SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-09-1924-00
DATE: 20120112

RE: COLLINGTON BROWN

Plaintiff

v.

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 WAUGH

Defendants

BEFORE: RICCHETTI, J.

COUNSEL:
Collington Brown, self-represented

P. Pommells, for The Hudson's Bay Company, Linda Mercadante and Jane Doe a.k.a. Laura

No one appearing for other parties

ENDORSEMENT

THE MOTION

[ 1 ] The Hudson's Bay Company, Linda Mercadante and Jane Doe a.k.a. Laura ("HBC Defendants") bring this motion for summary judgment dismissing the claims against them.

BACKGROUND

[ 2 ] This claim involve matters which occurred on May 3, 2003.

[ 3 ] The Plaintiff commenced this claim on May 1, 2009 - some almost six years later.

[ 4 ] The pleadings have closed. Affidavits of Documents have been exchanged. Discoveries were held except for a corporate representative of The Hudson's Bay Company. However, Linda Mercadante and Laura Withworth (identified as Jane Doe in the title of the proceedings), being the only two HBC persons involved with the Plaintiff on the day in question, have been examined for discoveries.

[ 5 ] This motion was brought on November 16, 2011. The HBC Defendants rely on an affidavits of D. Harrington dated November 16, 2011, Linda Mercadante dated November 15, 2011 and Laura Whitworth dated November 15, 2011.

[ 6 ] At the Plaintiff's request, the motion has been adjourned twice. Today was the third time this motion was scheduled to be heard.

[ 7 ] Leave was granted to the filing of the Plaintiff's affidavit dated January 5, 2012 to be filed.

[ 8 ] The HBC Defendants filed a short reply affidavit of Angela Rinella dated January 11, 2012.

[ 9 ] Both parties also rely upon the evidence from the examinations for discovery which had taken place in this action.

THE STATEMENT OF CLAIM

[ 10 ] The Plaintiff makes the following claims against the HBC Defendants:

i. Assault,

ii. Battery,

iii. False arrest,

iv. False imprisonment,

v. Malicious prosecution,

vi. Abuse of legal process, and

vii. Breach of Charter and Human Rights.

THE FACTS

[ 11 ] Mr. Brown had purchased a vacuum cleaner - he alleges from HBC - some eight months earlier. He did not have a sales receipt.

[ 12 ] On May 3, 2003, Mr. Brown attended at HBC at the Bramalea City Center to return the vacuum cleaner and obtain a full refund. He believed that the HBC policy entitled him to a full refund as he had spoken with someone the prior day. The issue of whether or not Mr. Brown was entitled to a full refund is not relevant to this motion.

[ 13 ] The person Mr. Brown had spoken to the prior day was not at HBC at that time. Mr. Brown asked another HBC employee for a full refund. The HBC employee refused. Mr. Brown was told this on a number of occasions that day that he would not receive a full refund.

[ 14 ] Mr. Brown was not prepared to leave without a full refund. Whether Mr. Brown became aggressive or threatening is really not relevant. The HBC employees have the right to tell someone to leave the store for any reason.

[ 15 ] Ms. Mercadante either clearly asked Mr. Brown to leave or told Mr. Brown that if he didn't leave, she could have him removed from the store. It matters not. In any scenario, Mr. Brown knew he was being asked to leave the HBC store, particularly, when he admits telling Ms. Mercadante: "On what grounds could you have me removed from the store?".

[ 16 ] The mall security was called to remove Mr. Brown. Security personnel arrived at the HBC store. Security personnel asked Mr. Brown what the problem was. Mr. Brown said that he was waiting for a full refund, despite having been repeatedly told he would not receive a full refund. Security personnel confirmed with Ms. Mercadante that HBC would not give Mr. Brown a full refund. Security personnel then asked Mr. Brown to leave (see para 12 of his affidavit). Mr. Brown recorded a part of the incident using his cell phone. The tape was played during the examination for discovery. At one point on the tape it says:

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.

Male voice: Okay. You need to leave the store now. I'm…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. Now you told me,

Male voice: She doesn’t want you … want you in the store right now.

[ 17 ] Mr. Brown's response was to tell the Security personnel to call the police. Clearly, Mr. Brown's own tape confirms he was asked to leave on a number of occasions. It is clear Mr. Brown had no intention of leaving the HBC store at that time unless he received a full refund.

[ 18 ] Ms. Mercadante and Ms. Whitworth backed away from the area (see para 28 of Mr. Brown's affidavit). They remained away when Security personnel decided to evict Mr. Brown from the mall. This is confirmed in Mr. Brown's examination for discovery:

Q. Did Linda Mercantile - or Mercadante touch you whatsoever?

A. We never touched each other.

Q. Thank you. Did Jane/Laura touch you at all?

A. No.

[ 19 ] Neither Ms. Mercadante nor Ms. Whitworth had any further involvement in this matter with Mr. Brown. Throughout the day on May 3, 2003, Mr. Brown only interacted with Ms. Mercadante and Ms. Whitworth from HBC.

[ 20 ] The Security personnel then used force to detain Mr. Brown. How or what specifically occurred is not relevant to this motion. What is relevant is that Ms. Mercadante and Ms. Whitworth did not physically touch Mr. Brown or were physically involved in Mr. Brown's subsequent detention by Security personnel, the subsequent arrest by the police or the charges which were subsequently laid against Mr. Brown.

[ 21 ] Mr. Brown was taken to the security office. The police arrived. Mr. Brown was taken away and charged. Mr. Brown agreed to a peace bond to have the charges withdrawn.

[ 22 ] The damages claimed by Mr. Brown is that he had intended to return to law school, but as a result of the entire episode, has not been able to do so because of the physical and psychological impact of the episode.

THE LAW

[ 23 ] The law on summary judgment motions has recently been set out in Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 . At para. 42 of Combined Air the court referred to the continued ability of the court, in a summary judgment motion, to deal with claims which have no merit or any prospect of success at trial:

The second type of case encompasses those claims or defences that are shown to be without merit. The elimination of these cases from the civil justice system is a long-standing purpose well served by the summary judgment rule. As stated by the Supreme Court of Canada in Canada (A.G.) v. Lameman , 2008 SCC 14 () , 2008 SCC 14, [2008] 1 S.C.R. 372 , at para. 10 :

The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.

[ 24 ] In my view, this paragraph is particularly relevant to this motion. Even giving Mr. Brown the benefit that the relevant facts would be decided in his favour, his claim has no merit against these Defendants.

ANALYSIS

[ 25 ] Let me first of all state that there is no particularity in the Statement of Claim as to how the facts pleaded give Mr. Brown a cause of action for the specified torts. However, he is self-represented and, as such, the court should and will consider this in determining whether there is or could be any merit in his various claims. The Statement of Claim will be read generously.

[ 26 ] The fact that HBC is the lessee of the store or that its employees may have requested the Security personnel to ensure Mr. Brown left the store is not a basis for legal liability of the claims asserted. They are claims which require actions by either the corporate entity or employees on its behalf.

False Arrest

[ 27 ] The HBC Defendants did not cause Mr. Brown's detention. 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.

[ 28 ] Even if it was a false arrest, it was not the HBC Defendants which "arrested" Mr. Brown, it was the mall security personnel and/or the police.

Assault and Battery

[ 29 ] As the HBC Defendants neither threatened to touch nor touched Mr. Brown, the HBC Defendants cannot be liable at law for assault or battery.

Malicious Prosecution

[ 30 ] The HBC Defendants did not arrest Mr. Brown. It was the police. The police charged Mr. Brown. Mr. Brown agreed to a peace bond as a condition for the withdrawal of the charges.

[ 31 ] There was no criminal prosecution commenced by the HBC Defendants. Mr. Brown admitted this at question 39-41 of his examination for discovery. As a result, malicious prosecution does not apply.

Abuse of Process

[ 32 ] Mr. Brown admitted at question 47 of the examination for discovery that there was no civil prosecution. I cannot even imagine how this tort could apply to the HBC Defendants in this case.

Breach of Charter and Human Rights Code

[ 33 ] As for the Charter , any such rights, if applicable would have only arisen during the detention when the security mall personnel handcuffed Mr. Brown and what subsequently occurred - none of which involved the HBC Defendants. There was no breach of Mr. Brown's Charter rights by the HBC Defendants.

[ 34 ] As for the Human Rights Code , Mr. Brown has not commenced any proceedings under the Ontario Human Rights Code . The mere allegation that Mr. Brown may have believed this episode was due to him being a black person does not create a civil right for breach of the Human Rights Code in these circumstances. In any event, reading questions 53 - 59 of Mr. Brown's examination for discovery, his real complaints relate to the scuffle with the Security personnel and what subsequently happened - none of which has anything to do with the HBC Defendants.

Conclusion

[ 35 ] The onus is on the HBC Defendants to satisfy this court that there is no genuine issue requiring a trial. They have done so.

[ 36 ] The action against the HBC Defendants is dismissed.

[ 37 ] Should either party seek costs of the action, this must be done pursuant to written submissions within two weeks, no longer than three pages, with additionally attached Costs Outline and any authorities. The responding party(s) shall have one week thereafter to provide responding written submissions with the same restriction on length.

Ricchetti, J.

DATE: January 12, 2012

COURT FILE NO.: CV-09-1924-00

DATE: 20120112

SUPERIOR COURT OF JUSTICE - ONTARIO RE: COLLINGTON BROWN v. 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 WAUGH BEFORE: RICCHETTI J. COUNSEL: Collington Brown, self-represented P. Pommells, for The Hudson's Bay Company, Linda Mercadante and Jane Doe a.k.a. Laura No one appearing for other parties, for the ENDORSEMENT Ricchetti J.

DATE: January 12, 2012