Tim Hortons employee fired for taking toonie fails in malicious prosecution appeal

Employee claimed store fired her to avoid her maternity leave

An Ontario woman’s claim she was wrongfully accused of stealing from her employer and fired for it has been denied by the Ontario Court of Appeal.

Charlene Walsh worked the counter at a Tim Hortons store in Toronto. In 1999, store management was concerned some employees on the night shift were stealing from the store. Walsh was not one of those under suspicion. A video camera was installed to record what went on for management to review later.

On May 31, 1999, while working at the takeout window, Walsh was videotaped taking a toonie out of the cash register and putting it in the tip jar. The store manager viewed the tape and informed the franchise owner, who told him to call the police. She was charged with theft under $5,000 and fired for theft. The charges were later dropped.

Walsh sued the arresting officer and the store for malicious prosecution, claiming she was only taking her tip out of the register. She said it was common practice to leave tips in the register if it was short on change. Near the end of her shift, she would take her tips out. Walsh was pregnant at the time and she claimed Tim Hortons made up the charges so it could fire her before she went on maternity leave. She also suggested the police followed through with it because they often received free food and drinks from the store. Walsh sought $10 million in damages from Tim Hortons and the police.

The case went to trial in 2006 and a jury found her claims were unfounded. She appealed, arguing the criminal theft accusation was for a single occurrence of taking a toonie, but the case expanded to included other actions on the videotape. The Ontario Court of Appeal upheld the trial decision, finding no basis for Walsh’s claims.

The appeal court didn’t agree the theft accusation hinged on the single occurrence as it had brought up other incidents on the videotape. It also denied Walsh’s claim the jury was misdirected by the trial judge in determining what constituted theft.

“The test for interference with a jury verdict is a high one,” the court said. “None of (the jury’s) findings can be properly characterized as unreasonable.” See Walsh v. 1124660 Ontario Ltd., 2008 CarswellOnt 3163 (Ont. C.A.).

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