T-7306-82
Charles Lawrence LeBar (Plaintiff)
v.
The Queen (Defendant)
INDEXED AS: LEBAR V. CANADA
Trial Division, Muldoon J.-Kingston, Ontario,
October 2, 1986; Ottawa, January 12, 1987.
Crown - Torts - False imprisonment - Crown refusing
or neglecting to give plaintiff benefit of recent Federal Court of
Appeal decision establishing "new" method of sentence com
putation - Plaintiff's devaluation of own liberty by life of
crime considered in assessing general damages - Substantial
exemplary damages awarded for oppressive, arbitrary and
unconstitutional conduct - Penitentiary Act, R.S.C. 1970, c.
P-6, s. 24.2 (as added by S.C. 1976-77, c. 53. s. 41) - Parole
Act, R.S.C. 1970, c. P-2, s. 14(1) (as am. by R.S.C. 1970 (1st
Supp.), c. 31, s. 1; 1977-78, c. 22, s. 19) - Criminal Code,
R.S.C. 1970, c. C-34, s. 137 (as am. by S.C. 1972, c. 13, s. 9;
1976-77, c. 53, s. 6) - Federal Court Rules, C.R.C., c. 663,
RR. 338(2), 1708, 1711.
Parole - Crown obligation, following appeal level decision
establishing method of sentence computation, to apply forth
with said method to all current cases - Crown refusing or
neglecting to recompute plaintiffs release date according to
"new" method - General and exemplary damages awarded
for false imprisonment - Penitentiary Act, R.S.C. 1970, c.
P-6, s. 24.2 (as added by S.C. 1976-77, c. 53, s. 41) - Parole
Act, R.S.C. 1970, c. P-2, s. 14(1) (as am. by R.S.C. 1970 (1st
Supp.), c. 31, s. 1; 1977-78, c. 22, s. 19) - Criminal Code,
R.S.C. 1970, c. C-34, s. 137 (as am. by S.C. 1972, c. 13, s. 9;
1976-77, c. 53, s. 6).
Practice - Judgments and orders - Declaratory judgment
settling interpretation of statutory provision concerning sen
tence computation - Argument Crown free to ignore declara-
tory judgment unless each similarly placed person wins own
declaration, rejected - Matter of stare decisis rather than res
judicata - Binding precedent where same issue arising in
subsequent case.
While the plaintiff was serving terms of imprisonment for
robbery and for escaping while undergoing imprisonment, the
Federal Court of Appeal, on July 19, 1982, in Maclntyre v. The
Queen, [1983] 1 F.C. 603, established a method of computing
unexpired terms of imprisonment where one of the terms was
imposed for escaping. The Crown did not seek leave to appeal
to the Supreme Court of Canada nor did it seek to delay the
coming into effect of the judgment. If that decision had been
applied in the plaintiff's case, it would have entitled him to
release on August 10, 1982, more than two months earlier than
his "expected release date", October 22, 1982. The Maclntyre
decision was handed down three weeks before the "new"
release date according to the "new" method of sentence
computation.
Even though the plaintiffs counsel notified the Correctional
Service of Canada that according to the Maclntyre decision,
his client should be released forthwith, the plaintiff was not set
free until September 22, 1982-43 days after he should have
been according to the newly-established method of computa
tion.
This is an action for declaratory relief and for general and
exemplary damages for negligence and false imprisonment.
Held, the action should be allowed.
The question was the same as that in Maclntyre: the judicial
interpretation of the words "the sentence he was then serving"
in section 24.2 of the Penitentiary Act in relation to the
provisions of subsection 14(1) of the Parole Act and of subsec
tions 137(1) and (2) of the Criminal Code which deal with the
offence of escaping. The Maclntyre decision, even if it resulted
"only" in declaratory relief, stands as a binding precedent—if
not by virtue of res judicata, given the lack of mutuality of
parties—then at least by virtue of stare decisis. It clarified a
part of the method of computation of terms of imprisonment
which, given the complexity and dispersion of the statute law,
cries out for reform.
The judgment of the Appeal Division in Maclntyre took
effect upon its being signed by the judge and, as of then, it
expressed the law on that aspect of sentence computation just
as authoritatively as a statute would. The inference to be drawn
from the unexplained delay in releasing the plaintiff was negli
gence and wilful or wanton disregard of the plaintiff's right to
liberty.
The compensatory general damages for negligence should be
assessed on a per diem basis. The plaintiff should, however, be
compensated only according to the value of that of which he
had been deprived. Given the plaintiff's criminal record and his
more than twenty years spent behind bars, the general damages
for the liberty which the plaintiff himself has so apparently
despised both before and after his "new" release date herein is
set at $10 per day (double the daily wage of an inmate in a
penal institution) for a total of $430.
Exemplary damages should be awarded because the plain
tiffs unlawful imprisonment constituted oppressive, arbitrary
and fundamentally unconstitutional conduct by servants of the
defendant. Unjustified by any explanation, their misconduct
was legally unjustifiable. In light of the case law, exemplary
damages are assessed at $10,000.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Maclntyre v. The Queen, [1983] 1 F.C. 603 (C.A.).
APPLIED:
Emms v. The Queen et al., [1979] 2 S.C.R. 1148; 102
D.L.R. (3d) 198; Can. Transport (U.K.) Ltd. v. Alsbury
and Atty.-Gen. of B.C. (1952-53), 7 W.W.R. (N.S.) 49
(B.C.C.A.); Liberty Ornamental Iron Ltd. v. B. Fertle-
man & Sons Ltd., [1977] 1 F.C. 584 (C.A.).
DISTINGUISHED:
Cavanaugh v. Commission (sic] of Penitentiaries, [1974]
1 F.C. 515 (T.D.).
CONSIDERED:
Canadian Warehousing Association v. The Queen,
[1969] S.C.R. 176; Angle v. M.N.R., [1975] 2 S.C.R.
248; 102 D.L.R. (3d) 193; Minister of Employment and
Immigration v. Widmont, [1984] 2 F.C. 274 (C.A.);
Maxie v. National Parole Board, [1985] 2 F.C. 163
(T.D.); Tanner v. Norys, [1979] 5 W.W.R. 724 (Alta.
S.C.); reversed by [1980] 4 W.W.R. 33 (Alta. C.A.),
leave to appeal refused [1980] 1 S.C.R. xii; Hejduk v. R.
in Right of B.C., [1981] 4 W.W.R. 122 (B.C.S.C.).
REFERRED TO:
Dyson v. Attorney-General, [1911] 1 K.B. 410; [1912] 1
Ch. 158 (C.A.); Bradley v. Town of Woodstock (1978),
22 N.B.R. (2d) 45 (Q.B.); Campbell v. S.S. Kresge Co.
Ltd. et al. (1976), 74 D.L.R. (3d) 717 (N.S.S.C.); Eagle
Motors (1958) Ltd. v. Makaoff, [1971] 1 W.W.R. 527
(B.C.C.A.); Bahner v. Marwest Hotel Co. Ltd. and Muir
(1970), 75 W.W.R. 729 (B.C.C.A.); Roberts v. Buster's
Auto Towing Service Ltd. et al. (1976), 70 D.L.R. (3d)
716 (B.C.S.C.); Hayward v. F.W. Woolworth Co. Ltd. et
al. (1979), 98 D.L.R. (3d) 345 (Nfld. S.C.); Carpenter &
al. v. MacDonald & al. (1978), 21 O.R. (2d) 165 (Ont.
Dist. Ct.).
COUNSEL:
Fergus J. O'Connor for plaintiff.
Donald J. Rennie for defendant.
SOLICITORS:
O'Connor, Ecclestone & Kaiser, Kingston,
Ontario, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
MULDOON J.: The plaintiff sues to recover com
pensation and exemplary damages for negligence
or the intentional tort of unlawful imprisonment.
He is entitled to succeed, but not for the sums he
seeks, and he is entitled to his costs of this action.
The plaintiffs statement of claim together with
his motion for interim injunctive relief, being
release from custody, and his affidavit in support
thereof, were lodged in Court on September 14,
1982. The motion was returnable on September
23, 1982. The plaintiff, in his examination in chief
(Transcript: page 17), recalled that he was
released from the penitentiary on the day before
he was to go to Court, thus placing his date of
release as having been September 22, 1982.
During the summer of 1982, the plaintiff was
serving a term of imprisonment of 14 years for
having committed armed robbery and a subse
quent term to which he had been sentenced for
escape pursuant to section 137 of the Criminal
Code [R.S.C. 1970, c. C-34 (as am. by S.C. 1972,
c. 13, s. 9; 1976-77, c. 53, s. 6)]. It is a matter of
agreement by the respective parties' counsel
(Transcript: page 3) that the plaintiff's expected
release date then was October 22, 1982.
On July 19, 1982, the Appeal Division of this
Court released its decision in the case of MacIn-
tyre v. The Queen, [1983] 1 F.C. 603. At the trial,
the parties' respective counsel agreed (Transcript:
page 2) that paragraph 3 of the statement of
defence might be amended to state—and they
agreed that the fact is:
3. ... The effect of that decision, if it were applied to the
plaintiff, would be to vary the plaintiffs sentence calculation so
as to entitle the plaintiff to release on August 10, 1982.
The salient dates may be tabulated in summary,
thus:
1982 —Summer—the parties were expecting that
the plaintiff would be entitled to be released
from Collins Bay Penitentiary on October
22, 1982;
July 19 —Federal Court of Appeal released its unani
mous decision in Maclntyre v. The Queen,
[1983] 1 F.C. 603;
August 10 —Plaintiffs correct date for release according
to the law's interpretation which was
expressed and decided in Maclntyre;
August 13 —The Correctional Service of Canada,
through notification of the sentence
administrator at Collins Bay Penitentiary,
(all servants of the defendant) were notified
that the Maclntyre decision affected the
plaintiff's duration of his term and that his
solicitor opined that the plaintiff ought to be
released forthwith; (Transcript: page 4)
September 14 —Statement of claim and notice of motion for
interim injunction filed, the latter return
able on September 23;
September 22 —The plaintiff was released from incarcera
tion:
—Defendant's solicitor confirms consent to
the plaintiff's withdrawal of the above-men
tioned motion, without costs;
March 3, 1983 —Statement of defence filed; and
April 11 —Discontinuance of action in regard to all
defendants other than Her Majesty. (The
title of this action has been amended as a
consequence.)
This action came on for trial on October 2,
1986, at Kingston, Ontario. The reason for the
lengthy passage of time from the date on which
this action was at issue in 1983, until the trial in
1986, is probably related to the plaintiff's convic
tion for breaking and entering in March, 1983.
The plaintiff explained this situation in testimony
which is recorded at pages 26 to 28 of the Tran
script. The plaintiff testified that he was released
on or about September 5, 1986, and that he might
nearly have been unable to attend at this trial in
October because of a miscalculation of his term of
imprisonment which would have run until Decem-
ber, 1986, had his counsel not succeeded in having
the error rectified.
LIABILITY
The defendant's counsel argues that the Crown
is not legally responsible for the plaintiff's extra 43
days of incarceration being the period from and
including August 11, 1982, to and including Sep-
tember 22, 1982. Counsel argues that the method
of computation of the term of imprisonment which
was defined in the Maclntyre case was not appli
cable to the plaintiff and that the Crown's servants
were not obliged to apply it to the plaintiff and,
therefore, the Crown is not liable for their failure
to do so. The basis of the defendant's contention is
not a denial that the prescribed method of compu-
tation applied to the plaintiff's circumstances. It
did, and it would still apply to such circumstances.
That is a crucial factor. The defendant's counsel
adduced no evidence at the trial. The defendant's
servants' conduct is factually unexplained and, as
will be perceived, legally unexplainable. Both
counsel are commended for their agreement about
the plaintiff's release date being August 10, 1982,
which they discovered only by application of the
Appeal Division's interpretation of the law in the
Maclntyre case.
The basis of the defendant's contention is,
rather, that because the Maclntyre case resulted in
declaratory relief it is and was "not coercive
against the Crown; that no obligations flow from a
declaratory judgment". (Transcript: page 62.)
Counsel for the defendant concedes that, in prac
tice, governmental authorities implement declara-
tory judgments in regard to all persons in the same
plight and circumstances as a successful plaintiff,
but he adamantly asserts that in law the Crown is
quite free to ignore such a judicial declaration
unless and until each similarly placed person
becomes a plaintiff and wins his or her own par
ticular declaration. Counsel suggested (Transcript:
page 67) "that the proposition of law goes this far:
Even with respect to Maclntyre, Maclntyre's
declaratory judgment alone does not guarantee his
release by virtue of the nature of [a] declaration.
He would have to couple it, properly, with an
application for habeas corpus, or any other coer
cive remedy. Of course, Mr. MacIntyre didn't
have to do that." It may be noted that the remedy
could be mandamus or mandatory injunction (as
the plaintiff sought here) in this Court, to the
same effect as the writ of habeas corpus which a
provincial superior court could issue. The plain
tiff's counsel here chose the most apt proceedings
by commencing an action in which declaratory
relief, injunctive relief and damages are all sought
concurrently, in avoidance of multiplicity of
proceedings.
The defendant's counsel did acknowledge that if
the earlier plaintiff, Maclntyre, had only sued
pursuant to Rules 1708 and 1711 [Federal Court
Rules, C.R.C., c. 663], in a representative capacity
on behalf of himself, Maclntyre and all other
prisoners serving time for escape, having escaped
prior to the relevant date, the Maclntyre decision
might well have bound this same defendant in
regard to the present plaintiff, LeBar (Transcript:
pages 72 to 74.). In that event, counsel noted, Rule
1711(4) would have operated so as to render
Maclntyre's decision res judicata between the
Crown and the plaintiff herein.
In support of the defendant's contentions, coun
sel cites the following jurisprudence, statutes and
learned writings:
Dyson v. Attorney-General, [1911] 1 K.B. 410;
[ 1912] 1 Ch. 158 (C.A.);
Canadian Warehousing Association v. The Queen,
[1969] S.C.R. 176;
Cavanaugh v. Commission [sic] of Penitentiaries,
[ 1974] 1 F.C. 515 (T.D.);
Angle v. M.N.R., [1975] 2 S.C.R. 248; (1974), 47
D.L.R. (3d) 544;
Emms v. The Queen et al., [1979] 2 S.C.R. 1148;
102 D.L.R. (3d) 193;
Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, section 33;
Supreme Court Act, R.S.C. 1970, c. S-19; (1st
Supp.), c. 44; S.C. 1974-75-76, c. 18, sections 14
and 64;
Zamir, The Declaratory Judgment, Stevens &
Sons, London 1962, pages 1 to 3, 247 to 252,
282 to 284;
Sarna L., The Law of Declaratory Judgments,
Carswell, 1978, pages 87, 176 to 178.
It is readily apparent that this Court's decision
in Cavanaugh v. The Commission [sic] of Peni
tentiaries, above, is not germane to the matters in
issue here.
The short reasons for judgment of Mr. Justice
Pigeon for a unanimous Supreme Court of Canada
in the Canadian Warehousing case can be ever
more shortly excerpted in order to extract the
pertinent kernel of authority. By agreement, the
parties submitted a question of law to the Exche
quer Court, in regard to which Pigeon J. is quotec
thus at page 178:
The question was answered in the affirmative by Gibson J
An appeal is now brought to this Court by leave granted b)
Fauteux J. under s. 83 of the Exchequer Court Act as relatin€
to a "matter or thing where rights in future might be bound".
A declaratory judgment is undoubtedly binding on the par
ties as res judicata, not merely by application of the doctrine of
stare decisis. As a direct result of the judgment of the Excheq
uer Court it is no longer open to the appellant to contend ir,
other judicial proceedings that the storage or transportation of
household goods does not come within the purview of s. 32(2)
of the Combines Investigation Act.
In Angle v. M.N.R., the Supreme Court divided
three to two with Mr. Justice Dickson, presently
Chief Justice of Canada, writing the majority
opinion. He is reported to express these came()
explanations of res judicata, including issue estop-
pel, at pages 253 to 255 S.C.R.; 555-556 D.L.R.:
In earlier times res judicata in its operation as estoppel was
referred to as estoppel by record, that is to say, estoppel by the
written record of a court of record, but now the generic term
more frequently found is estoppel per rem judicatam. This
form of estoppel, as Diplock L.J. said in Thoday v. Thoday
([ 1964] P. 181), at p. 198, has two species. The first, "cause of
action estoppel", precludes a person from bringing an action
against another when that same cause of action has been
determined in earlier proceedings by a court of competent
jurisdiction .... The second species of estoppel per rem judica-
tam is known as "issue estoppel", a phrase coined by Higgins J.
of the High Court of Australia in Hoystead v. Federal Com
missioner of Taxation ((1921), 29 C.L.R. 537), at p. 561:
I fully recognize the distinction between the doctrine of res
judicata where another action is brought for the same cause
of action as has been the subject of previous adjudication,
and the doctrine of estoppel where, the cause of action being
different, some point or issue of fact has already been
decided (I may call it "issue-estoppel").
Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd.
(No. 2) ([1967] 1 A.C. 853), at p. 935, defined the require
ments of issue estoppel as:
...(1) that the same question has been decided; (2) that the
judicial decision which is said to create the estoppel was
final; and, (3) that the parties to the judicial decision or their
privies were the same persons as the parties to the proceed
ings in which the estoppel is raised or their privies ....
The question out of which the estoppel is said to arise must
have been "fundamental to the decision arrived at" in the
earlier proceedings: per Lord Shaw in Hoystead v. Commis
sioner of Taxation ([1926] A.C. 155). The authors of Spencer
Bower and Turner, Doctrine of Res Judicata, 2nd ed. pp. 181,
182, quoted by Megarry J. in Spens v. I.R.C. ([1970] 3 All.
E.R. 295), at p. 301, set forth in these words the nature of the
enquiry which must be made:
... whether the determination on which it is sought to found
the estoppel is "so fundamental" to the substantive decision
that the latter cannot stand without the former. Nothing less
than this will do.
Dickson J. further explained at pages 257 S.C.R.;
557 D.L.R.:
As long ago as 1893, Lord Hobhouse said in the Privy
Council in Attorney General for Trinidad and Tobago v.
Eriché ([1893] A.C. 518), at p. 522:
It is hardly necessary to refer at length to authorities for
the elementary principle that in order to establish the plea of
res judicata the judgment relied on must have been pro
nounced by a Court having concurrent or exclusive jurisdic
tion directly upon the point. In the Duchess of Kingston's
Case, Sm. L.C. vol. ii. p. 642, which is constantly referred to
for the law on this subject, it laid down that in order to
establish the plea of res judicata the Court whose judgment
is invoked must have had jurisdiction and have given judg
ment directly upon the matter in question; but that if the
matter came collaterally into question in the first Court, or
were only incidentally cognizable by it, or merely to be
inferred by argument from the judgment, the judgment is not
conclusive.
The question not being eadem questio, I am of the opinion that
this is not a case for application of the principle of issue
estoppel.
Here, in the case at bar, the issue being indeed
eadem questio, and the Appeal Division's resolu
tion of that same question having been a final
decision, the only deficiency from perfect issue
estoppel is that, whereas the Crown is the same
defendant both in the Maclntyre case and the case
at bar, this present plaintiff is LeBar and not
Maclntyre. Thus there is no exact mutuality of
parties, but in light of the circumstances it will be
observed that such lack affords no comfort to the
defendant.
The same question in both cases does not, of
course, exact the very same record of convictions
nor yet the very same release date for both prison
ers. Those factors are different.
The same question or issue in the two cases is
the judicial interpretation of the words "the sen
tence he was then serving" found in section 24.2 of
the Penitentiary Act [R.S.C. 1970, c. P-6 (as
added by S.C. 1976-77, c. 53, s. 41)] in relation to
the provisions of subsection 14(1) of the Parole
Act [R.S.C. 1970, c. P-2 (as am. by R.S.C. 1970
(1st Supp.), c. 31, s. 1; 1977-78, c. 22, s. 19)] and
of subsections 137(1) and (2) of the Criminal
Code which latter provide for the imposition of
terms of imprisonment as punishment for the
offence of escaping while undergoing imprison
ment. The identical issue then is the judicially
declared correct method of computation of the
remaining days to be served in the term of impris
onment imposed by sentence of the court of crimi
nal jurisdiction. The plaintiff articulates that same
question in paragraphs 9 through 13 of his state
ment of claim.
The case of Emms v. The Queen et al., previous
ly cited, is instructive here. There are majority and
minority judgments both concurring in the disposi
tion or result of the adjudication by the Supreme
Court of Canada. The majority judgment written
by Mr. Justice Martland, in which Messrs. Jus
tices Beetz and Estey concur, is marvellously brief
and pithy. The plaintiff Emms had sued for rein
statement and compensation for having been
rejected as a permanent public servant, wrongfully
as he claimed, during a purported extension of his
probationary employment period. Here are the
pertinent passages of the reasons of Martland J.,
at pages 1151 and 1152 S.C.R.; 194 and 195
D.L.R.:
Briefly stated, s. 28 of the statute provides for the position of
employees on probation. The period of probation is to be
established by the Commission. The deputy head may reduce or
waive the probationary period if an appointment is made from
within the Public Service. The deputy head may at any time
during the probationary period, upon giving required notices to
the employee and the Commission of his intention to reject the
employee, set in motion the procedure which results in his
ceasing to be an employee.
The Regulations establish the probationary periods for
defined groups or classes of employees. The probationary
period applicable to the appellant was twelve months. No notice
of an intention to reject the appellant was given during that
period. Instead, the deputy head purported to extend the proba
tionary period for a further six months and the rejection of the
appellant occurred during the extended period.
The extension of the probationary period by the deputy head
was based upon subs. 30(2) of the Regulations.
If the deputy head did not have power to extend the proba
tionary period, then the rejection of the appellant occurred
after his probationary period had expired and could not legally
be justified. The respondent's case, therefore, depends upon the
validity of subs. 30(2) of the Regulations.
Subsequent to the judgment of the Federal Court of Appeal
in the present case, that Court, in the case of Ouimet v. The
Queen ((1978), 21 N.R. 247, [1979] 1 F.C. 55), confirmed the
judgment in the Trial Division [[1978] 1 F.C. 672] that subs.
30(2) of the Regulations was ultra vires of the Commission to
enact. I agree with the reasons delivered by Jackett C.J., for the
Court, for reaching that conclusion.
I am therefore of the opinion that this appeal should succeed.
I agree with the disposition of the appeal proposed by my
brother Pigeon. [Emphasis added.]
It will be noted that the majority express neither
concern about, nor mention of, the question of res
judicata. Nor does the majority judgment trouble
even to consider mutuality of parties. They simply
applied the pronouncement that the impugned sub-
regulation was ultra vires asserted by and in the
Ouimet case, to the issues raised by, and the plight
of, the plaintiff Emms, in the matter before them.
They accepted that the unappealed decision of the
Appeal Division in Ouimet was correct and, that
being so, it interpreted and proclaimed the law to
which servants of the Crown, and the Crown itself,
are bound to render acquiescence and obedience.
That surely is little different, if at all, from the
state of affairs in the case here at bar.
The majority's reasons in Emms were not cited
by the defendant's counsel. Instead, he relied on
the minority opinion, with whose final disposition
of the appeal, only, the majority agreed. Mr. Jus
tice Pigeon, with whom Mr. Justice Pratte con
curred, wrote these passages at pages 1158 S.C.R.;
199 D.L.R. cited by the defendant's counsel:
At the hearing in the instant case, counsel for the respondent
informed the Court that no appeal had been taken from the
Ouimet judgment but invited us to overrule it. When asked why
leave to appeal had not been sought, he could only say that he
did not know but he did not apply for leave or for an extension
of time in which to apply.
I must confess being troubled by this situation. The Crown is
faced with a formal declaration made by the Court below of the
invalidity of the very provision of the Public Service Employ
ment Regulations on which its appeal in this case depends. This
declaration was made in another case and it is allowed to stand
in favour of another claimant but the Court is asked to decide
otherwise as against the appellant herein.
The situation created some anxiety on the part of
Pigeon and Pratte JJ., but no head-on solution or
stated principle, as evinced at pages 1161 and
1162 S.C.R.; 201 and 202 D.L.R., thus:
Thus it will be seen that if a formal declaration of invalidity
of an administrative regulation is not considered effective
towards all those who are subject thereto, it may mean that all
other persons concerned with the application of the regulation,
including subordinate administrative agencies, have to keep on
giving effect to what has been declared a nullity. It is obviously
for the purpose of avoiding this undesirable consequence that,
in municipal law, the quashing of a by-law is held to be
effective "in rem".
Should it be possible for an administrative agency to allow a
declaration of invalidity to stand in a given case while ignoring
it towards other parties, on the chance that in another case it
might succeed in having it overruled by a higher court, if not by
a different judge? Should the situation be viewed in the same
way as in the case of declarations of invalidity of statutes which
seem to have always been considered only as precedents?
After anxious consideration, I find it unnecessary to express
an opinion on this difficult question because, assuming the
respondent is entitled to ask that the judgment in Ouimet be
overruled, I find no reason to do so. No argument was submit
ted to support the validity of s. 30(2) of the Public Service
Employment Regulations which had not been considered and
dealt with by the trial judge and the Federal Court of Appeal
and no error was shown in the decisions rendered thereupon.
The important aspect of this jurisprudence
resides in the common law's notion of stare decisis,
which is imported into all of the public law in and
of Canada, being absent only from the private law
of Québec. The action at bar sounds in tort, which
is a matter of private domestic law, but requires
the interpretation of public law statutes as was
performed by the Appeal Division in the MacIn-
tyre case, above cited. As mentioned in passing by
Pigeon J. in Emms, one ought, in application of his
dictum, to accept that the MacIntyre decision
stands here as a binding precedent. It is, if not
perfectly res judicata so as to bind these parties in
an issue estoppel, then at least it is a matter of
stare decisis by which the defendant ought to
abide in computing the plaintiff's term of
imprisonment.
The defendant's effort in avoidance of a finding
of res judicata because of lack of mutuality of
parties is irrelevant. The legal consequence of the
different facts in this case and that of Maclntyre is
of no consequence. The legal consequence of con
viction of escaping lawful imprisonment—that is,
the correct interpretation of the law—in identical
circumstances to which the law is to be uniformly
applied, is the gravamen of the issue. That correct
interpretation, in such circumstances, now stands
decided. In their commendable article, "Issue
Estoppel: Mutuality of Parties Reconsidered",
(1986) 64 C.B.R. 437, the authors Herman and
Hayden urge Canadian courts to obviate the
necessity of mutuality, as U.S. courts have done.
This is not necessarily the case in which to
embrace their attractive advice.
Of course, if the defendant, by her servants,
decline to abide by the law as proclaimed by the
unappealed and firmly standing decision of the
Federal Court of Appeal, then this Court, which is
bound by the MacIntyre decision, must according
ly visit upon the defendant the consequences of
neglecting or otherwise failing to comply with the
law. The practical approach of the majority of the
Supreme Court of Canada in the Emms case can
hardly be denied. After all it was the same regal
defendant who declined to seek leave to appeal to
the Supreme Court of Canada from the Maclntyre
decision, thereby assuring its finality and authority
as a precedent in and for the case at bar.
Indeed, it would appear that the matter of stay
ing the operation and effect of the Maclntyre
judgment was never raised by the defendant, for it
is not mentioned in the Court's reasons. A case
involving the same solicitor, the Deputy Attorney
General of Canada, was decided somewhat later
with a different appeal panel, but it evinces a
technique which may be useful where serious
consequences can be set in motion before an
appeal can be taken. Thus, in Minister of
Employment and Immigration v. Widmont,
[1984] 2 F.C. 274 (C.A.), at page 294, Mr. Justice
Mahoney, for the majority, is reported as staying
execution of the judgment "until the later of the
expiration of the time fixed for the respondent to
apply for leave to appeal to the Supreme Court of
Canada, the refusal of such leave if sought, or the
rendering of its judgment should leave be grant
ed". Nor does it appear that the respondent in the
Maclntyre case sought to have that judgment post
dated pursuant to Rule 338(2). It is not certain
that either sort of application by the respondent
there (the defendant here) would have succeeded.
However, no record of an attempt either to have a
stay or to persuade the Court to postdate its
judgment being evident leads to the conclusion
that the defendant was content to see the MacIn-
tyre judgment serve as a definitive and authorita
tive expression of the law unless or until it were
reversed on appeal. The defendant here, who was
the respondent in Maclntyre, never sought leave to
appeal to the Supreme Court of Canada.
The computation of terms of imprisonment is
rendered difficult because of the complexity and
dispersion of the statute law. In the case of Maxie
v. National Parole Board, [1985] 2 F.C. 163
(T.D.), the file discloses an affidavit sworn by an
affiant who described himself as "Chief of Sen
tence Administration in the Canadian Penitentiary
Service". His duty is to supervise the calculation of
terms of incarceration imposed on penitentiary
inmates in accordance with advice in law received
from lawyers in the Department of Justice. While
that affiant ought to be an expert, he nevertheless
made six possible computations, each resulting in a
different release date in the Maxie case. Provisions
of law which keep on generating Court decisions
cry out for reform.
However, notwithstanding the difficulty of cal
culating release dates, the Appeal Division in
Maclntyre expressed the method of computing the
terms of imprisonment to which escapers are sen
tenced. The judgment of the Appeal Division
expressed the law just as authoritatively as if its
prescribed interpretation of the statute law had
been veritably articulated in the statute law.
The defendant's counsel avers that in the time
constraints of the circumstances the defendant's
servants were not negligent, nor wilfully or wan
tonly oblivious of the unlawfulness of keeping the
plaintiff imprisoned for 43 days without any war
rant for so doing. The judgment of a superior
court, it is trite to emphasize, has full force and
effect unless and until stayed or reversed on
appeal: Can. Transport (U.K.) Ltd. v. Alsbury and
Atty.-Gen. of B.C. (1952-53), 7 W.W.R. (N.S.)
49 (B.C.C.A.), per Sidney Smith J.A., at page 71.
A judgment of the Appeal Division (as distinct
from reasons for judgment) takes effect upon its
being signed by the presiding judge: Liberty Orna
mental Iron Ltd. v. B. Fertleman & Sons Ltd.,
[1977] 1 F.C. 584 (C.A.), per Jackett C.J., at
page 587. The Court's record reveals that the
Maclntyre judgment was in fact signed on July 19,
1982. The defendant's servants were notified of its
effect in regard to the plaintiff by his solicitor on
August 13, 1982. He was not released until Sep-
tember 22, 1982. The defendant's solicitor knows
the law. The clear inference of that unexplained
prodigious delay is negligence and wilful or
wanton disregard of the plaintiff's right to liberty.
This Court so finds. Pondering the possibility of
seeking leave to appeal further to the Supreme
Court of Canada does not excuse the unlawful
imprisonment. Accordingly, this Court finds that
the plaintiff was, and remains, entitled to have the
term of his imprisonment calculated in accordance
with the judgment in Maclntyre v. The Queen,
signed and released by the Federal Court of
Appeal on July 19, 1982, and now reported in
[1983] 1 F.C. 603. The Crown's servants were
obliged to apply it to the defendant. They refused
or neglected to do so. Accordingly, the defendant
is liable to the plaintiff in damages for having kept
him involuntarily and unnecessarily imprisoned in
Collins Bay penitentiary during the 43 days from
and including August 11, 1982, through Septem-
ber 22, 1982.
Upon the finding of liability being determined,
the considerations of quantum, or perhaps distinct
quanta, of damages, and whether exemplary or
punitive damages are to be awarded, must now be
addressed.
QUANTA OF DAMAGES
GENERAL DAMAGES
The subject of general damages presents itself at
once, since the plaintiff neither claimed nor proved
any specific damages.
As noted by Linden, Canadian Tort Law, (3rd
ed., 1982, Butterworths, Toronto), at pages 44 and
45, "because this tort [unlawful imprisonment] is
a descendant of the trespass action, no actual loss
is required as a prerequisite of recovery."
In addition to the trespass of unlawful imprison
ment and concurrently blended with it, there was
the tort of negligence on the part of the defen
dant's servants. The two torts are so intertwined
here as to be almost indistinguishable except to
note that among the distinct ingredients of the
latter tort is the element of damage having result
ed from the breach of duty. It is possible to argue
that the deprivation of the plaintiff's liberty
deprived him of monetary returns at least the
equivalent of the minimum wage during the days
in prison after he ought to have been released. The
evidence of the plaintiff's past performances in
securing legitimately gainful employment supports
that argument. In view of the other evidence of the
plaintiffs squandering of his liberty both before
and after his unlawful imprisonment, that argu
ment presents only scant possibilities of quantify
ing the plaintiffs true damages. However, for
purposes of assessing a quantum of damages, the
Court considers that the tort of negligence has
been made out at a notionally real, but negligible
quantum of damages.
It must be found on the plaintiff's behalf that,
through his solicitor, he did everything which
could be reasonably exacted, in order to minimize
the damages. It is now known that application of
the law as enunciated in the Maclntyre decision
rendered on July 19, 1982, produced a release date
for the plaintiff of August 10, 1982. Counsel
announced their agreement on that date only at
the opening of the trial. (The need for a clear and
straightforward, consolidated method of comput
ing terms of imprisonment enacted in just one
statute, perhaps with tables or graphs, if needed, is
surely illustrated in the attempts to fix an agreed
date for release in this litigation.) In any event, the
plaintiff's solicitor did notify the sentence adminis
trator at Collins Bay Penitentiary on August 13,
1982, that the plaintiff's term of incarceration was
affected by the Maclntyre decision and that, in his
solicitor's opinion, the plaintiff ought to have been
released forthwith. That is admitted by paragraph
4 of the statement of defence amended nunc pro
tunc on the agreement of counsel at the trial
(Transcript: page 4).
A further attempt at mitigation was undertaken
and is revealed by the pleadings. In paragraph 5 of
the statement of defence the defendant admits
paragraph 17 of the statement of claim, which
runs thus:
By letter, dated August 18th, 1982, the Solicitor-General of
Canada, a servant of the defendant, was notified personally of
the Plaintiff's situation. By a letter dated September 1st, 1982,
the Solicitor-General of Canada personally acknowledged
receipt of the said letter.
Because the effect of the Maclntyre decision
had been known, or ought to have been known,
and appreciated, by the defendant's solicitor and
counsel during the three-week period following
July 19, 1982, the defendant must bear compensa
tory responsibility from and after August 10, 1982,
even although the sentence administrator was for
mally notified only three days later.
Had the Appeal Division's judgment become
effective on or after the correct release date, the
Court would have allowed the defendant a reason
able time of a few days either after the date of the
judgment, or after the date of notice to the defend
ant in mitigation of damages, but, in effect, no
such adjudication needs to be effected in this case.
However, since the judgment took effect long
before the plaintiff's correct release date, it is
reasonable to assess damages for the wrong done
to the plaintiff from and after midnight on August
10, 1982, up to which time the plaintiff could have
been lawfully imprisoned, but not thereafter.
The plaintiff's counsel urges that an apt method
of reckoning the quantum of general damages
would be per diem compensation. That is a reason
able method in this case.
Cases in which compensatory general damages
have been awarded for imprisonment of one day or
a very much shorter period are these, which were
cited for the plaintiff:
Bradley v. Town of Woodstock (1978), 22 N.B.R.
(2d) 45 (Q.B.);
Campbell v. S.S. Kresge Co. Ltd. et al. (1976), 74
D.L.R. (3d) 717 (N.S.S.C.);
Eagle Motors (1958) Ltd. v. Makaoff, [1971] 1
W.W.R. 527 (B.C.C.A.);
Bahner v. Marwest Hotel Co. Ltd. and Muir
(1970), 75 W.W.R. 729 (B.C.C.A.);
Roberts v. Buster's Auto Towing Service Ltd. et
al. (1976), 70 D.L.R. (3d) 716 (B.C.S.C.);
Hayward v. F.W. Woolworth Co. Ltd. et al.
(1979), 98 D.L.R. (3d) 345 (Nfld. S.C.); and
Carpenter & al. v. MacDonald & al. (1978), 21
O.R. (2d) 165 (Ont. Dist. Ct.).
In the Hayward case, exemplary damages were
awarded. In the Carpenter case damages were
separately assessed under two heads, one being
false arrest and false imprisonment and the other
being malicious prosecution.
Cases in which damages were assessed for
allegedly false imprisonment of a few separated
days, and for a term of imprisonment of 30 days,
were these which were also cited by counsel for the
plaintiff:
Tanner v. Norys, [1979] 5 W.W.R. 724 (Alta.
S.C.); and Hejduk v. R. in Right of B.C.,
[1981] 4 W.W.R. 122 (B.C.S.C.).
In Tanner v. Norys, the Trial Judge awarded
what he called "general and aggravated damages"
for each of the three incidents, and exemplary
damages for the latter two. (Counsel did not dis
close to the Court the utter reversal of liability
found by the Trial Judge on the part of a unani
mous panel of the Alberta Court of Appeal,
[1980] 4 W.W.R. 33, nor the refusal of leave on
the part of the Supreme Court of Canada, [ 1980]
1 S.C.R. xii.)
Lieberman J.A., in wholly allowing Nory's
appeal in regard to liability, wrote (at page 66,
W.W.R.):
In view of the conclusions at which I have arrived, it is
unnecessary for me to deal with the question of damages either
as posed by the appeal or by the cross-appeal.
Because the Trial Judge in Tanner v. Norys
assessed both categories of damages in relation to
[page 744] "the defendant's abusive, insolent,
malicious and outrageous conduct regarding the
plaintiff, and his totally unjustified disregard for
the liberty of the plaintiff and the sanctity of his
person", but the Appeal Judges unanimously held
the Trial Judge's conclusions totally wrong and
that the defendant's conduct was justified, one
must regard the Trial Judge's awards in Tanner v.
Norys with some caution.
In the Hejduk case, Chief Justice McEachern,
having regarded the exemplary damages alone of
$10,000 awarded by the Trial Judge for the third
incident in Tanner v. Norys, assessed damages at
$15,000 for Hejduk's imprisonment for 30 days,
but he dismissed the action. He expressed no more
than that in effecting that assessment in the
Hejduk case.
The cited cases are of interest, of course, but in
none are there analogous circumstances or a simi
lar situation with those of Charles Lawrence
LeBar this plaintiff or his lifestyle. Liberty is
sweet. Some folk assert that liberty is essential for
human fulfilment and happiness. In Canada liber
ty is highly prized and is, accordingly, a condition
al right of everyone, which right is conditionally
protected by the Constitution. The liberty to come
and go, to achieve one's best position and status in
society, to be as useful a member of thereof as one
can, to pursue happiness, and ultimately, so long
as one does not subordinate the rights of others or
generally the rights of their legitimate collectivity,
the freedom to be left unmolested by governmental
authorities, are the hallmarks of a civilized, if not
also a free and democratic, society. Liberty, how-
ever, is a conditional right. One can forfeit it by
personal misconduct, or waive it by the free,
informed consent of oneself, or even that of the
majority of Canadians in times of great and dan
gerous emergency. In the above cited jurispru
dence all of the plaintiffs appeared to be individu
als who, all their lives, prized, cherished and
respected their own liberty. All were, in that
regard, very differently situated from the plaintiff
herein.
How has this plaintiff valued and cherished his
own liberty all his life? Since he invokes the power
of the Court to compensate him for a 43-day
deprivation of his liberty, he is to be compensated
according to the value of that, and only that, of
which he has been deprived. Now, because liberty
is a constitutionally protected value, to which
everyone is conditionally entitled, a Canadian
court would always be reluctant to assess liberty's
monetary compensation at naught in any individu
al case. A desparate, depraved and determined
terrorist, a career contract-killer, and any predato
ry person who dedicates his life and talents to
preying on society by habitually fraudulent or
violent misconduct, would however be prime can
didates to have the value of their liberty—to them
selves and to society—assessed at zero. There is, of
course, the eternal hope of rehabilitation, but it
does not enter into the calculus of compensation
for past squandering of one's own liberty.
It must be acknowledged that there is the possi
bility, if not the likelihood, of the plaintiffs
upbringing having been morally deficient or even
savagely brutal, but, if so, he made no mention of
that in his pleadings or oral testimony. One cannot
be blamed for an inadequate moral formation or a
dismal deformation inflicted in childhood. How
ever, enjoyment of the right to liberty exacts from
everyone the prudent effort to preserve it, by not
jeopardizing it through criminal activities.
The plaintiff was first incarcerated in Guelph,
Ontario, in 1942, when he was about fifteen or
sixteen years of age, for a term of two years or
less. He had been previously employed as a stock-
chaser for parts in a factory which manufactured
tanks during the war years. Upon release he again
achieved legitimately gainful employment with
Colonial Dress Company in Guelph, for about
eighteen months. He joined the army, remained in
Canada and was discharged upon the end of hos
tilities in 1945. After he left the army, in Guelph,
he was convicted for "a car incident" as he put it
and again lost his liberty. In 1949 he was convicted
for car theft, he seems to recall, and sentenced to a
term of three years in Kingston Penitentiary from
which he was released in 1952. After holding a job
with Humber Cleaners in Toronto for about four
months he lost his liberty again, having been sen
tenced to Burwash provincial reformatory for a
six-month term upon conviction for taking a car
without its owner's consent. He worked in Guelph
for a dry-cleaning firm and for a Toronto firm
making radar components, but the plaintiff says he
was released from that job because of his criminal
record. The sequence of events, related by the
plaintiff on cross-examination, (Transcript: pages
17 to 28) is somewhat blurred, no doubt because of
lapses of the plaintiff's memory and his distaste for
relating it all in public.
After being released from his job in the radar
factory, the plaintiff found further employment
under a pseudonym in the United States, manag
ing two dry cleaning shops in Pittsburgh. He was
living in the U.S.A. for about two years. In 1962,
in Hamilton, Ontario, the plaintiff was convicted
of two offences of armed robbery and was sen
tenced to concurrent terms of 10 and 14 years
imprisonment respectively. He was lodged in the
penitentiaries in Kingston, Millhaven, Joyceville
and Collins Bay, from which he escaped, and
returned to the U.S.A. staying there about five
years. The plaintiff again found employment,
again under a pseudonym, but was convicted in the
U.S.A. of possession of stolen goods, a cheque
writing machine and a pistol, for which offence he
was sentenced to a term of five years. Upon release
from the U.S. prison the plaintiff was returned to
Toronto where he was taken into custody by the
Ontario Provincial Police to face the charge of
escape. He was returned to Collins Bay, where he
remained until he was released on that significant
22nd day of September, 1982. He was under sen
tence of imprisonment from 1962 until 1982.
Even after he instituted this action, the plaintiff
again squandered his liberty when in March, 1983,
he was convicted, at Toronto, of breaking and
entry and sentenced to a term of two years in
prison. In August, 1983, while in custody for
revocation of mandatory supervision, the plaintiff
suffered a cardiac crisis and received appropriate
medical treatment and medication which he must
continue to take. It is provided free of charge to
him. He also suffers from hernia which has been
surgically treated. He obtained a divorce in 1973.
The plaintiff, at the time of the trial, said he
resides with his sister in Toronto. He said he was
then unemployed but received welfare benefits of
"about $50 a month".
The above recitation indicates why the damages
awarded in the cases cited for the plaintiff are
greater than he can expect to recover here. Upon
becoming sui juris, if one does not exercise that
restraint which nourishes personal liberty but con
tinually victimizes others by means of criminal
depredations, one is responsible for the devaluation
of one's own liberty. Such a person cannot reason
ably require the people and government of Canada
to pay him a princely price for the liberty which he
himself has constantly under-valued and squan
dered. The plaintiff is a virtually life-long tax
consumer who seeks to impose the price of his 43
days of loss of his cheap liberty on the taxpayers of
Canada. Indeed, if all monetary values were coun-
terpoised as sums, it is almost certain that the
plaintiff would owe the people of Canada, whom
he has cheated and robbed, more for food and
lodging, social burden and criminal misconduct
than he could ever pay. In that regard, it may be
wondered why the defendant did not assert a
set-off herein.
How, then, is the plaintiff to be compensated for
his self-devalued, squandered liberty? His behavi
oural record and his subsequent misconduct indi-
cate the probability that, left at large to his own
devices on August 10, 1982, the plaintiff could
well have incurred negative gain during the follow
ing 43 days. Yet, he would (but for how long?)
have been able to draw the sweet air of liberty and,
arguably, might have been able to find legitimate
employment. That counts for something, but in the
plaintiff's particular case, not much. In 1982 he
was being paid a wage of $35 per week in Collins
Bay. If that were his measure of fixed compensa
tion—$5 per day—his damages would be assessed
at $215 for the 43 days. But even to the Charles
LeBars of this world loss of liberty is worth more
than that. Doubling that sum to $10, and realizing
that if he had been so paid over the last 20 years,
1962 to 1982, when he was incarcerated (gener-
ously overlooking his periods of being unlawfully
at large, when self-help was his necessity), it is
evident that he could have emerged from prison in
1982 with ($10 x 365 days x 20) $73,000, plus
interest if he had frugally saved it all. The taxpay
ers of Canada cannot reasonably be expected to
pay more than $10 per day in general damages for
the liberty which Mr. LeBar himself has so appar
ently despised both before and after August 10,
1982. The Court therefore awards the plaintiff
$430 in general damages for his unlawful impris
onment between midnight of August 10, 1982, and
whatever time he was released on September 22,
1982.
EXEMPLARY DAMAGES
Counsel for the defendant pleaded in argument
that there was at the relevant time no computer
whereby the defendant's servants could immedi
ately identify the "20 or so" prison inmates (Tran-
script: pages 73 and 74) out of a total inmate
population of "13,000 people incarcerated in some
seven provinces" (Transcript: page 89) who were
in the same plight as the plaintiff's. As counsel
rightly noted, there is no evidence before the Court
about the necessity of effecting a manual search of
inmate records, but even so, one may in law ask,
"So, what?" Complex as the legislative provisions
are, the judgment in the Maclntyre case did not
further complicate computation of terms of impris
onment. The statutory provisions remain as com
plex as before.
It must be remembered that, through his solici
tor and counsel the plaintiff attempted appropri
ately to mitigate damages by reasonably timely
notification of the defendant's proper servants, and
even the Minister, to the effect that he ought to be
released on the basis of a proper method of calcu
lation declared by the Federal Court of Appeal. If
the prison authorities had set a sentence adminis
trator immediately to the task of computing and
verifying the plaintiff's release date, and if he had
thereupon been released, the Court would not now
be considering exemplary damages. No one would
begrudge the defendant's officials taking several
hours, even a day, after notification, to calculate
the plaintiff's correct date of release.
To ignore the Court's decision rendered the
previous July 19 until September 22, 1982, was to
evade the duty which it lawfully imposed for a
period of 65 days. To ignore the solicitor's notifica
tion of the effect of the Court's decision from
August 13 to September 22 was to purport to
repudiate both the decision and the duty it
imposed for a period of 40 days. That is high-
handed and arbitrary detention of the plaintiff.
The Court's interpretation of the pertinent law, as
already noted, became operative and authoritative
upon its judgment having been rendered.
Exemplary damages are those which are also
called "punitive", "aggravated", "retributory" and
according to Linden (op. cit., page 51) even `vin-
dictive" and "penal". Such a varied, but single-
minded and strong nomenclature certainly conveys
the judicial intention to denounce the defendant's
misconduct. Although keeping the plaintiff unlaw
fully for 43 days after his 20 years of imprison
ment, excepting periods of his being unlawfully at
large, could hardly inflict any additional humilia
tion or loss of reputation upon him, it did consti
tute oppressive, arbitrary and fundamentally
unconstitutional conduct by servants of the defen
dant. In this country where liberty is a constitu
tionally, albeit conditionally, protected individual
right and societal value, it is not tolerable to treat
even this plaintiffs self-cheapened liberty, or
anyone else's precious liberty, with insouciant
disregard.
In all the circumstances here, however, there is
one pejorative quality of the defendant's servants'
misconduct which was not proved on the part of
anyone in particular and which cannot be inferred,
and that is malice. Their negligence and their
oppressive and wilful or wanton disregard of the
plaintiff's right to be released were amply abusive
to support the award of exemplary damages.
Despite reasonably timely notification, they per
sisted in deliberately detaining him in prison until
the day before his motion for a mandatory injunc
tion was returnable in this Court in September,
1982. Unjustified by any explanation, their mis
conduct is legally unjustifiable.
Here in the matter of exemplary damages, the
taxpayers again will have to pay but now a more
substantial assessment for the misconduct of the
defendant's servants. This task of assessment is not
an exact science. The assessment of exemplary
damages must be an adequate disapproval of those
servants' reprehensible misconduct in ignoring the
law whose authoritative interpretation was clearly
signalled to them, and in oppressively, abusively
and deliberately disregarding the plaintiffs right
to regain his conditional liberty and liberation
from unlawful imprisonment. In light of the juris
prudence, which, unfortunately for the assessor of
damages, does not present any exactly, or even
nearly, similar situation, the Court awards the
plaintiff the sum of $10,000 exemplary damages.
The plaintiff is also entitled to his taxable costs
of this action.
CONCLUSION
In summation: the plaintiff will have the judicial
declaration which he seeks, that he is entitled to
have the term of imprisonment to which he was
sentenced calculated in accordance with the Feder
al Court of Appeal's decision in Maclntyre v. The
Queen, dated July 19, 1982; the plaintiff is to be
paid general damages in the amount of $430 by
the defendant; and the plaintiff is to be paid
exemplary damages in the amount of $10,000 by
the defendant; together with his taxable costs of
this action.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.