Mr. Nguyen went to Sears wanting a refund and got into an argument with the store manager.Mr. Ahmad, a security guard, told Mr. Nguyen that he had to leave the store.Mr. Ahmad took Mr. Nguyen's elbow and began to lead him out of the store.When they got to the exit doors, Mr. Nguyen pushed the security guard away, perhaps to exit through the doors without Mr. Ahmad's assistance.Mr. Ahmad was quick to react.He put Mr. Nguyen into a headlock, knocking off Mr. Nguyen's glass and cutting his lip.He put handcuffs onto Mr. Nguyen and held Mr. Nguyen in the security office.Mr. Nguyen asked to leave several times; he also asked to call his wife and he asked Mr. Ahmad to call the police.All of his requests were denied.After approximately four hours, the police arrived and charged Mr. Nguyen with battery and causing a disturbance.The charges were later dismissed.

Case to be referred to

This is an action by Rajendra Singh Chopra ("Chopra") against The T. Eaton Company Limited ("Eaton's") and Barry Frauenfeld ("Frauenfeld"), for various types of damages based on a number of causes of action arising out of the Plaintiff's arrest, detention, and criminal prosecution. There is also a counterclaim by Eaton's for trespass.

[2]The incident giving rise to this lawsuit occurred on September 25, 1993 in the Eaton's retail store in the Heritage Mall Shopping Centre in Edmonton. On that date, at approximately 10 o'clock in the morning, Chopra attended at the Eaton's store for the purpose of obtaining a cash refund of the credit balance in his account with Eaton's. Eaton's was unwilling or unable to give Chopra a cash refund as he demanded. There was an argument on the premises. Chopra was arrested by Frauenfeld for causing a disturbance and assault. He was handcuffed, detained for over 4 hours and charged with unlawfully causing a disturbance in a public place contrary tos.175(2)(9)(i) of theCriminal Codeand with unlawfully assaulting Frauenfeld contrary tos.266of theCriminal Code.

[3]Following a trial in the Provincial Court of Alberta, Chopra was found not guilty of all charges. Thereafter, Chopra commenced this action claiming,damages for battery and false imprisonment.

FACTS

[14]I find the facts to be as follows.

[15]At the time of this incident, Chopra was a 64 year old lawyer. He weighed 160 lbs and was 5'9" tall. Frauenfeld was a 40 year old former policeman. He was physically fit, weighed 205 lbs. and was 6'4" tall.

[17]Chopra had returned some footwear which had been purchased by his wife at the Eaton's store in West Edmonton Mall which is the location where the footwear had been purchased. This was in September of 1993.

[18]Instead of crediting Chopra's account for $93.63 for this return, the store clerk erroneously debited Chopra's Eaton's account. Later, Chopra became aware that this returned footwear had been debited to his account rather than credited, and he therefore attended at Eaton's Heritage Mall on September 18, 1993.He went directly to the Cash Office and asked the clerk, Mehta, for a cash refund.

[28]Mehta referred him to the Customer Help Line. Chopra refused to use the Customer Help Line.

[29]Up until Mehta's request that Chopra verify his account balance via the Customer Help Line, the conversation between Mehta and Chopra had been civil and polite. However, following this request, Chopra clearly was becoming frustrated. His tone changed.

[31]Mehta he called Frauenfeld.A few minutes later, he arrived at the Cash Office.

[41]Following Mehta's telephone call to Frauenfeld, Frauenfeld, went to the Cash Office.

[42]Frauenfeld asked Chopra what his problem was. Chopra said he wanted a cash refund. Frauenfeld told Chopra that his account was going to be credited. Chopra, at this point, was becoming frustrated and he got louder. Frauenfeld asked Chopra to lower his voice and came out from behind the counter area.

[44]Chopra's frustration continued. He did not lower his voice as Frauenfeld requested. Then Frauenfeld told Chopra he would have to leave and grabbed him by his elbow and started to walk him out of the store. Chopra protested and continued to protest as he was being escorted out, but he did not physically resist. As they approached the exit, Chopra turned and pushed Frauenfeld away with his hands.

I find that this push was not the commencement of an attack on Frauenfeld, but simply a manoeuvre to push Frauenfeld off his arm. Presumably, Chopra, having been escorted by Frauenfeld holding him at the elbow from the Cash Office to the south doors, wished to free himself from Frauenfeld's grip in order to exit through the doors unassisted.

[46]Frauenfeld's reaction to this push was instant and violent. He quickly spun Chopra around and put him in a headlock and then he handcuffed Chopra.Chopra's glasses were knocked off and he obtained a cut lip, which was bleeding in the corridor.

[48]After being handcuffed, Chopra was placed in the freight elevator. Frauenfeld was no longer holding Chopra in a headlock. Instead, Frauenfeld had Chopra pushed up face-first against the wall of the elevator. Once the freight elevator reached the lower level, Frauenfeld escorted Chopra out of the elevator and into the security office^[5]where Chopra was placed in a chair with his hands still handcuffed behind his back. At various times from when he was placed in the headlock until he was placed in the security office, Chopra stated that he wanted to leave the store. Frauenfeld began to fill out the occurrence report^[6].

[50]Chopra was kept with his hands handcuffed behind his back between one and one and one-half hours. During that time, Chopra asked to phone his wife. Frauenfeld refused permission. Chopra asked for a drink of water^[8]. Frauenfeld refused. Chopra asked Frauenfeld to call the police. Frauenfeld refused to do so until he had all his paperwork completed.

[51]After one to one and one-half hours with Chopra's hands cuffed behind his back, Frauenfeld removed one of the cuffs and handcuffed it to the metal chair in which Chopra had been placed. Thereafter, Chopra was finally given a glass of water. Following that, Frauenfeld took Chopra to the washroom. The washroom door was left open and after Chopra was finished using the washroom, Frauenfeld once again handcuffed Chopra to the metal chair. He remained handcuffed to that chair until a few minutes before the police arrived at 2:40 p.m.

[56]After the Edmonton City Police arrived at the store and spoke to Frauenfeld and read his report, they took Chopra to their police car. There, they charged Chopra with assaulting Frauenfeld.

[58]Chopra retained Mr. John Weir, Q.C. to defend him against the criminal charge. Chopra entered a plea of "not guilty" to the charge. Judge Chisholm found Chopra not guilty of the charge.

ISSUES

[82]The main issues I must decide are as follows:

a.Did Chopra trespass on Eaton's property?

b.Did the Defendants trespass upon Chopra's person?

BRIEF CONCLUSION

[83]I have come to the following conclusions. First, Chopra was never trespassing upon Eaton's property. Second, Frauenfeld and, through his actions, Eaton's, trespassed upon Chopra's person and committed the torts of battery and false imprisonment. Finally, the defendants Frauenfeld and Eaton's are liable for damages totalling $38,000, plus pre-judgment interest, for their treatment of Chopra.

ANALYSIS OF EATON'S COUNTER-CLAIM

[84]I address Eaton's counter-claim first since the result here will impact the substance of Chopra's claims.

[85]A tortious trespass to land occurs if a person enters upon land lawfully, as a "visitor", and then refuses to leave the property once the occupier of that land, or its agent, requests the person to leave the property.

Even a person who has lawfully entered on land in possession of another commits a trespass if he remains there after his right of entry has ceased. To refuse or omit to leave the plaintiff's land or vehicle is as much a trespass as to enter originally without right. Thus any person who is present by the leave and licence of the occupier may, as a general rule, when the licence has been properly terminated, be sued or ejected as a trespasser, if after requestand after the lapse of a reasonable timehe fails to leave the premises.

Therefore, if Eaton's can show that it properly revoked Chopra's licence to enter its property, and that after a reasonable time Chopra remained or refused to leave, then it will have made out its counter-claim for trespass against him.

[86]The evidence satisfies me that Frauenfeld clearly indicated to Chopra that he was no longer welcome in the Eaton's store, and that he would have to leave. Chopra's right of entry was revoked. The more important question is whether Chopra refused to leave. Although he initially may have voiced his reluctance to exit the store, as soon as Frauenfeld put his hand on Chopra's arm to guide him out of the store, Chopra did not resist. He voluntarily began walking towards the door within a reasonable time after the request to leave, and he was not a trespasser at that point in time. Near the door, Chopra pushed Frauenfeld to free himself from Frauenfeld's grasp. This push did not constitute resistance from exiting the store. At best it was resistance against being physically escorted through the door, rather than resistance against leaving the property. I find that Chopra was attempting to leave the store, and was within a few feet of doing so when he pushed himself free of Frauenfeld. He wished to walk through the doors of his own accord, likely as a matter of pride, and I do not consider this to be a refusal to leave the store. If Frauenfeld had done nothing further, I am convinced that Chopra would have continued through the doors and left the store immediately.

[87]Accordingly, I find that Chopra was never trespassing on Eaton's property.

ANALYSIS OF THE PLAINTIFF'S CLAIMS

Trespass To the Person. -False Imprisonment, and Battery.

[88]Chopra's statement of claim alleges facts that if established would support,an action for a trespass to his person based on the torts of battery, and false imprisonment.

A battery is committed by a "person who intentionally causes a harmful or offensive contact with another person": Allen M. Linden,Canadian Tort Law, 6^thed. (Markham, Ontario: Butterworths, 1997), at p.42.

A false imprisonment, generally, is the wrongful imprisonment of one person by another person.

[103]To prove battery, Chopra need only prove that the Defendants intentionally caused a harmful or offensive contact upon him. He has proved this. Frauenfeld, used various degrees of force to carry out the arrest and subsequent imprisonment. The onus is thus on the Defendants to prove that this force was legally justified.

[104]Thecase of false imprisonment is made out if Chopra proves on a balance of probabilities, first, that he was totally deprived of his liberty against his will and without authority, or imprisoned, and, that the deprivation was directly caused by the Defendants.

There is no dispute in the evidence that Chopra was deprived of his liberty for some period of time and that the deprivation was caused by the Defendants. Frauenfeld explicitly told Chopra that he was under arrest, and Chopra was detained. The onus is on the Defendants to prove they were justified in arresting and imprisoning Chopra.

[105]Chopra has made out a case for trespass to the person in battery, and false imprisonment. Therefore, the onus shifts to the Defendants, to justify their actions.

Justification of the Defendants' Conduct Due to Lawful Authority.

[106]The Defendants must show that they had legal authority to use force and commit battery

The Defendants' Use of Force.

[146]On all of the circumstances of this case, I find that Frauenfeld grossly overreacted to Chopra's push, and in arresting him he used excessive force without lawful justification thereby committing battery. Specifically, Chopra was about to leave the premises, and would have done so had Frauenfeld done nothing.

The Private Citizen's Authority to Imprison or Detain.

[148]By definition, an arrest will include some degree of restriction on liberty, and it will constitute an imprisonment in that sense.

[149]The authority provided by law to imprison is not infinite. In order to maintain his or her lawful authority to imprison, an arrestor must always conduct himself within the laws that created the authority to imprison in the first place. Chopra alleges his imprisonment was unlawful and, therefore, false.

Unreasonable Delay in Delivering Chopra to the Police.

[150]Chopra's argument is that the imprisonment was unlawful due to an unauthorized delay in contacting the police and that there was no authority to detain Chopra, as he was not in the process of committing a crime at the time that he was detained.

[152]The right at common law to arrest and detain another who was found committing a felony is limited. An arrestor is required by law to deliver the person arrested to a justice of the peace within a reasonable time to have the charges dealt with expeditiously.

The test in this case, is

1. whether Chopra was committing a criminal act and,

2. whether the Defendants delivered Chopra to the police as soon as was reasonably possible or practicable having regard to the prevailing circumstances. These are questions of fact based on all of the circumstances.

[155]In my opinion, Chopra was not committing a criminal act, as he was not trespassing and the Defendants did not deliver Chopra to the police forthwith.

Frauenfeld and Eaton's by virtue of vicarious liability are liable in false imprisonment.

Conclusion Regarding Trespass to the Person.

[165]Chopra has proved false imprisonment, and battery. In carrying out the arrest, Frauenfeldemployed grossly excessive force and committed unauthorized battery. He was in charge of Chopra's detention, and he imprisoned Chopra for an unreasonably long period. Eaton's, by virtue of vicarious liability, is liable for Frauenfeld's conduct.

DATEDat Calgary, Alberta this 8th day of March, 1999.

1. Mr. Nguyen wants to sue.Who will he sue and why?What claim or claims will he make?What does he have to prove in order to be successful for each claim?

2. Can the defendant raise any defenses?Explain your answer.

3. You are the judge.Make a decision and explain how you came to that decision.

use Canadian example to explain please