



COURT OF APPEAL FOR ONTARIO

CITATION:

Brown v. Hudson's
    Bay Company, 2012 ONCA 631

DATE: 20120924

DOCKET: C55054

Winkler C.J.O., LaForme J.A. and Cunningham
    A.C.J.S.C.J. (
ad hoc
)

BETWEEN

Collington Brown

Appellant

and

The Hudsons Bay Company (HBC), Linda Mercadante,
    Jane Doe a.k.a. Laura, Bramalea City Centre, Canstar Security Services Inc.,
    Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath, and
    Raphael Waugh

Respondents

Collington Brown, in person

Paulette Pommells, for the respondents

Heard and released orally: September 14, 2012

On appeal from the judgment of Justice Leonard Ricchetti
    of the Superior Court of Justice, dated January 12, 2012.

ENDORSEMENT

[1]

The appellant submits that the motion judge made three errors. First, he
    argues that the motion judge made palpable and overriding errors in his
    findings of fact. We disagree.

[2]

The motion judge clearly explained that even if he found all the relevant
    facts in favour of the appellants position the claims were without merit
    because the requisite elements of the torts alleged could not be made up. In
    reaching this conclusion he made the following critical findings:

(1)   The respondent, Hudsons Bay Company is a lessee from the
    store and its employees requested the attendance of the security personnel to
    ensure the appellant left the store;

(2)   The respondents did not cause the appellants detention,
    rather he caused it himself by failing to leave when asked by all security
    staff do so; and

(3)   The respondents did not threaten or touch the appellant.

[3]

The appellants customer service dispute with the respondents is not
    relevant to proving his claims against them. What the record clearly
    establishes, and as the motion judge found, is that based upon the appellants
    own examination for discovery the respondents never touched the appellant and
    had backed away from the confrontation. This is fatal to the appellants court
    claims against the respondents. This ground of appeal is without merit.

[4]

Second, the appellant submits that the motion judge failed to recognize
    that the respondents had a positive duty under s. 3(1) from the
Occupiers
    Liability Act
, R.S.O. 1990, c. O.2, namely to take such care as is
    reasonable to keep premises reasonably safe for all persons entering the
    premises.

[5]

We reject this ground of appeal. The appellant did not raise this cause
    of action in the statement of claim and it was not considered by the motion
    judge. Even if it had been properly raised on the motion, the
Occupiers
    Liability Act
would not assist the appellant. As is clear from the record
    and in the findings of the motion judge the appellant created the danger to his
    person by refusing to leave the store, not the respondents.

[6]

Third, the appellant argues that the motion judge erred in failing to
    apply the full appreciation test for granting summary judgment as established
    in
Combined Air Mechanical Services Inc. v. Flesch
, 2011 ONCA 764.

[7]

This ground of appeal is also dismissed. Although the motion judge used
    the language, no genuine issue requiring trial, he actually correctly applied
    the proper test. After referencing
Combined Air
, the motion judge
    disposed of the matter because it fell into the second category of
Combined
    Air
.  That is, summary judgment was granted because the claims of the
    appellant were without merit.

[8]

Once again the motion judge found that even if all the facts favoured
    the appellant, the claim he seeked was simply without merit, indeed, and as
    previously referenced the motion judge found that based on the appellants own
    examination for discovery none of the respondents touched the appellant and
    they evacuated from the confrontation.

[9]

Accordingly, the appeal is dismissed.

[10]

The
    respondents costs will be fixed at $3,500 inclusive of disbursements and HST.

Warren Winkler C.J.O.

H.S. LaForme
    J.A.

J.D. Cunningham A.C.J.
S.C.J.


