CITATION: Collington Brown v. Canstar Security Services Inc. et. al., 2014 ONSC 6166
DIVISIONAL COURT FILE NO.: DC-13-94-00-ML
DATE: 20141022
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Hambly, D. Brown and Gilmore, J.J.
B E T W E E N:
Collington Brown
Self Represented
Appellant
- and -
Bramalea City Centre, Canstar Security Services Inc., Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath and Raphael Waugh
Nicola Brankley for the Respondents
Respondents
HEARD: October 22, 2014
JUDGMENT
Hambly J.
[1] This is an appeal brought by the plaintiff Collington Brown (Brown) from a judgment of Justice Daley dated July 23, 2013 in which he ordered that Brown post security for costs in the amount of $30,000 and that he pay costs of $2500.
Background
[2] On August 3, 2003 Brown sought a refund from the Hudson Bay Company (HBC) store in the Bramalea City Centre for a vacuum cleaner that he had purchased in September, 2002. He phoned the store and spoke with a manager. According to Brown she told him to come into the store and HBC would give him a refund in accordance with the store policy.
[3] Brown attended at the store with the vacuum and a receipt. He spoke with Linda Mercadante (Linda) who was an assistant store manager. She told him that the Bay would not give him a refund because the vacuum had been used. She offered to approach the problem in other ways. Brown insisted that he wanted a refund. He said that the manager that he spoke to had offered this and this was store policy as set out on the back of his receipt. Laura Whitworth, another store employee, joined the conversation. The conversation became heated. According to Brown he told Linda that he would leave the store if HBC would give him a refund. Linda then said to give her 5 minutes. She walked away and held up her fingers to demonstrate 5.
[4] Laura called Canstar Security Services Inc. It provides security at the Bramalea Centre. Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath and Raphael Waugh attended the scene. They are all Canstar employees.
[5] The HBC employees and the Canstar employees allege that they told Brown that he must leave the Hudson’s Bay Store. He refused to do so unless he received a refund for his vacuum cleaner. The Canstar employees affected an arrest on Brown. They placed Brown in handcuffs. They took him to a cell in the Bramalea City Centre. They called the police. Brown was charged with assault. The charge was eventually withdrawn and Brown entered into a peace bond.
[6] Brown caused a statement of claim to be issued on May 29, 2009. He named as defendants HBC, Linda Mercadante and Jane Doe a.k.a. Laura (now identified as Laura Whitworth)(the HBC defendants) and Bramalea City Centre, Canstar Security Services Inc., Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath and Raphael Waugh (the Canstar defendants). Brown claims damages of $3,500,000 for assault, false arrest and false imprisonment and $3,500,000 for aggravated and punitive damages and costs. In due course the defendants filed statements of defence. Examinations for discovery were held.
[7] On January 12, 2013 Justice Ricchetti granted a motion brought by the HBC defendants for summary judgment dismissing Brown’s claim against them. He awarded costs against Brown of $47,500. Justice Ricchetti’s judgment was upheld by the Court of Appeal on September 24, 2012. It awarded costs against him of $3,500.
[8] The Canstar defendants brought a motion against Brown for security for costs. Justice Daley on July 25, 2013 ordered that Brown post security for costs in the amount of $30,000 and granted the Canstar defendants leave to apply for additional security for costs after a pre-trial conference prior to trial. He awarded costs in favor of the Canstar defendants of $2,500. On August 30, 2013 Justice Price granted leave to appeal Justice Daley’s order.
Judgment of Justice Daley
[9] Justice Daley in his judgment considered the applicability of the following rule:
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,
(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;
[10] He stated the following:
[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).
[30] Although the determinations made Ricchetti J. in the summary judgment motion related to the plaintiff’s claim against HBC and its employees, the motion judge observed at para. [27]: “… The detention arose because he 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.”
[31] It was also noted by the Court of Appeal in its endorsement at para. [5] “… 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.”
[32] While these observations by the courts relate to the plaintiff’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 meet that high threshold.
Standard of Review
[11] In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R 235 the Supreme Court of Canada held that the standard of review for a question of law is correctness and the appellate court can replace the trial judge’s opinion with its own. In Coastline Corp. v. Canaccord Capital Corp. 2009 21758 (ON SC), [2009] O.J. No. 1790 Master Glustein reviewed the principles of law to be followed in applying Rule 56.03. He stated the following:
7 I apply the following legal principles:
(i) The initial onus is on the defendant to satisfy the court that it "appears" there is good reason to believe that the matter comes within one of the circumstances enumerated in Rule 56.01 (Hallum v. Canadian Memorial Chiropractic College(1989), 1989 4354 (ON SC), 70 O.R. (2d) 119 (H.C.J.) at 123);
[12] Nowhere in Justice Daley’s judgment does Justice Daley address the prerequisite in Rule 56.01(1) (e) to the court ordering a plaintiff to pay security for costs that “There is good reason to believe that the action or application is frivolous and vexatious.” There was substantial evidence before him on this issue. In his reasons he did not review all of it or make a specific finding that Brown’s action was “frivolous and vexations”. In our view he made an error of law in not doing so. In R. v. Harper, 1982 11 (SCC), 1982 1 S.C.R. 2 the Supreme Court of Canada stated the following:
[13] Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.
Analysis
[14] The following legislation is relevant:
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.
[15] The following case law is relevant. In R. v. Assante-Mensah 2003 SCC 38, [2003] 2 S.C.R. 3 the Supreme Court of Canada in the judgment of Justice Binnie stated the following:
51 At common law, an interference with the arrested person's liberty, including the use of force, must be no more than is "reasonably necessary": Dedman v. The Queen, 1985 41 (SCC), [1985] 2 S.C.R. 2, at p. 35; R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311, at para. 22. This limitation was expressed by the Ontario Ministry of the Attorney General in its advice to occupiers in a 1987 publication, This land is whose land? A legal guide to property protection rights, at p. 14:
An occupier will be arresting a trespasser if any actual restraint is imposed on a person's liberty against that individual's will.
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.
80 In my view"arrest" in the context of the TPA 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.
[16] At the examinations for discovery the following evidence was given:
Questioning of Brown by Mr. Cox, solicitor for the Canstar defendants:
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…
Questioning of Mr. McGrath by Brown:
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.
[17] If Brown’s evidence is accepted neither the Canstar defendants nor the HBC defendants had grounds to arrest him. He states that he was waiting for Linda to come back after she checked whether HBC would give him a refund. While she was away the Canstar defendants forced him to the ground and affected an arrest on him. If Brown’s evidence is not accepted and the evidence of the HBC and Canstar defendants they had grounds to arrest him as a trespasser in the HBC store.
[18] However Brown’s evidence, corroborated by Mr. McGrath, is that the Canstar defendants used force to arrest him that was greatly in excess of what was required to effect an arrest of him. If this evidence is accepted he has a good cause of action for damages assault. Given this evidence it could not be held that there is “good reason to be believe” that Brown’s action is “frivolous and vexatious”. There are 2 versions of the facts. The trier of fact will be required to decide which version to accept on a balance of probabilities.
Result
[19] The appeal is allowed and Justice Daley’s order is set aside.
___________________________ Hambly J
D. Brown J.
Gilmore J.
Released: October 22, 2014
CITATION: Collington Brown v. Canstar Security Services Inc. et. al., 2014 ONSC 6166
DIVISIONAL COURT FILE NO.: DC-13-94-00-ML
DATE: 20141022
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Hambly, D. Brown and Gilmore JJ.
B E T W E E N:
Collington Brown
Appellant
- and –
Bramalea City Centre, Canstar Security Services Inc., Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath and Raphael Waugh
Respondents
REASONS FOR JUDGMENT
Hambly J.
Released: October 22, 2014