Canada: Civil Recovery

Last Updated: January 27 2015
Article by Edward Prutschi

Let me start by saying I don't condone shoplifting. Seen as a mere nuisance by some, the 'five-finger-discount' is a petty crime that exacts a heavy toll year after year on retailers – be they big box chain stores or mom and pop corner varieties. The cost is initially born by the store-owner but ultimately passed along to lawful consumers by way of increased prices to account for the overhead costs of security and the loss of inventory.

Many shoplifters are doubtless serial offenders with a pathological disrespect for the lawful property rights of others. However, in my experience having represented hundreds of people accused of shoplifting, a significant sub-set are often factually innocent having honestly forgotten to pay for a single item in a long list of things they shopped for that day thus never forming the requisite intent to be found guilty of a criminal offence. Even those who did make the unfortunate choice to steal often arrive in my office in tears, overwrought by guilt and terribly ashamed by their out-of-character lapse. The psychology of shoplifting is difficult to comprehend. There are of course those who shoplift out of desperate need – the many clients I have represented stealing baby formula or children's clothing or groceries. But even more common is the middle-class individual who conceals an item or two from the cashier while paying for dozens of other purchases. When store security search them upon arrest, their wallets are stuffed with a healthy wad of cash and bristle with credit and debit cards. When I question these clients in my office, almost universally I hear a tale of overwhelming stress – a family illness, marital troubles, or a failed project at work. They cannot articulate why they attempted to steal because they cannot understand the decision themselves.

Canadian criminal law addresses this crime with appropriate proportionate justice. Where the quantity of stolen property is relatively small and the offender has little or no prior criminal history,  diversion is offered. The accused accepts responsibility and pays their modest debt to society usually by making a charitable donation or performing a short stint of community service. If any of the stolen property is not immediately recovered, the offender will also be required to make restitution for the loss. Repeat offenders will typically face a discharge coupled with a period of probation or a small fine and the lifetime stigma of a criminal record that comes along with that.

But where the victimized store is part of a large retail chain, it is common to see a brazen attempt to gouge the offender and extract a further pound of flesh for their wrongdoing. Shortly after being charged, it is common for the accused to receive a letter in the mail. The vast majority of these missives (at least in Ontario) appear to emanate from a single Toronto lawyer, using a fill-in-the-blank form letter to demand payment of $595 for damages "based on trespass to goods, trespass to the Retailer's premises, and conversion." I'm not sure what to make of the fact that this lawyer demands that cheques be made payable to "CIVIL RECOVERY" at a Streetsville P.O. Box rather than to his own trust account at his Toronto office. In any event, the form letter goes on to assert that retailers estimate shoplifting costs exceed $4.0 billion and include in this calculation "the cost of apprehension, documentation and inventory control, and loss of sales opportunities." Essentially, the retailer argues: "even though we caught you and recovered 100% of what you tried to take from us, you owe us compensation for all the trouble we went to in catching you. Oh, and throw in a few bucks to cover the losses we incur for those folks we don't  catch."

This claim has always struck me as legally dubious but to a panicked layperson who receives the letter it comes across as frighteningly official. The letter refers to the $595 claim as the "Settlement Amount" and threatens that a failure to pay may lead to "the commencement of legal proceedings against you before a civil court, for all damages, plus interest, legal expenses, and other administrative costs incurred by the Retailer in connection with this matter." Clients are given a 2-3 week window to digest this after which they are warned that the claim amounts will "increase if payment is not made by the noted date." All of these threats are then given a legal stamp of approval as the letter concludes by saying, "the claiming of civil damages was affirmed by the Divisional Court in Hudson's Bay v.White."

No citation is provided for the White case but it's a safe bet that the letter is referring toHudson's Bay Company v. David James White, [1997] O.J. No. 307 (O.C.J. Gen. Div.) and its subsequent appeal at [1998] O.J. No. 2383 (Ont. Div. Ct.) in which The Bay made a claim to recover surveillance, investigation and apprehension costs arising from a shoplifting incident. It's also a safe bet that the authors of these types of demand letters are counting on the fact that none of the recipients of their missives will actually have the means or the desire to readthe case of Hudson's Bay Company v. David James White.  I say this because, having read both the case and its curt appellate endorsement, one would be hard-pressed to describe this precedent as a victory for retailers.

David White selected five pairs of women's gloves with a retail value of $200 and attempted to leave The Bay without paying for them. He was stopped by The Bay's loss prevention officer and the property was recovered. Interestingly, for reasons that are unclear, Mr. White was never charged with any criminal offence. This is significant as judicial commentary in related cases suggests that where a person is prosecuted for shoplifting in circumstances where the retailer suffers no actual loss (since all the property is immediately recovered) the basis for a civil claim of any kind is substantially weakened. In any event, The Bay took the position that Mr. White owed them $2000 in damages for trespass to land (the store) and chattels (the gloves). They further sought a lifetime injunction banning Mr. White from entering any Bay stores in the future.

The court conducted a detailed analysis concluding that White's decision to enter the store for the purposes of shoplifting did indeed constitute the tort of trespass as he had no valid reason for being there. This leaves open an intriguing (and disturbing for The Bay) question: in situations where an individual conducts some  legitimate shopping but also makes an attempt to steal, can the tort of trespass be made out at all? If not, retailers are left with no civil redress against the high number of shoplifters who actually pay for a portion of their purchases while only concealing a small number of items in an attempt to steal. Leaving that aside, the court expresses a great deal of discomfort with the heart of The Bay's claim raising numerous objections including the question of how The Bay can claim damages for the costs of security and loss prevention when, by their own admission, this cost is passed on to consumers by way of higher prices on the goods themselves. "Does The Bay really suffer any loss in the form of loss prevention costs, or do consumers?" asks Justice Lederman.

Justice Lederman concludes that in these unique circumstances – where White entered the store solely for the purposes of shoplifting and where he was never charged with a criminal offence – nominal damages for The Bay should be awarded. The court declined to make any injunction against Mr. White and ordered him to pay the princely sum of $100. Not content with being so badly beaten, The Bay appealed and in a three-line judgment devoid of any reasoning the Divisional Court concluded that the case "cried out for punitive damages" and replaced the $100 award with a whopping $300 recovery.

So what can we learn from the legal odyssey of Mr. White? In some circumstances, shoplifting can indeed incur modest penalties enforced by the civil courts. The Bay set out to win $2000 in damages and impose a lifetime injunction. What they got after a full trial and appeal was no injunction and a cheque for $300. I'm guessing there weren't too many champagne corks popping over in the legal department at the end of the day. Where does that leave the thousands of people each year who receive a demand for a $595 "Settlement Amount"? Are Retailers really going to launch Small Claims Court actions against people who, in most cases, have already faced criminal prosecution, in the hopes of recovering fees that would barely cover their courthouse parking costs? You do the math.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.