Kendall and Kendall v. Gambles Canada Ltd., Graham, Bowering and Landru, (1981) 11 Sask.R. 361 (QB)

• Judge: Cameron, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 01, 1981
• Jurisdiction: Saskatchewan
• Citations: (1981), 11 Sask.R. 361 (QB);1981 CanLII 2149 (SK QB);1981 CanLII 2149 (FCA);[1981] 4 WWR 718;11 Sask R 361;9 ACWS (2d) 128

Kendall v. Gambles Can. Ltd. (1981), 11 Sask.R. 361 (QB)

MLB headnote and full text

Kendall and Kendall v. Gambles Canada Ltd., Graham, Bowering and Landru

(Q.B. No. 1009)

Indexed As: Kendall and Kendall v. Gambles Canada Ltd., Graham, Bowering and Landru

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Cameron, J.

May 1, 1981.

Summary:

The plaintiffs were accused of shoplifting and forcibly detained by three store employees. The plaintiffs were charged with creating a disturbance and theft. The theft charges were withdrawn and both plaintiffs were acquitted of creating a disturbance. The plaintiffs brought an action against the store and three employees for damages for false imprisonment, malicious prosecution and assault. Two of the employees counterclaimed for damages for assault.

The Saskatchewan Court of Queen's Bench allowed the action for false imprisonment and for assault against the store and one employee. The court dismissed the counterclaims.

Criminal Law - Topic 3214

Arrest - Powers of private citizen - The Saskatchewan Court of Queen's Bench discussed the powers of arrest and detention by private citizens in reference to a charge of false imprisonment against a store and its employees, who accused the plaintiffs of shoplifting and forcibly detained them - See paragraphs 41 to 75.

Damage Awards - Topic 630

Torts affecting the person - False imprisonment including assault - The plaintiff brothers were accused of shoplifting, forcibly apprehended and marched back into the store by three store employees - The older brother was involved in a scuffle with the employees - The plaintiffs were photographed, led by the police through the mall and held in police cells - The Saskatchewan Court of Queen's Bench awarded the older brother $2,000.00 general damages and the younger brother $1,000.00 general damages for false imprisonment and assault - See paragraphs 82 to 87.

Torts - Topic 3204

Trespass - Assault and battery - Assault - Defences - Arrest - The plaintiffs were accused of shoplifting and forcibly detained by three store employees - One employee, the head of security, told the other employees that the plaintiffs stole merchandise, so they helped detain the plaintiffs - The Saskatchewan Court of Queen's Bench held that the store and head of security were liable for assault, because the arrest was unlawful (theft was not established), but held that the other two employees were not liable because they had reasonable and probable grounds to believe that the arrest was lawful and they did not use excessive force - See paragraphs 76 to 81.

Torts - Topic 3203

Trespass - Assault and battery - Defences - Resisting unlawful act - The plaintiffs were accused of shoplifting and forcibly detained by three store employees - The plaintiffs resisted the arrest - The theft was never proved - The Saskatchewan Court of Queen's Bench held that the plaintiffs were not liable for assaulting the store employees, because the arrest was unlawful and they were entitled to resist - See paragraphs 78 to 81.

Torts - Topic 3253

Trespass to person - False imprisonment - Defences - Justification - Burden of proof - The plaintiffs brought an action against a store and three employees for damages for false imprisonment after they were detained on the suspicion of shoplifting - The Saskatchewan Court of Queen's Bench held that after the plaintiffs proved the imprisonment the burden shifted to the store to justify the imprisonment by proving on a balance of probabilities that the plaintiffs were guilty of theft - See paragraph 37.

Torts - Topic 3253

Trespass to person - False imprisonment - Defences - Justification - The plaintiffs were accused of shoplifting and detained by three store employees - One employee, the head of security, informed the other two employees that the plaintiffs were shoplifting, so the employees helped the security head detain the plaintiffs - The store failed to prove shoplifting - The Saskatchewan Court of Queen's Bench held that the store and security head were liable for false imprisonment, but the other employees were not, because they believed a criminal offence was committed and the security head was in fresh pursuit of the criminals - See paragraphs 73 to 75.

Torts - Topic 6152

Abuse of legal procedure - Malicious prosecution - Elements of - The plaintiffs were accused of shoplifting and taken into custody by force - The plaintiffs were prosecuted for theft and creating a disturbance - The theft charges were later withdrawn and both plaintiffs were acquitted of the disturbance charge - The plaintiffs alleged that the head of store security fabricated evidence and corruptly pursued the prosecution - The Saskatchewan Court of Queen's Bench held that the plaintiffs allegation of malicious prosecution failed because they failed to prove "malus animus" by proving the allegation against the head of store security - See paragraph 38.

Cases Noticed:

Fry v. Fedoruk, [1950] S.C.R. 517, appld. [para. 41].

Walters v. Smith and Son, [1914] 1 K.B. 595, consd. [para. 44].

Williams v. Laing (1923-24), 55 O.L.R. 26, consd. [para. 48].

Plestad v. McLeod (1910), 15 W.L.R. 534, consd. [para. 49].

Karogiannis v. Poulus, [1976] 6 W.W.R. 201, consd. [para. 60].

Hayward v. F.W. Woolworth (1979), 23 Nfld. & P.E.I.R. 17; 61 A.P.R. 17; 98 D.L.R.(3d) 345, folld. [para. 61].

Wiltshire v. Barrett, [1965] 2 All E.R. 271, refd to. [para. 63].

R. v. Biron (1975), 59 D.L.R.(3d) 409, refd to. [para. 63].

Dendekker v. F.W. Woolworth Co. Ltd., [1975] 3 W.W.R. 429, consd. [para. 64].

Dellson v. T. Eaton Co. Canada Ltd. (1976), 63 D.L.R.(3d) 565, refd to. [para. 85].

Butt v. Dominion Stores Ltd. (1979), 20 Nfld. & P.E.I.R. 276; 53 A.P.R. 276, refd to. [para. 85].

Sharp et al. v. Woolco Department Stores (1978), 20 Nfld. & P.E.I.R. 283; 53 A.P.R. 276, refd to. [para. 85].

Carpenter v. MacDonald (1971), 91 D.L.R.(3d) 723, refd to. [para. 85].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 25 [para. 57]; sect. 449 [para. 57].

Authors and Works Noticed:

Wright, Cases on the Law of Torts (4th Ed.), p. 142 [para. 59].

McGregor on Damages (14th Ed. 1980), pp. 920 to 926 [para. 85].

Counsel:

K.W. Noble, for the plaintiffs;

F. William Johnson, for the defendants.

This case was heard by CAMERON, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who on May 1, 1981, delivered the following judgment.