2016 QCCQ 5560, 2016 QCCQ 5560

Szewczyk c. Sylvain M. Leroux Entreprises ltée 2016 QCCQ 5560 COURT OF QUEBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-145562-155 DATE: June 13, 2016 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ JOSEPH SZEWCZYK Plaintiff v. SYLVAIN M.

LEROUX ENTREPRISES LIMITÉE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Joseph Szewczyk claims $5,000 in damages from Defendant Sylvain M. Leroux Entreprises Limitée, who operates a Canadian Tire store at Alexis Nihon Plaza in Montreal (the “ Store ”). He claims that he was illegally and arbitrarily detained by employees of Defendant after making a purchase at the Store. [ 2 ] Defendant denies any liability towards Plaintiff.

It claims that its employees were justified to act as they did and that they did not commit a fault giving rise to liability. FACTUAL CONTEXT [ 3 ] On November 20, 2014, Plaintiff went to the Store to purchase a specific food processor seen on the internet, carrying a gym bag. On Plaintiff’s way in, the magnetic detection system (the “ Detection System ”) beeped, but no one stopped him. He went directly to the proper aisle, picked up the item he wanted (the “ Item ”) and paid for it at the cash register. [ 4 ] On his way out, the Detection System beeped again and a staff member, Mrs.

Cristel Brunet Lafrenière, asked to see his purchase and receipt. He complied and she demagnetized the Item, but as she was passing it back to Plaintiff, the Detection System beeped again as he was reaching for the Item. [ 5 ] According to Plaintiff, Mrs. Brunet Lafrenière then refused to hand over the Item and told him that he had to come back into the store to be searched, without providing any explanation or suggesting that he was suspected of any wrongdoing. [ 6 ] In a written declaration filed by Defendant, Mrs.

Brunet Lafrenière states, rather, that she asked Plaintiff back into the store because he became upset when she asked him to go through the Detection System again, which she found suspicious. She states that she would have otherwise told Plaintiff to check (once he was home) for forgotten tags in his clothing or other purchases and would have allowed him to leave. [1] [ 7 ] A manager, Mr. Paul Leroux, then took over. Plaintiff claims that he reiterated the need for a search, which he understood to include a physical search, but Mr.

Leroux claims that he merely asked for Plaintiff to open his gym bag. [ 8 ] When Plaintiff refused, stating that they had no right to search him, a security guard from the Alexis Nihon Plaza was summoned. The police was also called at Plaintiff’s request. Plaintiff was detained by the cash registers while they waited for the police to arrive, where other customers and people walking close by could see him. He claims that Defendants’ employees were rude to him.

At this point, he wanted the security guard to look inside his gym bag, but he refused because the police had been called. [ 9 ] When the police arrived approximately 30 minutes later, Plaintiff voluntarily offered his gym bag for inspection. It contained only his personal effects and the police ascertained that a forgotten tag in his jacket was triggering the Detection System. Plaintiff was then given the Item and allowed to leave. [ 10 ] Plaintiff, who at the time was suffering from anxiety disorder, was much affected by the incident.

He felt humiliated and stressed and affirms that he suffered a panic attack during the incident.

His work was also disrupted for several days. [ 11 ] On the day of the incident, Plaintiff filed an online complaint with Canadian Tire providing a detailed description of the incident and its effect on him. [2] Although Canadian Tire Corporate Customer Relations forwarded Plaintiff’s complaint to Defendant, [3] Plaintiff received no response. [ 12 ] On December 27, 2014, Plaintiff sent Defendant a letter of demand seeking $5,000 in damages following the incident and a formal apology to be published in the local paper no later than January 9, 2015. [4] He filed his Application on January 22, 2015.

ANALYSIS [ 13 ] Plaintiff’s claim is based on

article 1457 of the Civil Code of Québec (“ C.C.Q. ”), which reads as follows: 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act or fault of another person or by the act of things in his custody. [ 14 ] It is also based on the Québec Charter of human rights and freedoms [5] and, more particularly, articles 24 and 49 thereof, which read as follows: 24. No one may be deprived of his liberty or of his rights except on grounds provided by law and in accordance with prescribed procedure. 49.

Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages. [ 15 ] To succeed in his claim, Plaintiff bears the onus of proving, on a balance of probabilities, [6] that Defendant committed a fault giving rise to liability under the above provisions and, also, that he suffered injury as an immediate and direct consequence of this fault. [7] [ 16 ] The Court is of the opinion that Plaintiff has met this burden of proof for the reasons set out below.

a) The fault [ 17 ] Our Courts have recognized the right of store owners to protect their merchandise from shoplifters through reasonable surveillance, including the right to intercept customers and verify whether merchandise apparently purchased has been paid. [8] [ 18 ] They can only do so, however, if they have serious grounds to suspect a customer of theft and they must always act in good faith, reasonably and respectfully.

Detaining a customer for any prolonged period should require exceptionally serious grounds. [9] Otherwise, such interventions will generally be considered to constitute a fault giving rise to liability. [10] [ 19 ] Turning to the facts of this case, the Court wishes to underscore that Plaintiff provided a detailed, credible and coherent account of the incident, which the Court accepts as the most reliable description of the facts. [ 20 ] On the basis of the preponderant evidence, the Court finds that Defendant did not have serious enough grounds to justify a search, let alone Plaintiff’s detention when he refused to be searched.

Moreover, Defendant’s employees should have acted more discreetly (by suggesting, for example, that he wait for the police in a more private area) and respectfully during the incident. [ 21 ] The Court comes to the same conclusion on the basis of Defendant’s version of the facts. Indeed, it is admitted that Plaintiff was not suspected of any wrongdoing while in the store. It is also admitted [11] that the only reason why Plaintiff was not allowed to leave after the Detection System beeped for a second time is that he became upset during his exchange with Mrs. Brunet Lafrenière.

The Court finds, on the basis of the evidence, that the triggering of the Detection System does not necessarily lead to any verification and that the only reason it did here is that Mrs. Brunet Lafrenière found it suspicious that Plaintiff was getting upset. [ 22 ] This was insufficient to justify a search of Plaintiff’s personal belongings and it certainly could not justify detaining Plaintiff when he refused to be searched.

There was admittedly no serious reason to suspect Plaintiff and he should have been allowed to leave. [ 23 ] The Court therefore concludes that Defendant committed a fault giving rise to liability. [12] The fact that a sign placed at the entrance of the Store states that Defendant reserves the right to inspect bags [13] does not affect the Court’s conclusion in this regard.

b) The injury suffered and the appropriate compensation [ 24 ] Plaintiff has proven on a balance of probabilities that he suffered humiliation, stress and anxiety during the incident, more particularly given the very public area in which he was detained.

The Court is also satisfied that the stress and anxiety continued after the incident, affecting the efficiency of Plaintiff’s work for several days. [ 25 ] Given the particular facts of this case, the Court believes that damages in the amount of $2,500 is reasonable compensation for this injury. [ 26 ] Plaintiff has not proven on a balance of probabilities, however, that he suffered loss of income as a result of the incident and no compensation will be awarded in this regard. [ 27 ] Finally, the Court does not have jurisdiction to order Defendant to issue a public apology in a local paper and this aspect of Plaintiff’s claim must be be dismissed.

FOR THESE REASONS, THE COURT:

GRANTS the action in part. CONDEMNS Defendant Sylvain M. Leroux Entreprises Limitée to pay to Plaintiff Joseph Szewczyk the amount of $2,500, together with interest at the legal rate and the additional indemnity stipulated in

article 1619 of the Civil Code of Québec from January 10, 2015. WITH COSTS of $171 representing the judicial stamp on the Application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: February 9, 2016