Court File and Parties

Court File No.: CV-14-515084 Date: 2016-08-03 Ontario Superior Court of Justice

Between: STEVE MANN, Plaintiff – and – CANADIAN TIRE CORPORATION LIMITED and 2931621 CANADA INC. O/A CANADIAN TIRE #600, Defendants

Counsel: Martin Zatovkanuk, for the Plaintiff David Visschedyk, for the Defendants

Heard: May 30, 2016

Before: S.A.Q. Akhtar J.

I. Factual Background and Overview

Introduction

[1] The plaintiff, Steve Mann, alleges that he was falsely imprisoned and threatened by various members of staff during a shopping visit to the Canadian Tire store located on Dundas Street West in Toronto. After leaving the store, he was involved in an accidental collision with pipes situated at the side of a building. He claims that this accident, which had lasting effects, would never have occurred but for his detention by the defendant. He claims damages for false imprisonment and for the injuries that he sustained after leaving the store.

[2] The defendants deny the allegations and argue that even if the plaintiff could prove false imprisonment the injuries sustained after his departure are too remote to be claimed. The defendants seek summary judgment under Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on two issues:

(a) Liability on the allegations of false imprisonment; and

(b) Remoteness of the damages claimed by the plaintiff.

[3] At the outset of the hearing, both parties agreed that the principles in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, permit this court to decide the motion and that there was no genuine issue requiring a trial. When the matter first came before me, however, in order to resolve some of factual disputes between the parties, I ordered a “mini-trial” pursuant to the expanded powers set out in Hryniak, at paras. 61-65. Both parties agreed that, depending on the result of the hearing, further written submissions would be filed outlining each party’s position on damages and/or costs. Both counsel are to be commended for their co-operation.

[4] The matter returned before me on 30 May 2016 to hear oral evidence from Canadian Tire staff as well as the plaintiff and a supporting witness. The hearing was short, consisted of 6 witnesses, and focused entirely on the issue of staff interactions with the plaintiff. At the conclusion of the evidence, both counsel made submissions to the court.

The Plaintiff’s Allegations

[5] The plaintiff, Steve Mann, is a professor of Electrical and Computing Engineering at the University of Toronto. He wears a “vision system” - special eyeglasses - to cope with a learning disability. The glasses assist him in social situations to recognise facial expressions.

[6] The plaintiff gave the following account of the events that are the subject matter of this motion.

[7] On 16 July 2014, he went to the Canadian Tire store located at the corner of Bay Street and Dundas Street in Toronto to buy equipment for a lighting project. After making his purchases, he made his way through the store security sensors when an alarm sounded. Halima Warar, a staff member working at the self-service checkout area, approached him and the plaintiff asked her whether he was being detained or if he was free to go. According to the plaintiff, Ms. Warar responded by telling him: “Leave you die. Plain clothes guards at exit.”

[8] The plaintiff claimed an inability to read social situations and took Ms. Warar’s comments to mean that he would be assaulted if he attempted to leave. Fearing for his safety, the plaintiff pulled out a mobile phone and began recording events. He testified that Ms. Warar had initially blocked his path to prevent him from exiting the store. However, after noticing his camera phone, she left him alone to wander around the store.

[9] He made his way to the customer service desk to enquire if he was free to leave. A second Canadian Tire employee told him that he had to remain in the store so that a manager could delete any video recorded on his phone. The plaintiff testified that a third employee, Ann Thadikaran, asked for security to be called to the desk. At this point, claimed the plaintiff, all three members of staff had told him he was being detained.

[10] The plaintiff also told the court that when a plain clothes security store employee, Kyle Espie, arrived at the desk, he shook his head at the plaintiff and told him to “stop recording or I’ll break your….”. The plaintiff was unable to make out the end of the sentence. The plaintiff added that Espie had continued to threaten him by telling him that “If you want to make it out alive - delete the video”. The plaintiff also heard someone in the vicinity say “Rough him up”.

[11] Even though he intended to record his entire interaction throughout his time at the store, the plaintiff stopped filming to call his friend, Adnan Ali, to describe what was happening. He claimed that he was unable to send Ali the recorded video due to the size of the file and lack of bandwidth. At this point, the plaintiff testified that he was surrounded by six people including the branch manager, Randy Curtis, who informed him that he would be free to go only if he erased any recorded video. The plaintiff complied with this demand but was still not allowed to leave. According to the plaintiff, Curtis told Thadikaran to take down the plaintiff’s name and asked him for identification. The plaintiff gave them his driving licence but was met with “a third condition of his release”: his phone number. After giving these details a “fourth condition” emerged: the number he had given had to be checked by staff.

[12] Notwithstanding his compliance with all four conditions, the plaintiff told the court that he was “still being detained”. He alleged that he heard Thadikaran say “we can’t let him go - he might still have a copy of that video”.

[13] The plaintiff called Ali again, who advised him to slowly walk out of the store and not make any sudden movements. Ali told the plaintiff that it would be like playing a game of chicken: someone would either stop him or let him go. The plaintiff told the court that, as he made to leave, Espie put his arm and foot forward to block his path but gave way after the plaintiff continued to walk towards him. The plaintiff insisted that no one ever told him that he could leave.

[14] As the plaintiff approached the store exit the security sensor beeped once more but no one approached him. After leaving the store, he walked slowly and cautiously along Dundas Street, still talking to Ali, when he heard something behind him. When he turned round, he saw two people running towards him from the direction of the Canadian Tire store. Panicking, he began to run. Whilst looking over his shoulder, he hit his forehead against some pipes located at the side of a building. He fell back on his arms and hands and blacked out. When he regained consciousness he returned to his place of work.

[15] Not surprisingly, the plaintiff’s account of events is strenuously disputed by the defendants, as will be discussed later on in these reasons.

II. The Shopkeeper’s Privilege

[16] Canadian Tire, like most shopkeepers, are in a difficult position in protecting themselves against potential thieves. Security gates which trigger an alarm if goods have not been purchased and scanned are a commonplace feature in today’s stores. One would expect shop owners like Canadian Tire to be able to stop and investigate a customer who activates an alarm when exiting the store premises. That ability, however, is subject to the qualification that an offence must have occurred. In other words, if a store owner is mistaken and no theft has occurred, their detention of a customer makes them liable for the tort of false imprisonment.

[17] Different jurisdictions have taken diametrically opposed views on the subject.

[18] In the United States, the courts have developed “the shopkeeper’s privilege”, a legal defence entitling a store owner to detain a customer for the purpose of determining if they have committed a theft and, at the same time, avoid the tort of false imprisonment if they are wrong. The privilege exists at both common law and under statute in different states.

[19] However, the shopkeeper’s privilege has been rejected in other jurisdictions.

The Law in England and Wales

[20] The courts of England and Wales stand on the proposition that if a shopkeeper detains a customer suspected of theft, an offence must have been committed for a citizen’s arrest to be justified.

[21] This statement of the law is first found in Hale's Pleas of the Crown (1800), vol. II – a treatise on England’s criminal law written in the 1600s – where Sir Matthew Hale stated, at p. 77, that where a person is detained on the reasonable belief that they committed a felony, that felony must be shown to have been committed by either the detainee or another person “for were there no felony, there can be [no] ground of suspicion”.

[22] In Walters v. W.H. Smith & Son Limited, (1914) 1 K.B. 595, at pp. 602-603, Sir Rufus Isaacs C.J. proclaimed that “[s]uspicion only without a felony committed, is no cause to arrest another”. The court took the view that, by choosing to take action instead of seeking recourse through an arrest warrant or police assistance, the detainer “takes a risk upon himself by which he must abide”, and if the detainee ends up being innocent, there is no other lawful excuse for the arrest, even if the detainer acted bona fides (p. 607).

[23] The court drew a sharp distinction between the arrest powers of a private citizen and those of the police:

Interference with the liberty of the subject, and especially interference by a private person, has ever been most jealously guarded by the common law of the land. At common law a police constable may arrest a person if he has reasonable cause to suspect that a felony has been committed although it afterwards appears that no felony has been committed, but that is not so when a private person makes or causes the arrest, for to justify his action he must prove, among other things, that a felony has actually been committed: see per Lord Tenterden, C.J., in Beckworth v. Philby. I have come to the conclusion that it is necessary for a private person to prove that the same felony has been committed for which the plaintiff had been given into custody. In Hawkins' Pleas of the Crown, 7th ed. (1795), bk. ii., ch. xii., p. 163, the law is thus stated: "As to the fourth particular, namely, in what manner an arrest for such suspicion is to be justified in pleading. Sect. 18. It seems to be certain, that ... regularly he ought expressly to show that the very same crime for which he made the arrest, was actually committed.

[24] The legislative provisions setting out private powers of arrest in s. 24 of the U.K. Police and Criminal Evidence Act 1984 were subsequently taken to have the same meaning that “the powers of arrest without a warrant where an arrestable offence has been committed require as a condition precedent an offence committed” and were interpreted to go even further to find that, if the detainee ends up being acquitted, there can be no valid suspicion to warrant the arrest: R. v Self (Graham), [1992] 1 W.L.R. 657, [1992] 3 All E.R. 476, at p. 660. A Hong Kong court thought this to be a harsh pronouncement, but did not consider it further as the case was distinguishable based on the different legislation in force in the two jurisdictions: Hksar v. Cheung Ting Shan, 2001 WL 34057133 (CFI), [2001] HKEC 1280, at para. 13.

Developments in the United States

[25] Early on, the position in the United States mirrored that of England and Wales: a merchant could only legally detain a suspected shoplifter for investigation if that suspect was, in fact, guilty of the crime. No matter how reasonable the merchant’s suspicion may have been, only a subsequent conviction would protect the merchant from civil liability to the person detained: Pandjiris v. Hartman, 196 Mo. 539, 94 S.W. 270, 272 (1906).

[26] However, later on, the courts began to recognise the predicament of store owners facing increased financial losses due to theft. In Collyer v. S.H. Kress Co., 5 Cal.2d 175, 54 P.2d 20 (1936), the Supreme Court of California empowered merchants who reasonably believed that a person had committed a theft to detain the person for a limited period of time for the sole purpose of investigating the facts, irrespective of whether a theft had occurred. At pp. 180-81, the court held:

However, those authorities which hold, where a person has reasonable grounds to believe that another is stealing his property, as distinguished from those where the offense has been completed, that he is justified in detaining the suspect for a reasonable length of time for the purpose of investigation in a reasonable manner must necessarily proceed upon the theory that probable cause is a defense. And this is the law because the right to protect one's property from injury has intervened. In an effort to harmonize the individual right to liberty with a reasonable protection to the person or property of the defendant, it should be said in such a charge of false imprisonment, where a defendant had probable cause to believe that the plaintiff was about to injure defendant in his person or property, even though such injury would constitute but a misdemeanor, that probable cause is a defense, provided, of course, that the detention was reasonable. As already indicated, the rule should be different if the offense believed to be in the process of commission relates to the person or property of another. And, of course, we may properly refer to probable cause as a defense in false imprisonment cases as constituting that justification for the arrest which may be announced by statutory enactment. With the foregoing explanation, the authorities are harmonized, and it is made clear that probable cause is a justification for the detention of the plaintiff in the instant cause. [Emphasis added.]

[27] This privilege is limited to strike a “delicate balance” “between the individual’s right to liberty and the property owner’s right to protect his property”, and is lost if the merchant detains the plaintiff either for an unreasonable time or in an unreasonable manner: Cervantez v. J.C. Penney Co., 24 Cal.3d 579, 590, 595 P.2d 975, 981, 156 Cal.Rptr. 198, 204 (1979).

[28] Most states have enacted statutory versions of the merchant’s privilege to detain, and the contemporary cases are often based on statute rather than on the common law. The privilege is normally triggered only if the merchant has probable cause to believe a theft has occurred or is being attempted and is usually limited both in duration and in scope. The merchant may only detain the suspect for a brief or reasonable period of time and may not use improper or unnecessary force or exact a punishment. For a discussion, see for example, Wal-Mart Stores, Inc. v. Bathe, 715 N.E.2d 954 (Ind.Ct.App. 1999).

The Canadian Position

[29] At the outset, Ontario adopted the English position, and was followed by other Canadian provinces.

[30] In McKenzie v. Gibson (1851), 8 U.C.Q.B. 100 (Q.B.), the court held, at paras. 101-102:

We take the law respecting the right of a private person to make an arrest in such cases, to be at this day ... that when a private person ... take upon himself to arrest another without a warrant for a supposed offence, he must be prepared to prove, and therefore must in his plea affirm, that a felony has been committed, for in that respect he acts at his own peril.

That point in his defence must be clear; mere suspicion that there has been a felony committed by some one, will not do; though if he is prepared to show that there really has been a felony committed by some one, then he may justify arresting a particular person, upon reasonable grounds of suspicion that he was the offender; and mistake on that point, when he acts sincerely upon strong grounds of suspicion, will not be fatal to his defence. [Emphasis added]

[31] The insufficiency of suspicion alone was reiterated in Williams v. Laing (1923), 55 O.L.R. 26 (Ont. C.A.), where Hodgins, J.A. commented, at para. 10:

The law is quite clear that in order to succeed in establishing this defence the appellants must prove first that the crime they suspected had actually been committed, not necessarily by the person detained, but by some one, and that they had reasonable ground for suspecting the person detained.

[32] This view, however, was not universal. In Karogiannis v. Poulus, [1976] 6 W.W.R. 197, 72 D.L.R. (3d) 253 (B.C. S.C.), the court seemed to depart from this principle. It pointed to Wiltshire v. Barrett, [1966] 1 Q.B. 312, [1965] 2 All E.R. 271, a case followed by the Supreme Court in Regina v. Biron (1975), 59 D.L.R. (3d) 409 (S.C.C.), in which reasonable grounds for arrest sufficed in defence for a police officer. The court held, at para. 11, that though this power was thus given to a police officer, “by a parity of reason” it would also apply to s. 449 (now s. 494) of the Criminal Code, R.S.C. 1985, c. C-46, which provides for arrests made by private citizens.

[33] Those cases, however, appear to swim against the tide. Authorities such as Sears Canada Inc. v. Smart (1986), 64 Nfld. & P.E.I.R. 187 (Nfld. C.A.); Hayward v. Woolworth (1979), 98 D.L.R. (3d) 345 (Nfld. S.C.); and Chopra v. T. Eaton Co., 1999 ABQB 201, followed Walters, McKenzie, and Laing, in taking the view that a private citizen must establish, with a preponderance of evidence, that the detainee had committed an offence, and acting solely on reasonable and probable grounds was not adequate.

[34] This rule was criticised in some quarters. In Banyasz v. K-Mart Canada Ltd. (1986), 33 D.L.R. (4th) 474 (Div. Ct.), the court followed the above principles with reservations, and indicated that property owners could benefit from a privilege of temporary detention for investigation. The court held, at para. 10:

The problem of shoplifting is a serious one for storekeepers notwithstanding that the law of tort favours the interest in individual freedom over that of protection of property. While there may be a developing privilege of temporary detention for investigation in favour of a property owner: see Prosser, Handbook of the Law of Torts (4th ed., 1971), p. 121, this is not a case where such a privilege should prevail. The continued detention after the cashier admitted her mistake negatives any consideration of such a privilege in this case.

[35] In Newhook v. K-Mart Canada Ltd., 1993 CarswellNfld 51 (Nfld. S.C.), the court followed Sears Canada as binding authority but noted the comments made in para. 10 of Banyasz and indicated the practical need to protect owners where their acts were reasonable, at para. 90:

It may be said that this passage again reflects a concern similar to that in Banerjee as to the practical need to provide some protection to store owners which does not at the same time expose them to civil penalty where their acts are reasonable. As to this, however, again the decision of the Court of Appeal in Sears Canada, in the absence of any other intervening overriding authority, binds this Court. As I read that case, it reaffirms clearly the requirement to establish proof of the commission of the elements of a criminal offence in order to meet the first requirement for justification.

[36] In the same vein, Briggs v. Laviolette, 1994 CarswellBC 1116 (B.C. S.C.), following Sears Canada, noted the existence of recommendations for Criminal Code legislative reform that would allow for arrests based upon a reasonable belief that an offence was committed, at paras. 17-18:

I note that such rethinking will be much simplified if the recommendations of the Law Reform Commission of Canada in its July 1986 Report on Arrest, pp. 25-27, make their way into legislation. These recommendations would apply the reasonable grounds criteria to both the identity of the person arrested and the commission of the criminal offence, thus affording, at least in this respect, broader authority for the private arrester than the common law.

The defendant represented himself and there was no argument of the legal issues before me. I am thus not going to attempt to make a ruling on whether there remains a residual common law legal authority to make a private arrest which may be invoked in a civil action. I favour and will apply the approach taken by the Newfoundland Court of Appeal in Sears Canada Inc. v. Smart op. cit. in equating the effect of the Criminal Code ss. 494 and 25 to the common law on the need to prove only that there were reasonable grounds for believing that the plaintiff committed the indictable offence, once the commission of the offence by someone has been proven.

The Kovacs Decision

[37] The most recent Ontario decision is that of Kovacs v. Ontario Jockey Club (1995), 126 D.L.R. (4th) 576 (Ont. Gen. Div.). After a review of both the Canadian and US jurisprudence, Cummings J. felt that the case law clearly pointed to the position that to succeed in a defence to false imprisonment of private citizen arrest the defendants must prove first that the crime they suspected was committed – either by the person suspected or someone else – and that they had reasonable ground for suspecting the person detained. The court also noted, at paras. 69-73, the apparent disparity between the provisions of the Criminal Code - which required the detainee to be the person committing the offence - and the common law, which permitted a mistake in identifying the perpetrator and justified an arrest of someone innocent of the suspected offence so long as it could be shown that someone had committed the offence. Cummings J., at para. 77, took the view that both defences ran concurrent to each other:

I conclude that the common law rule has not been abrogated by the Code: see Hayward, supra. There exists a residual common law defence in situations where someone other than the Plaintiff has committed the crime. I make this conclusion in obiter, because the defence in the case before me has raised insufficient evidence to show that someone else did commit a crime.

[38] Cummings J. expressed sympathy for the plight of store owners when faced with the threat of potential shoplifters. He felt, however, that there had been no further development in Canadian law that permitted the creation of a US-style shopkeeper’s privilege. Cummings J. concluded that, in the absence of a clear common law or statutory exception, the privilege was inapplicable and store personnel should have “no higher rights” than those conferred on a private citizen. He concluded his review of the law at paras. 104-5, in the following way:

Commendable as the exception may be, I find that it has yet to find any application in Canada. In the absence of clear language in the Criminal Code or established precedent at common law, I decline to apply such a privilege. Although the privilege first arose in a judicial decision in the United States, it has now been codified in many jurisdictions. Later decisions revolve around statutory construction. It thus appears that this privilege is more of a statutory one in the United States than one of common law. In Canada, there is obviously no such codification.

I also take notice of the advent of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, and the continuing expansion of human rights legislation. Individual freedom is being given increasing emphasis and importance in Canada. I find that the wording of s. 494(1) of the Criminal Code, and the narrow construction of the exception warranted by the case law and general interpretation principles, combine to demonstrate that no shopkeepers' privilege exists at common law in Canada.

Should the Shopkeeper’s Privilege Exist in Canada?

[39] Whilst I agree with much of Cumming J.’s analysis and historical observations, I find myself coming to a very different conclusion with respect to the existence of the shopkeeper’s privilege in Canadian law. In my view, there is a strong need for Canadian shopkeepers to be protected by a limited right to detain those that they have reasonable and probable grounds to believe are or have stolen their merchandise. I come to this conclusion for the following reasons.

[40] First, whilst no one could dispute that the Charter of Rights and Freedoms provides a bulwark of individual freedom against the actions of the state, it should not be used as a mechanism for depriving other private citizens of their right to be protected from economic loss or injury. By way of comparison, I would note that the United States Bill of Rights, created a century earlier than our own and no less a bastion of individual liberties, is able to accommodate the privilege in both common law and statutory forms.

[41] Secondly, the world has moved on since Hale’s Plea of the Crown and Walters. The principle that “without a felony, there could be no suspicion” seems unsuited to an era where most shops have installed theft-prevention apparatus such as electronic tags that trigger doorway sensors. It seems unreasonable that a shopkeeper acting in good faith is powerless to stop and investigate a customer who has set off a security alarm without the risk of being sued for false imprisonment if no theft occurred.

[42] Thirdly, broad tort principles recognise mistake as a defence in intentional torts. For example, a person causing harm to another is able to rely upon self-defence if sued for the tort of assault and battery. They will be successful if they demonstrate that they had a reasonable but mistaken belief that there was a threat to their safety. Why then, is a property owner precluded from investigating a possible wrongdoer for the limited purpose of ascertaining whether a theft occurred when their belief that a theft took place, though reasonable and honest, is mistaken? Though self-defence operates to balance harms to the person, as opposed to property, when the harm to a possible shoplifter is de minimis, the argument for the same type of defence is overwhelming.

[43] Fourthly, there is a distinction between expanding a citizen’s right of arrest and providing a narrow power to detain a potential shoplifter with strict conditions attached. Recognition of the privilege would not give shopkeepers a “higher right” to arrest, but only a very limited right to detain in order to investigate the facts. This will be discussed in more detail later on in these reasons.

[44] Finally, there has been significant change in recent years indicating a recognition of property rights’ importance in citizen’s arrests. Parliament’s recent legislative amendment of s. 494(2) of the Criminal Code broadening the powers of a property owner to detain possible shoplifters even after an offence was committed signals an acknowledgement of the need to safeguard an owner’s right to protect their property in today’s commercial reality. Likewise, a broadening of these rights is supported by the recommendations of the Law Reform Commission of Canada (in the Law Reform Commission of Canada - 1986 Report on Arrest), where it noted that a reasonable and honest mistake of fact should not deprive a citizen of the Criminal Code defence for making an arrest.

The Parameters of the Privilege

[45] Turning to the limits of the privilege, I find that the following conditions must be met before a defendant can successfully mount the defence of the shopkeeper’s privilege:

1. There must be reasonable and probable grounds to believe that property is being stolen or has been stolen from the shopkeeper’s place of business. A security alarm triggered when a person is in the process of leaving the store would be sufficient to provide such grounds.
2. The sole purpose of the detention must be to investigate whether any item is being stolen or has been stolen from the store.
3. The detention must be reasonable and involves inviting the suspect to participate in a search to resolve the issue. The privilege does not bestow a power upon the store owner to search the detainee without consent.
4. The period of detention should be as brief as possible and reasonable attempts to determine whether an item of property is being stolen or has been stolen should proceed expeditiously.
5. If the detained suspect refuses co-operation, the store owner is entitled to detain them using reasonable force whilst summoning the police and until they arrive.

[46] With these parameters in place, the interests of the store owner and the person suspected of theft are sufficiently balanced to protect both their rights. In most cases, a customer will volunteer to assist store personnel to ensure that their query is dealt with in short order. In such cases, the detention should be as short as possible and limited to what is reasonably required to discover if anything is amiss. Moreover, I emphasise the need for all store security employees to treat store visitors with respect. Any allegations of unnecessary force, threats or bullying will extinguish the defence and expose the store to liability for false imprisonment.

III. Application of the Privilege

Was the Plaintiff Threatened?

[47] I now turn to the application of the law to the facts at hand.

[48] The plaintiff testified that he was threatened on numerous occasions by Canadian Tire staff during the incident. I will, based on the evidence before me, deal with each allegation in turn.

[49] The first alleged threat came from Halima Warar who, according to the plaintiff, prevented him from leaving warning him: “Leave, you die. Plain clothes guards at exit”. Warar, who has worked at the Canadian Tire branch for six years, denied making any such utterance. She explained that she first encountered the plaintiff in the self-service checkout area and provided assistance when one of the items he sought to purchase was missing a barcode. She rectified the issue and observed him pass through the exit gate, which sounded an alarm as he passed through. She asked the plaintiff to stop so she could check his merchandise to see if a security tag had been left on one of his purchased goods.

[50] Almost immediately, the plaintiff stopped, dropped the box containing his purchased items, and produced his mobile phone. She heard a ‘click’ and realised that the plaintiff had begun filming her. Having never seen a customer record video in the store, she became concerned and asked him to stop. The plaintiff responded by telling her that he was recording their interaction as evidence “for his lawyer”. Now becoming fearful, Warar retreated and told the plaintiff he was free to go. She left the area and headed, with some haste, to the customer service desk. She flatly denied making any threats to the plaintiff and insisted that she never heard anyone else threaten him.

[51] I found Warar to be a very credible witness. She was not shaken in cross-examination and sought to answer all questions directly and responsively. Most significantly, her account of events is supported by the video recording made by the plaintiff. The beginning of the video shows Warar assisting the plaintiff who, in turn, puts down his box of purchased goods and produces his phone. Warar, visibly disturbed upon seeing the phone, tells the plaintiff that “you don’t have to picture me”, to which the plaintiff responds that “I need this for court in case something happens”.

[52] Warar visibly recoils, puts up her hand in an attempt to obscure her face and then hurriedly departs. There is no evidence of any threat made by Warar on the phone, and, tellingly, no complaint made by the plaintiff of any threats or intimidation made by Warar. Throughout the video, the plaintiff’s entire demeanour is one of curiosity and calm.

[53] It is clear from the video that no one has told the plaintiff that he must remain in the store as he continually utters “this thing is beeping at me, why is it beeping - am I free to go?”. When asked if he is filming by another member of staff, the plaintiff is heard to utter “Yes, I am, cause this thing is beeping at me”. The clear inference is that the plaintiff’s concern is not a threat made by the staff but the actual alarm that has sounded from the sensor.

[54] It is also telling that when he goes to the customer service desk he makes no mention of Ms. Warar’s alleged death threats. Finally, on this point, it strikes me as odd that the plaintiff begins recording the events for the avowed purpose that the video might be needed in future court proceedings yet makes no mention of any threat made by Canadian Tire staff.

[55] For these reasons, I find the plaintiff’s assertion that Warar uttered a threat to be a fabrication. Warar was simply trying to assist the plaintiff until he frightened her by producing his phone. I also find that the plaintiff voluntarily re-entered the store, as depicted on the video evidence, and made his own way to the customer service desk without any compulsion.

[56] Turning to the other threats of violence, allegedly uttered by Kyle Espie and Randy Curtis, the Canadian Tire branch manager, I also find that no such threats were ever made for the following reasons.

[57] First, I have had the opportunity to see the video interactions between the plaintiff, Curtis and Espie. Although there is no sound on the video, I find that there is very little interaction between Espie and the plaintiff. Any conversation that does take place appears to be polite and courteous with Espie simply showing some concern at the manner in which the plaintiff is using his phone in a fashion which observers might find intimidating. I make the same findings of fact with respect to Curtis, who appears to express concern rather than act threatening or menacing. I also found Curtis to be a very credible witness who, in my view, did not conceal his concerns about the plaintiff’s filming or his requests that the plaintiff stay whilst the police were called. I believe Curtis’ evidence that, after speaking to the police, he told the plaintiff that he was free to leave.

[58] Secondly, the security video lends support to Curtis’ evidence and belies the plaintiff’s account that he had to plan an “escape” from the store by walking out slowly and “playing chicken”. The video evidence of the plaintiff leaving the store shows nothing other than an unimpeded departure. Contrary to the plaintiff’s evidence that Espie tried to bar his path out of the store when leaving, the security video shows both Espie and Curtis moving back to allow the plaintiff to get to the exit. When the plaintiff leaves, there is no sign of any concern on his part that he is going to be prevented from doing so.

[59] Thirdly, after receiving these supposed death threats and being told that he would not be allowed to leave the store alive unless he complied with staff’s demands, the plaintiff made no attempt to contact the police. Instead, his reaction was to call his work colleague, Adnan Ali, to ask for advice. Both Ali and the plaintiff were forced to concede that at no time did Ali advise the plaintiff to call 911 so that the police could be summoned. I conclude that this must have been because the plaintiff never told Ali about the fear for his safety that he now alleges.

[60] The plaintiff sought to explain his failure to contact the police on the basis that historical complaints with respect to other previous incidents had been met with indifference or a lack of sympathy. Accordingly, he had no confidence that calling the police would help. However, in cross-examination, the plaintiff contradicted himself. He agreed that Ann Thadikaran, the Canadian Tire employee working at the customer service desk, had contacted the police to determine the legality of the plaintiff’s action of recording in the store. The plaintiff, in contrast to his earlier testimony, now insisted that he had asked to speak to the police but was refused. His explanation became even more fanciful: when asked why, after this refusal, he had not called the police using his own phone, the plaintiff replied that he “thought it was more productive if he called them back from home to see if I have any evidence”. This explanation is absurd in light of the plaintiff’s testimony of death threats, fear for his personal safety and being detained against his will.

[61] Fourthly, I note that no charges were ever laid against any Canadian Tire employees. The plaintiff’s explanation is that he never made a formal complaint “because the police told him it would be a civil matter”. In my view, it is inconceivable that a police officer would inform the plaintiff that his detention accompanied by numerous death threats would be “a civil matter”.

[62] Fifthly, I find the plaintiff’s description of the incident to be vastly exaggerated. The plaintiff claimed that during his detention he was surrounded by six people, giving the impression of encirclement by a menacing throng of Canadian Tire employees intent on barring his movement. This is belied by the Canadian Tire security video. Three of the employees in the vicinity of the incident are behind the customer service desk counter and therefore separated from the plaintiff. Two others, Espie and Curtis, stand behind and to the side of the plaintiff leaving him more than enough space to move freely. Finally, as I have already mentioned, the entire recorded video made available to the court shows the plaintiff being dealt with courteously and professionally by all staff.

[63] Sixthly, in addition to the above evidentiary discrepancies, the plaintiff’s testimony contained other inconsistencies. For example, although he testified in court that it was Curtis who told him to delete the video, the plaintiff’s affidavit claims that it was Espie who gave these orders. In his evidence in chief, the plaintiff testified that he deleted the phone recording after Curtis promised him that he would be free to go once that occurred. In cross-examination, however, the plaintiff explained that he might have deleted the video when trying to copy it but he wasn’t sure.

[64] I was similarly unimpressed with Adnan Ali’s evidence. Ali maintained that he spoke to the plaintiff before he reached the Customer Service desk and not after, contrary to the plaintiff’s evidence. Ali was also unaware that the plaintiff had been threatened a second time with the words “If you make it alive delete the video”. It also makes little sense that Ali’s advice, after being told of the situation, consisted of an instruction to “play chicken” rather than call the police.

[65] I also find that the plaintiff’s evidence with respect to the retrieval of the deleted video makes very little sense. The plaintiff began to record events supposedly to secure evidence of his exchanges with Canadian Tire staff for future use in court proceedings. The plaintiff testified that he had recorded the threats to his life and well-being. Why then, I ask rhetorically, would he wait several months, as Ali testified, before seeking to recover an incriminating video which ran the risk of being irretrievably overwritten? The inference I draw from this inaction is that no threats were ever uttered or recorded.

[66] For the above reasons, I place little weight on the plaintiff’s evidence and reject his claim of threats as false.

Was the Plaintiff Falsely Imprisoned?

[67] The plaintiff argues that the tort of false imprisonment was committed when Halima Warar threatened him after the security alarm at the store exit was set off. I have already found this allegation to be untrue. The video evidence shows clearly that, once Warar retreated, the plaintiff voluntarily followed her back into the store and approached the customer service desk. There was no one who had told him that he had to remain in the store at this stage and I find that he was not detained at this point. It was at the customer service desk, whilst brandishing his phone, that the plaintiff entered into an exchange with one of the female members of staff and one of the store managers, Ann Thadikaran.

[68] The female staff member asked the plaintiff to stop filming due to her concerns over an “invasion of privacy”. The plaintiff is heard on the phone video to say “OK, I’ll leave then.” The staff member continues to ask the plaintiff to stop filming her but is met with the response that the plaintiff “will need it for court”. Finally, the plaintiff asks “Am I free to go?” and is told “No, cause the manager is going to come and have you delete that because you should not be recording.”

[69] In my view, any detention commences from this point onwards. It is worth noting that the plaintiff continues to ask if he is being detained and threatens to leave the store, casting some doubt on whether, even at this stage, he feels compelled to stay. However, in light of the defendants’ concession on the issue, I am prepared to accept that the plaintiff is now detained.

[70] Applying the above privilege factors, I find that the beeping sound of the security alarm gave rise to reasonable and probable grounds to believe that property was being stolen from the Canadian Tire store. Contrary to the plaintiff’s assertions, there were no threats or intimidation uttered by the Canadian Tire staff. As I have said, I found the staff to have acted with courtesy and professionalism. If anything, the greatest sense of intimidation and threat, as demonstrated by the store security video, emanated from the plaintiff and his conspicuous use of the camera phone, causing obvious concern to the staff.

[71] Nor was the length of the plaintiff’s detention particularly onerous. I have reviewed the video footage and the time between the plaintiff arriving at the Canadian Tire customer service desk (where he was asked to stay to await the manager) and leaving the store amounts to approximately 13 minutes.

[72] I also reject the plaintiff’s assertion that he was never given clearance to leave the store and had to so by walking out slowly and “like playing a game of chicken”, daring the staff to stop him. As previously mentioned, it is clear from the evidence, including the security video, that once the Canadian Tire staff completed their call to the police they made no attempt to bar the plaintiff’s exit. He left freely and without hindrance.

[73] I conclude therefore that all but one of the conditions of the shopkeeper’s privilege were met. Had Canadian Tire simply detained the plaintiff for the purpose of determining whether any of the items in his possession had not been paid for, I would have had no difficulty in finding that the defence of the shopkeeper’s privilege applied. That was not the case, however. Although they might have initially detained the plaintiff to determine whether he had stolen any goods - as evidenced by Ms. Thadikaran asking to see his receipt - the defendants’ primary motivation became the concern that the plaintiff had been filming staff inside the store. By detaining him for the purpose of investigating the lawfulness of the plaintiff’s actions and potentially deleting the video, the defendants acted outside the parameters of the privilege and committed the tort of false imprisonment.

[74] I would add, however, that the length of time coupled with the manner in which the Canadian Tire staff interacted with the plaintiff amounted to a false imprisonment of a minimal nature.

IV. Remoteness

[75] The plaintiff alleges that after leaving the store he remained concerned about being stopped outside and when he heard a loud noise and a group of people behind him he panicked, believing that Canadian Tire employees were following him, and began to run. Whilst looking over his shoulder he hit his forehead on some metal pipes located on the side of a building. The collision caused him to fall to the ground and lose consciousness. The physical injuries sustained as a result include impaired concentration, headaches, insomnia, shoulder pain, back pain, indigestion and stomach pain. The plaintiff maintains that these injuries continue to plague him to the present day.

[76] As part of the summary judgment motion, it was agreed that this court should determine only the narrow issue of whether injuries sustained outside the Canadian Tire store were too remote to be claimed as damages. The quantification of any damages would be the subject of separate written submissions.

[77] The test for remoteness was set out by the Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114. Chief Justice McLachlin, writing for a unanimous court, set out the required standard at paras. 14 and 15:

The remoteness inquiry depends not only upon the degree of probability required to meet the reasonable foreseeability requirement, but also upon whether or not the plaintiff is considered objectively or subjectively. One of the questions that arose in this case was whether, in judging whether the personal injury was foreseeable, one looks at a person of “ordinary fortitude” or at a particular plaintiff with his or her particular vulnerabilities. This question may be acute in claims for mental injury, since there is a wide variation in how particular people respond to particular stressors. The law has consistently held — albeit within the duty of care analysis — that the question is what a person of ordinary fortitude would suffer: see White v. Chief Constable of South Yorkshire Police, [1998] 3 W.L.R. 1509 (H.L.); Devji v. Burnaby (District) (1999), 180 D.L.R. (4th) 205, 1999 BCCA 599; Vanek. As stated in White, at p. 1512: “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.” [Emphasis added]

[78] The Mustapha test therefore imposes an objective standard that the consequences of a party’s tortious act would be foreseeable in a person of “reasonable fortitude and robustness”. The plaintiff must demonstrate that it was foreseeable that he would sustain his injuries as a result of being detained at the Canadian Tire customer service desk.

[79] I find that the plaintiff fails. It was not foreseeable that a person of reasonable fortitude would run in fear for their life believing that they were to be killed or harmed by Canadian Tire staff as a result of their detention. That fear is made even less foreseeable in light of my findings that the plaintiff was never threatened and was treated with courtesy and respect whilst the Canadian Tire staff sought to resolve the issue of the use of his camera phone inside the store.

[80] It may well be that the plaintiff possessed extremely sensitive personality traits that would lead him to react in the manner that he did. However, as was made clear in Mustapha, “the law will not impose liability for the exceptional frailty of certain individuals”.

[81] For the above reasons, I agree with the defendants’ submissions that the injuries sustained by the plaintiff after leaving the Canadian Tire store were too remote.

V. Conclusion

[82] I therefore find that:

1. The plaintiff succeeds in his action for False Imprisonment;
2. The plaintiff fails, on the basis of remoteness, in his claim for the injuries sustained after leaving the Canadian Tire store.

[83] In light of the above, and as was agreed at the hearing, I invite the parties to make submissions as to the quantification of damages for False Imprisonment based on the findings outlined in this judgment.

[84] Those submissions must be limited to 15 pages and be filed within 30 days of receipt of these reasons.

S.A.Q. Akhtar J.

Released: August 3, 2016