Brown v. Hudson's Bay Co. et al.

• Jurisdiction: Ontario
• Court: Superior Court of Justice of Ontario (Canada)
• Judge: Price, J.
• Citation: (2014), 318 O.A.C. 12 (DC),2014 ONSC 1065
• Date: 30 August 2013

Brown v. Hudson's Bay Co. (2014), 318 O.A.C. 12 (DC)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. MR.015

Collington Brown (plaintiff) v. The Hudson's Bay Company (HBC), Linda Mercadante, Jane Doe a.k.a. Laura Whitworth, Bramalea City Centre, Canstar Security Services Inc., Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath, and Raphael Wauch (respondents)

(DC-13-94-00 ML; 2014 ONSC 1065)

Indexed As: Brown v. Hudson's Bay Co. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Price, J.

February 17, 2014.

Summary:

Brown claimed that while at a Hudson's Bay store to return a vacuum cleaner he was assaulted and falsely arrested by mall security officers. He commenced an action against the Hudon's Bay Co. and its employees, Bramalea City Centre (the mall), and Canstar Security Services Inc. (the security company) and its employees. Hudson's Bay Co. and its employees moved for summary judgment.

The Ontario Superior Court (Ricchetti, J.), in a decision reported [2012] O.T.C. Uned. 347, granted summary judgment dismissing the action based on an absence of evidence that Hudson's Bay or its employees had initiated Brown's arrest or participated in it. The remaining defendants moved for an order under rule 56.01(1)(e) of the Rules of Civil Procedure requiring Brown to provide security for costs. The remaining defendants claimed that Brown's action was frivolous and vexatious and that he did not have sufficient assets in Ontario to satisfy an order for costs against him.

The Ontario Superior Court (Daley, J.), allowed the application and ordered Brown to pay $30,000 into court as security for the costs the remaining defendants were likely to incur at the discovery and pre-trial conference stages of the action. Brown applied for leave to appeal from the decision of Daley, J.

The Ontario Divisional Court, per Price, J., allowed the application for leave to appeal. The court held that there were two reasons to doubt the correctness of the decision of Daley, J. Firstly, Daley, J., did not review the evidence that led him to accept the defendants' position that there was good reason to believe that the action was frivolous and vexatious. Rather, he relied on the finding made by Ricchetti, J., in the Hudson Bay summary judgment proceedings. Ricchetti, J., found that Brown was the author of his own misfortune by refusing to leave the store when directed to do so. Secondly, Daley, J.'s reasons left uncertainty as to whether he correctly applied the shifting onus required by the two-stage analysis under rule 56.01(1)(e). The court stated that "permitting Daley, J.'s decision to stand could deny Mr. Brown access to justice and create uncertainty as to who bears the onus, in a motion for security for costs, of demonstrating that the action does or does not have merit. Additionally, a finding that Mr. Brown's action is frivolous and vexatious based solely on the fact that there were lawful grounds for his arrest, would devalue the equally important question of whether his arrest under the Trespass to Property Act was conducted in a lawful manner and with reasonable force. These are matters of public importance that deserve the attention of the Divisional Court, and Mr. Brown will therefore be granted leave to appeal to that court from Daley, J.'s decision".

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The Ontario Divisional Court, per Price, J., discussed the duty of a judge to give reasons in civil cases - See paragraphs 55 to 61.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See second Practice - Topic 8120.4 ].

Practice - Topic 8101

Costs - Security for costs - General principles - Civil Procedure Rule 56.01(1) provided that the court could order security for costs in certain enumerated circumstances - The Ontario Divisional Court, per Price, J., stated that "... the application of rule 56.01 involves a two-step inquiry. In the first, the moving party must show that the party whom it seeks to compel to post security falls into one of the categories enumerated in rule 56.01(1). Second, if the moving party establishes that the responding party falls within one of the enumerated categories, the court must determine whether it would be just to make an order for security for costs ..." - See paragraph 22 - The court thereafter elaborated on the two-step analysis required by rule 56.01(1), including the shifting onus of proof that occured from the first to the second step of the inquiry - See paragraphs 32 to 52.

Practice - Topic 8105

Costs - Security for costs - General principles - Considerations - [See first Practice - Topic 8120.4 ].

Practice - Topic 8112

Costs - Security for costs - General principles - Where plaintiff insolvent or impecunious - [See first Practice - Topic 8120.4 ].

Practice - Topic 8120.4

Costs - Security for costs - General principles - Where claim frivolous or vexatious - Civil Procedure Rule 56.01(1)(e) provided that "The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that ... (e) There is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent" - The Ontario Divisional Court, per Price, J., discussed the two-step analysis required in applying s. 56.01(1)(e) - The court noted that while the jurisprudence was not clear on the sequence in which the issues in rule 56.01(1)(e) had to be addressed, it was clear that the motions judge was required to determine whether the action was frivolous and vexatious and whether the plaintiff or applicant had insufficient assets - It was also clear that the onus was on the defendants to prove that there was good reason to believe each of the facts that had to be found in order for rule 56.01(1)(e) to apply - See paragraphs 35 to 52.

Practice - Topic 8120.4

Costs - Security for costs - General principles - Where claim frivolous or vexatious - The defendants sought security for costs (Civil Procedure Rule 56.01(1)(e)), claiming that the plaintiff's action was frivolous and vexatious and the plaintiff had insufficient assets to pay costs - The motions judge (Daley, J.) ordered the plaintiff to post $30,000 as security - The plaintiff applied for leave to appeal - The Ontario Divisional Court, per Price, J., granted leave, because there was reason to doubt the correctness of the decision - Daley, J.'s reasons were insufficient - Although Daley, J., stated that he was satisfied on the evidence that the plaintiff fell within s. 56.01(1)(e), he did not review the evidence and make findings of fact pertaining to the liability issues, for the purpose of making a determination as to whether there was reason to believe that the action was frivolous and vexatious - His reasons did not disclose that he undertook an original review of the evidence, rather it appeared he relied on a determination by another motions judge in a related proceeding - Further, Daley, J.'s reasons left uncertainty as to whether he had applied the correct onus required by rule 56.01(1)(e) - The case raised issues of public importance (i.e., the correct methodology for conducting the two-step analysis required by rule 56.01(1)(e)) - See paragraphs 53 to 115.

Practice - Topic 8121

Costs - Security for costs - Application - General - [See Practice - Topic 8101 ].

Practice - Topic 8124

Costs - Security for costs - Application - Burden of proof - [See Practice - Topic 8101 ].

Practice - Topic 8875

Appeals - Leave to appeal - From interlocutory ruling - The Ontario Divisional Court, per Price, J., noted that pursuant to s. 19(1)(b) of the Courts of Justice Act, an appeal was available from an interlocutory order (such as an order for security for costs) with leave as provided for in the Civil Procedure Rules - Pursuant to rule 62.02(4) leave to appeal could be granted if the moving party showed that there was a conflicting decision on the matter in issue and the judge hearing the motion opined that it was desirable to grant leave, or there was a good reason to doubt the correctness of the order in question and the proposed appeal involved matters of such importance, that leave should be granted - See paragraphs 17 to 19.

Practice - Topic 8876

Appeals - Leave to appeal - Grounds for granting leave - [See second Practice - Topic 8120.4 and Practice - Topic 8875 ].

Practice - Topic 8889

Appeals - Leave to appeal - From order respecting costs - [See second Practice - Topic 8120.4 and Practice - Topic 8875 ].

Cases Noticed:

Coastline Corp. et al. v. Canaccord Capital Corp. et al., [2009] O.T.C. Uned. A14; 2009 CanLII 21758 (Sup. Ct.), refd to. [para. 15, footnote 4].

G.A.B. et al. v. Canada (Minister of National Defence), [2006] O.T.C. Uned. 201; 80 O.R.(3d) 91 (Sup. Ct.), refd to. [para. 20, footnote 6].

Brownhall v. Canada (Ministry of Defence) - see G.A.B. et al. v. Canada (Minister of National Defence).

Hurst v. Armstrong & Quaile Associates Inc., [2007] O.A.C. Uned. 353; 2007 CanLII 36068 (Div. Ct.), refd to. [para. 20, footnote 6].

Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 55 O.A.C. 316; 7 O.R.(3d) 542 (Div. Ct.), refd to. [para. 21, footnote 7].

MacKinnon v. A.J. Bus Lines Ltd. et al., [2010] O.T.C. Uned. 2802; 97 C.P.C.(6th) 153; 2010 ONSC 2802, refd to. [para. 22, footnote 8].

Duracell v. Donjevic, [1998] O.J. No. 4265 (Gen. Div.), refd to. [para. 25, footnote 9].

Montrose Hammond & Co. et al. v. CIBC World Markets Inc. et al., [2012] O.T.C. Uned. 4869; 112 O.R.(3d) 151; 2012 ONSC 4869, refd to. [para. 27, footnote 10].

Hallum v. Canadian Memorial Chiropractic College, 1989 CanLII 4354 (Ont. S.C.), refd to. [para. 33, footnote 12].

Adrian Peel Architect Inc. v. Soorty et al., [2013] O.T.C. Uned. 6183; 2013 ONSC 6183, refd to. [para. 34, footnote 13].

Malamas et al. v. National Bank of Greece et al., [2009] O.T.C. Uned. P10; 2009 CanLII 56745 (Sup. Ct.), refd to. [para. 36, footnote 14].

Dean v. Mister Transmission (International) Ltd. et al., [2009] O.T.C. Uned. E26; 2009 CanLII 31596 (Sup. Ct.), refd to. [para. 37, footnote 16].

Pitkeathly v. 1059288 Ontario Inc. et al., [2004] O.T.C. 871; 2004 CanLII 33018 (Sup. Ct. Master), refd to. [para. 39, footnote 17].

Automotive Professionals Inc. v. Pentamark/Worldwide Canada Inc. et al., [2006] O.T.C. 1032 (Sup. Ct. Master), refd to. [para. 40, footnote 18].

Stojanovic v. Bulut et al., [2011] O.T.C. Uned. 874; 10 C.P.C.(7th) 265; 2011 ONSC 874, affd. [2011] O.T.C. Uned. 4632; 10 C.P.C.(7th) 299; 2011 ONSC 4632, refd to. [para. 41, footnote 19].

Zeitoun et al. v. Economical Insurance Group (2008), 236 O.A.C. 76; 91 O.R.(3d) 131 (Div. Ct.), affd. (2009), 257 O.A.C. 29; 96 O.R.(3d) 639; 2009 ONCA 415, refd to. [para. 42, footnote 20].

Hosannah v. Bury, [2006] O.T.C. Uned. 44; 2006 CanLII 1025 (Sup. Ct. Master), refd to. [para. 43, footnote 21].

Grandy v. Jessome, [2006] O.T.C. 882; 2006 CanLII 33681 (Sup. Ct.), refd to. [para. 44, footnote 22].

Kymbo International Inc. v. Teskey et al., [2004] O.T.C. 865; 2004 CanLII 33023 (Sup. Ct. Master), refd to. [para. 49, footnote 24].

Beatross Estate v. Woolfson, 2013 ONSC 6819 (Sup. Ct. Master), refd to. [para. 50, footnote 25].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 55, footnote 26].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 55, footnote 26].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 55, footnote 27].

Bank of Nova Scotia v. Nash et al. (1983), 42 O.R.(2d) 530 (S.C.), refd to. [para. 56, footnote 29].

Young v. Young (2003), 168 O.A.C. 186; 63 O.R.(3d) 112 (C.A.), refd to. [para. 56, footnote 30].

Petrowski v. Waskul (2003), 173 Man.R.(2d) 237; 293 W.A.C. 237; 2003 MBCA 65, refd to. [para. 56, footnote 30].

Blanchard v. Légère (2009), 339 N.B.R.(2d) 357; 870 A.P.R. 357; 2009 NBCA 2, refd to. [para. 56, footnote 30].

J.C. and A.C. v. Children's Aid Society of Cape Breton-Victoria (2005), 239 N.S.R.(2d) 132; 760 A.P.R. 132; 2005 NSCA 161, refd to. [para. 56, footnote 30].

D.M.G. v. Director of Family and Child Services (B.C.), [2007] B.C.T.C. Uned. C35; 2007 BCSC 461, refd to. [para. 56, footnote 30].

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 57, footnote 31].

Wright v. Ruckstuhl, [1954] O.J. No. 392 (C.A.), refd to. [para. 58, footnote 32].

Koschman et al. v. Hay et al. (1978), 17 O.R.(2d) 557 (C.A.), refd to. [para. 58, footnote 33].

Thompson v. Butkus (1980), 28 O.R.(2d) 368 (H.C.), refd to. [para. 59, footnote 34].

Blum v. Blum, 1982 CanLII 1682 (Ont. S.C.), refd to. [para. 68, footnote 36].

MREL Group of Companies Ltd. v. Ontario et al., [2012] O.T.C. Uned. 1321; 2012 ONSC 1321, refd to. [para. 70, footnote 38].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 71, footnote 39].

Andersen Estate et al. v. St. Jude Medical Inc. et al., [2010] O.T.C. Uned. 77; 87 C.P.C.(6th) 45; 2010 ONSC 77, refd to. [para. 72, footnote 40].

Darnic Enterprises Inc. v. Cummings Estate et al., [2005] O.T.C. Uned. C24; 2005 CanLII 50592 (Sup. Ct.), refd to. [para. 75, footnote 41].

R. v. Asante-Mensah (D.), [2003] 2 S.C.R. 3; 306 N.R. 289; 175 O.A.C. 317; 2003 SCC 38, refd to. [para. 86, footnote 42].

Chopra v. Eaton (T.) Co. et al. (1999), 240 A.R. 201; 1999 ABQB 201, refd to. [para. 89, footnote 43].

Uribe v. Sanchez et al., [2006] O.T.C. 539; 2006 CanLII 19498 (Sup. Ct. Master), refd to. [para. 93, footnote 44].

Aviaco International Leasing Inc. v. Boeing Canada Inc., [2000] O.J. No. 3284 (Sup. Ct.), refd to. [para. 93, footnote 44].

Cigar 500.com Inc. v. Ashton Distributors Inc. (2009), 99 O.R.(3d) 55 (Sup. Ct.), refd to. [para. 98, footnote 46].

Wink (John) Ltd. v. Sico Inc. (1987), 57 O.R.(2d) 705 (H.C.), refd to. [para. 104, footnote 47].

Vine Hotels Inc. v. Frumcor Investments Ltd. et al., [2003] O.J. No. 4768 (Sup. Ct.), affd. (2004), 193 O.A.C. 79; 73 O.R.(3d) 374 (Div. Ct.), refd to. [para. 110, footnote 49].

Statutes Noticed:

Civil Procedure Rules (Ont.), rule 56.01(1)(e) [para. 32]; rule 62.02(4)(a) [para. 20].

Authors and Works Noticed:

Carthy, James J., Millar, W.A. Derry, and Cowan, Jeff G., Ontario Annual Practice 2013-2014 (2013), generally [para. 112, footnote 50].

Taggard, Michael, Should Canadian Judges be Legally Required to Give Reasoned Decisions in Civil Cases (1983), 33 U.T.L.J. 1, p. 24 [para. 56, footnote 29].

Counsel:

Collington Brown, plaintiff, self-represented;

Barry Cox (assisted by Nicola Brankley, Student-at-law), for the respondents, Bramalea City Centre, Canstar Security Services Inc., Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath, and Raphael Wauch.

This motion for leave to appeal was heard on August 30, 2013, in Brampton, Ontario, before Price, J., of the Ontario Divisional Court, who delivered the following decision on February 17, 2014.