CITATION: Walsh v. 1124660 Ontario Limited, 2008 ONCA 432

DATE: 20080530

DOCKET: C45641

COURT OF APPEAL FOR ONTARIO

DOHERTY, ROSENBERG and CRONK JJ.A.

BETWEEN:

CHARLENE WALSH

Appellant (Plaintiff)

and

1124660 ONTARIO LIMITED, BRIGITTE REGENSCHEIT, P.C. ANDREW MAY, P.C. JIM STRAVRAKIS

Respondents (Defendants)

Counsel:

Ernest J. Guiste for the appellant

David Shiller for the respondents, 1124660 Ontario Limited and Regenscheit

Diana W. Dimmer and Mark Siboni for the respondents, May and Stravrakis

Heard: May 14 and 16, 2008

On appeal from the judgment of Justice Dennis Lane of the Superior Court of Justice, sitting with a jury, dated June 2, 2006.

ENDORSEMENT OF MAY 16, 2008

[1] The appellant worked for a Tim Horton’s restaurant (the respondent, numbered company). The management of that outlet became concerned that staff members (not the appellant) were stealing from the store on the night shift. A videotape was activated so that the management could watch the conduct of the employees. After viewing a videotape that included a period of time during which the appellant was working on the takeout window, the manager became concerned that the appellant was stealing money by not depositing all the money received from customers into the cash register. That manager contacted the owner who instructed him to contact the local police. The police investigated and the appellant was charged with theft. She was later acquitted.

[2] The appellant commenced a lawsuit against the arresting officer (the respondent, May) and the numbered company. She advanced numerous causes of action, including malicious prosecution, wrongful dismissal, intentional infliction of mental distress and defamation. After a lengthy trial, the jury found against her on all issues.

[3] We see no basis upon which we can revisit the jury’s factual findings. None of those findings can be properly characterized as unreasonable. We approach this appeal on the basis that the jury was entitled on the evidence it heard, assuming it was properly instructed, to come to the factual conclusions reflected in the jury’s answers to the questions posed by the trial judge.

[4] We also recognize that the test for interference with a civil jury verdict is a high one. An appellate court will not order a new trial unless a substantial wrong or miscarriage of justice has occurred and the interests of justice plainly require a new trial.

[5] The appellant advanced several grounds of appeal in her factum. Counsel made oral submissions in support of some of those grounds. We have considered all those grounds of appeal but required submissions from the respondents on only three. These reasons address only the three grounds on which we required submissions from the respondents.

[6] The grounds upon which we required submissions are the following:

(i) Did the trial judge misdirect the jury on the requisite legal elements of the offence of theft and, if so, what was the impact of that error?

(ii) Did the trial judge fail to adequately outline to the jury the position of the plaintiff with respect to the allegation of theft?

(iii) Did the trial judge err in failing to limit the allegation of theft relied on by the defendants to a single occurrence referred to as the “toonie incident” and by allowing the defence to justify the theft allegation by reference to other occurrences captured on the videotape?

The Definition of Theft

[7] The appellant submits that the trial judge misdirected the jury on the definition of theft. The trial judge gave the jury an accurate definition of theft that included reference to the requisite mental element. However, in expanding on the definition, he used the phrase “knowing it could be Tim Horton’s property” when he should have said “knowing it was Tim Horton’s property” [Emphasis added.]. The balance of the charge was, however, correct and, in particular, the trial judge had only moments earlier told the jury that the taking must be of another’s property.

[8] More to the point, the case turned on the appellant’s assertion that she was lawfully entitled to keep the money she took because that money represented proper tips. There is no possibility that the jury could have misunderstood that the appellant was entitled to keep her tips. There was no assertion by anyone that the appellant was not entitled to keep her tips. The whole thrust of the very long trial centred around the appellant’s assertion that she did not steal any money and that the money she was seen taking was her own tip money.

The Position of the Plaintiff at Trial

[9] The argument that the trial judge failed to adequately outline the plaintiff’s position on the issue of theft is to some extent addressed in our consideration of the first ground of appeal. The trial judge did not deal separately with the position of either the plaintiff or the defendants on the theft related issues. It would have been better had he made at least some discrete reference to the respective positions of the parties and expressly alerted the jury to the competing positions taken on whether the appellant had committed theft. However, as we have already observed, the positions of the parties involving the issue of theft were simple and straightforward. The jury could not have failed to appreciate those respective positions, which were fully explored throughout the lengthy evidence and in closing submissions by counsel. We note that counsel for the appellant did not object to the jury instructions on this ground.

The Scope of the Theft Allegation

[10] The appellant argued that the criminal theft allegation made against her was limited to the allegation of theft of a single toonie arising out of a single occurrence. Counsel submits that the trial judge improperly allowed the defendants, in their defence of the malicious prosecution charge, to expand the allegation of theft to include other actions by the appellant seen on the videotape. Counsel argues that as the criminal charge related only to the single alleged theft of one toonie, it was incumbent on the defendants, in defending against the malicious prosecution allegation, to limit their justification for the allegation to the single occurrence of theft involving the toonie.

[11] Without passing on the legal legitimacy of the appellant’s submission, we are satisfied that it fails for another reason. We cannot agree on this record that the criminal allegation was limited to a single occurrence involving a single toonie. As we cannot agree that the criminal allegation was as narrowly drawn as counsel alleges, it follows that this submission must fail.

Conclusion

[12] We would dismiss the appeal.

[13] We note that the trial judge, in an appropriate but generous exercise of his discretion, declined to make any order as to costs against the appellant at trial. The respondents have been entirely successful on the appeal and are entitled to their costs of the appeal if, in all the circumstances, they think it appropriate to seek those costs. Should the respondents seek costs, they should provide written submissions of no more than seven pages within ten days of the release of these reasons. The appellant should have ten days to respond in writing to those submissions. Her response should be no more than seven pages.

“Doherty J.A.”

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”