Brown v. Bramalea City Centre et al., 2026 ONSC 2398

CITATION: Brown v Bramalea City Centre et al. 2026 ONSC 2398

COURT FILE NO.: CV-09-1924

DATE: 2026 04 27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Collington Brown, Moving Plaintiff

AND:

Bramalea City Centre, Canstar Security Services Inc., Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath, and Raphael Waugh, Responding Defendants

BEFORE: M.T. Doi J.

COUNSEL: Atrisha Lewis, Todd Pribanic-White, and Richard De Almeida, for the Moving Plaintiff

Maya M. Kanani and Jordan Conway, for the Responding Defendants

HEARD: February 27, 2026

Endorsement

Overview

1After the jury gave its verdict for this personal injury action, the plaintiff moved to not enter judgment in accordance with the verdict by asserting a lack of evidence to support some of the jury’s findings. In opposing the motion, the defendants submit that the verdict is supported by some evidence from the trial.

2For the reasons that follow, I find that the motion should be dismissed and that judgment should be entered in accordance with the jury’s verdict.

Legal Principles for Not Entering a Jury Verdict

3Subsection 108(5)(b) of the Courts of Justice Act, RSO 1990, c C.43 states that judgment may be entered in accordance with the verdict or answers of the jury.¹ In general, the court shall endorse a jury’s verdict: r. 52.09 of the Rules of Civil Procedure, RRO 1990 Reg 194.² The grounds upon which a trial judge may refuse to grant judgment in accordance with a jury verdict are limited by the Rules of Civil Procedure and the jurisprudence.

4Rule 52.08(1) provides,

Where the jury,

(a) disagrees;

(b) makes no finding on which judgment can be granted; or

(c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings,

the trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action. [Emphasis added.]

5The level of deference given to civil jury verdicts is exceptionally high: Henry v Zaitlen, 2024 ONCA 243 at para 44, leave to appeal refused 2025 17282 (SCC). Where there is some evidence to support the verdict, a high degree of deference is afforded and the verdict will not be set aside even if the jury could have reached a different determination on the evidence: Ali v Irfan, 2024 ONCA 758 at para 6; Lazare v Harvey, 2008 ONCA 171 at para 29, leave to appeal refused 2008 59061 (SCC); Kerr v Loblaws Inc., 2007 ONCA 371 at paras 4, 53. A civil jury verdict is afforded a fair and liberal interpretation and the fullest possible effect on any reasonable construction of the trial evidence and circumstances: Stilwell v World Kitchen Inc, 2014 ONCA 770 at para 34; Cheung v Samra, 2022 ONCA 195 at para 50, leave to appeal refused 2022 115633 (SCC).

6A trial judge may decline to enter judgment in accordance with the verdict of a civil jury only if: i) there is no evidence to support the jury’s finding; or ii) the jury gives an answer to a question that cannot in law provide a foundation for judgment: McLean v Knox, 2013 ONCA 357 at para 20; Cheung at para 48; Henry at para 44. The trial judge must enter judgment consistent with the jury’s verdict unless it is utterly devoid of evidentiary support or without legal foundation: Fasfous v Provigo Distribution Inc., [2005] OJ No 4668 (SCJ) at para 14; Salter v Hirst, 2010 ONSC 3440 at para 14, aff’d 2011 ONCA 609, leave to appeal denied 2012 41193 (SCC).

7To succeed on a motion to not enter judgment on a jury’s verdict for no evidence, the moving party must establish that the record is completely devoid of any evidence to support the verdict, as Horkins J. explained in Sandhu v Wellington Place Apartments, 2006 19463 (ONSC) at para 12:

During the motion the defendants repeatedly described the test for striking a jury verdict by referring to a “gossamer thread”. They argued that the evidentiary basis for the jury’s verdict must be more than a “gossamer thread”. The defendants also argued that there must be “facts that are cogent and persuasive” to support the verdict. They say that I must look for “cogent and compelling evidence.” This is not the test. As the case law confirms, there must be “no” evidence to support the verdict if the motion is to succeed. The verdict must be “devoid” of evidentiary support. Devoid means, “completely lacking”. It does not mean something more than a “gossamer thread”. Expressed another way a gossamer thread is something, albeit sheer and delicate, but devoid is nothing. [Emphasis added]

See also Salter v Hirst, 2010 ONSC 3440 at para 16, aff’d 2011 ONCA 609, leave to appeal denied 2012 41193 (SCC); Bodenstein v Penley, 2017 ONSC 27 at para 15.

8The circumstances in which a trial judge will not enter judgment pursuant to a jury verdict due to “no evidence” are extremely narrow and limited to the most extraordinary of cases: Kamyab v Bruce, [2000] OJ No 2167 (SCJ) at paras 13-15; Teskey v Toronto Transit Commission, [2003] OJ No 4546 (SCJ) at paras 5-6; Sandhu at para 11; Salter at para 16; Surujdeo v Melady, 2015 ONSC 7443 at para 7, affirmed 2017 ONCA 41.

9The above-noted analysis is guided by the following additional principles:

a. A jury’s verdict is presumed to be the result of a proper consideration of the evidence and an adherence to the legal instructions provided by the trial judge: Cheung at para 49; R. v Corbett, 1988 80 (SCC), [1988] 1 SCR 670 at paras 39-40, 129; R. v Suzack, 2000 5630 (ONCA) at para 128.

b. It is inappropriate for the trial judge to weigh the evidence heard by the jury and to assess the credibility or reliability of the witnesses who gave the evidence: Salter at para 19; K.L.P. v T[…] District School Board, 2015 ONSC 636 at para 87; and

c. The issue of whether the jury’s verdict is unreasonable or perverse is not a matter for the trial judge but rather for the appellate court; McLean at para 30; Lang v McKena, 2000 16814 (ONCA) at para 24, leave to appeal refused [2000] SCCA No 539.

The Jury Questions

10This action arose from injuries the plaintiff claims to have suffered when mall security arrested him on May 3, 2003 for trespass at a mall department store after he tried to return and obtain a refund for a vacuum cleaner purchased at the store.

11The jury heard from a number of witness about the May 3, 2003 incident. The witnesses included use of force experts who testified about the plaintiff’s arrest and doctors who testified about the injuries that he claims to have sustained from the incident.

12The issue of race and racial stereotyping or profiling was a central theory of the plaintiff’s case. He argued that the mall security guards racially profiled him with stereotypes of Black men that influenced how they treated him before, during, and after his arrest for trespassing at the store.

13The jury rendered its verdict by answering the jury questions put to them as follows:

1. Did the Defendants have reasonable and probable grounds to arrest the Plaintiff for trespassing because he did not leave the store immediately after a person authorized by the Hudson’s Bay asked him to leave right before his arrest?

Answer: Yes

2. Were race or racial stereotypes used to any degree in the Plaintiff’s treatment by the Defendants?

Answer: No

3. Was using the arrest power against the Plaintiff a reasonable course of action for the Defendants in all the circumstances?

Answer: Yes

4. Was reasonable force used in arresting the Plaintiff?

Answer: Yes

5. In what amount, if any, do you assess the Plaintiff’s damages arising from the incident in issue of May 3, 2003 in the following categories:

a. General, non-pecuniary damages (pain and suffering, loss of enjoyment of life)? $ 0

b. Human rights damages? $ 0

c. Past loss of income to the time of trial? $ 0

d. Future loss of income, loss of earning capacity, and loss of competitive advantage? $ 0

e. Is the Plaintiff entitled to aggravated damages?

Answer: No

f. If the Plaintiff is entitled to aggravated damages, in what amount should they be awarded? $ 0

g. Is the Plaintiff entitled to punitive damages?

Answer: No

h. If the Plaintiff is entitled to punitive damages, in what amount should they be awarded? $ 0

Analysis

14As explained below, I am satisfied that the jury had sufficient evidence on which it could reach its verdict in respect of the impugned jury questions.

a. Racial Profiling

15In my view, the defence led some evidence for the jury to reject the plaintiff’s claim that the defendants racially profiled him by using racial stereotypes or bias in their treatment of him.

16Racial profiling is primarily concerned with the motives of a person in authority and occurs when race or racial stereotypes about offending or dangerousness are used, whether consciously or unconsciously, to any degree in dealing with a person: R. v Le, 2019 SCC 34 at paras 76-78; R. v Brown, 2003 52142 (ONCA) at paras 7-8, 10; R. v Dudhi, 2019 ONCA 665 at para 59.

17Racial profiling may be inferred from the circumstances surrounding the action that is said to be the product of racial profiling: R. v Sitladeen, 2021 ONCA 303 at para 54.

18Racial profiling reflects a form of prohibited discrimination that is well-established as a legal construct under human rights principles as adopted by the courts: Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center), 2015 SCC 39 at para 33; Le at paras 89-97; R. v Ahmad, 2020 SCC 11 at para 168; Dudhi at paras 56-63; Sitladeen at paras 43-54. The existence and pervasiveness of overt and systemic anti-Black racism in Canadian society, and particularly in the Greater Toronto Area, is beyond dispute as the Court of Appeal clearly has acknowledged on several occasions:

It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis: see R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 89-97; R. v. Theriault, 2021 ONCA 517, at para. 212, leave to appeal to S.C.C. requested, 39768 (July 19, 2021); R. v. Parks (1993), 1993 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), at p. 342, leave to appeal refused, [1993] S.C.C.A. No. 481; see also Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Toronto: Government of Ontario, 2018), at p. 19; Ontario Association of Children’s Aid Societies, One Vision One Voice: Changing the Child Welfare System for African Canadians (Toronto: Ontario Association of Children’s Aid Societies, 2016), at p. 29. Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased.

R. v Morris, 2021 ONCA 680 at para 1; see also R. v Theriault, 2021 ONCA 517 at para 212, leave to appeal denied 2021 129762 (SCC); McFarlane (Re), 2022 ONCA 633 at para 33; Ramos (Re), 2025 ONCA 820 at para 55.

19The plaintiff relies on an extract contained in a special incident report dated May 3, 2003 prepared by a defendant security guard, Ryan Harnest, as showing conscious or unconscious racial bias around the time of his arrest for trespass. The material portion of the report states:

At 1540 hours Peel Regional Police (PRP) PC# 2286 arrive on site to continued [sic] the arrest. NOTE the suspect was discovered to have had many dealings with police with an extreme history of violence. PRP took custody of the suspect. Submitted for your review. [Emphasis added.]³

20During his testimony at trial, Mr. Harnest conceded that the sentence in the report about the plaintiff, Mr. Brown, having many dealings with police and an extreme history of violence was untrue. Mr. Harnest did not know or recall how he obtained this untrue information.⁴ He testified in cross-examination that he did not fabricate the incorrect information.⁵ He further testified in re-examination that it was not in his character to fabricate the statement.⁶

21At trial, Mr. Harnest testified that he wrote out what occurred in his special incident report in chronological fashion. The sentences in the report immediately preceding and following the untrue sentence about Mr. Brown’s dealings with police and violent history refer to police arriving at the mall security office and then taking custody of Mr. Brown that day.

22In their closing address, the defendants averted to this evidence and argued that it was for the jury to determine what inferences to draw from Mr. Harnest’s special incident report and his evidence at trial. The plaintiff did not object to any of this.

23I find that it was open for the jury to infer that the untrue content about Mr. Brown in the report was given to Mr. Harnest by police who attended the mall security office to take custody of Mr. Brown following his arrest for trespassing. Although it was also open for the jury to infer that the actions of Mr. Harnest and the other defendants on May 3, 2003 were motivated or influenced by unchecked conscious or unconscious racial profiling against Mr. Brown, I accept that this was not necessarily the only inference they could draw from all the evidence. In my view, the jury had an evidentiary basis for rejecting the untrue sentence in the report as evidence of racial profiling given the above-mentioned evidence.

24In any event, the jury heard countervailing evidence about what, if any, role that race played in how the defendants treated the plaintiff during the events on May 3, 2003.

25The defendants led evidence that race was not a factor in how Mr. Brown was treated on May 3, 2003. Michael Magnaye and Raphael Waugh, the only other racialized persons involved in the subject events that day, both testified that race did not play an adverse role in how Mr. Brown was treated. Mr. Magnaye testified that race had no role in his actions that day.⁷ Mr. Waugh testified that, if anything, Mr. Brown was given more opportunities to leave the premises than others would have been afforded, on account of his race, before security proceeded to arrest him for trespassing:

Q. Raphael, in your opinion, what role do you think race played in your interactions that day?

A. Like, to be honest with you, I think the way race would have played a role in it would have been more to support the situation with Mr. Brown. In the situation that it was, he was given so many chances, and I know that was because -- also because I was there to help kind of like, listen, trying to speak to him and trying to have not a heart to heart, but trying to actually try to get him to see it from a different point of view and trying to get it to -- get him to understand that, you know, this needs to be dealt with better. He didn't -- I don't believe he liked the fact that that was happening. And I think that with everything else happening might have caused him to kind of not really focus on that. You know, but with regards to race, I think that if it was somebody else, they would have been, if I wasn't there, they would have been arrested after the first three times, because usually we do -- then it would be like we'd give a person three chances back then to kind of understand that if he don't leave after we tell you three times, you're gone. He had way more than three times. And in fact, it happened so many times that we were begging him and explaining to him different things and still wasn't good enough.⁸

26As noted earlier, so long as there is “some evidence” on which the jury could have given its answers or verdict, the trial judge should enter judgment in accordance with those answers or verdict, regardless of whether the trial judge would have questioned the evidence due to a witness’ credibility or reliability: Salter at para 19; Surujdeo at para 8.

27Taking everything into account, I am satisfied that there was some evidence on which the jury could reach it verdict that racial profiling or stereotyping had no role in how the defendants treated the plaintiff on May 3, 2003.

b. Use of Arrest Power

28I find that the jury heard some evidence at trial to support a finding that the defendants were justified in using the arrest power against the plaintiff in the circumstances of the case.

29Sections 2 and 9 of the Trespass to Property Act, RSO 1990, c T.21 (the “Act”) provide as follows:

Trespass an offence

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

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(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 $10,000.

Arrest without warrant on premises

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.

Delivery to police officer

(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.

30In effect, s. 2(1) of the Act makes it an offence for anyone not acting under a right or authority conferred by law to remain on premises after they are directed to leave by an occupier or a person authorized by the occupier. Under s. 9(1) of the Act, an occupier or person authorized by the occupier may arrest without warrant any person they believe on reasonable and probable grounds to be on the premises in contravention of s. 2 of the Act.

31To effect an arrest for trespassing, an occupier or a duly authorized agent must use no more than reasonable force to perform the arrest and establish that the use of the arrest power was itself justified in all the circumstances: R. v Asante-Mensah, 2003 SCC 38 at paras 74-76; Tucker v Cadillac Fairview Corporation Ltd., 2005 24579 (ONCA) at para 18.

32The power to arrest under s. 9(1) of the Act is not merely a symbolic power but confers the authority for an occupier, or a person so authorized, to arrest a person for trespass and deliver the person into police custody: Asante-Mensah at paras 53-55. The arrest power under s. 9(1) does not give trespassers the “upper hand” simply by refusing to submit to render wrongful even the most reasonable efforts by an occupier to effect an arrest under the Act: Asante-Mensah at para 55.

33Several non-exhaustive factors have been identified in case law as relevant considerations in determining whether an arrest under the Act is justified, including the following:

a. the duty being performed;

b. the extent to which some interference with individual liberty is necessitated in order to perform that duty;

c. the importance of the performance of that duty to the public good;

d. the liberty interfered with;

e. the nature and extent of the interference;

f. what the person did to cause security guards to view them as trespassers;

g. whether the person’s activities were the subject of a complaint;

h. whether the person was disruptive before or at the time of their arrest;

i. whether the person previously had received a trespass notice or been prosecuted for trespassing;

j. whether it is likely the person would have left the mall in a reasonable period of time after being allowed to complete a transaction;

k. whether the person offered to wait for police once apprehended;

l. whether it was necessary to arrest the person to prevent them from continuing their prohibited conduct;

m. whether security guards knew the identity of the person; and

n. whether the arrest was necessary to preserve relevant evidence.

Asante-Mensah at para 55; Tucker at para 24.

34If illegitimate thinking about race or racial stereotypes factors into the selection or treatment of a person for arrest under the Act, any pretence that the arrest decision was reasonable is defeated: Dudhi at para 62, cited with approval in Ahmad at para 168.

35From the evidence, I accept that the jury could find no “immediate” exercise of the arrest power against the plaintiff. The jury heard a 4 ½ minute audio recording of the guards respectfully asking the plaintiff to voluntarily leave the department store prior to his arrest.⁹ There was some evidence that the mall was busy on May 3, 2003 when a crowd gathered in the plaintiff’s vicinity in the department store. Among other things, Mr. Waugh testified that Mr. Brown was causing a huge disturbance in the store prior to his arrest.¹⁰ I accept that the evidence of Mr. Brown acting disruptively afforded grounds for the jury to find that recourse to the arrest power under the Act was justified: Tucker at para 24.

36The plaintiff asserted that the defendants’ failure to lead evidence about the decision to not call police before resorting to the arrest power detracts from the reasonableness of Mr. Brown’s arrest for trespassing. However, the Act expressly allows an occupier or an agent to arrest a person for trespass without first calling police or requiring police to actually perform the arrest. As well, the common law does not require police to effect an arrest under the Act beyond taking a person arrested by an occupier or their agent under the Act into police custody after the arrest: Asante-Mensah at paras 53-55, 59.

37The plaintiff led expert use of force evidence from Dr. Thomas Shea who testified that calling police, as Mr. Brown had asked, was a de-escalation option the defendant security guards should have taken before arresting him for trespass under the Act.¹¹ Dr. Shea testified that he did not know the response time for police to attend the mall on a trespass call given their other duties.¹²

38The defence’s use of force expert, Steven Summerville, opined that the May 3, 2003 events unfolded in a way that justified mall security taking urgent action, and he disagreed with Dr. Shea’s opinion that the May 3, 2003 incident was not urgent.¹³ Mr. Waugh testified that, if anything, the request by Mr. Brown to call police was more in the nature of a refusal to leave the premises and not a sincere request to de-escalate the situation.¹⁴ Mr. Summerville opined that mall security took reasonable time and steps in an effort to reason with Mr. Brown to de-escalate the incident before arresting him for trespassing after he persisted in refusing to leave.

39In light of the foregoing, I find that some evidence was led at trial to support the jury’s finding that using the authority under the Act to arrest the plaintiff for trespassing was a reasonable course of action for the defendant security guards to take in all the circumstances.

c. Reasonable Force

40I fid that the jury heard some evidence to support its finding that the defendant security guards used reasonable force in arresting the plaintiff.

41The jury heard Mr. Summerville give expert testimony that the security guard’s grounding of the plaintiff was reasonable in the circumstances and consistent with industry best practices:

Q. In your opinion, was the grounding of Mr. Brown reasonable?

A. Yes, it was.

Q. Why?

A. Because of the level of resistance at the time, as through the evidence, if that's accepted by the jury, it would be reasonable to take him down at the time to mitigate or prevent him from assaulting people. And to incorporate control, he was arrested at the time. There's evidence for that. And it would have been the safest and most reasonable thing to do as opposed to getting into a fist fight or a standing fist fight with someone.

Q. In your opinion, was the grounding reasonable and consistent with industry standards in May 2003?

A. Yes, it was.

Q. Why?

A. Because police officers, the curriculum for police officers, which transfers over at the time to security application of force, was that a person offering you at least active resistant behaviour, should be grounded for purposes of safety.

Q. What do you mean by actively resistant behaviour?

A. Active resistance is a person that's physically struggling, trying to get away, preventing from being lawfully arrested, or physically controlled.

Q. In your opinion, was the application of forced in Mr. Brown's case necessary?

A. It was reasonable and necessary at the time.

Q. Why?

A. Somewhat touched on that a moment ago, but at that particular moment when you have made a citizen's arrest and you need to go - believe if the person is resisting you, you are trying to control that resistance. In this case, there's evidence that I've heard that would warrant and justify the need to take down for purposes of control, to prevent a fight from continuing and to prevent from anything ramping up that you may not be able to physically control, especially depending on size differentials of people.¹⁵

42The plaintiff submits that none of the guards could describe the actual techniques they used to put him to the ground, leaving Mr. Summerville unable to know precisely how the grounding was performed in this case. In addition, the plaintiff noted that Mr. Summerville did not have any training manuals that may have explained the technique the guards were taught on how to perform a grounding.¹⁶ Mr. Summerville testified that he read through discovery transcripts and learned that security guards grounded Mr. Brown by using his arms as leverage, but conceded to having no other details about what specific steps they took or what training they had received to take him to the ground.¹⁷

43The defendants did not describe in detail how Mr. Brown was taken to the ground during his arrest for trespass that took place over 23 years ago. Some of this may be attributed to the delay in bringing the case to trial. The defendants did not produce video security footage of the arrest or grounding, or other records to explain what training the guards received on how to perform an arrest or a controlled take-down. However, the defence led evidence that the defendant guards had use of force training from their employer, the defendant Canstar Security Services Inc., or others.¹⁸

44Mr. Brown testified that the defendant security guards kept striking him as they took him to the ground during the arrest.¹⁹ The guards denied striking, choking, kicking, or elbowing him, and Mr. Harnest and Mr. McGrath each testified that they would have reported their fellow guards had they witnessed them using inappropriate or unsafe force.²⁰

45None of the witnesses corroborated Mr. Brown’s testimony that he was “savagely” and repeatedly struck or hit by the defendant security guards in the way that he described.²¹ In addition, the defence’s physiatry expert, Dr. John Lang, gave evidence to suggest that the injuries Mr. Brown claimed to sustain in the May 3, 2003 arrest were inconsistent with how he stated the guards hit or struck him. From reviewing emergency records, Dr. Lang opined that Mr. Brown likely sustained sprain and strain-type injuries to his right arm (i.e., his shoulder and wrist) from struggling with the security guards, being wrestled to the ground, having his arms placed behind him, and being handcuffed.²² Dr. Lang testified that Mr. Brown’s x-rays from the day of the arrest were normal and did not show any bony damage or dislocation. Dr. Lang testified that subsequent ultrasound imaging did not show that Mr. Brown had any signs of tendon tears, impingement, or other abnormality.²³ A subsequent MRI of Mr. Brown’s right shoulder years later revealed inflammatory changes and tendonitis commonly seen from overuse or degeneration without traumatic injury.²⁴ Importantly, Dr. Lang testified that the MRI did not show the sort of pathology expected in a situation where a person had long-term pain and disability due to trauma from having their arm forcefully twisted.²⁵ Given Mr. Brown’s prior motor vehicle accident in November 2002, Dr. Lang opined that Mr. Brown had neck and back problems at the time of his arrest on May 3, 2003 that made him more vulnerable to the sprain and strain symptoms from being wrestled to the ground, that would increase his existing symptoms for which he would be expected to have improved over the course of about six weeks, at least back to his pre-arrest baseline level of pain and discomfort.²⁶ Dr. Lang further testified that in 2019 Mr. Brown developed spontaneous onset of severe neck pain shooting through his arm into his fingers with neurologic symptoms of numbness, tingling, and weakness from a new disc herniation at the C6-7 level, which an MRI and EMG study confirmed.²⁷ Finally, Dr. Lang opined that Mr. Brown does not have any current physical impairment from the May 3, 2003 incident.²⁸ In Dr. Lang’s medial opinion, Mr. Brown’s current physical symptoms, impairment, and examination findings are related to other factors.²⁹

46After considering all the evidence presented at trial, I find that there was some evidence for the jury to find it more likely than not that the defendants used reasonable force in performing the May 3, 2003 arrest.

d. General Damages

47As set out below, I am satisfied that the jury had sufficient evidence to find that the plaintiff was not mentally injured from the May 3, 2003 incident and not unable to pursue employment.

48Respectfully, I do not agree with the plaintiff’s submission that the jury had to conclude that he sustained personal injuries from the May 3, 2003 incident because he led opinion evidence on this whereas the defence led no evidence to show that he was not mentally injured. Like most credibility issues, concerns over subjective symptoms, or feigned or exaggerated claims of mental injury, are questions of fact entrusted to the triers of fact to assess the evidence and make credibility findings in deciding liability: Saadati v. Moorehead, 2017 SCC 28 at para 22. In this case, I accept that it was open for the jury to find against Mr. Brown based on his credibility.

49As C.L. Campbell J. aptly noted in Kamyab at para 30, “[w]hen parties choose to conduct their cases in front of a jury, they leave in the hands of the jury the fact-finding process. This is particularly the case when the issues involved are those of the credibility of witnesses.”

50Given that two decades had passed since the May 3, 2003 incident, the plaintiff’s expert psychiatrist, Dr. Derek Pallandi, testified that this passage of time raised challenges in diagnosing Mr. Brown and opining on the cause of his mental health issues that would not otherwise be present if the factual account supporting his medical opinion were more contemporaneous:

Q. Okay. At any point during your retainer, Dr. Pallandi, did it give you pause to render a diagnosis related to something that happened more than two decades ago?

A. It's always a question, of course. You know, anytime you have a lot of time between an incident and giving an opinion about it, there are certain challenges that exist that perhaps if it was more contemporaneous wouldn't exist. I agree with that.³⁰

51The jury was not bound to accept Dr. Pallandi’s testimony about Mr. Brown’s mental health or the cause of the illness that Mr. Brown claimed given the acknowledged shortcomings with the information underlying Dr. Pallandi’s expert opinion. The jury did not hear any evidence from any psychiatrists or psychologists who have treated Mr. Brown.

52Having regard to the verdict, the jury clearly did not accept Dr. Pallandi’s expert testimony that was based on Mr. Brown’s recollection of what happened on May 3, 2003 and his resulting symptoms from the incident. As triers of fact, the jury was entitled to not accept Mr. Brown’s evidence by not accepting his credibility. In turn, the jury could not accept Dr. Pallandi’s opinion of Mr. Brown’s mental health or the cause of any claimed illness or injuries in finding that he did not sustain any general damages from the May 3, 2003 incident.

e. Past Loss of Income

53Similarly, I find that the jury had a sufficient evidentiary basis to find that Mr. Brown was not mentally injured in the May 3, 2003 incident and, therefore, was not unable to work or pursue income-generating activities.

54A jury need not accept that a plaintiff had personal injuries and could not work or earn income simply because opinion evidence was led on this. Concerns over subjective symptoms are, like most matters of credibility, questions of fact entrusted to the triers of fact: Saadati at para 22.

55As set out above, the jury heard evidence in Dr. Pallandi’s cross-examination about the shortcomings with his opinion evidence about Mr. Brown’s mental health. It was open for the jury to not accept Mr. Brown’s evidence about his symptoms from the May 3, 2003 event.³¹

56In addition, the jury heard evidence from Dr. Lang that Mr. Brown’s physical impairments from the May 3, 2003 incident did not significantly interfere with his general health or well-being, or his physical ability to continue selling life insurance.³²

57Under cross-examination, the plaintiff’s income loss expert, Frank Nudo, appropriately conceded that the jury should assign $0.00 of income loss if they did not accept that the plaintiff was disabled from working due to the May 3, 2003 incident:

Q. Okay. And you would agree with me, sir, that this jury is free to accept or reject any assumption in your report based on the evidence that they hear today and based on what they accept as true or not true?

A. Correct.

Q. Okay. Now, sir, you'd agree with me that one of your assumptions is that as a result of what happened to Mr. Brown at the Bay, Mr. Brown is now disabled from earning as much as he did before the incident happened.

A. That is my understanding, correct.

Q. You would agree with me that if the jury does not accept that it is a case that Mr. Brown was disabled as a result of what happened to him in 2003, their number should be zero.

A. That would be correct.³³

58This evidence was corroborated by the defence’s income loss expert, Blake DeClark, who gave the following testimony during his evidence in chief:

Q. Mr. DeClark, when you arrived at this $188,104 [income loss] figure, did you assume that Mr. Brown's ability to earn a living was reduced because of the incident that happened at The Bay?

A. In arriving at this figure, I didn't necessarily consider that his ability to earn a living was reduced. That's outside my area of expertise. I considered that if the jury does find that his ability to earn a living was reduced, then this would be the appropriate portion that it was reduced by.

Q. If the jury rejects that assumption, Mr. DeClark, how is your calculation effective?

A. My calculation would become zero.³⁴

59There was contested evidence at trial on which I accept the jury could base its income loss-related findings. In the circumstances, I accept that the jury had some evidence to find the plaintiff entitled to no damages for his past income loss claim.

Outcome

60Based on the foregoing, I am satisfied on a liberal interpretation and the fullest reasonable construction of the record at trial that there was some evidence on which the jury could reach its verdict for questions #2, 3, 4, 5(a), and 5(c) to the jury questions: Stilwell at para 34; Cheung at para 50. This is not the kind of rare or extraordinary case in which the verdict is completely devoid of any evidentiary support: Sandhu at para 12; McLean at para 20; Salter at paras 14, 16. In my view, the verdict is supported by some evidence and, therefore, is entitled to a high degree of deference and should not be set aside even though the jury could have reached a different verdict on the evidence at trial: Henry at para 44; Ali at para 6.

61Accordingly, the motion is dismissed. Judgment shall issue in accordance with the verdict of the jury rendered on February 14, 2026.

62Should the parties wish to address the matter of costs, I may be spoken to.

M.T. Doi J.

Date: April 27, 2026

(5) Where a proceeding is tried with a jury, (a) the judge may require the jury to give a general verdict or to answer specific questions, subject to section 15 of the Libel and Slander Act; and (b) judgment may be entered in accordance with the verdict or the answers to the questions.

The verdict of a jury shall be endorsed on the trial record or on a separate document in accordance with subrule 59.02 (2), with necessary modifications

Footnotes

1. 1Subsection 108(5) of the Courts of Justice Act, RSO 1990, c C43 states:
2. 2Rule 52.09 states the following:
3. 3Exhibit 55, Case Center A3761.
4. 4Cross-examination of Mr. Harnest on February 6, 2026 at pp. 70-71, 96, 100, 103, Case Center B-2-1365 to B-2-1366, B-2-1391, B-2-1395, and B-2-1398.
5. 5Cross-examination of Mr. Harnest on February 6, 2026 at pp. 100-101 and 103, Case Center B-2-1395 to B-2-1396, and B-2-1398.
6. 6Re-examination of Mr. Harnest on February 6, 2026 at p. 113, Case Center B-2-1408.
7. 7Examination in Chief of Mr. Magnaye on January 27, 2026 at p. 85, Case Center B-2-712.
8. 8Examination in Chief of Mr. Waugh on February 3, 2026 at p. 69, Case Center B-2-986.
9. 9Recording of May 3, 2003 incident, Ex 37, Case Center H759 to H767.
10. 10Examination in Chief of Mr. Waugh on February 3, 2026 at pp. 66-67, Case Center B-2-983 to B-2-984.
11. 11Examination in Chief of Dr. Shea on January 21, 2026 at pp. 90-94; Examination in Chief of Mr. Brown on January 19, 2026 at pp. 27-29, Cross-examination of Mr. Brown on January 20, 2026 at pp. 66-67.
12. 12Cross-examination of Dr. Shea on January 22, 2026 at p. 12.
13. 13Examination in Chief of Mr. Summerville on February 10, 2026 at p. 94.
14. 14Cross-examination of Mr. Waugh on February 4, 2026 at pp. 17-18; Case Center B-2-1056 to B-2-1057.
15. 15Examination in Chief of Mr. Summerville on February 10, 2026 at pp. 34-35, Case Center B-2-1447 to B-2-1448.
16. 16Cross-examination of Mr. Summerville on February 10, 2026 at pp. 128-129, Case Center B-2-1541 to B-2-1542.
17. 17Ibid.
18. 18Examination in Chief of Mr. Magnaye on January 27, 2026 at pp. 73-75, Case Center B-2-700 to B-2-702; Examination in Chief of Mr. McGrath on January 28, 2026 at p. 17, Case Center B-2-741; Examination in Chief of Ms. (Balne) McWaters on January 29, 2026 at p. 59, Case Center B-2-890; Examination in Chief of Mr. Waugh on February 3, 2026 at p. 21, Case Center B-2-938; Examination in Chief of Mr. Harnest on February 6, 2026 at p. 2, Case Center B-2-1297.
19. 19Examination in Chief of Mr. Magnaye on January 27, 2026 at pp.79-80, Case Center B-2-706 to B-2-707; Examination in Chief of MR. McGrath on January 28, 2026 at p. 21, Case Center B-2-745; Examination in Chief of Mr. Waugh on February 3, 2026 at p. 66, Case Center B-2-983, Examination in Chief of Mr. Harnest on February 6, 2026 at pp. 25-26, Case Center B-2-1320 to B-2-1321; Examination in Chief of Mr. Brown on January 19, 2026 at pp. 34-35, Case Center B-2-186 to B-2-187.
20. 20Examination in Chief of Mr. McGrath on January 28, 2026 at p. 21, Case Center B-2-745; Examination in Chief of Mr. Harnest on February 6, 2026 at p. 26, Case Center B-2-1321.
21. 21Cross-Examination of Mr. Brown on January 20, 2026 at pp. 77, 79, 84, and 86, Case Center B-2-320, B-2-322, B-2-327, and B-2-239.
22. 22Examination in Chief of Dr. Lang on February 5, 2026 at pp. 47-48, Case Center B-2-1230 to B-2-1231.
23. 23Examination in Chief of Dr. Lang on February 5, 2026 at p. 48, Case Center B-2-1231.
24. 24Ibid.
25. 25Examination in Chief of Dr. Lang on February 5, 2026 at p. 49, Case Center B-2-1232.
26. 26Ibid.
27. 27Examination in Chief of Dr. Lang on February 5, 2026 at pp. 50-51, Case Center B-2-1233 to B-2-1234.
28. 28Examination in Chief of Dr. Lang on February 5, 2026 at p. 51, Case Center B-2-1234.
29. 29Ibid.
30. 30Cross-examination of Dr. Pallandi on January 27, 2026 at pp. 34-35, Case Center B-2-661 to B-2-662.
31. 31Ibid.
32. 32Examination in Chief of Dr. Lang on February 5, 2026 at pp. 52-53, Case Center B-2-1235 to B-2-1236.
33. 33Cross-examination of Mr. Nudo on January 22, 2026 at pp. 54-55, Case Center B-2-537 to B-2-538.
34. 34Examination in Chief of Mr. DeClark on February 4, 2026 at p. 100, Case Center B-2-1139.