Superior Court upholds no‑damages jury verdict in personal injury action against mall guards

On May 3, 2003, the plaintiff in Brown v Bramalea City Centre et al., 2026 ONSC 2398, attempted to return and obtain a refund for a vacuum cleaner bought at a department store in the mall. 

After his arrest for trespassing at the store, the plaintiff filed a personal injury action asserting race and racial stereotyping or profiling as a central theory. He argued that the guards racially profiled him with stereotypes of Black men, which impacted how they treated him before, during, and after his arrest. 

At the jury trial, witnesses included use-of-force experts who testified regarding the arrest and doctors who testified about the alleged injuries. Last Feb. 14, the jury rendered its verdict answering the jury questions. The jury found that the defendants: 

• had reasonable and probable grounds to arrest the plaintiff for trespass because he did not leave the store immediately after an authorized person asked him to go 
• did not use race or racial stereotypes in their treatment of the plaintiff (question #2) 
• reasonably used the arrest power under Ontario’s Trespass to Property Act, 1990, against the plaintiff in the circumstances (question #3) 
• used reasonable force in arresting the plaintiff (question #4) 

The jury assessed the plaintiff’s damages at zero for these categories: 

• general, non-pecuniary damages for pain, suffering, and loss of enjoyment of life (question #5(a)) 
• human rights damages 
• past lost income until the time of the trial (question #5(c)) 
• future loss of income, loss of earning capacity, and loss of competitive advantage 
• aggravated damages 
• punitive damages 

The plaintiff moved to not enter judgment under the verdict. He asserted a lack of evidence to support some jury findings. Opposing the motion, the defendants alleged that some trial evidence supported the verdict. 

Jury verdict affirmed

The Ontario Superior Court of Justice dismissed the motion. On a liberal interpretation and a reasonable construction of the trial record, the court determined that the jury had sufficient evidence to reach its verdict for questions #2, 3, 4, 5(a), and 5(c). 

Regarding question #2, the court found that the jury had evidence indicating that the plaintiff had more opportunities to leave the premises than others would have received, on account of his race, before the guards moved to arrest him. 

Regarding question #3, the court ruled that the jury had evidence suggesting that the plaintiff had acted disruptively, constituting grounds for the jury to see a justification for recourse to the arrest power under the Trespass to Property Act. 

Regarding question #4, the court held that the jury heard some evidence supporting its finding that the defendant mall security guards used reasonable force in arresting the plaintiff. 

The court noted that no witnesses corroborated the plaintiff’s claim that the guards savagely and repeatedly struck or hit him. 

On the other hand, the court pointed to the evidence of the defence’s physiatry expert, which indicated an inconsistency between the plaintiff’s alleged injuries and the way the guards supposedly struck or hit him. The doctor testified that the plaintiff: 

• likely sustained sprain and strain-type injuries to his right shoulder and wrist from struggling with the guards, being wrestled to the floor, having his arms positioned behind him, and being handcuffed 
• did not sustain any bony damage or dislocation, based on his normal X-rays from the day of the incident 
• did not present any tendon tears, impingement, or other abnormality, based on subsequent ultrasound imaging 
• showed inflammatory changes and tendonitis, commonly arising from overuse or degeneration without traumatic injury, based on a magnetic resonance imaging scan of his right shoulder years later 

Regarding questions #5(a) and (c), the court decided that the jury had adequate evidence to find that the plaintiff had experienced no mental injuries and no inability to pursue income-generating activities or find employment due to the incident. 

The court noted that the jury did not need to accept the plaintiff’s opinion evidence stating that he had personal injuries and difficulty working or earning income. 

The court deemed the jury entitled to reject the plaintiff’s credibility. The court emphasized that credibility issues, including concerns over subjective symptoms or feigned or exaggerated claims of mental injury, were factual questions entrusted to triers of fact.