Rating: NNNNN
Rushing through No Frills at Coxwell and Gerrard on an empty stomach, I grab a chocolate bar from a two-for-$1 bin.
Before I know it, the bar’s gone. I hold onto the wrapper for the cashier and finish my shopping. Outside, as I unload my groceries into the car, a young man approaches and asks about the candy.
For a moment I’m not sure who he is or what he’s talking about, and then I remember the bar.
“Oh, I’m sorry.” I turn toward the store.
“Where are you going?” he asks.
“Back to pay for the bar,” I say.
“I’m afraid it’s too late for that,” he replies. “You’ll have to come inside with me and wait for the police.”
His calm tone contrasts sharply with my growing panic. I can’t believe this. He thinks I stole the chocolate bar. My face is burning, and my palms are starting to sweat.
In a dingy back office, I discover the guy who stopped me outside is a loss prevention officer. He asks how much money I’m carrying. I open my wallet and show him $143. My grocery receipt totals $36.43. He seems convinced I had no intention of stealing the candy, as do the police when they arrive half an hour later.
The young officers are mystified by the absence of evidence. One smirks when I say I’ve eaten it. They ask about memory problems, then call in my driver’s licence before letting me go.
Once again I try to pay for the candy, but instead the loss prevention officer presents me with a form that he asks me to sign. It says I will not set foot on the premises, or any other properties owned by Loblaw, for six months. It also says the retailer has the right to seek damages for lost merchandise and security costs. Eager to get out of the store, I sign.
Outside, I discover that my car has been towed. The police offer me a ride to the pound, where one of them takes pity on me and asks the clerk to cancel the towing fee. He reduces it by half, which, coupled with the ticket, still costs $93. But my nightmare doesn’t end there.
Two months later, I receive a letter from Roy Dullege, a lawyer representing Loblaw, seeking $500.05 in “civil damages.”
Dullege’s letter warns that if payment is not made by the due date, “I will take specific instructions to commence 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.”
According to Dullege, it’s all legal. “The claiming of civil damages was affirmed by the Ontario Divisional Court in Hudson’s Bay v White,” his letter says, while adding that “experience indicates that pursuing shoplifters for such losses reduces the number of shoplifting incidents, resulting in savings which can be passed on to consumers.”
But lawyers I talk to differ with Dullege. They say the letters amount to intimidation and cite as proof another court decision by a Manitoba judge in favour of a Winnipeg mother who won back the $225 in civil recovery “damages” she paid to Zellers after her son got caught shoplifting $59.95 worth of recovered merchandise. The judge in that case opined that the practice of civil recovery amounts to “unjustified enrichment.”
“Civil recovery letters are an example of legal strong-arming,” says Sil Salvatarra of the community and legal aid services program at Osgoode Hall Law School.
Legal aid lawyers say the letters function only to line the pockets of the retailers and legal agencies involved by bullying vulnerable and unsuspecting people into paying what amounts to a fine.
Following the lead of department stores, food retailers in Canada are availing themselves of the practice to recover the costs of shoplifting. The three legal aid clinics in the Toronto area I contact for this story report having dealt with more than 50 civil recovery cases in the past two or three years.
Among the horror stories, I’m told of a grandmother visiting Canada who was slapped with a civil recovery letter for helping herself to a few pistachios. And a mother who was asked for “damages” after her toddler, unbeknownst to her, grabbed a spoon.
For food retailers, it’s a cloesly guarded secret how much money they “recover” through civil recovery.
Neither Dominion nor Loblaw would divulge those figures when I asked. Nor would they say how many civil recovery letters they’ve issued in recent years. Typically, about $200 of each $300 claim goes to the store, the other $100 to the company hired to actually recover the “damages” owing.
A&P spokesperson Tammy Smitham says it sends out recovery letters regardless of the amount of the alleged theft or whether charges have been laid.
Loblaw keeps a tighter lid on its practices. Spokesperson Jeff Wilson declined to respond to questions sent by e-mail about the food chain’s use of civil recovery.
A letter from Loblaw Companies Ltd. vice-president and legal counsel Michael Kimber related to my case makes no apologies for Loblaws charging me $500 for a 50-cent chocolate bar that had already cost me $93.
“Shoptheft costs our company and the Canadian economy hundreds of millions of dollars annually,” Kimber writes. “I trust that you can imagine if you were sitting in our place that everyone has an excuse for what they did, saying they did not mean to, they were forgetful, etc…. Intention is only in the mind, and we cannot be the judge of this, however… we were fully within our rights to do what we did, and I know other retailers take the exact same position.”
Loblaw eventually waived its claim against me after I complained loudly in a letter to company head Galen Weston. Others aren’t so lucky.
“Too many vulnerable people are getting these letters,” says Stewart Cruikshank of East Toronto Community Legal Services. “Paying the settlement amount can mean not paying the rent or buying groceries.”
More legal questions arise when one considers that civil recovery letters are sent out in many cases where there are no criminal charges.
“There is a presumption of guilt where none has been proven,” says Salvatarra. “A mistake does not constitute criminal intent.”
Adds Karen Andrews of Rexdale Community Legal Clinic, “It’s easier for retailers to send out these letters. People may actually pay out of fear.”
Indeed, none of the legal aid lawyers I speak to can recall a case where an accused who has refused to pay civil recovery “damages” has been taken to in court in the last eight years.
That may be because the average $325 retailers are demanding in civil recovery seems excessive, especially in cases where the merchandise is recovered.
Says Cruikshank, “There seems to be no correlation between the value of merchandise involved and the amount requested for settlement. People are being picked up for the smallest things.”
news@nowtoronto.com
