Chopra v. Eaton (T.) Co. et al., (1999) 240 A.R. 201 (QB)

• Judge: Brooker, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 08, 1999
• Citations: (1999), 240 A.R. 201 (QB);1999 ABQB 201;[1999] 9 WWR 711;240 AR 201;70 Alta LR (3d) 90

Chopra v. Eaton Co. (1999), 240 A.R. 201 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. MR.066

Rajendra Singh Chopra (plaintiff) v. The T. Eaton Company Limited, Barry Frauenfeld, Mark Harasym and Gary Beaulieu (defendants)

(Action No. 9403-19964)

Indexed As: Chopra v. Eaton (T.) Co. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Brooker, J.

March 8, 1999.

Summary:

Chopra attended Eaton's for a refund. Eaton's was unable or unwilling to give him a refund. An argument ensued. The head of Eaton's security, Frauenfeld, asked Chopra to leave the store. Frauenfeld held Chopra's elbow as they approached the exit of the store. Near the exit, Chopra pushed Frauen­feld off his elbow. Chopra was arrested, handcuffed and detained. Chopra was acquitted on charges of assault and causing a disturbance. Chopra sued Eaton's, Frauen­feld and two other security men for, inter alia, damages for personal injury, wrongful arrest, defamation, false imprisonment, and malicious prosecution. Eaton's counter­claimed for trespass.

The Alberta Court of Queen's Bench allowed Chopra's action for battery and false imprisonment against Eaton's and Frauenfeld. The court dismissed the remaining claims. The court dismissed Eaton's counterclaim. The court assessed Chopra's damages.

Criminal Law - Topic 3211

Compelling appearance, detention and release - Arrest - The Alberta Court of Queen's Bench stated that "[i]f an arrest is otherwise lawful, an unjustified battery committed through the use of unjustified force does not affect the legality of the arrest itself. Similarly, an unjustified use of force in maintaining an otherwise lawful detention will not usually affect the legal­ity of the detention. The damages in both these situations will only be from the battery: each tort should be addressed separately." - See paragraph 98.

Criminal Law - Topic 3214

Compelling appearance, detention and release - Arrest - Powers of private citi­zens (incl. security guards) - The Alberta Court of Queen's Bench discussed a pri­vate citizen's common law and statutory authority to arrest - See paragraphs 107 to 132.

Criminal Law - Topic 3214

Compelling appearance, detention and release - Arrest - Powers of private citi­zens (incl. security guards) - Sections 494(1) and 494(2) of the Criminal Code authorized a private citizen to make an arrest - Section 25(1) of the Code pro­tected persons, including private citizens, acting under authority to enforce the law if he or she acted on reasonable grounds - The Alberta Court of Queen's Bench held that a private citizen was not justified in arresting a fellow citizen under ss. 494(1) and 494(2) simply on the basis that he had reasonable and probable grounds to believe an offence had been committed - Such an arrest could only be justified if, in fact, an offence had been committed - See para­graphs 122 to 131.

Criminal Law - Topic 3214

Compelling appearance, detention and release - Arrest - Powers of private citi­zens (incl. security guards) - The Alberta Court of Queen's Bench discussed the use of force by a private citizen in effecting an arrest - The court stated that "[w]hether the force used was reasonably necessary in carrying out the arrest in the circumstances will be a question of fact to be decided by the trial judge on a perusal of a number of factors. For example, inter alia, the seri­ousness of the offence for which the per­son was arrested, the heat of the moment, the conduct of the offender, the physical characteristics of the parties involved, the presence of weapons, the availability of other methods of arrest, and many other factors will be relevant in assessing whether or not the person arresting used only as much force as was reasonably necessary in the circumstances." - See paragraph 145.

Damage Awards - Topic 114

Injury and death - Head injuries - Voice and throat - Chopra attended Eaton's for a refund - An argument ensued - The head of Eaton's security, Frauenfeld, asked Chopra to leave and escorted him by the elbow - Near the exit, Chopra pushed Frauenfeld off his elbow - Frauenfeld put Chopra in a headlock, knocking off his glasses and cutting his lip - Chopra was arrested and handcuffed - He sat hand­cuffed in the security office for approxi­mately four hours - Frauenfeld did not call police for over 2 1/3 hours - He refused to let Chopra call his wife - He initially refused Chopra's request for water - He took Chopra's wallet and removed his driver's licence and photographed him without consent - Frauenfeld made dispar­aging comments - Chopra suffered, inter alia, a throat injury which caused voice problems - The Alberta Court of Queen's Bench allowed Chopra's action for battery and false imprisonment and awarded him $23,000 aggravated general damages - See paragraphs 213 to 229.

Damage Awards - Topic 628

Torts - Injury to the person - Assault and battery - [See Damage Awards - Topic 114 ].

Damage Awards - Topic 630

Torts - Injury to the person - False or unlawful imprisonment - [See Damage Awards - Topic 114 ].

Damage Awards - Topic 2011

Exemplary or punitive damages - Assault and battery - Chopra attended Eaton's for a refund - An argument ensued - The head of Eaton's security, Frauenfeld, asked Chopra to leave and escorted him by the elbow - Near the exit, Chopra pushed Frauenfeld off his elbow - Frauenfeld put Chopra in a headlock, knocking off his glasses and cutting his lip - Chopra was arrested and handcuffed - He sat hand­cuffed in the security office for approxi­mately four hours - Frauenfeld did not call police for over 2 1/3 hours - He refused to let Chopra call his wife - He initially refused Chopra's request for water - He took Chopra's wallet and removed his driver's licence and photographed him without consent - Frauenfeld also made disparaging comments - The Alberta Court of Queen's Bench allowed Chopra's action for battery and false imprisonment - The court awarded Chopra $10,000 punitive damages - See paragraphs 233 to 241.

Damage Awards - Topic 2012

Exemplary or punitive damages - False imprisonment - [See Damage Awards - Topic 2011 ].

Damage Awards - Topic 2405

Aggravated damages - Battery - [See Damage Awards - Topic 114 ].

Damage Awards - Topic 2407.1

Aggravated damages - False imprisonment - [See Damage Awards - Topic 114 ].

Damages - Topic 1017

Mitigation - In tort - Reduction due to plaintiff's conduct or provocation - The Alberta Court of Queen's Bench stated that provocation was a relevant consideration in determining aggravated and punitive dam­ages - The court also held that a plaintiff's provocatory conduct could be considered generally when determining appropriate general compensatory damages - See paragraph 215.

Damages - Topic 2442

Torts affecting the person - False or un­lawful imprisonment - Legal expenses - Chopra attended Eaton's for a refund - An argument ensued - The head of Eaton's security, Frauenfeld, arrested Chopra for causing a disturbance and assault - Chopra sat handcuffed in the security office for approximately four hours - Chopra was acquitted on charges of causing a disturb­ance and assault - The Alberta Court of Queen's Bench allowed Chopra's action against Eaton's and Frauenfeld for false imprisonment - The court held that the defendants were justified in arresting Chopra for assault but they were not entitled to arrest him for causing a dis­turbance - Chopra sought damages for the legal costs of defending the criminal charges - The court awarded damages for approximately half of Chopra's legal costs where the arrest was justified for half of the charges - See paragraphs 230 to 232.

Damages - Topic 2446

Torts affecting the person - False or un­lawful imprisonment - Injury to reputation - Chopra attended Eaton's for a refund - Eaton's was unable or unwilling to give him a refund - An argument ensued and the head of Eaton's security, Frauenfeld, arrested Chopra for causing a disturbance and assault - Chopra sat handcuffed in the security office for approximately four hours - Chopra sued for, inter alia, false imprisonment and arrest - Chopra claimed damages for loss of reputation - Chopra, a lawyer, had been found guilty by the Law Society of swearing a false affidavit - He was also previously arrested, but acquitted, for shoplifting - The Alberta Court of Queen's Bench held that this incident did not have much of a detrimental effect on Chopra's reputation - See paragraphs 225, 226.

Libel and Slander - Topic 2983

Defences - Qualified privilege - When available - Chopra attended Eaton's for a refund - Eaton's was unable or unwilling to give him a refund - An argument ensued and the head of Eaton's security, Frauenfeld, arrested Chopra for causing a disturbance and assault - Frauenfeld filled out an occurrence report and submitted it to police - Chopra sued for, inter alia, defamation - Chopra relied on the occur­rence report as representing the alleged defamatory statements - The Alberta Court of Queen's Bench dismissed the claim for defamation where the contents of the occurrence report were protected by qual­ified privilege - See paragraphs 208 to 212.

Libel and Slander - Topic 2995

Defences - Qualified privilege - Public duty - [See Libel and Slander - Topic 2983 ].

Torts - Topic 3002

Trespass - Trespass to land - What con­stitutes - Chopra attended Eaton's for a refund - Eaton's was unable or unwilling to give him a refund - An argument ensued - The head of Eaton's security, Frauenfeld, asked Chopra to leave and escorted him by the elbow - Two other security men were there for backup - Near the exit, Chopra pushed Frauenfeld off his arm so that he could leave the store unas­sisted - Frauenfeld put Chopra in a headlock - The security men arrested and handcuffed Chopra and took him to the security office - Chopra was detained for approximately four hours until the police arrived - Chopra sued Eaton's and the security men - Eaton's counterclaimed for trespass - The Alberta Court of Queen's Bench dismissed the counterclaim, holding that Chopra was not trespassing - See paragraphs 84 to 87.

Torts - Topic 3181

Trespass - Assault and battery - [See Criminal Law - Topic 3211 ].

Torts - Topic 3191

Trespass - Assault and battery - Battery - What constitutes - Chopra attended Eaton's for a refund - Eaton's was unable or unwilling to give him a refund - An argument ensued - The head of Eaton's security, Frauenfeld, asked Chopra to leave and escorted him by the elbow - Two other security men were there for backup - Near the exit, Chopra pushed Frauenfeld off his arm so that he could leave the store unassisted - Frauenfeld reacted by putting Chopra in a headlock - The security men arrested and handcuffed Chopra - Chopra remained handcuffed in the security office for approximately four hours - Chopra was acquitted on charges of assault and causing a disturbance - The Alberta Court of Queen's Bench allowed Chopra's action against Frauenfeld and Eaton's for battery - Although Frauenfeld had grounds to arrest Chopra, his use of excessive force constituted battery - See paragraphs 133 to 139, 146 to 148.

Torts - Topic 3204

Trespass - Assault and battery - Defences -Arrest - [See Torts - Topic 3191 ].

Torts - Topic 3251

Trespass - False imprisonment - [See Criminal Law - Topic 3211 ].

Torts - Topic 3252

Trespass - False imprisonment - What constitutes false imprisonment - Chopra attended Eaton's for a refund - Eaton's was unable or unwilling to give him a refund - An argument ensued - The head of Eaton's security, Frauenfeld, arrested Chopra for causing a disturbance and assault - Frauenfeld did not call police for 2 1/3 hours - Chopra remained handcuffed in the security office for approximately four hours until the police arrived - Chopra was acquitted on charges of assault and causing a disturbance - The Alberta Court of Queen's Bench allowed Chopra's action against Frauenfeld and Eaton's for false imprisonment - The unauthorized delay in notifying the police transformed the initially lawful imprisonment into an un­lawful imprisonment - See paragraphs 151 to 159.

Torts - Topic 3259

Trespass - False imprisonment - Defences -Arrest - [See Torts - Topic 3252 ].

Torts - Topic 6153

Abuse of legal procedure - Malicious prosecution - Prosecution or initiation of proceedings defined - Chopra attended Eaton's for a refund - Eaton's was unable or unwilling to give him a refund - An argument ensued and the head of Eaton's security, Frauenfeld, arrested Chopra for causing a disturbance and assault - Frauenfeld filled out an occurrence report -Other security staff interviewed wit­nesses -Eaton's delivered the informa­tion to the police - Neither Eaton's nor the security staff (the defendants) swore an information - They did not pressure the police or actively engage in persuading them to lay charges - Chopra was ac­quitted on charges of causing a disturb­ance and assault - He sued for, inter alia, malicious prosecution -The Alberta Court of Queen's Bench dis­missed the malicious prosecution claim where the defendants had not initiated the prosecution - See paragraphs 171 to 188.

Torts - Topic 6153

Abuse of legal procedure - Malicious prosecution - Prosecution or initiation of proceedings defined - An action for malicious prosecution required that the plaintiff prove, inter alia, that the proceed­ings were initiated by the defendant - The Alberta Court of Queen's Bench stated that "it is not an absolute requirement that the defendant swear the information to have initiated the proceedings. There are other ways that one can be 'actively instrumental' in the decision to lay charges, and other ways that one can 'cause everything to be done wrongfully to set the law in motion' against another." - See paragraph 176 - The court discussed factors to be con­sidered - See paragraph 186.

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - Chopra attended Eaton's for a refund - Eaton's was unable or unwilling to give him a refund - An argument ensued and the head of Eaton's security, Frauenfeld, arrested Chopra for causing a disturbance and assault - Chopra was acquitted on charges of causing a disturb­ance and assault - He sued for, inter alia, malicious prosecution - The Alberta Court of Queen's Bench held that the defendants had reasonable and probable grounds to believe that Chopra had committed an assault - However, there were no reason­able and probable grounds to believe that he caused a disturbance - Accordingly, the defendants lacked reasonable and probable grounds to prosecute Chopra on the charges as contained in the information - See paragraphs 190 to 197.

Cases Noticed:

Cottreau v. Rodgerson and Saulnier (1965), 53 D.L.R.(2d) 549 (N.S.S.C.), refd to. [para. 85].

R. v. Peters (1970), 2 C.C.C.(2d) 336 (Ont. C.A.), affd. (1971), 2 C.C.C.(2d) 339 (S.C.C.), refd to. [para. 85].

Kovacs v. Ontario Jockey Club (1995), 126 D.L.R.(4th) 576 (Ont. Gen. Div.), refd to. [para. 92].

R. v. Cunningham (1979), 49 C.C.C.(2d) 390 (Man. Co. Ct.), refd to. [para. 97].

Briggs v. Laviolette (1994), 21 C.C.L.T.(2d) 105 (B.C.S.C.), refd to. [para. 97].

Frey v. Fedoruk, [1950] 3 D.L.R. 513 (S.C.C.), refd to. [para. 104].

Otto v. Wallace (J. Grant) Ltd. and Meyers (1988), 84 A.R. 391 (Q.B.), refd to. [para. 104].

Forster v. MacDonald et al. (1993), 146 A.R. 270 (Q.B.), affd. (1995), 174 A.R. 174; 102 W.A.C. 174 (C.A.), refd to. [para. 104].

Kendall and Kendall v. Gambles, Canada Ltd., Graham, Bowering and Landru, [1981] 4 W.W.R. 718; 11 Sask.R. 361 (Q.B.), refd to. [para. 108].

Dendekker v. Woolworth (F.W.) Co., [1975] 3 W.W.R. 429 (Alta. T.D.), refd to. [para. 108].

Price v. Seeley (1843), 8 E.R. 651 (H.L.), refd to. [para. 110].

Baynes v. Brewster (1841), 114 E.R. 149 (Q.B.), refd to. [para. 110].

Williams v. Laing (1923), 55 O.L.R. 26 (C.A.), refd to. [para. 111].

McKenzie v. Gibson (1852), 8 U.C.R. 100 (Ont.), refd to. [para. 111].

Lebrun v. High-Low Foods Ltd. (1968), 69 D.L.R.(2d) 433 (B.C.S.C.), refd to. [para. 124].

Karogiannis v. Poulus (1976), 72 D.L.R.(3d) 253 (B.C.S.C.), refd to. [para. 125].

Hayward v. Woolworth (F.W.) Co., Carter and Power (1979), 23 Nfld. & P.E.I.R. 17; 61 A.P.R. 17; 98 D.L.R.(3d) 345 (Nfld. T.D.), refd to. [para. 126].

Dandurand v. Pier I Imports (Can.) Inc. (1986), 15 O.A.C. 156; 55 O.R.(2d) 329 (C.A.), refd to. [para. 126].

Banyasz v. K-Mart Canada (1986), 18 O.A.C. 227; 33 D.L.R.(4th) 474 (Div. Ct.), refd to. [para. 126].

Cronk v. Woolworth (F.W.) Co., MacPherson, Blinkhorn and Williams, [1986] 3 W.W.R. 139; 44 Sask.R. 81 (Q.B.), refd to. [para. 126].

Yarmie v. Gustafson, [1989] B.C.J. No. 1065 (Co. Ct.), refd to. [para. 126].

Kavanagh and Carroll v. Canadian Tire Corp. (1989), 74 Nfld. & P.E.I.R. 205; 231 A.P.R. 205 (Nfld. T.D.), refd to. [para. 127].

Murphy v. Ellis (1871), 13 N.B.R. 347 (C.A.), refd to. [para. 130].

Beckwith v. Philby (1827), 108 E.R. 585, refd to. [para. 130].

Newhook v. K-Mart Canada Ltd. et al. (1991), 116 Nfld. & P.E.I.R. 102; 363 A.P.R. 102 (Nfld. T.D.), refd to. [para. 131].

R. v. Huff (1979), 17 A.R. 499; 50 C.C.C.(2d) 324 (C.A.), refd to. [para. 135].

R. v. Baxter (1975), 27 C.C.C.(2d) 96 (Ont. C.A.), refd to. [para. 137].

R. v. Asante-Mensah (D.) (1996), 3 O.T.C. 240 (Gen. Div.), refd to. [para. 141].

Irwin v. Lawson (1901), 40 N.S.R. 279 (T.D.), refd to. [para. 149].

Timothy v. Simpson (1835), 149 E.R. 1285 (Exch. Ct.), refd to. [para. 152].

Lewis (John) & Co. v. Tims, [1952] A.C. 676 (H.L.), refd to. [para. 153].

R. v. Lerke (1986), 67 A.R. 390 (C.A.), refd to. [para. 161].

R. v. Dean (1991), 5 C.R.(4th) 176 (Ont. Gen. Div.), refd to. [para. 161].

R. v. Voege (W.) (1997), 47 O.T.C. 193; 31 M.V.R.(3d) 293 (Gen. Div.), refd to. [para. 161].

Owsley v. Ontario (1983), 34 C.P.C. 96 (Ont. H.C.), refd to. [para. 168].

Gelfand v. Canadian Pacific Railway, [1925] 2 W.W.R. 765 (Man. K.B.), refd to. [para. 170].

Boudreault v. Barrett et al. (1998), 219 A.R. 67; 179 W.A.C. 67 (C.A.), refd to. [para. 171].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609; 49 C.C.L.T. 217, refd to. [para. 171].

Frigault v. Bartram, MacNeil and Goss (1995), 167 A.R. 216 (Q.B.), refd to. [para. 173].

Danby v. Beardsley (1880), 43 L.T. 603, refd to. [para. 174].

Casey v. Automobiles Renault Canada Ltd. (1965), 54 D.L.R.(2d) 600 (S.C.C.), refd to. [para. 175].

Riopel v. Metis Urban Housing Corp. of Alberta Inc. et al. (1996), 185 A.R. 161 (Q.B.), refd to. [para. 178].

Berman v. Jenson (1989), 77 Sask.R. 161 (Q.B.), refd to. [para. 179].

Temilini v. Ontario Provincial Police (Commissioner) et al. (1990), 38 O.A.C. 270; 73 O.R.(2d) 664 (C.A.), refd to. [para. 181].

Hinde v. Skibinski (1994), 21 C.C.L.T.(2d) 314 (Ont. Gen. Div.), refd to. [para. 182].

Quinn v. Morrison et al. (1997), 42 O.T.C. 385 (Gen. Div.), refd to. [para. 183].

Samuel Manu-Tech Inc. v. Redpac Re­cycling Corp. et al. (1988), 66 O.T.C. 16 (Gen. Div.), refd to. [para. 183].

Petrovich v. Campbell, [1992] B.C.J. No. 20 (S.C.), refd to. [para. 184].

Meier v. Elder, [1931] 1 D.L.R. 553 (Sask. C.A.), refd to. [para. 191].

German v. Major (1985), 62 A.R. 2; 39 Alta. L.R.(2d) 270 (C.A.), dist. [para. 193].

Wilson v. Tennant (1894), 25 O.R. 339 (C.A.), refd to. [para. 195].

Rosen v. Alberta Motor Association Insur­ance Co. et al. (1993), 146 A.R. 214; 13 Alta. L.R.(3d) 356 (Q.B.), refd to. [para. 205].

Moss v. Boisvert et al. (1990), 107 A.R. 385; 74 Alta. L.R.(2d) 344 (Q.B. Mas­ter), refd to. [para. 205].

Lougheed v. Canadian Broadcasting Corp. (1978), 11 A.R. 55 (T.D.), refd to. [para. 205].

Paragon Properties (Finance) Ltd. v. Swan (Del) Trucking Inc. (1998), 233 A.R. 221 (Q.B.), refd to. [para. 206].

Wing Lee v. Jones et al. (1953), 9 W.W.R. 322 (Man. Q.B.), refd to. [para. 210].

Padmore v. Lawrence (1840), 113 E.R. 460, refd to. [para. 210].

Kuehn v. Hougen, [1997] A.R. Uned. 267 (C.A.), refd to. [para. 215].

Crowe v. Noon (1970), 16 D.L.R.(3d) 22 (Ont. H.C.), refd to. [para. 217].

Jeeves (Guardian ad litem) v. Swanson, [1995] B.C.J. No. 1211 (S.C.), refd to. [para. 218, footnote 18].

Kucher v. Guasparini et al., [1998] B.C.T.C. Uned. 289 (S.C.), refd to. [para. 218, footnote 18].

Thomas v. Norris, [1992] 2 C.N.L.R. 139 (B.C.S.C.), refd to. [para. 218, footnote 18].

Schell v. Truba and Hunter (1990), 89 Sask.R. 137 (C.A.), refd to. [para. 218, footnote 18].

Nolan v. Metropolitan Toronto Police Force, [1996[ O.J. No. 1764 (Gen. Div.), refd to. [para. 218, footnote 18].

Whitehouse v. Reimer, Calgary Police Commission and Alberta (1979), 21 A.R. 541; 11 Alta. L.R.(2d) 252 (Q.B.), refd to. [para. 218, footnote 18].

Norberg v. Wynrib, [1992] 2 S.C.R. 318, refd to. [para. 221].

Hill v. Church of Scientology of Toronto and Manning (1992), 7 O.R.(3d) 489 (Gen. Div.), affd. (1994), 71 O.A.C. 161; 18 O.R.(3d) 385 (C.A.), affd. [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para. 222].

Carr v. Gauthier et al. (1992), 134 A.R. 61 (Q.B.), refd to. [para. 227, footnote 19].

Colborne Capital Corp. et al. v. 542775 Alberta Ltd. et al. (1999), 228 A.R. 201; 188 W.A.C. 201 (C.A.), refd to. [para. 241].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 25(1) [para. 123]; sect. 30 [para. 114]; sect. 41(2) [para. 136]; sect. 175(1)(a)(i) [para. 136]; sect. 265(1)(a) [para. 136]; sect. 494(1) [para. 118]; sect. 494(2) [para. 120].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defama­tion in Canada (1994), pp. 13-5, 13-6 [para. 209].

Clerk, John F., and Lindsell, The Law of Torts (16th Ed. 1989), pp. 983 [para. 96]; 984 [para. 110].

Fridman, Gerald Henry Louis, The Law of Torts In Canada (1989), p. 70 [para. 142].

Linden, Allen M., Canadian Tort Law (6th Ed. 1997), pp. 42 [para. 91]; 89 [para. 142]; 711 [para. 211].

Rainaldi, Linda D., Remedies in Tort (1987), p. 7-11 [para. 91].

Salmond, The Law of Torts (13th Ed.), p. 166 [para. 85].

Counsel:

John A. Weir, Q.C., for the plaintiff;

K.D. Wakefield, for the defendants.

This action was heard before Brooker, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 8, 1999.