Retailer Falsely Imprisons Shopper By Saying S/He Must Delete Recording Of Being Checked For Shoplif
It has happened to almost everyone. You are shopping and, having completed your purchasing or your browsing, exit the store when the security alarm sounds. Security or staff waves you through or checks your parcels. The question arises as to what you are allowed to do to create a record of the situation should you be charged? Additionally, what rights and responsibilities does a shopkeeper have when checking out whether a theft took place? A recent court decision, which for the first time recognized the defence of "shopkeeper's privilege" in Canada, demonstrates the roles, rights and responsibilities of both shopkeeper and shopper.
The situation giving rise to the lawsuit occurred when Steve Mann was shopping at his local Canadian Tire store. He completed his purchases and exited the store when the store alarm was triggered. A store employee approached him and, according to Mann threatened him saying "leave you die." Mann began to video record the interaction on his phone which apparently concerned the staff. The employee backed away leaving Mann to wander the store. Mann then approached the customer service desk to inquire whether he was free to leave. A second Mann that he would have to remain until a manager deleted the video recording. Mann stopped recording to call a friend. Shortly after, the store manager arrived and told Mann that he was free to go if he erased the video. Mann did so.
Mann, however, was still not allowed to leave. He was told he could leave if he gave his name and address. He did so but was then told that he had to provide identification. Again, he did so. Mann was then told he had to provide a phone number and the phone number had to be checked by staff.
Eventually, Mann was released. On his way out of the store he heard a noise and turned around. He saw two people running in his direction so he started to flee. He was not watching where he was going and he ran into some pipes on the outside of the building.
Mann sued. He claimed that he had been falsely imprisoned and also claimed compensation for the injuries that he sustained when he fled from the store.
The judge took a comprehensive look at the law of false imprisonment as it relates to detention by a shopkeeper. After a comprehensive review of the law in Canada, the United States and the United Kingdom the judge adopted the American approach which grants a "shopkeeper privilege" if a shopkeeper has reasonable grounds to believe a theft is occurring or has occurred. To prevent this privilege from being a " license to detain", the judge set the following perimeters on it:
1. There must be reasonable and probable grounds to believe that property is being stolen or has been stolen from the shopkeeper’s place of business. A security alarm triggered when a person is in the process of leaving the store would be sufficient to provide such grounds.
2. The sole purpose of the detention must be to investigate whether any item is being stolen or has been stolen from the store.
3. The detention must be reasonable and involves inviting the suspect to participate in a search to resolve the issue. The privilege does not bestow a power upon the store owner to search the detainee without consent.
4. The period of detention should be as brief as possible and reasonable attempts to determine whether an item of property is being stolen or has been stolen should proceed expeditiously.
5. If the detained suspect refuses co-operation, the store owner is entitled to detain them using reasonable force whilst summoning the police and until they arrive.
In Mann's case, the right to detain to investigate had been triggered when the security alarm sounded. The store then had the right to detain Mann in order to ascertain whether a theft had occurred or was occurring.
However, the store had not stopped the detention when they realized that Mann had not stolen merchandise. Rather, store employees refused to let Mann go and demanded that he delete a recording he made of the situation. The employees had no legitimate grounds to do so. As such, Mann had been falsely imprisoned.
The judge, however, noted that this imprisonment was of a minimal nature and had not lasted for any significant duration. As such, it is likely that the amount of damages awarded will be small.
Additionally, the judge dismissed the claim for damages that occurred when Mann was fleeing. The judge ruled that it was not reasonable for Mann, who had left the store and was proceeding to depart to assume that someone running on the street was chasing him. Fleeing was not an ordinary or reasonable response.
The Lesson for Shopkeepers: If you have reasonable grounds, such as a security alarm sounding, to believe someone has stolen merchandise you may detain them for the purposes of ascertaining whether a theft has occurred. Please review the criteria set out above with respect to the nature and duration of the detention. You may not, however, demand that the detainee erase any recording of the situation. It was also unwise in this situation to make continual demands asking for further conditions to be met prior to the release of Mann.
The Lesson for Shoppers: If a shopkeeper or employee questions you about a situation, remain calm and respond. Ask whether you are being detained. You may record the situation. Give the shopkeeper a reasonable time to resolve his or her concern. Review the criteria set out above to understand what the shopkeeper is allowed to do. Many situations can be resolved by simply cooperating and communicating.
Mann v Canadian Tire Corporation Limited, 2016 ONSC 4926 https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4926/2016onsc4926.pdf
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