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Employer must pay damages to employee for "false imprisonment" during theft investigation

Jurisdiction: - British Columbia
Sector: - Retail Trade

In Kalsi v. Greater Vancouver Associate Stores Ltd. 2009 BCSC 287, the BC Supreme Court awarded a fired employee $6,500 in damages for "false imprisonment" during the employer's theft investigation.

Mr. Kalsi had been employed as a mechanic by a Canadian Tire store for 16 years. He was 36 years old and off work on disability at the time the incident occurred.

Specifically, he was accused by the store's security officer of attending to the store on May 20, 2005 and stealing a light bulb for his vehicle.

After confronting Mr. Kalsi, the security officer told Mr. Kalsi to follow him up to the lunchroom. It was Mr. Kalsi's evidence that, once in the lunchroom:

  • the security officer questioned Mr. Kalsi;
  • the security officer required Mr. Kalsi to write out a statement;
  • the security officer told Mr. Kalsi he should contact a lawyer;
  • he was required to wait for about an hour for the security's officer supervisor to arrive;
  • he was questioned by the supervisor for a period of time;
  • he was told by the supervisor that he should say he stole the light bulb "and things will be ok and we can all go home". Yet when Mr. Kalsi then said, "I stole the bulb but it was not my intention", the supervisor told home he was fired;
  • that when Mr. Kalsi's lawyer phoned him back on his cell phone, the supervisor told Mr. Kalsi not to answer it;
  • that Mr. Kalsi was crying, shaking and upset by the end of the meeting;
  • that at the conclusion of the meeting, the supervisor told Mr. Kalsi that he was being suspended for a month, that he was not to come back and that matters would be dealt with later.

In total, Mr. Kalsi was in the lunch room for two and half hours. There was no evidence, however, that Mr. Kalsi had ever asked or attempted to leave, or that he had been clearly blocked from leaving.

The employer subsequently laid a formal complaint with the police. Two weeks later, the police contacted Mr. Kalsi and told him to pick up an appearance notice, which he did. Two days before the hearing date, however, the police advised that they would not be proceeding with the matter.

After at least one other meeting with the employer in the interval, Mr. Kalsi was requested to attend the employer's office on September 13, 2005. At the meeting he was advised his employment was being terminated for cause and that there would be no severance pay.

Damages for False Imprisonment

This argument focused on sections 493 and 494 of the Criminal Code. Section 494 states that a person who is not a police officer may "arrest" a person in certain circumstances. Section 493 requires that anyone making such an arrest shall "forthwith deliver that person to a police officer".

Mr. Kalsi's lawyer took the position that if the employer had thought a theft had occurred, it should have advised Mr. Kalsi of the reasons for his detention, read him his Charter rights and called the police, but that this was not done.

Mr. Kalsi's lawyer further argued that, because no theft had in fact occurred, Mr. Kalsi: (1 ) was arrested without "lawful authority" and (2) falsely imprisoned when was detained by the security officer for over two hours.

On this point, the court concluded that the security officer "initially had reasonable grounds to detain Mr. Kalsi. What failed to happen thereafter was to promptly or forthwith deliver Mr. Kalsi to a police officer" (at para. 321).

The court further stated, "I find the lengthy detention and failure to notify the police transformed an initially lawful detention into an unlawful detention" (para. 323).

Notably, the court did not address the fact that there was no evidence that Mr. Kalsi had ever asked or attempted to leave, or was clearly blocked from leaving.

The court went on to state that it was not expressing any opinion on the alleged breach of the Charter rights, but that Mr. Kalsi was entitled to "nominal" damages of $6,500 for false imprisonment.

Reasonable Notice and Wallace Damages

The court found that Mr. Kalsi was entitled to a 16 month reasonable notice period. This despite the fact that: (1) he was a 36 year old mechanic; (2) there was no evidence that he had supervisory or managerial functions; (3) Mr. Kalsi lawyer's had argued that 13 to 14 months was reasonable. The court did point to the fact that Mr. Kalsi had been on disability, although did not expressly tie this into the four "Bardal" factors.

The court, however, refrained from awarding Wallace damages, finding that the same facts that led to the false imprisonment, as well as others facts surrounding the dismissal, did not amount to "bad faith". Notably, the court did not address whether it amounted to "unfair dealings".


This is not a particularly well-reasoned decision and for reasons pointed out above, and others, is susceptible to appeal. As such, its long-term implications on workplace investigations is uncertain.

However, it would be prudent for employers to:

  1. ensure that their investigatory meetings are conducted in a reasonable time frame; and
  2. advise the employee who is being questioned/investigated that:
    • they are free to leave at any time; but
    • if they leave without answering the questions, it could adversely effect their continued employment.