Gentles et al. v. Toronto Community Housing Corp. et al., (2010) 270 O.A.C. 305 (CA)

• Judge: Rosenberg, Armstrong and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 09, 2010
• Jurisdiction: Ontario
• Citations: (2010), 270 O.A.C. 305 (CA);2010 ONCA 797

Gentles v. Com. Housing Corp. (2010), 270 O.A.C. 305 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. DE.001

Rallion Gentles and Joseph Francis (plaintiffs) (appellants/respondents by way of cross-appeal) v. Intelligarde International Incorporated, Toronto Community Housing Corporation, Jason Collins, Jamie Barnes and Shari Malazdrewicz (defendants) (respondents/appellants by way of cross-appeal)

(C45245; 2010 ONCA 797)

Indexed As: Gentles et al. v. Toronto Community Housing Corp. et al.

Ontario Court of Appeal

Rosenberg, Armstrong and Juriansz, JJ.A.

November 26, 2010.

Summary:

Two young men, Gentles and Francis (the plaintiffs), were arrested on private property (a social housing complex) by two security guards employed by the security firm Intelligarde International Inc. Intelligarde provided security for the housing complex pursuant to a contract with Toronto Housing Corp., the manager of the housing complex. The plaintiffs brought an action for assault and battery, false arrest and imprisonment by the security guards, negligence and breaches of the Tenant Protection Act by Intelligarde and Toronto Housing, and a breach of the Occupiers Liability Act by Toronto Housing. The jury was asked a number of questions. Upon receiving the jury's answers, all parties moved for judgment. The defendants (Intelligarde, Toronto Community Housing Corp. and the security guards) moved for judgment based on the jury's answers.

The Ontario Superior Court (Lane, J.), in a decision reported [2006] O.T.C. Uned. 274, based on the jury's answers concluded that the security guards had reasonable and probable grounds to arrest the plaintiffs. The trial judge therefore allowed the defendants' motion for judgment and dismissed the action entirely. After the trial, Lane, J., retired and another judge, Sanderson, J., was appointed to deal with the outstanding issue of costs. Despite the defendants' success at trial, she declined to award them any costs. The plaintiffs appealed on the merits, attacking only the trial judge's decision to dismiss their action for false arrest and assault and imprisonment against the security guards and their employer, Intelligarde, which was vicariously liable for their acts. At issue on appeal was whether the security guards had reasonable and probable grounds to arrest Gentles and Francis under the Trespass to Property Act. The defendants cross-appealed the costs decision.

The Ontario Court of Appeal held that the trial judge erred in deciding the question of reasonable and probable grounds to arrest in favour of the defendants based on the findings of fact of the jury. The court therefore allowed the appeal and entered judgment for the plaintiffs. The court dismissed the cross-appeal.

Criminal Law - Topic 3214

Compelling appearance, detention and release - Arrest - Powers of private citizens (incl. security guards) - Two security guards, employed by Ingelligarde, approached two young men, Gentles and Francis (the plaintiffs) on private property (a social housing complex) - The plaintiffs were arrested and a physical struggle ensued - The plaintiffs, one of whom resided in the building, sued the security guards and Intelligarde (defendants) for damages for assault and false arrest and imprisonment - The jury was asked a number of questions - Based on the jury's answers, the trial judge concluded that the security guards had reasonable and probable grounds to arrest the plaintiffs under the Trespass to Property Act (TPA) and, therefore, granted a motion by the defendants to dismiss the action in its entirety - The plaintiffs appealed - The Ontario Court of Appeal, reviewing the matter on the standard of correctness, allowed the appeal, holding that the trial judge erred by failing to conclude that the security guards lacked reasonable and probable grounds to arrest the plaintiffs under the TPA - The court reviewed the jury's answers to the questions posed and concluded that, on the trial judges' view of the facts, the security guards lacked reasonable grounds to make the arrest - He did not explain his logic or why the circumstances provided the guards with reasonable and probable grounds nor did he properly apply the TPA correctly to the facts as he viewed them (i.e., particularly ss. 2 and 9) - See paragraphs 1 to 138.

Criminal Law - Topic 3214

Compelling appearance, detention and release - Arrest - Powers of private citizens (incl. security guards) - The Ontario Court of Appeal rejected the argument that a resident could not be arrested under the Trespass to Property Act as s. 2 did not apply to a person acting under a right or authority conferred by law - The court stated that that argument focussed on the application of s. 2, but the power of arrest was set out in s. 9 - Section 9 empowered a person authorized by the occupier to arrest without a warrant any person he or she had reasonable grounds to believe was on the premises in contravention of s. 2 - The court thereafter discussed the power of arrest under the Act - See paragraphs 49 to 54.

Cases Noticed:

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. 30].

Liorti v. Andrews (1974), 2 O.R.(2d) 130 (C.A.), refd to. [para. 45].

R. v. Plummer (D.) (2006), 217 O.A.C. 201; 83 O.R.(3d) 528 (C.A.), refd to. [para. 132].

1465778 Ontario Inc. et al. v. 1122077 Ontario Ltd. et al. (2006), 216 O.A.C. 339; 82 O.R.(3d) 757 (C.A.), refd to. [para. 145].

Euteneier v. Lee et al. (2005), 204 O.A.C. 287 (C.A.), refd to. [para. 145].

Statutes Noticed:

Trespass to Property Act, R.S.O. 1990, c. T-21, sect. 2, sect. 9 [para. 47].

Counsel:

David Gomes, for the appellants/respondents by way of cross-appeal;

Andrew Evangelista, for the respondents/appellants by way of cross-appeal, Intelligarde International Incorporated, Jason Collins, Jamie Barnes and Shari Malazdrewicz;

Doug Smith, for the appellant by cross-appeal, Toronto Community Housing Corporation.

This appeal was heard on June 9, 2010, before Rosenberg, Armstrong and Juriansz, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court by Juriansz, J.A., on November 26, 2010.