Date Issued: November 8, 2019

File: SC-2019-003691

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Battie v. Hudson’s Bay Company Compagnie de la Baie d’Hudson, 2019 BCCRT 1273

Between:

JOSEPH BATTIE

Applicant

And:

HUDSON’S BAY COMPANY COMPAGNIE DE LA BAIE
D’HUDSON

Respondent

INTRODUCTION

1.      The applicant, Joseph Battie, was arrested shortly after leaving a department store operated by the respondent, Hudson’s Bay Company Compagnie de la Baie d’Hudson (HBC). The applicant says that his wrist was injured during the arrest. He says that HBC is responsible for his injuries because an HBC employee falsely accused him of theft and participated in the arrest with the Victoria Police Department (Victoria PD). He claims $3,000 for pain and suffering and lost wages.

2.      HBC denies liability because it says that a Victoria PD officer arrested the applicant. The Victoria PD is not a party to this dispute.

3.      The applicant is self-represented. The respondent is represented by an employee.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, both parties of this dispute call into question the credibility, or truthfulness, of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision Yas v. Pope, 2018 BCSC 282, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I therefore decided to hear this dispute through written submissions.

6.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUES

8.      The issues in this dispute are:

a.    Is HBC responsible for the Victoria PD’s arrest of the applicant and the alleged wrist injury?

b.    If so, what damages are appropriate?

EVIDENCE AND ANALYSIS

9.      In a civil claim such as this, the applicant must prove his case on a balance of probabilities. I have read all the parties’ evidence and submissions but I will only refer to what is necessary to explain and give context to my decision.

10.   On February 15, 2019, the applicant was in an HBC department store in a mall. It is undisputed that after the applicant left the store and entered the mall, the Victoria PD arrested and handcuffed him. The applicant says that the arrest injured his wrist, which caused him to miss work. The events leading up to the arrest are contested.

11.   HBC says that its employee did not participate in the arrest. HBC relies primarily on a signed statement from KSC, the security guard who was involved. KSC says that he was in the HBC’s cosmetics department when he saw 3 Victoria PD officers “close in on” the applicant. The applicant left the store and entered the mall. Then, one of the Victoria PD officers yelled to KSC to arrest the applicant because “he’s arrestable”. KSC says that he followed the applicant into the mall and stopped him, identifying himself as security. KSC says that the applicant became agitated and said he was not a thief. Soon, 2 Victoria PD officers arrived, showed their badges, and placed the applicant under arrest, handcuffing him in the process. The Victoria PD officers searched the applicant but did not find a wallet or any other stolen property. The Victoria PD also did not find any stolen property in the mall or the HBC store.

12.   The applicant provided one page of a Victoria PD report of the incident. According to this report, a Victoria PD officer observed the applicant conceal an item in his pants by the wallet stand. I requested that the applicant provide a copy of the entire report, but he responded that he no longer had it. I address this issue below.

13.   I place considerable weight on the Victoria PD report, even though it is incomplete. First, a Victoria PD officer created it on the same day as the incident. Second, it is part of the Victoria PD officer’s job to accurately record the details of an arrest.

14.   The applicant’s submissions about what happened and why HBC should be liable are somewhat hard to follow, but as I understand it, the applicant makes 3 separate arguments. First, he says that KSC assaulted him or otherwise “participated” in his arrest. Second, he says that KSC gave “incorrect information” to the Victoria PD officers, which the applicant says set in motion the events that led to the arrest. Third, he says that HBC had inadequate security, and therefore was unable to prevent the arrest.

15.   With respect to the first argument, HBC alleges that KSC did not touch the applicant, based on KSC’s statement. However, I find that KSC’s statement is not clear on this point. KSC says that he “stopped” the applicant but does not say whether he did so with a verbal command or by physically restraining him.

16.   The applicant’s evidence is also not clear. He initially said that he was injured by HBC’s “hired security” but later acknowledged that it was the Victoria PD that arrested him. He says that the Victoria PD report “does state that HBC security was completely part of the arrest”. However, the portion of the Victoria PD report in evidence does not mention KSC or any other HBC employee. The applicant does not say that KSC physically restrained him before the Victoria PD arrived.

17.   On balance, I find that the evidence before me does not show that KSC touched the applicant before or during the arrest. While the Victoria PD report is not entirely clear, I find that the portion in evidence suggests that the applicant was not physically restrained before the Victoria PD took him into custody. I also find that if the rest of the Victoria PD report included evidence that KSC physically restrained the applicant, the applicant would have provided it instead of just providing one page. In any event, the only injuries that the applicant alleges that he suffered were from handcuffs. There is no suggestion that KSC put the applicant in handcuffs. For these reasons, I reject the applicant’s first argument.

18.   Turning to the second argument, the applicant does not say what “incorrect information” KSC gave to the Victoria PD. The Victoria PD report says that it was a Victoria PD officer who made the initial observation that led to the Victoria PD to suspect that the applicant had stolen a wallet. The report makes no mention of KSC. I find that KSC did not give any information to the Victoria PD before the applicant’s arrest. For these reasons, I reject the applicant’s second argument.

19.   With respect to the applicant’s third argument, the applicant says that HBC’s security was negligent. The general elements of a negligence claim are:

a.    The respondent owed the applicant a duty of care.

b.    The respondent failed to meet the applicable standard of care.

c.    The respondent’s failure to meet the standard of care caused the applicant damage.

d.    The damages were reasonably foreseeable.

20.   The applicant alleges that if HBC had adequate security, then HBC would have known that the applicant did not steal anything. With that knowledge, the applicant says that HBC could have stopped the Victoria PD from arresting him by telling the Victoria PD that he was innocent. Therefore, the applicant says that the arrest would never had occurred.

21.   Assuming that HBC owed a duty of care to ensure that the Victoria PD did not form a false impression that the applicant stole something, I find that HBC did not breach this duty.

22.   By all accounts, the situation was fluid and little time passed between the Victoria PD officer observing the applicant at the wallet stand and the Victoria PD arresting him. There are 2 ways that HBC could have determined whether the applicant had stolen a wallet, either by an employee directly observing the applicant or by an employee reviewing security footage. I find that it is unreasonable to expect that HBC would always have enough security staff to observe every customer while in the store, which is what HBC would need to do to make sure that no police officer ever mistakenly arrested a customer. Also, I find that there was no realistic opportunity for an HBC employee to review its security camera footage and tell the Victoria PD officers that the applicant did not steal anything. For these reasons, I reject the applicant’s third argument.

23.   I find that the applicant has not proven that HBC is responsible for the arrest. With that, it is unnecessary for me to consider what damages, if any, the applicant incurred as a result of the arrest. I dismiss the applicant’s claims.

24.  Under section 49 of the CRTA, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. The applicant has not been successful so I dismiss his claim for reimbursement of tribunal fees and dispute-related expenses.

25.  While HBC did not make a formal claim for tribunal fees and dispute-related expenses, in its submissions it asks for “fees and expenses”. However, HBC did not pay any tribunal fees and did not identify any dispute-related expenses. Accordingly, I decline to order the applicant to pay and tribunal fees or dispute-related expenses.

ORDER

26.  I dismiss the applicant’s claims, and this dispute.