ONTARIO SUPERIOR COURT OF JUSTICE
SMALL CLAIMS COURT
Toronto
ORDER OF THE COURT
Claim No. SC-23-00009283-0000
B E T W E E N
JOYCE OSENI
and
Plaintiff(s)
TOP FOOD MART SUPERMARKET INC.
BEFORE: Deputy Judge Mirilyn Sharp
Defendants(s)
HELD BY: ☐ In person ☐ Videoconference ☐ Teleconference ☐ In writing ☒ Hybrid
DATE: February 09, 2026 at 10:00 AM EST
EVENT TYPE: Trial Appealable
APPEARING:
Plaintiff(s): JOYCE OSENI Present ☒
Representative: Present ☐
Defendant(s): TOP FOOD MART SUPERMARKET INC. Present ☒
Representative: DONNA PLEDGE Present ☒
ORDER OF THE COURT
On 09-Feb-2026, a hearing was held in the above matter. By Order dated February 9, 2026, Judgment was reserved to written reasons. These are the written reasons:
Within her Plaintiff’s Claim, the Plaintiff, Joyce Oseni is seeking damages of $35,000 plus pre judgment and post judgment interest plus costs arising out of the way she was treated by the Defendant store Top Food Mart Supermarket (the “Supermarket”) on November 8, 2023. Ms. Oseni claims she suffered severe mental distress, emotional stress, anxiety, pain, suffering, anger, panic and psychological stress following a verbal altercation that occurred in the Supermarket when she was told by the store owner, Liancheng Shi that she could not remain sitting inside the Supermarket after 30 minutes, notwithstanding the professed pain in her leg resulting from her severe osteoarthritis.
The allegations in the Plaintiff’s very detailed 16 page Plaintiff’s Claim reveal that she is asserting two causes of action against the Defendant, as confirmed by her at the outset of the trial. The first cause of action is intentional infliction of mental distress, and the second cause of action is a breach of the Human Rights Code.
The Tort of Intentional Infliction of Mental Distress
In High Parklane Consulting Inc. v. Royal Group Technologies Limited, 2007 410 (ON SC), https://canlii.ca/t/1q8hk (“High Parklane”) the tort of intentional infliction of mental distress was described as having three elements: (1) an act or statement by the defendant that is extreme, flagrant, or outrageous; (2) the act or statement is calculated to produce harm; and (3) the act or statement causes harm.
The court in High Parklane held that the requirement that the conduct be calculated to produce harm is met where the actor desires to produce the consequences that follow from the act, or if the consequences are known to be substantially certain to follow.
In a more recent decision, Khan v. Bujold, 2023 ONSC 6618,
<https://canlii.ca/t/k1cqq> the court held that a defendant is liable for intentional infliction of mental distress if (1) he engages in flagrant and outrageous conduct; (2) that conduct is calculated to produce harm; and (3) it results in a visible and provable injury such as a recognized psychiatric illness: Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, at para. 41; Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474 (C.A.).
In Paddy-Cannon v. Attorney General (Canada), 2023 ONSC 6748, https://canlii.ca/t/k1fm3 (a decision upheld by the Court of Appeal for Ontario on May 9, 2025 reported at 2025 ONCA 394, https://canlii.ca/t/kcbps) the Court held that to prove the tort of negligent infliction of mental distress, the Plaintiffs must demonstrate, on a balance of probabilities, that the defendant engaged in flagrant and outrageous conduct calculated to produce harm, which resulted in a visible and provable injury such as a recognized psychiatric illness.
In Yashcheshen v Canada (Attorney General), 2024 SKKB 63, https://canlii.ca/t/k4603, the Court held that the damage that must be proven to establish the tort of intentional infliction of mental suffering or harm is not “mere psychological upset” but rather serious mental injury. As the Court noted, this was
explained in Saadati v Moorhead, 2017 SCC 28 at para 37, [2017] 1 SCR 543:
[37]… as Mustapha makes clear, mental injury is not proven by the existence of mere psychological upset. While, therefore, tort law protects persons from negligent interference with their mental health, there is no legally cognizable right to happiness. Claimants must, therefore, show much more - that the disturbance suffered by the claimant is “serious and prolonged and rise[s] above the ordinary annoyances, anxieties and fears” that come with living in civil society (Mustapha, at para. 9). To be clear, this does not denote distinct legal treatment of mental injury relative to physical injury; rather, it goes to the prior legal question of what constitutes “mental injury”. Ultimately, the claimant’s task in establishing a mental injury is to show the requisite degree of disturbance (although not, as the respondents say, to show its classification as a recognized psychiatric illness).
Breach of the Human Rights Code
Part I of the Human Rights Code (the “Code”) provides that “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability”.
Section 46.1(1) of the Code provides that “If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.”
To establish prima facie discrimination under the Code, a plaintiff must show that:
(a) they have a characteristic protected from discrimination;
(b) they have experienced an adverse impact within a social area protected by the Code; and
(c) the protected characteristic was a factor in the adverse impact.
The plaintiff must show that discrimination occurred on a “balance of probabilities,” that is, it is more reasonable and probable than not that discrimination took place. Once a prima facie case has been established, the burden shifts to the defendant to justify the conduct within the framework of the exemptions available under the Code (e.g. bona fide requirement defence). If it cannot be justified, discrimination will be found to have occurred.
Discrimination does not have to be intentional. Intent is irrelevant for establishing that discrimination occurred.
In one of the leading cases dealing with discrimination on the basis of disability, Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799, <https://canlii.ca/t/g0nkm> (“Wilson”) the plaintiff alleged she was terminated, at least in part, because of an ongoing back ailment. She maintained that her rights under part I of the Code were infringed and that she can and should be awarded damages pursuant to s. 46.1.
The Court in Wilson noted that the defendant maintained that its decision to terminate the plaintiff was unrelated to the plaintiff’s disability. Rather, the decision was a product of the sale of one of its divisions. The Court noted that in Dwyer v. Advanis Inc., 2009 23869 (ON SC), [2009] O.J. No. 1956 (S.C.J.), Aston J. commented at para. 49:
It is insufficient to find termination while physically disabled. One must find termination because of physical disability for there to be discrimination or bad faith [emphasis added].
- The Court in Wilson also referred to a decision of the Human Rights Tribunal (Chen v. Ingenierie Electro-Optique Exfo, 2009 HRTO 1641, <https://canlii.ca/t/2634m>) where the Tribunal held that:
It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the [employee]; it does not have to be the only or primary reason…
After referring to a number of other decisions, the Court in Wilson accepted the proposition that a decision to terminate an employee based in whole or in part on the fact that employee has a disability is discriminatory and contrary to the Code. If an employer regards disability as a factor justifying termination (or other negative treatment), the employee in question is not receiving “equal treatment…without discrimination” as s. 5 (1) of the Code requires.
The Court in Wilson concluded based on the evidence that the plaintiff’s ongoing back
issue was a significant factor in the decision to terminate.
- While this case does not involve the termination of an employee, the cases are helpful in determining the appropriate factors to consider when a breach of the Code based on disability has been alleged as it has been in the present case.
The Plaintiff’s Claim
Ms. Oseni testified that she is disabled, with severe osteoarthritis in her left knee which requires her to sit down when she is in pain. Ms. Oseni has difficulty walking and walks with the aid of a cane and a walker.
Ms. Oseni testified that from March of 2022 up until November 8, 2023 she had been a regular customer of the Supermarket, purchasing ready-made Chinese food twice a week. She testified that during her many prior visits to the Supermarket, she was given assistance by the cashier who would bring her stools to sit on so she could rest her leg.
In her very detailed Plaintiff’s Claim and in her testimony, Ms. Oseni claimed that on November 8, 2023, after making one of her usual purchases and sitting down on the stools provided to her by the cashier, both the manager and the owner of the Supermarket asked her to leave the store and sit outside after she had been sitting inside for 30 minutes. According to Ms. Oseni, the owner of the Supermarket advised her that the store was not a restaurant and that she could not loiter or remain sitting inside the store.
Within her Plaintiff’s Claim, Ms. Oseni claimed there were other people in the store when the owner made this request and that when she refused to leave the store, there was a shouting match and eventually the owner called or threatened to call the police. Ms. Oseni claimed this was humiliating and embarrassing for her and that it entitles her to claim damages from the Supermarket in the amount of $35,000.00.
Of particular concern to this Court is that when Ms. Oseni testified at trial about what transpired on November 8, 2023, her evidence differed from what she had written in her detailed Plaintiffs’ Claim.
Specifically, Ms. Oseni added a new set of facts concerning how she travelled to and from the Supermarket on November 8, 2023 and what she said to the Supermarket staff when they asked her to leave. While nowhere to be found in her detailed rendition of the facts as set out in her Plaintiff’s Claim, Ms. Oseni testified that she always gets picked up and dropped off by TTC Wheel Trans when she goes to the Supermarket, and that on November 8, 2023, she advised the owner of the Supermarket, after he asked her to leave the store and sit outside, that she needed to sit on the stools for 5 minutes longer while she waited for the Wheel Trans to pick her up.
Ms. Oseni testified that when the Wheel Trans dispatcher advised that she was being picked up in 5 minutes, she asked them not to pick her up because she had to wait at the Supermarket for the police to arrive. She testified that she spent another hour at the Supermarket waiting for the police and then had to spend $12 on a taxi to take her home rather than travelling home on the Wheel Trans.
In cross-examination, Ms. Oseni was asked why none of the testimony about the Wheel Trans pick up was mentioned in her detailed Plaintiff’s Claim. Ms. Oseni eventually admitted that she did not mention any of the evidence because it was not true.
Has the Plaintiff Satisfied the Test for Intentional Infliction of Mental Distress
- Leaving aside my concerns with Ms. Oseni’s credibility, the first issue in this case is whether Ms. Oseni has proven on a balance of probablilities that:
(a) the Supermarket owner or staff engaged in flagrant and outrageous conduct;
(b) whether that conduct was calculated to produce harm; and
(c) whether that conduct resulted in a visible and provable injury such as a recognized psychiatric illness.
Was the Conduct Flagrant and Outrageous
Ms. Oseni testified that she was sitting close to the corner of the kitchen when she was told by the staff that she was sitting too long and that there was no loitering allowed in the store. Ms. Oseni told the staff member she is disabled and a regular customer.
Ms. Oseni testified that the staff member walked away and 10 minutes later Mr. Shi, the owner of the store, came up to her and told her that there was no sitting allowed in the kitchen area. While Ms. Oseni originally testified that she told Mr. Shi she would be only 5 more minutes while she waited for the Wheel Trans, we now know that was not true.
Ms. Oseni testified that when she refused to leave, Mr. Shi said he would call the police. In response Ms. Oseni told him to “go ahead.” She then saw him pull out his cell phone and advise whomever was on the other end that he wanted the police to come because a customer was refusing to leave the store. Ms. Oseni testified that the police did not arrive.
The Defendant called two witnesses to testify as to what transpired on November 8, 2023. While there were some inconsistencies in the evidence, with Mr. Shi appearing not to have a clear recollection of the events, I am satisfied that the conduct complained of by Ms. Oseni does not constitute flagrant and/or outrageous conduct as required to satisfy the first branch of the test for intentional infliction of mental distress.
Was the Conduct Calculated to Produce Harm
Ms. Oseni provided no evidence that the conduct of the staff and/or owner of the Supermarket was calculated to produce harm. Specifically there was no evidence that the staff wanted to produce the consequences that are alleged to have followed their conduct or that the alleged consequences were known to be substantially certain to follow.
The Defendant relied on the testimony of two witnesses. One was the clerk who was working that day, Wen Zhen Wang and the other was Mr. Shi, the owner of the Supermarket.
The Defendant’s evidence was that Ms. Oseni was interfering with the Supermarket’s
ability to conduct business as the store was quite small (as evidenced by the photograph
produced as Exhibit 1) and customers were unable or at least reluctant to make purchases
when Ms. Oseni was sitting in front of the cashier’s table.
The Defendant also called evidence suggesting that the staff and/or owner was concerned that Ms. Oseni might be hurt if the shopping carts hit her while customers were shopping.
Both Ms. Wang and Mr. Shi testified that Ms. Oseni was verbally abusive and made racist remarks while she was sitting in the store. The Defendant did not make any reference in their Defence to either abusive or racist remarks alleged to have been made by Ms. Oseni. Mr. Shi testified he did not remember much of the interaction, and only later raised the issue of racist remarks in his evidence.
While it is unnecessary for me to make a definitive finding on whether, in fact, Ms. Oseni made racial slurs while sitting in the Supermarket, the fact remains that Ms. Oseni is unable to satisfy her onus to prove on a balance of probablilities that the conduct of the Ms. Wang and Mr. Shi in asking her to leave the Supermarket and calling or threatening to call the police was calculated to cause her harm.
Did the Conduct Result in a Visible and Provable Injury
- Ms. Oseni testified that following the encounter on November 8, 2023, she was disoriented and humiliated and suffered from mental distress. She testified that she is going through mental depression and that three weeks after the event she went to a family doctor who suggested she go to psychotherapy to deal with her issues. Ms. Oseni testified that 18 months later (in May of 2025) she started attending psychotherapy at a clinic at a cost of
$150 per hour, and that she attended 12 one hour sessions until September of 2025.
Ms. Oseni explained the delay in going to see the psychotherapist as being a result of her being unable to afford it. She testified she plans to go again when she has enough money.
To satisfy the test for intentional infliction of mental distress, Ms. Oseni had to prove on a balance of probabilities that she suffered serious mental injury, not “mere psychological upset”. Ms. Oseni did not produce either a note from her family doctor or a receipt from the psychotherapy clinic, notwithstanding that she was required to produce all documents at least 30 days before trial. Ms. Oseni testified that she forgot to bring the receipt to Court.
While I might have been willing to overlook her failure to deliver a report from her family doctor, Ms. Oseni’s evidence concerning her subsequent attendance at psychotherapy some 18 months later, which she testified was required as a result of her encounter at the Supermarket on November 8, 2023 causes me concern.
Specifically, during cross examination, Ms. Oseni admitted that on the same day this action was set for trial but not reached (November 28, 2025) she was in Court for another trial involving her claim against DPY Mamas Food Market. In that action, Ms. Oseni claimed she was “kicked out of the store” in August of 2023 and that she required the same psychotherapy raised in this action to deal with the August 2023 encounter.
This rather suprising evidence casts doubt on, at the very least, Ms. Oseni’s claim that the psychotherapy she attended in May of 2025 was as result of the November 8, 2023 encounter and not as a result of the August 2023 encounter at DPY Mamas Food Market.
I find that Ms. Oseni has not proven on a balance of probabilities that the conduct of the staff and/or owner of the Supermarket resulted in a visible and provable injury.
Conclusion on Tort of Intentional Infliction of Mental Distress
Even if I accept the Plaintiff’s version of events, that the store owner told her in front of other customers to leave the store after half an hour and threatened to or did in fact call the police when she refused to leave, I do not see how this amounts to behaviour that meets the test required to sustain the tort of intentional infliction of mental distress.
While I find that the incident on November 8, 2023 was unfortunate, and that it escalated when Ms. Oseni refused to leave the premises, there is simply no evidence that the actions of the owner and/or the clerk were so extreme, flagrant, or outrageous as to attract liability. Further there is simply no evidence that the actions of the owner and/or the clerk were calculated to produce harm. Finally, even if I did find that the behaviour satisfied the first two elements of the test, there is no evidence other than the word of Ms. Oseni that she suffered a visible and provable injury as a result of the Defendant’s actions.
Has the Plaintiff Satisfied the Test for a Breach of the Human Rights Code
- The second issue in this case is whether Ms. Oseni has satisfied the test for a breach of the Code. As set out above, the three part test requires Ms. Oseni to prove on a balance of probablitites that:
(a) She has a characteristic protected from discrimination;
(b) She has experienced an adverse impact within a social area protected by the Code; and
(c) the protected characteristic was a factor in the adverse impact.
Ms. Oseni suffers from osteoarthritis and has difficulty walking. This disability satisfies the first criteria that requires Ms. Oseni to have a characteristic protected from discriminiation.
The second question is whether Ms. Oseni experienced an adverse impact within a social area protected by the Code. As the Code covers “services, goods and facilities” the store premises was an area protected by the Code.
The third question is whether Ms. Oseni’s disability was a factor in the adverse impact she is alleged to have experienced. I find that the decision to ask Ms. Orseni to leave the store premises and to call or threaten to call the police was unrelated to her disability. As per Wilson it is insufficient to find conduct that occurred while physically disabled. One must find conduct that occured because of physical disability for there to be discrimination.
As explained by the Defendant’s witnesses, Ms. Orseni was asked to leave because she was interfering with the business of the store and there were concerns she might be hurt by one of the shopping carts.
Ms. Orseni produced no evidence that her disability played any part in the decision to ask her to leave the store. In fact, on her own evidence, the clerk and owner told her “this is not a restaurant” and “there is no loitering”. There is simply no evidence from which this Court can infer that Ms. Orseni’s disability played any role in the conduct of the Supermarket clerk and/or owner in asking her to leave the store.
Conclusion on the Alleged Breach of the Human Rights Code
Even accepting Ms. Oseni’s version of events, that the store owner told her to leave the store after half an hour and threatened to or did in fact call the police when she refused to leave, I have determined that there is insufficient evidence linking the conduct of the owner and/or clerk of the Supermarket to Ms. Oseni’s disability.
I find that Ms. Oseni was not discriminated against because of her disability.
Conclusions with Respect to the Plaintiff’s Claim
- For the reasons set out above, I have concluded:
(a) that Ms. Oseni has not demonstrated on a balance of probabilities that she meets the test for intentional infliction of mental distress; and
(b) that Ms. Oseni has not demonstrated on a balance of probabalities that she was discriminated against or that any of the conduct alleged was because of her disability.
- The parties are encouraged to resolve the issue of costs. If the parties cannot agree, costs submissions should be emailed to the other party and to the trial co-ordinator as follows:
(a) the Defendant is to provide its written submissions on costs by February 17, 2026;
(b) Ms. Oseni is to provide her costs submissions by February 24, 2026; and
(c) The costs submissions of each party are to be no longer than two pages (not including any settlement offers or Bill of Costs).
February 10, 2026 yr. 2026
Date Signature of Judicial Official