Maxwell v. Wal-Mart Canada Corp., 2013 ABQB 625

Court of Queen’s Bench of Alberta Citation: Maxwell v. Wal-Mart Canada Corp., 2013 ABQB 625 Date: 20131022 Docket: 1103 11829 Registry: Edmonton Between: Derek Alexander Maxwell Plaintiff - and - Wal-Mart Canada Corp., Gordon Wirun, Dawn Mulligan, Kenneth Molen, Gail Viteychuk, Mike Wells, Chief of Edmonton Police Service Roderick Knecht, Cst. Daniel Vandenberg and Ray Court Defendants _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice S.D.

Hillier _________________________________________ ______________ Introduction [ 1 ] The Plaintiff Derek Maxwell has sued the listed Defendants in respect of matters which arose on October 29, 2009 outside the Clareview Wal-Mart in northeast Edmonton as outlined in his Amended Amended Amended Statement of Claim (the “AAA S/C”) filed on April 16, 2013. [ 2 ] The Plaintiff alleges, amongst other claims, that he was improperly arrested following a dispute in the parking lot regarding proof of purchase of a television. [ 3 ] The Applicant members of Edmonton Police Service seek a

summary dismissal of the claims against them for actions taken

in the course of their respective duties. [ 4 ] Specifically, Ray Court, having filed a Statement of Defence, swears by affidavit that he carried out his duties as 911 Complaint Evaluator “in a professional, responsible and impartial manner...” after collection and evaluation of information that led to the prompt dispatch of police officers, as requested. [ 5 ] Constable Daniel Vandenberg, having also filed his Defence, categorically denies the allegations against him, including malice.

Further he states: “I am of the belief that there is no merit to the whole or any part of the claims against me or the EPS and that there are no genuine issues to be decided at the trial of this Action”. [ 6 ] No allegations have been pled specifically against the Chief of the Edmonton Police Service Roderick Knecht. [ 7 ] The Applicants make no comment on the claims against Wal-Mart and its employees. [ 8 ] The Plaintiff, an unrepresented litigant, resists the application.

In a combined affidavit/brief of his position, he asserts that the evidence supports various forms of conduct which give rise to potential liability on the part of these Defendants. [ 9 ] All other Defendants were given notice of this application, and have opted not to file any materials or take any position in relation to it. [ 10 ] A full account of the circumstances is taken from affidavits and questioning to provide sufficient context for this application. Background [ 11 ] The Plaintiff purchased a number of items from Wal-Mart with his wife, including a 40 inch LCD television.

Having paid for the items and pocketed the receipt, he was walking out of the store when an employee asked to see the receipt. The Plaintiff continued to briskly exit the store with the television in a cart and the employee notified management. The Store Manager, Gordon Wirun, was the first to respond.

Wirun ran into the parking lot where the Plaintiff told him off and declined to show any proof of purchase. [ 12 ] In the course of a confrontation between the Plaintiff, Wirun and store Loss Prevention Officers (“LPOs”), one of the LPOs asked the Plaintiff’s wife to call the police to come to the Wal-Mart parking lot. She spoke with named Defendant Ray Court, a retired member of the Edmonton Police Service. From the taped recording of that call (Exhibit 1, Ray Court’s Affidavit), it would have been clear to Mr.

Court that there was an ongoing altercation in relation to a television. [ 13 ] From the outset of the phone call and at various times throughout, the wife is heard to complain about the conduct of the LPOs, calling them “rent a cops”. When the wife had difficulty providing a specific address for dispatch of a police vehicle, Mr. Court spoke with one of the on scene Wal-Mart employees to obtain the address.

He then sent out a Priority 3 call, the highest urgency that can be assigned to a call for an incident in progress which requires immediate police response. [ 14 ] Once an officer was dispatched and pending arrival, Mr. Court kept the wife on line while he inputted information onto computer records for Dispatch.

His entries included the facts that the suspect was fighting with staff in front of the main doors and that a Dodge truck was damaged in the struggle, as well as identification of the Plaintiff by name and date of birth. [ 15 ] During this time, the Plaintiff’s wife intermittently complained about the conduct of the LPOs but also advised her husband not to resist and to just wait for the cops to arrive. She was encouraged in regards to that advice by Mr. Court until police did get there. This is the full extent of Mr. Court’s involvement in the matter. [ 16 ] Named Defendant Cst.

Daniel Vandenberg arrived at the Wal-Mart parking lot at10:05 a.m., six minutes after dispatch. From Dispatch (not Mr. Court directly), Cst. Vandenberg understood that Wal-Mart LPOs were trying to arrest someone who was fighting with them, and that it sounded like it was over a TV. En route, Cst. Vandenberg learned from the computer system that the dispute arose when the manager went to check the receipt for a TV; further notes from an independent caller indicated that staff was having problems wrestling with someone in the parking lot. [ 17 ] Upon exiting his vehicle, Cst.

Vandenberg observed a very tense, charged situation with a number of people glaring at each other. Based on his assessment at the scene, together with Dispatch and the computer information as described, Cst. Vandenberg placed the Plaintiff under arrest for theft and assault. The officer states in his Affidavit that he believed “...and I still believe, I had reasonable and probable grounds to arrest the Plaintiff for theft and assault”. [ 18 ] Upon an immediate frisk search of the Accused’s pockets, Cst. Vandenberg found a receipt for the television.

He realized it was not stolen, but there were still issues of fighting and assault to address. After placing the Plaintiff handcuffed into the police cruiser, he spoke to many witnesses including three Wal-Mart employees named as Defendants. From those discussions, he prepared the following

summary:

a) A cashier had told the Plaintiff to have his receipt for the T.V. ready as he left;

b) The Plaintiff had not shown his receipt at the door and a greeter had tried to stop him by grabbing the straps on the T.V.;

c) The store manager had run out to the parking lot to confront the Plaintiff to see if he had shown his receipt or if he had purchased the T.V. legitimately;

d) The Plaintiff did not show a receipt. He had told the manager something to the effect of “get the fuck out of here” and had shovedthe manager;

e) The LPOs had come on the scene and observed the Plaintiff shove the manager so they tried to place the Plaintiff under arrest forassault;

f) Subsequent to the attempt to arrest, the Plaintiff called the LPOs “rent a cops” and then twisted or did something else to DawnMulligan’s arm, and kicked Ken Molen in the groin;

g) During the altercation, damage was done to a vehicle in the parking lot. [19] Thereafter, the officer Chartered and cautioned the Plaintiff for assault, mischief under $5,000 and two counts of assault withintent to resist arrest. [20] For his part, the Plaintiff denies that Cst. Vandenberg asked or heard anything before he “...walked over and took overcustody” and placed him in the police vehicle. [21] The Plaintiff further alleges in his affidavit/brief that the conduct of the Wal-Mart greeter was a physical assault on him andthat Cst. Vandenberg knew that early on. A review of the video, which Cst.

Vandenberg completed the next day, indicates that thegreeter grabbed the strap of the TV, and it is unclear whether the Plaintiff was even aware of what she had done or said before sheinitiated an emergency Code 99. [22] The Plaintiff emphasized that he was acquitted on all remaining criminal charges, the judge having concluded that storeemployees had no power to arrest where no actual theft occurred, and that the force used to resist unlawful arrest was reasonable in allthe circumstances. [23] The Judge did not condone the behaviour of the Plaintiff, noting (p. 72, ll. 15-21): It was socially unacceptable, it was childish and ridiculous.

But if we convicted everyone for behaviour that is characterized as sociallyunacceptable or ridiculous, we would potentially convict everyone who comes before this Court. Many people behave inappropriately,but that does not mean that their behaviour is criminal. Maxwell may be morally obliged to produce his receipt, but legally, there isnothing in the Code that makes it an offence for failing to produce a receipt to a store employee. Issues [24] The written briefs and oral submissions on the dismissal motion raise the following issues: 1. What is the proper standard for

summary dismissal of proceedings against one or more defendants? 2. How does that standard apply to the circumstances here in relation to each Applicant? Positions of the Parties [25] The Applicants argue that each of them is entitled to

summary dismissal of the claims against them because neither the lawnor the facts support the allegations made in relation to their role in this matter. [26] They submit that for prosecutorial entities, and particularly police services, the courts are encouraged to weed out cases thatlack merit “...to ensure that the Attorney General and Crown Attorneys will not be hindered in the proper execution of their importantpublic duties”: Nelles v Ontario, (SCC), [1989] 2 SCR 170 at 199, 60 DLR (4th) 609. [27] The Plaintiff argues that the following points principally support his claim against Cst. Vandenberg: a.

He arrested the Plaintiff without any initial investigation; b. The arrest by Wal-Mart employees was found by the judge in Criminal Court to have been unlawful; c. Cst. Vandenberg confirmed on Questioning that the LPOs were trying to arrest the Plaintiff and he believed it was appropriate forhim to continue that arrest.

[28] Counsel for Cst. Vandenberg responds that this officer met the standard of care on arrest in compliance with s. 495(2) of theCriminal Code. He subjectively had reasonable and probable grounds on which to base an arrest, and those grounds are justifiable froman objective point of view of someone standing in his shoes: R v Storrey, (SCC), [1990] 1 SCR 241 at 250, 53 CCC(3d) 316 and cases noted. [29] Regarding the claim against the Chief of Police, as has been noted earlier, no allegations are made in any of the four versionsof the Statement of Claim which have been filed to date.

The Plaintiff made no written or oral submissions concerning the Chief and it isurged for this Applicant that his name be removed from the Claim. Discussion Issue 1: What is the proper standard for

summary dismissal of proceedings againstone or more defendants? [30] Rule 7.3 of the Alberta Rules of Court, Alta Reg 124/2010 provides for

summary judgment where there is no merit to a claimor part of it, with power to dismiss one or more claims in an action. [31] The test in this regard remains the same as under the former Rule 159. It must be plain and obvious that the claim simplycannot succeed: Encana Corp v ARC Resources Ltd, 2011 ABQB 431. [32] If a defendant seeking

summary dismissal submits compelling evidence that there is no genuine issue of material factrequiring trial, the plaintiff must either refute or counter the defendant's evidence, by establishing that the claim has "a real chance ofsuccess": GH v Alcock, 2013 ABCA 24. [33] In general, the cases where

summary dismissals are granted have determined that it is “plain and obvious” that the actioncannot succeed because there is no genuine issue for trial; this is sometimes described as a “beyond doubt” standard: Murphy OilCompany Ltd v Predator Corporation Ltd., 2006 ABCA 69, 384 AR 251 at para 24. [34] The onus of proof requires that the Court be satisfied beyond all doubt that there is no merit to the claim as against that party,nor any genuine issue in relation to the primary claim or a right of contribution and indemnity. [35] This is not unlike the test in criminal law of whether there is an “air of reality”. On a

summary dismissal application, theCourt must determine whether it is at all possible that some liability would be imposed on the party seeking to be let out of the action. There can be no assessments of credibility. [36] It is important to attach the most favourable

interpretation of evidence as may reasonably support the Plaintiff’s version ofevents upon which his claims are predicated. Issue 2: How does that standard apply to the circumstances here in relation to eachApplicant? [37] Although the Applicants have some points in common, it is expedient to deal with each separately. The Applicant Mr. Court [38] The Plaintiff, in paragraphs 9 to 11 of the AAA S/C, alleges the following with respect to Mr. Court (as amplified by hisargument and materials on this application):

a) when the Plaintiff’s wife called 911, Mr. Court refused to dispatch police to help him and only agreed to dispatch if his assailantscalled and asked for them to attend;

b) the fact that his wife initiated the call was neither reflected in his assessment of how to respond, nor communicated to Dispatch asinformation for any attending police officers;

c) Mr. Court did not start an event report until speaking with the Wal-Mart employee, and then identified the Plaintiff as the“suspect”;

b) Mr. Court did not carry out his duties impartially as required when he stated that it is never the store’s fault when it comes to aphysical altercation; during the call, Mr. Court told the Plaintiff’s wife that when it comes to a physical confrontation, it has nothing todo with the store; if there is a problem in a parking lot, the police will come and try to help;

c) Mr. Court, after talking to one of the people assaulting the Plaintiff, finally dispatched an officer to his assailants’ aid and not to

assist the Plaintiff. [ 39 ] Counsel for Mr. Court takes the position that none of these allegations is supported by the evidence, much less actionable. [ 40 ] Mr. Court’s uncontradicted evidence is that his duties as a Complaint Evaluator involve:

a) answering calls placed to 911;

b) evaluating the nature of the call by gathering information from the caller;

c) assessing what emergency services (i.e. ambulance, fire or police) may be required;

d) if an emergency service is required, determining precisely where and how quickly those services are needed and thereby determining what level of priority should be placed on the call; and

e) inputting information into a computer to provide to Dispatch in order that they can dispatch the appropriate service. [ 41 ] A DVD of the 911 call between Mr. Court and the Plaintiff’s wife and the Wal-Mart employee is attached to Mr. Court’s affidavit as Exhibit 1. The call commenced when the Plaintiff’s wife called 911 at 9:53 a.m., and did not end until it was confirmed that the police had arrived at the scene (police first arrived at 10:05 a.m.). [ 42 ] Exhibit 2 is a copy of the Event Chronology for the incident which sets out the notes inputted by Mr.

Court and others into the system. [ 43 ] The Plaintiff does not suggest that Exhibits 1 and 2 did not contemporaneously capture Mr. Court’s entire involvement in this matter. Overall, the Plaintiff acknowledged in Questioning that Mr. Court’s entries on the computer system chronology were all accurate. Therefore, I find that there is no genuine issue of fact material to the claim against Mr. Court which requires a trial. [ 44 ] The question is then whether the Plaintiff’s claim against Mr. Court has a real chance of success. [ 45 ] The Plaintiff’s claim (para. 9, AAA S/C) - that Mr.

Court refused to dispatch police in order to help the Plaintiff, and only agreed to dispatch if his assailants (i.e. Wal-Mart personnel) called and asked for the police to attend - is totally contradicted by the evidence. [ 46 ] During Questioning, the Plaintiff acknowledged that Mr. Court never said that he was not going to send the police. The Plaintiff’s wife alleged that the Plaintiff was being assaulted for no reason. Barely 1½ minutes into the call, Mr. Court asked the Plaintiff’s wife for the address. Mr. Court deposed that at that point, he had made a decision to have the police sent out.

A manager from Wal-Mart was placed on the line to provide the correct address. She told Mr. Court that the Plaintiff had assaulted a Wal-Mart employee who was attempting to verify that the Plaintiff had a receipt. [ 47 ] When Mr. Court had this information, he specifically directed the Wal-Mart manager (three minutes into the call) to advise the Plaintiff’s wife that he was arranging for dispatch of police and for her to come back on the phone line. She did come back on the line, expressed thanks that police were coming and remained on the line until the first officer arrived. Mr.

Court attempted to defuse the situation through the Plaintiff’s wife. Mr. Court placed a Priority 3 on the call, meaning that there is an incident in progress requiring immediate police response. [ 48 ] I find that there is no evidence to support the allegation that Mr. Court refused to dispatch the police, nor that he insisted on Wal-Mart calling and asking for the police to attend. [ 49 ] The Plaintiff alleges (para. 10, AAA S/C) that Mr. Court failed to act impartially in stating that it is never the store’s fault when it comes to a physical altercation. This is not at all what Mr. Court said.

In the course of gathering information, the Plaintiff’s wife told him that every time they shop at Wal-Mart, they grab her on the way out and have no right to do that. In the phone recording, he told the Plaintiff’s wife that the police are on nobody’s side.

He stated that a lot of times these matters can be sorted out but when “it leads to a physical confrontation it has nothing to do with the store...just, there is a problem in the parking lot ... we’ll come and we’ll see if we can help...” In his Affidavit, he explained his thinking that stores do not fight, rather people fight. [ 50 ] I find that there is no possibility that his actual statement could be construed in any way to support a finding of a lack of impartiality.

Further, even if his comment could be interpreted as reflecting any partiality, there is no possibility that this statement to the Plaintiff’s wife had any material effect on what transpired in the parking lot; there was, in fact, a physical altercation in progress and by the point in time when Mr. Court made the statement in question, the police were already on their way to the store. [ 51 ] The Plaintiff further alleges that Mr. Court demonstrated a lack of impartiality in referring to him on the computer as the “suspect”. Mr.

Court’s duty was to properly collect and evaluate information provided to him about what was occurring in the parking lot. Consistent information was given to him by both the Plaintiff’s wife and the Wal-Mart employee regarding the fact of a struggle. Mr. Court could hear the struggle over the phone. He was told it arose when the manager attempted to check for the Plaintiff’s receipt for the television. He was told that a vehicle was damaged in the struggle. [ 52 ] In the circumstances, there is no possibility that Mr.

Court could be held liable for having identified the Plaintiff in his computer notes as the “suspect”. Mr. Court conveyed the information he was provided, and responded in a very timely fashion on the basis of that information. He acknowledged in the discussion with the Plaintiff’s wife that the police would have to determine what had transpired. The fact that the Plaintiff was ultimately acquitted of criminal charges does not bolster the Plaintiff’s position in this respect. There is no chance that the Plaintiff could succeed in establishing that Mr. Court was biased against him on this basis.

Further, there is nothing in the evidence to suggest that it had any material impact on what occurred when the police arrived at the parking lot as discussed below.

[ 53 ] The Plaintiff further alleges (para 11, AAA S/C) that after talking to one of the people assaulting the Plaintiff, Mr. Court finally dispatched an officer to the aid of the alleged assailants, again suggesting that Mr. Court should have dispatched an officer prior to speaking with Wal-Mart staff. This allegation is simply not supported by the evidence. Mr. Court first decided to call for dispatch of an officer 1½ minutes into the call, consistent with the fact that he asked the Plaintiff’s wife for the correct address. It was clear the Plaintiff's wife was not sure of the street and avenue. Mr.

Court asked her to ask a Wal-Mart employee for the address. She did so, but again gave Mr. Court a confusing address. He asked her to put one of the Wal-Mart employees on the phone. This occurred, and the employee identified herself to Mr. Court as the Wal-Mart electronics manager. Nothing improper can be attributed to the computer entry of the name of the electronics manager, since she provided an accurate address to support the dispatch. [ 54 ] Once Mr.

Court obtained further information, he asked the manager to advise the Plaintiff’s wife that police were being dispatched, and thereafter maintained telephone contact until their arrival. There is no evidence suggesting that Mr. Court had any information that the Wal-Mart employee was involved in the struggle, as suggested by the Plaintiff. The only reasonable inference to be drawn by Mr. Court was that she was observing the incident, as she was available to speak with Mr. Court on the phone. [ 55 ] Having considered each of the Plaintiff’s allegations against Mr.

Court, I find that nothing in the evidence suggests that Mr. Court was not at all times acting within the scope and proper discharge of his responsibilities as described above. [ 56 ] Any speculation that Mr. Court was partial to Wal-Mart from the outset or at any point in his 12 minute involvement is simply not borne out by the evidence. He expressly declined to take a position in his discussion with the Plaintiff’s wife and told her that the police would come and help. It is therefore not even necessary to explore whether, had Mr. Court been partial to one side or another, such bias would be actionable.

The only conclusion which can be drawn from the evidence is that the actions which derived from Mr. Court's brief involvement were exactly what both sides apparently sought: the attendance of police officers on a timely basis to put an end to what had degenerated into a physical struggle. [ 57 ] There being no evidence which could possibly support the Plaintiff’s allegations against Mr. Court, I find no basis for the claim against him. Even on the

interpretation of the circumstances most favourable to the Plaintiff, it is plain and obvious that the action against this Defendant cannot succeed. The Applicant Cst. Vandenberg [ 58 ] In paragraphs 12 to 18, 20 and 21, the Plaintiff alleges that Cst. Vandenberg:

a) arrested the Plaintiff when he arrived without obtaining any facts;

b) searched him without justification for the receipt;

c) arrested the Plaintiff for theft although he had not stolen anything;

d) began his investigation after arresting the Plaintiff;

e) arrested and charged the Plaintiff with two counts of assault while resisting a lawful arrest when the Plaintiff was never lawfully arrested;

f) conducted a negligent and malicious investigation with the intent of causing the Plaintiff emotional, psychological and financial suffering;

g) charged him with three counts of assault and damage to the vehicle and held him in custody for three hours (no defendant is specifically named in relation to this claim);

h) violated the Plaintiff’s ss. 7, 8, 9, 12 and 15(1) Charter rights;

i) acted maliciously in the bringing of the charges of assault and mischief; the Plaintiff did not submit to a search of himself, his wife or his personal property; the search was based on an unfounded accusation of theft. [ 59 ] Cst. Vandenberg deposed in his affidavit that he attended the scene acting on information received through a call from dispatch (DVD Exhibit 1 to his affidavit) and the event chronology (Exhibit 2). The Plaintiff has not suggested that these two exhibits are inaccurate or otherwise unreliable accounts of what occurred. [ 60 ] Exhibit 1 is the recording of the information provided verbally to Cst. Vandenberg prior to arriving at the scene. It contains

the following descriptions of the incident: “...guessing someone’s trying to arrest ... priority 3 call...”; “...fighting them...”; “...stafffighting a guy there, looks like over a tv...”; “...staff fighting with a guy there...”; “...sounds like they’re still fighting...” [61] Exhibit 2 is the event chronology constituting additional information as displayed on the computer screen in Cst.Vandenberg’s patrol car. It contains information inputted by various parties including the 911 operator, dispatch, Cst. Vandenberg andothers involved with the incident.

It contains the following information: “ASSAULT COMMON”; “JUST OCCURRED”; “ADDRESSVERIFIED”; “REPORTER IS MGR AT WAL MART”; “ARE ARRESTING A MALE IN THE PARKING LOT OF THE WALMART”; “SUSP IS FIGHTING WITH STAFF”; “ARE IN FRONT OF THE MAIN DOORS”; “CAN HEAR THE STRUGGLE”;“DISPUTE AROSE WHEN THE MGR WENT TO CHECK RECEIPT FOR A THE TV”; “SUSPECT IS DERRICK MAXWELL”;“STAFF IS HAVING PROBLEMS, WRESTLING WITH SOMEONE IN THE PARKING LOT”; “ADDRESS VERIFIED”; “SUSP SWIFE SAYS [...] A PICK UP TRUCK (DODGE) WAS DAMAGED IN STRUGGLE”. [62] Exhibit 12 is Cst. Vandenberg’s narrative report, dated October 29, 2009.

Exhibits 5 to 11 are seven written witnessstatements obtained by police. They are consistent with his

summary of the information he received from discussions with witnessesafter finding the Plaintiff’s receipt, as outlined in paragraph 19 of his affidavit. [63] In Questioning, the Plaintiff agreed that the situation at the Wal-Mart was charged and tense when Cst. Vandenberg arrived. [64] Cst. Vandenberg deposed in his affidavit that when he arrived at the scene, the Plaintiff was identified by persons present asthe man who was involved in the altercation with the Wal-Mart employees. Someone told him that the Plaintiff had assaulted one of thestore managers. Cst.

Vandenberg deposed that he formed the belief that the incident involved a theft and an assault. Given the tensesituation, he believed it was reasonable and necessary to take control of the situation before proceeding with further investigative steps.He told the Plaintiff that he was under arrest for theft and assault and handcuffed him. [65] The Plaintiff’s allegations can most favourably be itemized as claims of: negligent investigation, wrongful arrest, unlawfulsearch, continued arrest, false imprisonment and malicious prosecution. I will deal with each one in turn.

a) Negligent Investigation [66] The law recognizes a tort of negligent police investigation. The duty of care to suspects is measured by the standard of areasonable officer in similar circumstances at the time. [67] The Supreme Court of Canada explained this standard in Hill v Wentworth Regional Police Services Board, 2007 SCC 41,[2007] 3 SCR 129: 73 ... the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances. This standardshould be applied in a manner that gives due recognition to the discretion inherent in police investigation.

Like other professionals, policeofficers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standardof care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by thereviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range ofreasonableness. So long as discretion is exercised within this range, the standard of care is not breached.

The standard is not perfection,or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing atthe time the decision was made - circumstances that may include urgency and deficiencies of information. The law of negligence doesnot require perfection of professionals; nor does it guarantee desired results. Rather, it accepts that police officers, like otherprofessionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care.

Thelaw distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonableprofessional might have made and therefore, which do not breach the standard of care. [68] Following a review of relevant authorities, Polowin J. in PHE v Ottawa-Carleton (Region) Police Service, [2003] OJ No3512 (Sup Ct Just) held: 55 ...there is no requirement that an arrest cannot be made until a police investigation is completed. As was stated in R. v.

Storrey, ithas long been the rule in Canada and the United Kingdom that the police can continue their investigation after an arrest has been made.Further, a police officer is not required to exhaust all possible avenues of investigation or inquiry, or interview all potential witnesses,prior to an arrest. [69] The law also provides that an officer is not required to obtain a version of events from the person to be charged or otherwiseestablish that the accused has no valid defence before being able to form reasonable and probable grounds: Wong v Toronto PoliceServices Board, (ON SC), 2009 CarswellOnt 7412 at para 59, citing Lawrence v Peel Regional Police Force, (ON SC), [2009] OJ No 1684 (SCJ) at para 48 and Wiles v Ontario (Police Complaints Commissioner), 1997CarswellOnt 6039 (Div Ct). [70] The applicable standard of care requires only that police officers exercise their discretion reasonably.

Cst. Vandenberg hadbeen advised that a struggle had ensued when a manager attempted to check for a receipt for a television. He knew the struggle wasongoing. The situation was tense when he arrived. [71] The Plaintiff points to the fact that during Questioning, Cst. Vandenberg stated that he had not spoken with anybody on thescene before arresting him and that he “wasn’t sure exactly what had happened”. What he actually said in Questioning was that he wasnot sure exactly what had happened, but prior to arriving on scene he believed there had either been a theft or an assault. [72] The standard required of Cst.

Vandenberg was not perfection, as judged in hindsight; it allows for errors in judgment. Thecircumstances in this case included urgency in preventing further assault. Cst. Vandenberg was entitled to rely on the information he hadreceived. He was not required to complete the investigation prior to the arrest. He was not required to exhaust all possible avenues of

inquiry, to interview all potential witnesses, including the person to be charged, or to rule out the Plaintiff’s possible defences. [73] The Plaintiff relies heavily on the fact that Cst. Vandenberg did not pursue a further investigation or speak to anyone at allprior to the initial arrest. However, there is no suggestion in any of the evidence before the Court that the Plaintiff at any time offered upthe receipt which was in his sole control until the search incidental to arrest.

While the Accused may have had no legal obligation to doso voluntarily, that would at least have resolved any confusion regarding the theft. The officer was entitled to act on availableinformation. [74] Given the standard of care as outlined in the foregoing cases, I find that there is no possibility that this claim would succeed.

b) Wrongful Arrest [75]

Section 495 of the Criminal Code provides that a police officer may arrest without a warrant, when he or she has reasonablegrounds to believe that a person has committed or is about to commit an indictable offence. Both assault and theft are indictable offences. [76] Therefore, a lawful arrest is one that is made on reasonable and probable grounds to believe such an offence has beencommitted or is about to be committed. The grounds must be both subjectively and objectively reasonable. Whether the factors availableto Cst.

Vandenberg amounted to reasonable and probable grounds is a question of law: R v Shepherd, 2009 SCC 35, [2009] 2 SCR 527. [77] The Supreme Court has held that there is no need to establish a prima facie case for conviction at the arrest stage: R v Storreyat 251. As mentioned above, an officer is not required to obtain a version of events from the person to be charged, nor to rule out possibledefences to the charge. An officer cannot ignore information which exonerates: Chartier v Quebec (Attorney General), (SCC), [1979] 2 SCR 474 at 499, 104 DLR (3d) 321.

However, a police officer is expected to do what s/he can in the circumstances, andneed not solve the case before arresting someone reasonably believed to have committed an offence: Can v Calgary Police Service, 2013ABQB 226. [78] In McPhee v Ottawa Police Services Board, 2003 CarswellOnt 3670 (Sup Ct Just) one of the complaints as to unreasonablearrest was that the officer failed, among other things, to consider that it was the plaintiff who first placed a 911 call, giving rise to anobligation to consider his version. On a

summary dismissal application, the Court declined to characterize as unreasonable the officer’schoice of information upon which to base the reasonable belief that the plaintiff had committed an offence. [79] Prior to arriving on scene, Cst. Vandenberg received information to the effect that Wal-Mart staff were attempting to arrest amale, the male was fighting with them, and the dispute arose when the manager tried to check for a receipt for a television. The male’swife had reported that a pick-up had been damaged in the struggle. Cst. Vandenberg arrived to a tense and charged situation.

All of thisinformation is supported by the evidence before the Court. [80] Although in Questioning Cst. Vandenberg stated that he arrested the Plaintiff before speaking with anyone on scene, hecorrectly identified the Plaintiff as the male who was involved in the struggle. This is consistent with his affidavit and Questioningevidence that people were pointing fingers identifying the Plaintiff as the man who was involved in the altercation with a Wal-Martemployee. Cst. Vandenberg also stated in Questioning that prior to arriving on scene he believed either a theft or assault had occurred. [81] Cst.

Vandenberg deposed in his affidavit that once he arrived on scene, he formed the belief that the incident involved a theftand an assault. He believed he had reasonable and probable grounds to arrest the Plaintiff for theft and assault. He also deposed that hebelieved that in the tense circumstances, it was reasonable and necessary to take control of the situation before proceeding with furtherinvestigation. [82] Even on the

interpretation of the evidence most favourable to the Plaintiff, Cst. Vandenberg clearly had information whichwould support more than a mere suspicion. Given the information he had received and the state of affairs he observed upon arriving, hemay have been wrong about some aspects of the circumstances giving rise to the physical altercation, but that does not diminish hisgrounds to a hunch or suspicion. [83] The Plaintiff was initially charged with both theft and assault. Either one gives rise to the s. 495 arrest powers. [84] Were Cst. Vandenberg’s grounds objectively reasonable? It is true that Cst.

Vandenberg arrested the Plaintiff for theftalthough he had not stolen anything. It is also true that Groves P.C.J. ultimately held that the attempted arrest or detention by Wal-Martstaff was unlawful and acquitted him of assault. However, neither of these facts was known or apparent to Cst. Vandenberg on arriving atthe scene.

An officer may be mistaken about the facts, as long as the belief is reasonable. [85] As the Ontario Court of Appeal explained in R v Golub (1997), (ON CA), 34 OR (3d) 743 at 750, 102OAC 176: Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxurythe officer can afford. The officer must make his or her decision based on available information which is often less than exact orcomplete.

The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of ajustice faced with an application for a search warrant. [86] I find that there is no chance that the Plaintiff can succeed in his claim that it was not reasonable for a police officer havingreceived this information to conclude that the Plaintiff was probably struggling with Wal-Mart staff after attempting to steal a television.Put another way, it would be entirely reasonable for a police officer to assume that, if the Plaintiff had just recently paid for thetelevision, he simply would have produced the receipt to verify the purchase.

Even if the cashier had not told him to have his receiptready at the door, or if he forgot that advice, it is reasonable to expect that the Accused would show it on a timely basis when asked to doso by store employees. [87] I echo in this respect Groves PCJ observation at the Plaintiff’s criminal trial (transcript, ll 8-13):

There is no doubt that Walmart has every right to protect their property and to take steps to prevent the prevalence of shoplifting byrequiring citizens to produce a receipt for proof of purchase. And thankfully, most citizens understand the necessity for this, andwillingly comply with such a request.

However, in those very rare occasions, when a person decides to conduct themselves contrary tosocietal norms, the Court may need to decide whether such behaviour is criminal. [88] In relation to the Plantiff’s acquittal, it is worth noting that a person who is acquitted of a criminal offence does not by virtueof the acquittal alone have a cause of action against the arresting police officer: P. Ceyssens, Legal Aspects of Policing (Scarborough,Ont: Earlscourt Legal Press Inc., 1997-) at 3-129 and cases cited therein. [89] Cst. Vandenberg might have sought more information prior to the arrest.

However, he knew the struggle had been going onfor some time, it was a significant struggle as it had resulted in property damage to a truck, and the situation was charged and tense whenhe arrived. He drew reasonable inferences, based on societal norms, from the information which had been provided to him. The arrestensured that no further assault would occur. [90] Cst. Vandenberg continued his investigation following the arrest.

The Supreme Court has held that a lawful arrest does notbecome unlawful simply because the police intend to continue their investigation after the arrest: R v Storrey at 254. [91] I find that the Plaintiff’s claim that Cst. Vandenberg committed the tort of wrongful arrest has no chance of success.

c) Unlawful Search [92] The Plaintiff alleges that Cst. Vandenberg searched him without justification for the receipt. Cst. Vandenberg’s evidence isthat he searched the Plaintiff incidental to the arrest to find evidence, weapons or tools of escape. His frisk search revealed the receipt forthe television and as a result no further steps were taken in relation to a theft charge. [93] A search incidental to arrest is justified where it is for the purposes of ensuring police and public safety, protecting evidencefrom destruction, and discovery of evidence to be used at trial.

The police have some discretion in conducting such a search. The searchmust be for a valid objective in pursuing the ends of criminal justice, such as the discovery of an object that may be a threat to the safetyof the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The search must not beconducted in an abusive fashion: Cloutier v Langlois, (SCC), [1990] 1 SCR 158 at 182-183, 186, 53 CCC (3d) 257. [94] In Questioning, the Plaintiff agreed that Cst. Vandenberg was professional and added that “he was a polite, decent guy”.

Thereis no evidence that the search was effected in an abusive manner. [95] Further, it is clear that the search was performed after the arrest, and that the Plaintiff had been involved in a violent strugglethat caused property damage. The law permits officers to search arrested individuals to ensure safety as well as to gather evidence. [96] The search was incidental to the arrest and was for justifiable purposes. It produced exculpatory evidence resulting inwithdrawal of the theft charge. [97] I find that there is no chance that the Plaintiff’s claim of wrongful search can succeed.

d) Continued Arrest [98] Continued detention is only lawful so long as reasonable grounds exist. [99] Cst. Vandenberg deposed that after arresting the Plaintiff, he obtained information from as many witnesses at the scene as hecould in a short period of time. This led him to conclude that the Plaintiff had shoved a store manager when the manager asked to see areceipt for the television. When the Loss Prevention Officers attempted to arrest him for assault, the Plaintiff twisted one of theemployee’s arms and kicked another in the groin. During the altercation, a vehicle was damaged. [100] Cst.

Vandenberg Chartered and cautioned the Plaintiff for assault, mischief and assault with intent to resist arrest. Here theevidence is that Cst. Vandenberg believed that two Wal-Mart employees and other witnesses saw the Plaintiff shove their manager suchthat they had grounds to arrest him, which the Plaintiff resisted. That version of events was fully supported by the seven witnessstatements gathered by both Cst. Vandenberg and the other officer who also attended at the scene. [101] Given the information available to Cst.

Vandenberg at the time, the Plaintiff’s claim that his continued detention was not basedon reasonable and probable grounds has no chance of success. Cst. Vandenberg was not required to determine whether the Plaintiff’spossession of the concealed receipt would ultimately exonerate him from criminal liability for engaging in a violent struggle. I note inthat respect that the trial judge cited law to the effect that acting beyond one’s authority does not necessarily exclude criminal liability forassault on the part of a wrongfully detained person.

e) False Imprisonment [102] The Plaintiff claims that he was held in custody for three hours and that he was humiliated by being jailed. There is nosuggestion in his AAA S/C that the police took an unreasonable amount of time in processing him, nor that there was anything elseparticularly abusive about the circumstances of his custody. There is nothing to suggest that the humiliation the Plaintiff claims to havesuffered resulted from anything beyond the fact of being held in custody. I will, nevertheless, address this issue. [103] Cst. Vandenberg deposed that he arrived on scene at approximately 10:05 a.m.

This is supported by the recordings referred toabove. Cst. Vandenberg cautioned the Plaintiff on the assault charges at 10:13 a.m. He witnessed the signature on one of the witnessstatements at around 10:24 a.m. He then transported the Plaintiff to North Division police station where the Plaintiff was processed andthen released at 12:36 p.m. on a Promise to Appear and Undertaking.

[104] This timeline supports a finding of a maximum of two and a half hours in custody, during which time Cst. Vandenberg searchedthe Plaintiff, withdrew the theft charge, conducted a further brief investigation, arrested and cautioned the Plaintiff, and transported himto North Division. The Plaintiff was eventually released, presumably following completion of paperwork. There is no evidence as to whatspecifically transpired at North Division, nor as to whether Cst. Vandenberg continued to be involved with the Plaintiff until the time ofhis release.

There is no evidence to suggest that the Plaintiff’s processing did not occur in a reasonably timely fashion. There is no claimthat the Plaintiff was purposefully held longer than was necessary or that he was subjected to abusive treatment or conditions. [105] Even assuming that there was some delay in processing the Plaintiff at North Division, the fact is that he arrived there mid- tolate-morning and was released during the lunch hour. [106] I find that the Plaintiff’s claim of false imprisonment by Cst. Vandenberg has no greater chance of success than his claim ofwrongful arrest.

f) Malicious Prosecution [107] In Nelles v Ontario, (SCC), [1989] 2 SCR 170 at 199, the Supreme Court held that in order to establish the tortof malicious prosecution, a plaintiff must prove that:

a) the proceedings were initiated by the defendant;

b) the proceedings were terminated in favour of the plaintiff;

c) there was no reasonable and probable cause; and

d) malice, or a primary purpose other than that of carrying the law into effect. [108] The burden on a plaintiff in a malicious prosecution case is onerous and strict: R v Miguna, (ON SC),[2007] OJ No 512 at para 21 (SC). [109] There is no dispute that the proceedings against the Plaintiff were terminated in his favour. [110] At the Plaintiff’s trial, Groves P.C.J. addressed two issues: 1) whether Wirun had authority to arrest or detain the Plaintiff, andif not 2) whether the Plaintiff could use force to resist the unlawful arrest.

After some analysis, Groves P.C.J. determined that Wirun didnot have authority to attempt to arrest the Plaintiff. However, the trial judge went on to consider criminal liability for assault by thePlaintiff, citing law to the effect that acting beyond one’s authority does not necessarily exclude criminal liability for assault on the partof a wrongfully detained person. [111] It is clear that the decision turned on difficult factual determinations in a criminal law context and involved a consideredweighing of the evidence and the law.

It is also clear that although the Plaintiff was acquitted, Groves P.C.J. was critical of the Plaintiff’sconduct as noted in the transcript excerpts above. [112] Regardless of the extent to which Cst. Vandenberg was involved in the ultimate prosecution of the Plaintiff, I find that thePlaintiff has no chance of success in establishing an absence of reasonable and probable cause, or a primary purpose other thanenforcement of the law. Absolutely none of the evidence even marginally could support an inference of improper motive by Cst.Vandenberg.

I have held that there is no chance the Plaintiff can succeed in establishing a lack of reasonable and probable grounds. [113] Further, the Plaintiff in Questioning indicated that Cst. Vandenberg was professional and polite in his dealings with the Plaintiff.By any measure, the evidence cannot conceivably support improper conduct or a level of gross negligence or recklessness as would be anecessary minimum to consider the possibility of malice. The Applicant Chief of Police Roderick Knecht [114] The Plaintiff did not include grounds for including the Chief of Police as a Defendant.

However, had the Court found anypotential merit to any of the claims discussed above, the Plaintiff may have been permitted to amend his AAA S/C. The claim wouldrequire reference to ss. 39(2) and (3) of the Police Act, RSA 2000, c P-17 which provides that the chief of police is to be treated for allpurposes as a joint tortfeasor in respect of such torts occurring in the course of an officer’s duties. [115] The Court finds neither a factual nor a legal basis to support any tort arising out of police conduct in reference to the Accused.

Inthe absence of any possible liability in relation to the claims examined above, the Court need only conclude that there is no basis forproceedings here against the Chief of Police. Decision [116] Having assessed the legal issues and the evidence before the Court as plain and obvious, the Plaintiff’s claims are dismissed intheir entirety as against the 911 Complaint Officer Ray Court, Cst. Vandenberg, the investigating officer and Chief of Police RoderickKnecht,.

Specifically, their names are to be removed from the Claim and all allegations against them are to be struck out. [117] As to the matter of costs, the Applicants have been successful. The parties are encouraged to resolve the matter of costsaccordingly, failing which I reserve jurisdiction to determine any impasse brought to me within 45 days of this decision.

Heard on the 12 th day of September, 2013 Dated at the City of Edmonton, Alberta this 22 nd day of October, 2013. S.D. Hillier J.C.Q.B.A. Appearances: Derek Alexander Maxwell on his own behalf Sandra J. Weber for the Defendants: Chief of Edmonton Police Service Roderick Knecht, Cst. Daniel Vandenberg and Ray Court