on the issues of the private powers of arrest on which liability in his action is based.

b) Conflicting Jurisprudence

[26] Mr. Brown submits that Daley J.’s decision conflicts with other decisions of the court, including that of Coastline Corporation Ltd., which interprets the onus that lies on a moving party under rule 56.01(1)(e).

[27] Mr. Brown further argues that the decision conflicts with Montrose Hammond and Co. v. CIBC World Market Inc., (2012),[^10] in that Daley J., he says, failed to base his decision on access to justice, which requires a consideration for relevant factors such as the nature and complexity of the plaintiff’s action and the likelihood that an order for security for costs will impede the plaintiff from pursuing his claim.

[28] Daley J. specifically adverts to Master Glustein’s decision in Coastline Corporation Ltd., which he says, “thoroughly synthesized and outlined all the principles and relevant considerations involved in considering a motion for security for costs.”[^11] Daley J. further states, at para. 15, that he is satisfied, on the evidence before him, that the moving defendants have demonstrated that there is good reason to believe that Mr. Brown falls within the enumerated ground set out in rule 56.01(1)(e). Based on these statements, I conclude that Daley J. adopted the principles set out in the existing jurisprudence and was aware that the onus is on the defendants to establish that Mr. Brown’s action falls within rule 56.01(1)(e).

[29] I find that Daley J.’s decision is not in conflict with the Coastline Corporation Ltd. decision or the other decisions that Mr. Brown relies on to establish the test to be applied in a motion for security for costs.

c) Incorrectness

[30] Mr. Brown argues that there is good reason to doubt the correctness of Daley J.’s decision based on the fact that he failed to require the defendants to establish the facts that are at issue under sub-rule 56.01(1)(e), namely, to establish that there is good reason to believe that: (1) Mr. Brown lacks sufficient assets to pay the defendants’ costs and (2) his action is frivolous and vexatious. Mr. Brown further argues that Daley J. failed to make findings of those facts, beyond stating that the moving defendants demonstrated that there was good reason to believe that Mr. Brown fell within the enumerated ground set out in rule 56.01(1)(e).

[31] Mr. Brown, in effect, argues that Daley J. failed to apply the requirements of rule 56.01(1)(e), as interpreted by the jurisprudence. Resolving this issue requires an examination of the test the court is required to apply when determining, pursuant to rule 56.01(1)(e), whether to order a plaintiff to provide security for costs.

Rule 56.01(1)(e)

[32] Although this motion concerns only paragraph (e) of the sub-rule, the totality of rule 56.01(1) must be looked to for guidance as to its interpretation.

56.01(1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,

(a) the plaintiff or applicant is ordinarily resident outside Ontario;

(b) the plaintiff or applicant has another proceeding for the same relief pending in Ontario or elsewhere;

(c) the defendant or respondent has an order against the plaintiff or applicant for costs in the same or another proceeding that remain unpaid in whole or in part;

(d) the plaintiff or applicant is a corporation or a nominal plaintiff or applicant, and there is good reasons to believe that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent;

(e) There is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent;

(f) A statute entitles the defendant or respondent to security for costs.

The Two-Step Analysis Required by Rule 56.01

[33] The application of rule 56.01 involves a two-step inquiry. First, the defendants must show that the plaintiff falls into one of the categories enumerated in (a) to (f) of rule 56.01(1). Second, if the defendants establish this, the court must determine whether it would be just to make an order requiring the plaintiff to provide security for costs. In other words, even if the defendants establish, for example, that the plaintiff is ordinarily resident outside Ontario, as set out in rule 56.01(1)(a), the court must still determine whether it would be just to require the plaintiff to provide security for costs.[^12]

[34] Brown J., in Adrian Peel Architect Inc. v. Soorty, in 2013, described the shifting onus of proof that occurs from the first to the second step of the inquiry under rule 56.01(1):

The application of Rule 56.01 involves shifting the onus between the parties. There is a two-step inquiry. First, the defendant must show that it appears that one of the six factors set out in the Rules exists. Secondly, if this onus is met, the court may make an order as to security for costs "as is just". In the second stage, an inquiry into all factors which may assist in determining the justice of the case is undertaken. Determining whether it is "just" to make an order for security for costs is not an onerous threshold. A balancing is essential with due regard to the purposes of affording defendants a reasonable measure of protection for the costs but also with regard to the potential impact on the plaintiff.[^13]

(i) The First Step of the Analysis

[35] The jurisprudence does not answer the question of whether there is a correct, or desirable, sequence in which the court should address the two issues to be determined in rule 56.01(1)(e); that is, whether the court should determine whether the action is frivolous and vexatious before determining whether the plaintiff has insufficient assets to pay costs. However, it does make clear that:

(a) The motion judge is required, as a matter of law, to make a finding as to whether the action is frivolous and vexatious and as to whether the plaintiff or applicant has insufficient assets.

(b) The onus is on the defendants in an action to prove that “there is good reason to believe” each of those two facts which must be found in order for rule 56.01(1)(e) to apply.

[36] The court in Malamas v. National Bank of Greece, in 2009, does not consider whether there is a particular sequence in which the two issues should be addressed. However, Master Sproat’s decision is a good example of a clear two-step analysis of the issues that the court must determine when applying rule 56.01(1)(e). Master Sproat first considers the issue of whether the action is frivolous and vexatious.[^14] He then considers whether the plaintiff has sufficient assets.[^15] After addressing each of the issues, Master Sproat concludes that the defendant has discharged its burden under the first stage of the rule 56.01(1)(e) test.

[37] In Dean v. Mister Transmission (International) Ltd., in 2009, Gray J. addresses both issues to be determined under rule 56.01(1)(e). He states, “Since Mr. Dean acknowledges that he has insufficient assets in Ontario to pay the costs of the defendants, if they are successful, the only issue is whether it can be concluded that there is good reason to believe that the action is frivolous and vexatious.”[^16]

[38] On the wording of rule 56.01(1), it is only in limited circumstances that a defendant must establish that there is good reason to believe that the action is frivolous and vexatious in order to obtain an order for security for costs. The defendant must do so only where:

(a) the plaintiff is an individual, not a corporation (subrule (d));

(b) the plaintiff resides in Ontario (subrule (a));

(c) the plaintiff has no action for the same relief elsewhere in Ontario (subrule (b));

(d) the plaintiff has no unpaid orders for costs against it in the same or another proceeding (subrule (c)); and

(e) there is no statute that entitles the defendant to security for costs (subrule (f)).

[39] If any of the conditions listed above apply to a plaintiff, then the defendant need not establish that the action is frivolous and vexatious, and the court will proceed directly to an inquiry under step two of the two-part analysis, to determine whether it would be unjust to order the plaintiff to provide security for costs. Master MacLeod describes the onus on a plaintiff in such cases:

I am faced then with a demand for security for costs against a plaintiff of modest means who resides in another province of Canada. In those circumstances important considerations will be the apparent merits of the action and the manner in which the action is being pursued. Examination of the merits may be something more than just the pleadings but the plaintiff should not have to demonstrate that she will succeed. A plaintiff whose case is so strong that there is no triable issue may proceed with a summary judgment motion but it makes no sense to require that level of certainty in order to resist security for costs. See Padnos v. Luminart Inc. (1996), 1996 11781 (ON SC), 32 O.R. (3d) 120 (Gen.Div.) It is sufficient for the plaintiff to show that she has a good chance of success.[^17] [Emphasis added.]

[40] In Automotive Professionals Inc. v. Pentamark/Worldwide Canada Inc., in 2006, the defendant applied for security for costs against the plaintiff corporation under subrules 56.01(1)(d) and (e). As each of these subrules requires the court to determine whether the plaintiff has sufficient assets in Ontario to pay the costs of the defendant, Master Hawkins addresses this issue in his discussion of clause (d) and then addresses the remaining issue, as to whether the action is frivolous and vexatious, in his discussion of clause (e). He concludes, correctly in my view, that it was not necessary for him to find that the action was frivolous and vexatious since the plaintiff was a corporation and the defendant had established that it did not have sufficient assets to pay the defendant’s costs. He states:

In Aviaco [International Leasing Inc. v Boeing Canada Inc. (2000), 48 C.P.C. (4th) 366 (S.C.J.)], Nordheimer J. said (at paragraph 19) that it is not unjust to require a corporate plaintiff with access to resources to post security for costs even though it has or may have a meritorious claim. [Emphasis added.][^18]

[41] Similarly, in Stojanovic v. Bulut, in 2011, where the defendants relied on both subrules 56.01(a) (plaintiff not ordinarily resident in Ontario) and (e) (plaintiff does not have sufficient assets to pay costs and his action is frivolous and vexatious), Master Dash found that the defendants had discharged their onus under clause (a), since the plaintiff was not ordinarily resident in Ontario, even though the defendants were unable to discharge their onus under clause (e) because the action had merit. He stated:

Reciprocally because the defendants also rely on rule 59.06(1)(e), [sic], I must determine whether the action is frivolous and vexatious to meet the first stage of the security for costs enquiry. I have already determined that the plaintiff has no assets in Ontario to pay an award of costs. Determining this issue is somewhat moot, however, since the defendants have met the first stage of the enquiry under rule 56.01(a) by establishing that the plaintiff is not ordinarily resident in Ontario.

Conversely, the action is clearly not frivolous and vexatious and, as such, the secondary grounds for security for costs under rule 56.01(1)(e) does not pass the first stage of inquiry.[^19]

[42] Master Dash notes that satisfying one of the grounds set out in rule 56.01(a) to (f) does not establish a prima facie right to security for costs, but only triggers an inquiry as to whether it would be just, in all the circumstances, to make such an order.[^20] Even approaching subrule (e) in this light, the jurisprudence does not offer guidance as to the sequence in which the two issues (whether the plaintiff has sufficient assets to satisfy a costs order and whether his action is frivolous and vexation) should be determined. That said, dealing first with the frivolous and vexatious issue has several advantages. One is that where a determination is made that the action is frivolous and vexatious, the court will avoid the time and expense that an inquiry into the plaintiff’s financial circumstances, either for the purpose of determining whether he has sufficient assets to pay a costs order, or whether he is impecunious, would entail.

[43] In Hosannah v. Bury, in 2006, Master Dash declined to enter into an inquiry as to the plaintiff’s impecuniosity. He stated:

Since the defendant has failed to satisfy the prima facie test under rule 56.01(1)(e), there is no need to consider the plaintiff’s impecuniosity and whether it would be just in all the circumstances to order security. In the result, the motion for security for costs must be dismissed…. Although there is sufficient evidence to overcome an argument that there is good reason to believe that the action is frivolous and vexatious, much more will be required to be successful at trial, or for that matter on a summary judgment motion, where the plaintiff will be required to put his best foot forward, including expert reports.[^21]

[44] Another advantage is that the onus and evidentiary threshold that applies to the determination as to whether the action is frivolous and vexatious can more readily be observed by not blurring the distinction between the issue of whether the action is frivolous and vexatious, for the purpose of determining whether rule 56.1(1)(e) applies, with the issue of whether there is sufficient merit to the action to render it unjust to require security for costs. Additionally, such an approach diminishes the risk that defendants will be tempted to employ motions for security for costs as vehicles for derailing legitimate actions without incurring the costs and risks associated with a motion for summary judgment. In Grandy v. Jessome, in 2006, Clarke J., dismissing a motion for security for costs, stated:

Effectively, then, under the aegis of a motion for security for costs, the plaintiff is trying to strike out the defendant’s counterclaim. In my respectful view, if he wanted to have the defendant’s counterclaim dismissed for lack of merit, the plaintiff ought to have brought a motion for summary judgment.[^22]

(ii) The Second Step of the Analysis

[45] If the defendant discharges its onus in the first step of the inquiry, and establishes that the plaintiff (a) is ordinarily resident outside Ontario; (b) has another proceeding for the same relief pending; (c) has failed to pay a costs order; (d) is a corporation with insufficient assets; (e) is an individual with insufficient assets and a frivolous and vexatious claim; or (f) the statute entitles the defendants to security for costs, then the onus shifts to the plaintiff to establish that he is impecunious, or has a meritorious case, or that, for some other reason, it would be unjust to require him to post security for costs.

[46] In the first step of the analysis required by rule 56.01(1), it is only where the defendant relies on subrule (d), where the plaintiff is a corporation, or where the defendant relies on subrule (e), where there is good reason to believe that the individual plaintiff’s action is frivolous and vexatious, that the court must examine, at stage one of the analysis, whether the plaintiff has sufficient assets to pay the defendant’s costs. If the defendant relies on clauses (a), (b), (c), or (f), the issues of whether the plaintiff has a meritorious action, or has sufficient assets to pay the defendant’s costs, will only arise in the second step of the inquiry, where the plaintiff bears the onus.

[47] In Zeitoun v. Economical Insurance Group, in 2008, the defendants relied on rule 56.01(1)(a) and established that the plaintiff was ordinarily resident outside of Ontario. Master Abrams found that the plaintiff had not established that he was impecunious and had also failed to establish that his action was not clearly devoid of merit. Pitt J. set aside the Master’s order for security for costs, on the basis that the Master had imposed too high an onus on the plaintiff. On further appeal to the Divisional Court, the order of Master Abrams was restored and a further appeal to the Court of Appeal for Ontario was dismissed. Low J., speaking for the Divisional Court, described the onus on the plaintiff in the second step of the inquiry, where the defendants, in the first step, had discharged their onus of establishing that the plaintiff was ordinarily resident outside Ontario:

The motions judge held that the master had erred in imposing too high an onus on the plaintiff in relation to the merits of the action. I am, with respect, unable to concur. There is a difference in the quality of the evidence required depending on whether or not the plaintiff is able to show impecuniosity.

Where impecuniosity is shown, the plaintiff needs only to demonstrate that the claim is not plainly devoid of merit.... That is a very low evidentiary threshold.

Where impecuniosity has not been shown however, a closer scrutiny of the merits of the case is warranted; in those cases there is no compelling argument that there is a danger that poverty of the plaintiff will cause an injustice by impeding pursuit of a claim that otherwise would have been permitted to be tried. Where impecuniosity has not been shown, a legitimate factor in deciding whether or not it would be just to require security for costs is whether the claim has a good chance of success.[^23] [Emphasis added; Citations omitted.]

[48] Daley J. may have been referring to the foregoing onus that Mr. Brown bore, once the defendants had satisfied Daley J. that Mr. Brown lacked sufficient assets to satisfy a costs order and Mr. Brown failed to satisfy him that he was impecunious. In these circumstances, Mr. Brown had the onus, in the inquiry under step two of the rule 56.01(1) analysis, of showing that his action has a good chance of success.

[49] In Kymbo International Inc. v. Teskey, in 2004, Master MacLeod adverted to the limited inquiry the court makes as to the merits of the action when conducting an inquiry under step two of the rule 56.01(1) analysis. After finding that the plaintiff was not ordinarily resident in Ontario, and was a corporation with insufficient assets to pay a costs order, Master MacLeod ordered the plaintiff to post security for costs. He stated:

I have not engaged in an extensive evidence based review of the merits. I am satisfied that at least some elements of the claim appear to be based on a real grievance for which there may well be a legal remedy. The cases referred to above establish that whatever role the merits should play in a motion of this nature, it is not necessary for the plaintiff to demonstrate that it will succeed at trial. Motions for security for cost should not become summary judgment motions. It is not the function of a master or judge on a security for costs motion to predict the outcome of complex determinations of fact or credibility based on only portions of the evidence that will be presented if there is a trial.[^24] [Emphasis added.]

[50] In the more recent case of Breatross Estate v. Woolfson, in 2013, Master MacLeod notes that the weaker the plaintiff’s action is, and the more likely that the defendant will be awarded its costs, the more just it will be for the court to order security for costs. In describing the court’s determination, in step two of the rule 56.01(1) analysis, as to whether the action has such merit as would render it unjust to order security for costs, Master McLeod likens the determination to a “risk analysis”:

There is a great deal of jurisprudence under the rule concerning the calculus that goes into determining whether or not an order for security is just and if so in what amount. In particular many of the cases concern themselves with the extent to which the court should investigate the apparent merits or lack of merits of the action. A motion for security for costs is not the venue for a summary judgment analysis but apparent strength of the case is a proper consideration even if subrule e) is not engaged … As emphasized by the court in Schaer v. Barrie Yacht Club, 2003 44518 (S.C.J.) the threshold test in the rule is not whether the moving party can prove that the plaintiff is resident elsewhere or has insufficient assets in Ontario or that the case is in fact frivolous. The rule requires only that “it appears that” and “there is good reason to believe” that. When the concerns raised by the rule are properly put in issue, the rule is engaged and the court must then determine what is just based on all of the evidence tendered on the motion.

In simplest terms, the rule provides for a form of risk analysis. The more likely it is that the defendant will be entitled to costs and unable to recover them the stronger the case for security. [^25] [Emphasis added; Citations omitted.]

[51] I agree with Master MacLeod’s analysis. I would add that impecuniosity, like the merits of an action, is a concept of variable magnitude, and the magnitude of each affects the potential impact of an order for security for costs on the just determination of the action. The more impecunious a plaintiff, and the greater the merits of his/her action, the more aware the court must be of the risk that an order for security for costs may disable the plaintiff from continuing a meritorious action. The more impecunious the plaintiff, the greater the risk that an order for security for costs will become, in effect, a summary judgment on the ground of impecuniosity.

[52] This risk adds to the cogency of the risk analysis that Master MacLeod proposes. The greater the merits of the action and the lesser the financial resources of the plaintiff, the greater the injustice that may result to the plaintiff from an order requiring him to provide security for costs. Conversely, the lesser the merits of the action and the greater the financial resources of the plaintiff, the greater the injustice that may result to the defendant from failing to order security for costs.

d) Daley J.’s decision

(i) Does the Evidence Support a Finding that the Action is Frivolous and Vexatious?

[53] Daley J. stated, at para. 15, that he was satisfied, on the evidence before him, that the moving defendants had demonstrated that there was good reason to believe that Mr. Brown falls within clause (e). He does not expressly state that there is good reason to believe that the action is frivolous and vexatious and he does not review the evidence that supports such a finding.

[54] I will now turn to the question of whether Daley J.’s failure to give reasons for finding that the moving defendants had demonstrated that there was good reason to believe that Mr. Brown falls within clause (e) is a reason, in itself, to doubt the correctness of his decision and grant leave to appeal.

[55] The Supreme Court has considered the issue of sufficiency of reasons mostly in criminal matters.[^26] In F.H. v. McDougall, in 2008, however, the court gives guidance as to how the principles it has articulated in criminal cases are to be applied in civil cases.[^27] Although the court’s focus in that case was on the standard of proof in civil cases, one of the respondents argued that the trial judge’s reasons were not adequate, as the case turned on credibility findings. Speaking for a unanimous court, Rothstein J. found the trial judge’s reasons were adequate,[^28] applying the principles articulated in the criminal law context in Sheppard and R.E.M.

[56] Academics have argued, and judges have noted, that the policy rationales underlying a duty to provide reasons apply equally to the criminal and civil contexts.[^29] Appellate courts have adopted the view that, although the analysis for sufficiency of reasons has evolved in criminal matters, its founding principles are equally applicable to civil cases.[^30]

[57] The jurisprudence makes it clear that, although there is no duty to provide reasons in all cases, certain minimum content thresholds must be met in certain circumstances. This is analogous to the “sufficiency” requirement set out in Sheppard, which requires reasons to be evaluated in light of their context and purpose. Rothstein J. in McDougall, reiterates Binnie J.’s comments in R. v. Walker, in 2008: The failure to give adequate reasons is not a stand-alone ground of appeal, as the duty to give reasons has to be interpreted in a functional and purposeful manner.[^31]

[58] In Wright v. Ruckstuhl, the Court of Appeal for Ontario was asked to review the trial judge’s decision because certain issues of fact had not been determined at trial. The appellate court found that it could not do so because the trial judge had not articulated any determination of credibility of the witnesses.[^32] Nor were findings on these matters clear in the remainder of the record. While the court found it necessary to send the case back to trial because it could not properly carry out its appellate review function, this did not impose an obligation on trial judges to provide reasons in all cases, but to ensure that the reasons, along with the entire record, provided the necessary information for appellate review.[^33]

[59] In Thompson v. Butkus, in 1980, the High Court of Justice declined to send a matter back to trial where the trial judge provided no reasons, because there was only one logical basis on which the trial judge could have reached his finding. While the court emphasized the importance of providing reasons so as not to frustrate appellate review, it also recognized that where the findings of the trial judge can be ascertained from the entire record and are reasonable, a new trial is not required.[^34]

[60] In McDougall, the Supreme Court relies on the following statement of Rowles J.A., writing for the majority of the Court of Appeal for Ontario: “Generally speaking, if a judge’s reasons reveal the path the judge took to reach a conclusion on the matter in dispute, the reasons are adequate for the purposes of appellate review.”[^35] In the civil context, as in the criminal context, this imposes a minimum content requirement that findings regarding conflicting evidence or critical questions of law be explained.

[61] In the civil context, most of the jurisprudence emphasizes the minimum requirement that trial judges must set out in their findings of fact. In Wright, there were disputed facts as to liability that the trial judge had not discussed, and, in Koschman v. Hay, there was conflicting evidence on the credibility of a particular party. In both cases, the Court of Appeal found that the trial judge had failed to address the conflicting evidence in his reasons and, since the findings of facts could not be ascertained by reading the reasons in the context of the entire record, the reasons were deemed insufficient, and the matters were sent back for trial.

[62] Although Daley J. stated, at para. 15 of his reasons that he was satisfied, on the evidence before him, that Mr. Brown fell within the enumerated ground set out in rule 56.01(1)(e), he did not set out how he resolved the critical factual issues upon which the defendants’ liability depended. His failure to do this makes it impossible to determine the basis upon which he may have determined that there was good reason to believe that the action was frivolous and vexatious.

[63] Daley J.’s reasons do not disclose that he undertook an original review of the evidence for the purpose of making the determination, required under step one of the rule 56.01(1)(e) analysis. Instead, he appears to rely exclusively on a determination made by Ricchetti J. in the HBC’s successful motion for summary judgment of the action against it and its employees.

[64] Daley J., at para. 30, notes that although the determinations made by Ricchetti J. related to the other defendants, Ricchetti J. had observed the following, at para. 27 of his reasons: “The detention arose because he [Mr. Brown] refused to leave the store when asked to do so by HBC and the security personnel. There is no evidence it was a false arrest.”

[65] Daley J. further notes, at para. 31, that the Court of Appeal, in sustaining Ricchetti J.’s decision to grant summary judgment observed, at para. 5 of their endorsement that, “As is clear from the record and in the findings of the motion judge, the appellant created the danger to his person by refusing to leave the store, not the respondents.”

[66] Daley J. concludes, at para. 32, that while these observations related to Mr. Brown’s claim against HBC, “These findings as to the plaintiff’s refusal to leave the store weigh significantly against the plaintiff in terms of his meeting the high threshold to satisfy the court of his chances of success. In my view, he has failed to do so.”

[67] I pause here to consider whether, as a matter of law, it was permissible for Daley J. to rely entirely, or at all, on Ricchetti J.’s finding in a separate motion between Mr. Brown and different defendants from those involved in the motion before Daley J., in the same action.

[68] In Blum v. Blum, in 1982, the County Court heard an appeal from a Provincial Court’s decision in a proceeding a mother brought against her son for support, after the Ontario High Court in an earlier proceeding which she had brought against her husband awarded her only a nominal amount of spousal support. The mother appealed on the ground that the trial judge had not made independent findings about her needs and about her son’s ability to pay, but had instead relied on the findings of the High Court in her spousal support case against her husband. Wren J. held that relying on findings of another judge in another proceeding is a reversible error. He stated:

Now, the first difficulty that is apparent in respect of the judgment as it deals with the applicant’s need is that apparently the learned provincial judge looks to the assessment, in respect of the applicant’s need, made by Mr. Justice Henry in 1979, in the proceedings brought by the applicant against her husband.

On the face of it this is clearly improper. The trial judge should be making the finding of the need of the applicant from the evidence before him. [^36] [Emphasis added.]

[69] Wren J. found that, while a superficial review of the trial judge’s reasons suggested that he did commit such an error, examination of the transcript revealed that the trial judge had considerable evidence upon which to make his decision, and that his reasons indicated that he had turned his mind to the critical issues. That is, the evidence before the trial judge justified the award that he made and, in those circumstances, the appeal court had no basis for imposing its own assessment of quantum or for remanding the case back to the trial court due to the lack of specific findings of fact. Wren J. stated, in this regard:

Having said all that, however, in my opinion, a fair reading of his reasons in respect of this category — that is, the applicant’s need — would indicate, however unfortunate the wording, the learned provincial judge did not simply look to the findings of Mr. Justice Henry and adopt them without reference to the evidence in the case before him. What I accept to be the essence of his finding is that, in taking into account the evidence before him, with respect to need, he agreed that his findings should be the same as Mr. Justice Henry’s were — that is, that the applicant had, indeed, proved need.[^37] [Emphasis added.]

[70] In MREL Group of Companies Ltd. v. Ontario, in 2012, Johnston J. dismissed the defendants’ motion for leave to appeal from the order of Quigley J., which the defendant had sought on the ground that Quigley J. had failed to provide sufficient reasons.[^38] Johnston J. found that Quigley J. was alive to the issues in the litigation and applied the appropriate test. Johnston J. reviewed the written and oral record from the motion, and from this review, was satisfied that Quigley J. had provided sufficient reasons.

[71] In Gordon v. Goertz, in 1996, the Supreme Court found that the trial judge had only mentioned one factor to be considered in determining the best interests of the child. As noted by McLachlin J., there was no way of knowing if the trial judge had considered the other applicable factors required under s. 17 of the Divorce Act. The court noted that the trial judge had stated that he was relying heavily upon the findings of another judge. This prompted McLachlin J. to state the following:

The reasons of the trial judge fall short of demonstrating that he engaged in the full and sensitive inquiry into the best interests of the child … He mentioned only one factor in support of his decision: that he "relied heavily" on the reasons of Carter J., who had already concluded that the mother was the "proper person to have custody of th[e] child"... [O]ne may equally infer that the necessary fresh inquiry was not fully undertaken.... [I]t seems clear that the trial judge failed to give sufficient weight to all relevant considerations ... and it is therefore appropriate for this Court to review the decision and, should it find the conclusion unsupported on the evidence, vary the order accordingly.[^39] [Emphasis added; Citations omitted.]

[72] Different principles apply where the earlier proceeding was between the identical parties and involved a common evidentiary record. In Yvonne Andersen et al. v. St. Jude Medical, Inc. et al., in 2010, Lax J., rejected the defendants’ submission that the plaintiffs were not entitled to rely on the evidentiary record in the earlier motion for certification and on the certification judge’s findings. She stated:

Finally, I reject the defendants’ submission that the plaintiffs have shown no basis in fact that the proposed new common issues meet the certification requirements. The plaintiffs are entitled to rely on the evidentiary record put forward on the motion for certification before Cullity J. and on his findings. The plaintiffs there demonstrated some basis in fact to support the certification order and this evidence equally provides a basis in fact for the proposed common issues on waiver of tort. The arguments the defendants advance to oppose certification of common issues on waiver of tort would have been available to them on the earlier motion, but none of these arguments have been accepted by Ontario courts and I find no reason to accept them now.[^40] [Emphasis added]

[73] In the present case, the parties to the motion for summary judgment heard by Ricchetti J. were different from the parties to the motion for security for costs heard by Daley J. It is also not clear that the evidentiary record before Ricchetti J. was the same as the record that was before Daley J. Having regard to these facts, I conclude that it was not permissible for Daley J. to rely on Ricchetti J.’s findings, even though endorsed by the Court of Appeal, as a substitute for making his own review of the evidence before him. That said, I must review the evidentiary record to determine whether it supports Daley J.’s finding.

[74] Mr. Brown submits that the evidentiary record does not support Daley J.’s conclusion that Mr. Brown’s action is frivolous and vexatious. He asks the court to consider the transcript of his own examination for discovery and that of Shaun McGrath, one of the defendants. He argues that this evidence contradicts Ricchetti J.’s statement, in the HBC’s motion, that his arrest was lawful. I will review the evidence in order to assess whether it supports Ricchetti J.’s finding, which Daley J. adopted.

[75] It is an error in law for a motion judge not to consider relevant evidence. In Darnic Enterprices Inc. v. Cummings, in 2005, Pierce J. refused leave to appeal from a decision dismissing the defendant’s motion for summary judgment. Pierce J. stated:

A failure to grasp an important point or the disregard of such a point in a decision will be required to demonstrate reasons are insufficient. The threshold will be met if the judge does not consider relevant evidence, or disregards it.[^41]

[76] In the present case, it does not appear from Daley J.’s reasons that he reviewed the evidence, particularly at the first step of the analysis required by rule 56.01(1)(e), for the purpose of determining whether the defendants had established that there was good reason to believe that the action was frivolous and vexatious.

[77] It is also not clear that Daley J. reviewed the evidence at the second stage of the analysis, for the purpose of determining whether Mr. Brown had established that there was sufficient merit in his action to render it unjust to require him to provide security for costs. Rather, at paras. 30-32 of his reasons, Daley J. appears to have relied on Ricchetti J.’s finding based on the evidence that was before him in an unrelated summary judgment motion by other defendants, and on the Court of Appeal’s affirmation of Ricchetti J.’s decision.

[78] It is not possible to know, from Daley J.’s reasons, whether he relied exclusively on the findings made by Ricchetti J., based on the evidentiary record that was before him (which may or may not have been the same as the evidentiary record before Daley J.), in substitution for the review that he himself was required to make of the evidence that was before him on the motion for security for costs. He simply says, at para. 15:

On the evidentiary record I am satisfied that the moving defendants have demonstrated that there is good reason to believe that the plaintiff falls within one of the enumerated grounds set out in Rule 56.01 and in particular Rule 56.01(1)(e). [Emphasis added.]

[79] The evidentiary record that Daley J. refers to includes the reasons of Ricchetti J. in the motion by the HBC for summary judgment. However, because Ricchetti J.’s finding is the only evidence that Daley J. refers to, it is not possible to determine whether he relied on that finding to the exclusion of any other evidence as to the merits of Mr. Brown’s action.

[80] The evidence before me includes the transcripts of the examinations for discovery of Mr. Brown and of Shaun McGrath, one of the defendants, who was an employee of the security company, Canstar Security Services Inc., whose other employee, Ryan Harnest, apparently arrested Mr. Brown in the Hudson’s Bay store, and the affidavits of Linda Mercadante, an Assistant Manager of the Hudson’s Bay store, and of Laura Whitworth, a Hudson’s Bay Loss Prevention Officer.

[81] A review of the evidence supports the following conclusions:

(a) Mr. Brown attended at the Bay in response to an invitation he says he received from a manager of the “home department” at the Bay (the department that sells vacuum cleaners), who told him that he could bring his vacuum cleaner in for a refund.

(b) When Mr. Brown arrived, he spoke to a store clerk, who referred his request to Linda Mercadante, an Assistant Store Manager at the Bay.

(c) Ms. Mercadante, either before or during her discussion with Mr. Brown, telephoned the store’s Loss Prevention Officer, Laura Whitworth, and asked her to be “on notice”. Ms. Whitworth, in turn, telephoned Mall Security and may have asked them to attend at the store.

(d) Ms. Mercadante offered Mr. Brown a “loaner” vacuum cleaner but he declined the offer, owing to a physical injury he had suffered in a car accident, which made it difficult for him to carry a vacuum cleaner.

(e) Mr. McGrath, a Mall Security Officer, testified that his security firm had jurisdiction for the common areas of the mall. Their jurisdiction in the Bay, where the incident took place, depended on a request being made by the tenant.

(f) Mr. McGrath believed that Ryan Harnest, the first Mall Security Officer who attended at the Bay, did so at the request of someone from the Bay. There is no evidence as to who actually asked for Mall Security to attend.

(g) There is a dispute as to whether anyone from the Bay asked any security officer to arrest Mr. Brown.

(h) It is unclear whether the security officers were wearing uniforms. It is also unclear whether they identified themselves to Mr. Brown as security officers.

(i) The audio recording made by Mr. Brown at the time discloses that he asked the store employee or manager to consult the manager he had spoken to on the telephone and who had invited him to bring the vacuum cleaner to the store.

(j) The recording further discloses that Mr. Brown was asked to leave the store but it is unclear whether the request was made by the loss prevention manager or mall security and Mr. Brown, in either case, appears not to be aware of the person’s position or authority.

(k) According to Mr. Brown, immediately after the recording ended, the store employee or manager confirmed with him that he would leave the store if given a refund, and asked him to give her five minutes.

(l) According to Mr. McGrath, he heard Mr. Brown being told that if he did not leave, he would be arrested.

(m) According to Mr. Brown, he was then assaulted by five security officers without warning and without being arrested.

(n) According to Mr. McGrath, Mr. Brown was arrested when he was on the ground.

(o) According to Mr. Brown, the security officers kicked, punched, kneed and choked him as he lay on his stomach.

[82] The Trespass to Property Act, R.S.O. 1990, c. T.21 provides, in part:

2.(1) Every person who is not acting under a right or authority covered by law and who,

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $2,000.00.

9.(1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

(2) Where the person who makes an arrest under subsection (1) is not a police officer, 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.

[83] The evidence and, particularly, the tape recording of the exchange in which Ms. Whitworth, the Bay Loss Prevention Officer, directed Mr. Brown to leave and he refused to do so, which was not part of the motion records and may or may not have been brought to Daley J.’s attention at the hearing, supports Ricchetti J.’s finding, adopted by Daley J., that Mr. Brown refused to leave the store when directed to do so, although Mr. Brown appears not to have accepted the authority of Ms. Whitworth, who was in plain clothes but seems to have identified herself as the Bay’s private security officer. The recording contains the following exchange, between someone identified as “Male Voice”, and it is unclear whether it was Ryan Harnest, a mall security officer, or a mischaracterization of Ms. Whitworth’s voice as male, and Mr. Brown:

FEMALE VOICE: Who are you?

MALE VOICE: I’m the Bay’s private (inaudible)

MR. BROWN: Okay, well you know what, you know what, with all due respect, sir, okay…the way that…

MALE VOICE: The bottom line is…(inaudible)

MR. BROWN: …The way that…no, no, you can’t draw the bottom line that I’ve got to wait.

MALE VOICE: Maybe you didn’t (inaudible)

MALE VOICE: You’ve been instructed…

MR. BROWN: No, all I (inaudible)…

MALE VOICE: You’ve been instructed to leave several times.

MR. BROWN: I’ve not been instructed to leave by anyone.

MALE VOICE: Okay. You need to leave the store now. I’m instructing you to leave right now.

MR. BROWN: You can tell me this if you want, I’m still talking to this woman. No you told me,

MALE VOICE: She doesn’t want you…want you in the store right now. (inaudible)

MR. BROWN: From what you said, you didn’t have the authority to give me (inaudible) right now.

[84] This exchange supports a finding that there were lawful grounds for the arrest of Mr. Brown for trespass. This is not determinative, however, as to whether his arrest was lawful. Mr. Brown denies that he was ever told that he was under arrest. He describes the sequence of events as follows in his examination for discovery:

Q. All right. So who is the person that puts their hand on you to arrest you?

A. Nobody touched me to arrest me, they just jumped me. No one touched me.

Q. Okay. Who was the first person that touched you?

A. I don’t know because I testified to Mr. Cox earlier, right? That I…Ms. Mercadante said to me, “So you mean to…you mean to tell me if I was to give you a full refund you would leave…right? ” And I said, “Yes, that’s all I’ve been asking for all along,” she started to walk away. I yelled…I called out to her and I said, “What are you doing?”

Q. All right, I want to stop… I want to stop you there. It was the black security officer that you identified as the person who instructed you to leave the store?

A. Yes.

Q. All right. Was it the black security officer who was involved in what you characterize as jumping on you?

A. All of them, it wasn’t just him it was all of them.

Q. Including him?

A. All five of them, sir.

Q. All right.

A. They all attacked me, that’s what they did. They jumped me, they knocked me down and they beat me and they enjoyed it because…

Q. All right. I’m going to stop you there again. Was there anything said by any of the mall security personnel before they jumped you? Did none of them say, “Let’s arrest him”?

A. No.

Q. Did they give you any warning at all?

A. They just jumped me, I was totally taken off guard, totally taken off guard.

Q. And when you say they jumped you can you just explain exactly what that means?

A. Like I said, I… I… I just finished speaking to Linda Mercadante who said to me, “Give me five minutes, I’ll be right back,” and she also motioned five with her hands as well…

Q. I understand that part. When they touched you…

A. …I was looking at her… right?... as she walked away. The next thing I knew that I was on the floor… right?... and these people were kicking me, punching me, kneeing me…

[85] Mr. McGrath, the mall security officer who observed the altercation and Mr. Brown’s arrest, testified that he was arrested when he was already on the ground. The following exchange occurred when Mr. Brown, representing himself, examined Mr. McGrath for discovery:

BY MR. BROWN

Q. What happened next?

A. The conversation continued back and forth between yourself and the three officers, as well as Laura, the Bay.

Q. What happened next?

A. Following that, I recall told [sic] you’re being placed under arrest if you didn’t leave, for trespassing.

Q. What happened next?

A. You were placed under arrest by…I’m not sure who it would be, one of the three, either Ryan, Mike or Raphael.

Q. How did that occur?

A. I don’t recall.

Q. What happened next?

A. I know a struggle occurred during the arrest and I assisted by holding one of your arms while they applied handcuffs.

Q. How many people in total … and when I say “people” I mean yourself and your fellow security guards, were involved in the incident?

A. Five.

Q. How did the arrest go down?

A. I don’t recall how you got on the ground. I know that I saw a struggle occurring on the ground and that’s why I assisted.

Q. So I was arrested on the ground?

A. Yes.

Q. What was I doing?

A. On the ground, there was a struggle.

Q. What do you mean?

A. You were not putting your hands behind your back in order to place the hand restraints, that’s why I was able to gain control of one of your arms.

Q. You saw when I went on the ground.

A. I saw you on the ground in a struggle. I didn’t see them put you on the ground, as I stated earlier.

[86] The foregoing exchange leaves some uncertainty as to whether, even on Mr. McGrath’s evidence, the mall security officers informed Mr. Brown that he was under arrest before or at the same time as they first applied force to him. In R. v. Asante-Mensah, in 2003, the Supreme Court considered the lawfulness of an arrest of a taxi-driver by an airport ground transportation inspector. Binnie J., on behalf of the court, stated:

In my view, “arrest” in the context of the Trespass to Property Act should be seen as a continuing status initiated by words accompanied by physical touching or submission and ending with delivery to the police, maintained as necessary with a force that is no more than reasonable in all the circumstances.[^42] [Emphasis added.]

[87] At para. 51 of Asante-Mensah, Binnie J. quotes the Ontario Ministry of the Attorney General’s 1987 publication, This land is whose land? A legal guide to property protection rights, at p. 14:

The restraint may be imposed by the application of reasonable force, or by circumstances that imply the threat of force. In every case, the trespasser should be informed of being under arrest and the reason for the arrest. [Emphasis added.]

[88] If the court finds, based on Mr. Brown’s testimony, that he was brought to the ground without being told that he was under arrest, this finding could lead to liability on the part of the security company and its employees even if they had grounds to arrest Mr. Brown for trespass.

[89] Additionally, liability could follow from a finding that the mall security officers used excessive force in subduing Mr. Brown. In Chopra v. Eaton (T.) Co., in 1999, the Court of Queen’s Bench of Alberta tried the claim of an Eaton’s customer, Mr. Chopra, against Eaton’s and its head of security for damages for false imprisonment and battery and Eaton’s counterclaim against Mr. Chopra for trespass and assault arising from an altercation in the store. Mr. Chopra had attended at Eaton’s customer service desk and demanded a cash refund. The clerk had called for instructions from Eaton’s head of security, Mr. Frauenfeld. Mr. Frauenfeld and two other security staff members attended and when Mr. Chopra began to raise his voice, Mr. Frauenfeld took him by the elbow to escort him from the premises. Mr. Chopra continued to protest and just before they reached the door, Mr. Chopra pushed Mr. Frauenfeld away in order to exit. Mr. Fauenfeld put Mr. Chopra in a headlock and informed him that he was under arrest. The two other security staff put Mr. Chopra’s arms behind his back and applied handcuffs.

[90] Mr. Chopra successfully defended the charges against him for assault and causing a public disturbance. Brooker J. found that Mr. Chopra had not trespassed because he was about to leave within a reasonable time after being asked to do so. He held that Mr. Frauenfeld had an honest belief, on reasonable and probable grounds, that Mr. Chopra had assaulted him, which justified his decision to arrest. However, he held that Mr. Frauenfeld had over-reacted and used excessive force in making the arrest. He found that Mr. Chopra had suffered physical and psychological injuries and awarded him general damages of $23,000, special damages of $5,000 for his legal defence expenses, and punitive damages of $10,000 for the security officer’s conduct, for which he held Eaton's to be vicariously responsible.[^43]

[91] Based on the evidence reviewed above, there are at least two live issues concerning the liability of the Bramalea City Centre and Canstar Security Services Inc. and its employees:

(a) Did the security officers inform Mr. Brown that he was under arrest before applying force to him?

(b) Did the security officers use unnecessary force in their arrest of Mr. Brown?

[92] Daley J. did not review the evidence and make findings of fact pertaining to the liability issues above, for the purpose of making a determination as to whether there was reason to believe that the action is frivolous and vexatious.

[93] On a motion for security for costs, the court must consider the merits of the action, but should not embark upon an extensive analysis as would be required on a summary judgment motion.[^44] However, from the evidentiary record before me, Ricchetti J.’s observation that, “The detention arose because he [Mr. Brown] refused to leave the store when asked to do so …” does not, by itself, support his conclusion that, “There is no evidence it was a false arrest.”

[94] The latter statement, that there is no evidence that it was a false arrest, is not supported by the totality of the evidence given in the affidavits filed in support of the motion and at the examinations for discovery. That evidence also does not establish, for the purpose of the determination required by the first step of a rule 56.01(1)(e) analysis, that Mr. Brown’s action is frivolous and vexatious.

[95] Daley J.’s exclusive reliance on Ricchetti J.’s finding from the motion by other defendants for summary judgment, together with his failure to review the evidentiary record before him and to address the factual issues upon which this specific defendants’ liability depends, gives reason to doubt the correctness of his decision for the following reasons:

(a) He did not make an explicit finding that there was good reason to believe that the action is frivolous and vexatious.

(b) He did not review the evidentiary record and address the live factual issues upon which this specific defendants’ liability depends.

(c) He adopted the finding of Ricchetti J. in a motion involving Mr. Brown and other defendants, and the evidentiary record before me does not support the finding that he adopted.

(d) While the totality of the evidence supports a finding that, while the mall security officers had grounds to arrest Mr. Brown, based on his refusal to leave the store when directed to do so by HBC’s Loss Prevention Officer, it is not determinative of the lawfulness of his arrest, having regard to the admission by Shaun McGrath that Mr. Brown was arrested when he was on the ground and Mr. Brown’s testimony that the security officers continued to apply force to him when he was not resisting their efforts to subdue him.

(ii) Did Daley J. apply the correct onus at each stage of the Two-Step Analysis?

[96] In making its determination under rule 56.01(1), the court must consider the merits of the action at two different stages. In the first stage, it must determine whether the moving defendants have established that there is good reason to believe that the action is frivolous and vexatious. If the defendants establish this, and the plaintiff fails to establish that he is impecunious, the court must determine, in the second stage of its analysis, whether there is sufficient merit to the action that it would be unjust to require the plaintiff to provide security for costs. Where the defendant has established that there is good reason to believe that the action is frivolous and vexatious, the onus shifts to the plaintiff to establish, in effect, that, contrary to what appeared from the first stage of the analysis, the plaintiff, in fact, has a good chance of success.

[97] Mr. Brown argues that at the first step of the two-step inquiry under rule 56.01(1)(e), Daley J. incorrectly imposed the onus on him to establish that his action had merit, rather than imposing the onus on the defendants to show that there was good reason to believe that it was frivolous and vexatious. A determination of this issue requires a closer examination of the analysis required at the first step of the inquiry under Rule 56.

[98] As I noted in MacKinnon, even where the court finds that a plaintiff’s action is without merit, it must be satisfied, before ordering him to post security for costs, that it is just to do so, in all the circumstances.[^45] Factors that may be relevant in assessing what is just include the merits of the claim, the financial circumstances of the plaintiff, the possible effects of an order for security for costs in preventing a bona fide claim from proceeding, and whether any conduct of the defendants, that is the subject of the litigation, has caused the plaintiff’s assets to become insufficient.[^46]

[99] As noted above, Daley J. states, at para. 15 of his reasons, that he is satisfied, on the evidence before him, that the moving defendants had demonstrated that there was good reason to believe that Mr. Brown falls within clause (e). He later states, at para. 29, “On the evidence offered by the plaintiff, I find that he could not meet a costs order in this action and as such, the plaintiff bears the onus of meeting a high threshold that satisfies the court of his chances of success in this action” (emphasis added).

[100] Daley J.’s statement regarding onus can be interpreted as a departure from the two-step analysis required by rule 56.01(1)(e). At this point, he had made only one of the two determinations required in order to trigger step two of the inquiry. That is, he had found that there was good reason to believe that Mr. Brown lacked sufficient assets to pay the defendants’ costs, but not that there was good reason to believe that his action was frivolous and vexatious.

[101] In the second determination required at step one of the rule 56.01(1)(e) analysis, namely, whether there is good reason to believe that the action is frivolous and vexatious, the onus is on the defendants; yet Daley J. states that the onus is on the plaintiff and that the plaintiff must meet a higher threshold to satisfy the court of his chances of success.

[102] After making the determination that Mr. Brown lacked sufficient assets to pay the defendants’ costs, Daley J. does not expressly make the second determination required in step one of the rule 56.01(e) analysis by stating that there is good reason to believe that the action is frivolous and vexatious. While he makes the general statement, at para. 15 that the defendants have discharged their onus, he does not review the evidence to determine how they have satisfied him that there is good reason to believe that the action is frivolous and vexatious.

[103] Instead, Daley J. appears to proceed directly to step two of the analysis required by rule 56.01(1). He considers, as he is required to do so after a finding that there is good reason to believe that Mr. Brown has insufficient assets to satisfy a costs order and that the action is frivolous and vexatious, whether or not Mr. Brown has established that he is impecunious or that, for some other reason, an order requiring him to post security for costs would be unjust.

[104] Daley J. concludes that it would not be unfair in all of the circumstances, or prevent access to justice or impede a just outcome, to require Mr. Brown to post security for costs. He was not prepared to find, as the court did in John Wink Ltd. v. Sico Inc., that the plaintiff’s impoverishment was “caused by the very acts of which [the] plaintiff complains [of] in the action”, or that “an injustice would result if a meritorious claim were prevented from reaching trial because of the poverty of a plaintiff.”[^47]

[105] Daley J.’s stated that the onus was on the plaintiff to meet a higher threshold to satisfy the court of his chances of success. His statement can be interpreted to mean that, after making the first of the two determinations required at step one of the two-step analysis required by rule 56.01(1)(e), to the effect that there was good reason to believe that Mr. Brown lacked sufficient assets to pay a costs order, Daley J. proceeded directly to step two, where he considered first whether Mr. Brown was impecunious, and then whether his action had merit.

[106] For reasons that he sets out in paras. 16-26, Daley J. concludes, at para. 27, “Given the wholly inadequate financial disclosure offered by the plaintiff as to his income, assets, liabilities and his employment, I find that he has not established that he is impecunious.” He notes, in particular, at para. 22:

The plaintiff has offered no explanation within his affidavit nor in supporting documents to explain how he has reduced his tax liability in the period from 2005 to 2013 by approximately $60,000 while at the same time he asserts that since the events giving rise to this claim in 2003 have caused him significant personal injury resulting in his inability to work on any regular basis.

[107] Having found that Mr. Brown has failed to establish that he is impecunious, Daley J. proceeds to consider whether, having regard to the merits of the action, it would be unjust to require Mr. Brown to post security for costs. Had Daley J. found that Mr. Brown was impecunious, Mr. Brown would not be required to establish at step two of the analysis that his case is likely to succeed, but only that it is almost certain not to fail.[^48]

[108] At para. 28 of his reasons, Daley J., citing Master Glustein’s reasons at para. 7(iv)(c) of Coastline Corporation Ltd., observes: “If the plaintiff cannot establish that it is impecunious, but the plaintiff does not have sufficient assets to meet a cost order, the plaintiff must meet a high threshold to satisfy the court of his chances of success.” This is a correct statement of the onus that a plaintiff faces at step two of the rule 59.06(1)(e) analysis. If the court makes both determinations required at step one of the analysis, and the plaintiff then fails to establish, at step two of the analysis, that he is impecunious, then the plaintiff must meet a high threshold to satisfy the court of his chances for success in order to establish that it would be unjust to require him to provide security for costs.

[109] Daley J.’s statement is not, however, a correct statement of the onus at step one of the analysis, where the defendants must establish that there is good reason to believe that the action is frivolous and vexatious. In the absence of a specific finding by Daley J. that there is good reason to believe that the action is frivolous and vexatious, there is uncertainty as to whether his statement at para. 29, as to the high threshold the plaintiff must meet to satisfy the court of his chances of success, is a reference to the determination required at step one of the analysis, where the onus is properly on the defendants, or to the determination required at step two of the analysis, where the onus is on the plaintiff.

[110] Where Daley J.’s reasons leave uncertainty as to whether he imposed the onus on Mr. Brown at the first or the second step of the analysis required by rule 56.01(1)(e), I am required to find that there is reason to doubt the correctness of his decision and grant leave to appeal. In Vine Hotels Inc. v. Frumcor Investments Ltd., in 2003, Epstein J. granted leave to appeal where the motion judge’s words created uncertainty as to whether he had applied the correct reasoning:

In the particular circumstances of this case when the words the motions judge used to communicate his reasons may or may not lead to the conclusion that, upon the proper application of the relevant principles, the motion ought to be dismissed, leave should be granted.[^49]

e) Matter of Public Importance

[111] The issues raised in the proposed appeal transcend the interest of the parties and involve matters of public importance, including matters relevant to the development of the law and the administration of justice. The correct methodology for conducting the two-step analysis required by rule 56.01(1) is critical to preserving the correct balance between an individual litigant’s access to the courts, without discrimination based on his financial resources, and the need to protect defendants from vexatious litigants advancing frivolous claims.

[112] The comment on Rule 56 in the current edition of Ontario Annual Practice notes the dilemma that the court faces when applying it.

The language of this Rule has, not surprisingly, spawned much jurisprudence. The fault lies in the attempt to say that an impecunious party should deposit security and to link this requirement with an analysis of whether there is reason to believe the proceeding is frivolous and vexatious. If it is a frivolous proceeding, it should be struck down under rule 21.01(3)(d); it if is almost frivolous the danger is that an impoverished plaintiff may be denied access to the court which is permitted to others. Most of the cases seek to rationalize this dilemma.[^50]

[113] The dilemma referred to arises squarely from the wording of Daley J.’s reasons and the complaint that Mr. Brown makes concerning them. Daley J. does not explicitly find that Mr. Brown’s action is frivolous and vexatious, and Mr. Brown submits that the order requiring him to post security for costs will have the effect of denying him the access to the court that other litigants have.

[114] Additionally, a finding that Mr. Brown’s action is frivolous and vexatious, or that Mr. Brown fails to satisfy the court of his chances of success in an action for wrongful arrest, based solely on a finding that there were lawful grounds for his arrest, would devalue the equally important question of whether his arrest was conducted in a lawful manner and with reasonable force.

[115] For these reasons, Mr. Brown’s motion for leave to appeal to the Divisional Court is allowed.

Price J.

Released: February 17, 2014

APPENDIX

Excerpts from Testimony from Examinations for Discovery

Examination of Mr. Brown

[116] The evidence of Mr. Brown includes a tape recording Mr. Brown made of his initial discussion with Linda Mercadante, a manager whom he was asking for a refund for his vacuum cleaner.

MR. BROWN: I want to just say that the conversation that we’re having is recorded, so… so go ahead. Your policy says if I’m not satisfied I return it and I get my money back.

MALE VOICE: Okay. If you called Security then to…

MR. BROWN: I want to make sure you people live up to your policy. How do I know that?

LINDA MERCADANTE: Well the wording was (inaudible) so what’s …(inaudible)

MR. BROWN: Sure. I said I’m not leaving until I get my money back, that’s what the receipt says, okay? I’m not satisfied with the vacuum; therefore, I want a refund. I’m totally within my rights as a customer.

FEMALE VOICE: (inaudible)

MR. BROWN: To remove me, according to what you said, if I return this, right, and you’re telling me that I’m threatening. When did I ever threaten you?

FEMALE VOICE: Your body language.

MR. BROWN: My body language?

MR. BROWN: Well, I’m just trying to be a customer.

MALE VOICE: I understand that, but what…what she’s telling you is that there’s nothing that she can do for you here right now. The next step is that you would call head office…

MR. BROWN: With all due respect, okay, I don’t know if she does work for the company…

(TAPE IS TURNED OFF)

BY MR. GROOT: Now, it sounds like there’s another voice on that tape.

MR. BROWN: That person is either… um … I think that might be Shaun McGrath.

MR. GROOT: Shaun McGrath…

MR. BROWN: I think.

MR. GROOT: …from the mall security?

MR. BROWN: Well, it’s one of the security people.

MR. GROOT: All right, thank you.

(TAPE IS TURNED ON)

MR. BROWN: or for the mall or what service you work for.

MALE VOICE: The mall.

MR. BROWN: Okay. Well, my point is the receipt says if a customer is not satisfied…have you read what the receipt says?

MALE VOICE: Well, I have my doubts if it says…

MR. BROWN: It says that if a customer is not satisfied, they’re entitled to a full refund, no questions asked.

MALE VOICE: All right.

MR. BROWN: Before I came here, I called the store and I spoke to the manager of this department and she told me to bring the thing, that is why I wasted my time and come here today.

MALE VOICE: Okay.

MR. BROWN: I don’t remember what the lady’s name is, whomever she…whomever the…main manager for this department is.

MALE VOICE: I can’t say.

FEMALE VOICE: I work in (inaudible).

MR. BROWN: I don’t even know who you are, okay? You’re butting in and you … you still haven’t identified yourself. As far as I’m concerned, you have no say here.

FEMALE VOICE: I’ve given you all the options…what options…

MR. BROWN: What options have you given me?

FEMALE VOICE: To give you a loaner.

MR. BROWN: You’re offering me a loaner, that’s an option?

FEMALE VOICE: Right.

MR. BROWN: I tell you that the reason why I didn’t return it in the first place was because I was involved in a car accident, okay? I have injuries from the car accident (inaudible)

MALE VOICE: We’re going to help you there or try to, okay, and settle this.

MR. BROWN: I am not about to take a loaner out of here and then have to bring it back again in my condition, right? And nowhere on the receipt does it say that if I bring it back and I’m not satisfied I’m going to be hardballed, okay, and then have to get a loaner, and then have Security remove me from the floor. Where does it say that?

FEMALE VOICE: Well, what’s left to do then. I’ve been (inaudible)

MR. BROWN: Well, let me speak to someone else. Where is the lady I spoke to that told me to bring the vacuum in the first place?

FEMALE VOICE: You’re more than welcome (inaudible)

MR. BROWN: Well, I suggest that you find her because the only reason why I came here…okay? I made sure that I did my due diligence…okay? I did my due diligence by picking up the phone and calling your store and speaking to an associate and then that associate called the manager for this department who then told me to bring the vacuum cleaner. Okay? I drove all the way here based on what you guys told me. As far as I’m concerned you represent the Bay, okay?

FEMALE VOICE: And I’ve tried to help.

MR. BROWN: The person I spoke to represent the Bay. The Bay’s policy is that if a customer is not satisfied they get their money back.

MALE VOICE: Okay, we can’t do anything right now but I can probably tell you that they’ll take care of it, but right now you’re going to have to leave.

MALE VOICE: (inaudible)

FEMALE VOICE: Who are you?

MALE VOICE: I’m the Bay’s private (inaudible)

MR. BROWN: Okay, well you know what, you know what, with all due respect, sir, okay…the way that…

MALE VOICE: The bottom line is…(inaudible)

MR. BROWN: …The way that…no, no, you can’t draw the bottom line that I’ve got to wait.

MALE VOICE: Maybe you didn’t (inaudible)

MALE VOICE: You’ve been instructed…

MR. BROWN: No, all I (inaudible)…

MALE VOICE: You’ve been instructed to leave several times.

MR. BROWN: I’ve not been instructed to leave by anyone.

MALE VOICE: Okay. You need to leave the store now. I’m instructing you to leave right now.

MR. BROWN: You can tell me this if you want, I’m still talking to this woman. No you told me,

MALE VOICE: She doesn’t want you…want you in the store right now. (inaudible)

MR. BROWN: From what you said, you didn’t have the authority to give me (inaudible) right now. What information are you going to give to head office? What information are they going to give to them. I’ve got to (inaudible) you’re giving…you’re giving head office information? (inaudible)

RECORDED VOICE ON TELEPHONE: End of message.”

(RECORDING TURNED OFF)

MR. BROWN: That’s where it ended.

[117] Mr. Brown was then asked about the alleged assault, as follows:

Q. Okay. I want to stop you there. Now, where the tape ends…

A. Yes, sir.

Q. …that is before the point where you’re actually arrested?

A. Yes.

Q. All right. So who is the person that puts their hand on you to arrest you?

A. Nobody touched me to arrest me, they just jumped me. No one touched me.

Q. Okay. Who was the first person that touched you?

A. I don’t know because I testified to Mr. Cox earlier, right? That I…Ms. Mercadante said to me, “So you mean to…you mean to tell me if I was to give you a full refund you would leave”…right? And I said, “Yes, that’s all I’ve been asking for all along,” she started to walk away. I yelled…I called out to her and I said, “What are you doing?”

Q. All right, I want to stop… I want to stop you there. It was the black security officer that you identified as the person who instructed you to leave the store?

A. Yes.

Q. All right. Was it the black security officer who was involved in what you characterize as jumping on you?

A. All of them, it wasn’t just him it was all of them.

Q. Including him?

A. All five of them, sir.

Q. All right.

A. They all attacked me, that’s what they did. They jumped me, they knocked me down and they beat me and they enjoyed it because…

Q. All right. I’m going to stop you there again. Was there anything said by any of the mall security personnel before they jumped you? Did none of them say, “Let’s arrest him”?

A. No.

Q. Did they give you any warning at all?

A. They just jumped me, I was totally taken off guard, totally taken off guard.

Q. And when you say they jumped you can you just explain exactly what that means?

A. Like I said, I… I… I just finished speaking to Linda Mercadante who said to me, “Give me five minutes, I’ll be right back,” and she also motioned five with her hands as well…

Q. I understand that part. When they touched you…

A. …I was looking at her… right?... as she walked away. The next thing I knew that I was on the floor… right?... and these people were kicking me, punching me, kneeing me…

Q. Were you on your…

A. … and choking me.

Q. …stomach or on your back?

A. I was prostrate.

Q. On your stomach or on your back?

A. I was flat out on my stomach… flat out on my stomach.

Q. Was somebody holding one of your arms?

A. They were all beating on me. They weren’t even trying to get my arms behind me. They were literally beating on me and kept yelling out, “Stop resisting. Stop resisting.” I was not resisting, they were all piled on me, they were beating me…

Q. Did they put the handcuffs on you at that time?

A. After they finished beating me they eventually get my arms behind me and put the handcuffs on.

A. And then they stood you up?

A. Yes, they pulled me…

Q. And then they marched you out … out of the mall?

A. I was limping and both the black security guard and another one, I don’t know if it’s McGrath, but another one of the security guards, one was on the left, one was on the right… right?... I said to them you know because I was on the floor like I said and I was in so much pain from what they were doing to me… right? … I said, “You guy”… “You’re breaking my fucking arms, you know, you’re breaking my arms.” Now, they put that… they put on…

Q. That’s …

A. You asked me a question so I’m not finished; right? They put on the handcuffs and they were not put on properly so I said to them, “The handcuff is cutting into my hand, I feel like my wrist is broken, can you at least please adjust the handcuffs because it’s digging into my flesh?”

Q. Thank you. I don’t need that information.

A. They say, “No.”

Q. I don’t need that information.

A. The guy said, “Stop resisting. Move along. Stop resisting.”

Q. I simply asked you: Did they put the handcuffs on you and did they march you out and the answer to that is yes.

A. They dragged me out.

Examination of Shaun McGrath

[118] Mr. Brown conducted an examination of Shaun McGrath, one of the security officers present when Mr. Brown was arrested. He asked Mr. McGrath what had happened after he observed a conversation taking place between Mr. Brown and the three other officers and Laura Whitworth, a store clerk or manager at the Bay.

BY MR. BROWN

Q. What happened next?

A. The conversation continued back and forth between yourself and the three officers, as well as Laura, the Bay.

Q. What happened next?

A. Following that, I recall told you’re being placed under arrest if you didn’t leave, for trespassing.

Q. What happened next?

A. You were placed under arrest by…I’m not sure who it would be, one of the three, either Ryan, Mike or Raphael.

Q. How did that occur?

A. I don’t recall.

Q. What happened next?

A. I know a struggle occurred during the arrest and I assisted by holding one of your arms while they applied handcuffs.

Q. How many people in total … and when I say “people” I mean yourself and your fellow security guards, were involved in the incident?

A. Five.

Q. How did the arrest go down?

A. I don’t recall how you got on the ground. I know that I saw a struggle occurring on the ground and that’s why I assisted.

Q. So I was arrested on the ground?

A. Yes.

Q. What was I doing?

A. On the ground, there was a struggle.

Q. What do you mean?

A. You were not putting your hands behind your back in order to place the hand restraints, that’s why I was able to gain control of one of your arms.

Q. You saw when I went on the ground.

A. I saw you on the ground in a struggle. I didn’t see them put you on the ground, as I stated earlier.

Q. Was I on my side; was I on my back?

A. I don’t remember.

Q. Could I have been on my stomach?

A. I just said I don’t remember how you were.

Q. Now, Waugh [one of the other security officers] was always involved from the time that you got there, correct?

A. Correct.

Q. Was Waugh in uniform?

A. I don’t remember.

Q. If you were out of uniform, could you be involved in a security operation?

A. Yes.

Q. Let me refine that question a little bit. If you were out of uniform, could you arrest someone?

A. In a security role?

Q. That’s correct, sir.

A. I am not sure on that.

Q. If you were out of uniform, could you participate in an arrest?

BY MR. COX [the lawyer for the security officer]:

Q. So, the first part of the question was can you place someone under arrest while out of uniform. The second part of the question is can you subdue someone who is resisting arrest or be involved in the subduing of someone resisting arrest out of uniform?

A. The first part to the question I’m not sure. The legislation has changed a lot over the past…

BY MR. BROWN:

Q. I’m speaking about, by the way, May 3rd, ’03.

A. Okay. I’m not sure what the legislation was then, as it’s changed just recently. So I’m not sure if they could at the time or if not.

MR. COX: This incident didn’t take place in his place of employ, it took place in the Bay. My client was an employee of Canstar Security.

BY MR. BROWN:

Q. Is your place of employ not the entire mall, sir?

A. The common area of the mall.

Q. The common area?

A. Yes.

Q. So you’re saying that you only have jurisdiction in the common areas?

A. We have jurisdiction in the common areas and in the tenants’ space when called to do so.

Q. Does Canstar, or did Canstar, allow its employees, including yourself, to work out of uniform?

A. Yes.

Q. A follow-up to that question, sir, and this is a question as well, in your role as a security guard, did Canstar allow yourself or other…your colleagues to work in the role as a security guard out of uniform?

A. Yes, some days we had plainclothes people in the mall and some days we didn’t.

Q. Who called you guys, being yourself and the security guards, to attend at the Bay?

A. I was called myself personally via radio from Ryan Harnest [one of the security officers]. I’m not sure who from the Bay placed the call to the security office. We have a dispatcher there.

Q. What was your understanding of the initial call why they were at the Bay?

A. I knew why Ryan was originally at the Bay.

Q. Explain to me why, sir.

A. It was for a customer/tenant dispute.

Q. Were you told anything else by Ryan, sir?

A. Over the radio, no.

Q. Were you told anything else by Ryan verbally?

A. No.

Q. So did Ryan just tell you basically come and stand around?

A. Ryan had asked for additional staff to attend the Bay.

Q. For what purpose?

A. He didn’t specify that I can recall.

Q. When you get on the scene…when you go to the scene, okay, and let’s stick to my incident, do you automatically or your colleagues assume control of the situation?

A. No.

Q. What do you do?

A. The first person there has control of the situation.

Q. If you are the first person there, sir, then you take control of the situation. Who do you take instructions from? And when I say “from”, the owner is not there, so in this place the occupiers’ agents, who do you take instructions from?

MR. COX: Well, he wasn’t the first one there. Are you asking in the general sense or in this particular case?

MR. BROWN: In the general sense?

Q. Who do you take instruction from?

A. From the tenant.

Q. From the tenant. Any tenant’s agents?

A. Any person who’s working in a tenant place can call us for assistance…It would be the manager or the security staff.

MR. COX: Do you mean the in-store security staff?

A. The store security staff or the manager who’s working or Assistant Manager…It would be the supervisor’s discretion of the person who gets there. It’s not like one person will have more seniority over the other; The security staff are acting as an agent of the property for the store and so is the manager. They both have equal responsibilities in that case.

Q. Do you know who the manager was at that time?

A. No.

Q. Do you know who the assistant manager was at that time?

A. No.

Q. Was I issued a ticket or charged for trespassing?

A. I don’t know.

[119] Ms. Pommels, the lawyer for the Hudson’s Bay Company and its employees L. Mercadante, Laura Whitworth and Bramalea City Centre then asked Mr. McGrath the following questions:

Q. Yes. And so I just want to clarify, was Laura Whitworth involved in his arrest?

A. I don’t recall.

Q. Okay.

MR. COX: We’re prepared to concede for the purpose of all discoveries that…let’s make this clear. When you say involved in Mr. Brown’s arrest, do you mean involved in physically restraining him?

MS. POMMELLS: Placing him under arrest, yes.

MR. COX: Yes. I mean, we do agree that the chain of events that was started was initiated by the employees of The Bay. We agree that there is some dispute as to whether or not the Bay’s employees asked for Mr. Brown to be arrested, but what we will concede is that The Bay’s employees were not involved in any way in physically subduing or restraining Mr. Brown. Any you can take that as a given for all discoveries that follow.

CITATION: Brown v. Hudson’s Bay Company, 2013 ONSC 1065

COURT FILE NO.: DC-13-94-00 ML

DATE: 2014-02-17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

COLLINGTON BROWN

Plaintiff

• and -

THE HUDSON’S BAY COMPANY (HBC), LINDA MERCADANTE , JANE DOE a.k.a. LAURA, BRAMALEA CITY CENTRE, CANSTAR SECURITY SERVICES INC., MICHAEL MAGNAYE, RYAN HARNEST, AMANDA ELIZABETH BALNE, SHAUN McGRATH, AND RAPHAEL WAUCH

Respondents

REASONS FOR ORDER

Price J.

Released: February 17, 2014

[^1]: Rules of Civil Procedure, RRO 1990, Reg 194 [^2]: Trespass to Property Act, R.S.O. 1990, c. T.21 [^3]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^4]: Coastline Corporation Ltd. v. Canaccord Capital Corporation, 2009 21758 (ON SC). [^5]: Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 19(1)(b). [^6]: Brownhall v. Canada (Ministry of Defence) (2006), 2006 7505 (ON SC), 80 O.R. (3d) 91 (Ont. S.C.), at paras. 26-27; Hurst v. Armstrong & Quaile Associates Inc., 2007 36068 (ON SCDC), at para. 14. [^7]: Comtrade Petroleum Inc., v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542, (Ont. Div. Ct.), at p. 544. [^8]: MacKinnon v. A.J. Bus Lines, 2010 ONSC 2802, 97 C.P.C. (6th) 153, at para. 23. [^9]: Duracell v. Donjevic, [1998] O.J. No. 4265 (Gen. Div.), at para. 3. [^10]: Montrose Hammond and Co. v. CIBC World Market Inc., 2012 ONSC 4869, 112 O.R. (3d) 151. [^11]: Endorsement by Daley J., dated July 25, 2013, at para. 14. [^12]: Hallum v. Canadian Memorial Chiropractic College, 1989 4354 (ON SC), at para. 10. [^13]: Adrian Peel Architect Inc. v. Al Soorty et al., 2013 ONSC 6183, at para. 16. [^14]: Malamas v. National Bank of Greece, 2009 56745 (ON SC), at paras. 13-60. [^15]: Malamas, at paras. 61-63. [^16]: Dean v. Mister Transmission (International) Ltd., 2009 31596 (ON SC), at para. 13. [^17]: Pitkeathly v. 1059288 Ontario Inc., 2004 33018 (ON SC), para. 19. [^18]: Automotive Professionals Inc. v. Pentamark/Worldwide Canada Inc., [2006] O.J. No. 4363, at paras. 20-21, 26, 29. [^19]: Stojanovic v. Bulut, 2011 ONSC 874, 10 C.P.C. (7th) 265, at paras. 63, 71, aff’d 2011 ONSC 4632, 10 C.P.C. (7th) 299, Gans J. [^20]: Stojanovic v. Bulut, citing Zeitoun v. Economical Insurance Group (2008), 2008 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.), aff’d 2009 ONCA 415, 96 O.R. (3d) 639. [^21]: Hosannah v. Bury, 2006 1025 (ON SC), at para. 7. [^22]: Grandy v. Jessome, 2006 33681 (ON SC), at para. 5. [^23]: Zeitoun (Div. Ct.), at pp. 145-146. [^24]: Kymbo International Inc. v. Teskey, 2004 33023 (ON SC), at para. 10. [^25]: Breatross Estate v. Woolfson, 2013 ONSC 6819, at paras. 10-11. [^26]: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 15, 22, 24-25, 32-33, 36-38, 53, 59-60, 65, 68, Binnie J.; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 11-12, 15, 17, 24-25, 44, 55-57, 61-64, McLachlin C.J. [^27]: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41. [^28]: McDougall, at paras. 98-100. [^29]: Michael Taggard, “Should Canadian Judges be Legally Required to Give Reasoned Decisions in Civil Cases” (1983) 33 U.T.L.J. 1 at 24. The court in Bank of Nova Scotia v. Nash et al. (1983), 42 O.R. (2D) 530 (S.C.), also comments on the similarities between the two contexts. [^30]: Young v. Young (2003), 2003 3320 (ON CA), 63 O.R. (3d) 112 (C.A.); Petrowski v. Waskul, 2003 MBCA 65, 173 Man.R. (2d) 237; Blanchard v. Legere, 2009 NBCA 2, 339 N.B.R. (2d) 357; Children’s Aid Society of Cape-Breton-Victoria v. J.C., 2005 NSCA 161, 239 N.S.R. (2d) 132; D.M.G. v. British Columbia (Director of Family and Child Services), 2007 BCSC 461. [^31]: McDougall, at para. 99, citing R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245. [^32]: Wright v. Ruckstuhl, [1954] O.J. No. 392 (C.A.). [^33]: See also, in this regard, Koschman et al. v. Hay et al., 1977 1116 (ON CA), [1978] 17 O.R. (2d) 557 (C.A.), at p. 558; Bank of Nova Scotia. [^34]: Thompson v. Butkus (1980), 1980 1887 (ON SC), 28 O.R. (2d) 368 (H.C.J.). [^35]: McDougall, at para. 97. [^36]: Blum v. Blum, 1982 1682 (ON SC), at paras. 21-22. [^37]: Blum, at para. 26. [^38]: MREL Group of Companies v. Her Majesty the Queen in Right of Ontario, et al, 2012 ONSC 1321. [^39]: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 52. [^40]: Yvonne Andersen et al. v. St. Jude Medical, Inc. et al., 2010 ONSC 77, 87 C.P.C. (6th) 45, at para. 26. [^41]: Darnic Enterprices Inc. v. Cummings, 2005 50592 (ON SC), at para. 6. [^42]: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 80. [^43]: Chopra v. T. Eaton Co., 1999 ABQB 201, 240 A.R. 201. [^44]: Uribe v. Sanchez, 2006 19498 (ON SC), Master Dash, citing Aviaco International Leasing Inc. v. Boeing Canada Inc., [2000] O.J. No 3284 (S.C.), at para. 20. [^45]: MacKinnon, at para. 54. [^46]: Cigar 500.com Inc. v. Ashton Distributors Inc. (2009), 2009 46451 (ON SC), 99 O.R. (3d) 55 (S.C.), at paras. 35, 37. [^47]: John Wink Ltd. v. Sico Inc. (1987), 1987 4299 (ON SC), 57 O.R. (2d) 705 (H.C.J.), at p. 708. [^48]: John Wink Ltd., at p. 709. [^49]: Vine Hotels Inc. v. Frumcor Investments Ltd., [2003] O.J. No. 4768 (S.C.), at para. 10, aff’d (2004), 2004 45966 (ON SCDC), 73 O.R. (3d) 374 (Div. Ct.). [^50]: J. Carthy, W. Millar & J. Cowan, 2013-2014 (Toronto: Canada Law Book, 2013).