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Case Law

Valderhaug v. Libin et al (1954) ABCA

This legacy case established an important shield
against false arrest and false imprisonment

(A1ta., A.D., 1954, C.J. Ford, J.A.) VANERDAUG v. LIBIN 383

SUPREME COURT ALBERTA APPELLATE DIVISION

Before O’Connor, C.J.A., Clinton J. Ford, and Porter, JJ.A

  Valderhaug (Plaintiff) Respondent
v. Libin et al (Defendants) Appellants

Personal Rights – Liberty of the Subject – Use of Police for Collection Purposes.

False Imprisonment – Cheque Given Defendant by Plaintiff Turned Back by Bank – Defendant Informing Police That Plaintiff About to Leave City – Second Cheque Taken by Defendant – Failure oT Defendant to Inform Police That Second Cheque Was Good – Meanwhile Plaintiff Arrested Without Warrant and Taken Into Custody.

The heritage of liberty of the person won by Magna Carta, confirmed by the Petition of Right and defined and developed by the courts in England and Canada, cannot be subordinated to the expediency of collecting a debt without statutory authority.

On appeal from a judgment awarding the plaintiff damages for false imprisonment held, dismissing the appeal, that the trial judge was correct in finding that the defendant (appellant) H. L. Libin, partner of the other individual defendant, was responsible for the imprisonment of the plaintiff (who was taken into custody by a police officer after he, Libin, had called at the police station and informed one of the detectives there of the facts as he then knew them) and in finding that he, Libin, had no reasonable grounds for believing that the plaintiff had committed a crime.

He not only set the criminal law in motion, but directly caused the arrest. It was not a case where he placed facts before the police officers for them to investigate and act according to their discretion. In so far as he had the power or influence to do so, he directed them to make the arrest.

The case differed in this respect from Wing Lee v. Jones (1953) 9 WWR (NS) 322, 1953 Can Abr 477 (Man.) relied upon by appellants’ counsel. It fell within Stonehouse v. Elliott (1795) 6 Term R 315, 1 Esp 272, 170 ER 354, and other cases cited in the Wing Lee case at p. 327.

[Note up with 2 CED (CS) Imprisonment, secs. 30-34; 3 CED (CS) Personal Rights (l949, 1951, 1952, 1953 Supps.).]

Appeal by defendants Libin from a judgment by Fraser, D.C.J. for damages for false imprisonment and from his dismissal of a third party notice. Appeal dismissed with costs.

T. H. Miller, for defendants, appellants.
J. A. Ross, Q.C., for plaintiff, respondent.
W. G. Chipman, for third party.
October 25, 1954.

The judgment of the court was delivered by CLINTON J. FORAD, J.A. – This is an appeal from the judgment of His Honour H. B. Fraser, D.C.J.

Plaintiff: The plaintiff alleged that he sustained damages as the result of libel and wrongful imprisonment by the defendants. The learned trial judge awarded him $300 for defamation by the defendant bank, and $375 for false imprisonment by the other three defendants.

Defendants: These defendants had given a third party notice to the bank, claiming indemnity for any sum that might be awarded against them. This was dismissed with costs.

Bank: The bank did not appeal from the judgment, but the other three defendants brought this appeal in respect of the judgment against them, and also from the dismissal of the third part notice.

Appellant Counsel: Appellants’ counsel stated that the appeal was on a question of principle as it was difficult for a business man to know what to do under circumstances such as existed in this case. When the appeal is thus placed before the court it seems proper that the court’s view of what was done by the appellant to ensure the collection of a debt be expressed in no uncertain language.

Facts of the Case: The facts are fully set out and certain of them discussed by the learned trial judge, and a résumé only of those most important need be given:

The respondent bought a new portable radio from the appellants’ store in Edmonton, and gave in exchange a second-hand radio and his cheque for $75 to cover the balance of the purchase-price. The cheque on the bank was made out at the store by a clerk. It was on a savings account the plaintiff neglected to put the number of the account on it. As a result, and because the officials of the bank had difficulty with his signature, and did not properly decipher it, the cheque was returned with the notation No a/c. Please give number.

The appellant, H. L. Libin, manager of Radio Centre, called the bank manager and spoke to him over the telephone about the cheque, and said he spelled out to him the name of the drawer, but this did not result in the account being discovered. Mr. Libin attended at the Edmonton city police station and made a complaint to one of the detectives based on the facts as he had found them. Mr. Libin also sent an employee to the address of the plaintiff listed on the invoice but he was not at home and the employee was advised by the landlady that he intended to leave the city for Vancouver very soon.

At 6 o’clock on December 9, 1953, Mr. Libin went to the address of the plaintiff and found him at home. Mr, Libin was shown a passbook of the bank, balanced to October 27, 1953. The balance was $486. He received another cheque for $75.

Previous to this, at about 5 o’clock on the same day, Mr. Libin had gone to the police again and informed them that the plaintiff was about to leave the city but, after having interviewed the plaintiff and having accepted the cheque, he did nothing further about it that day. The respondent was arrested without warrant about 7 p.m. on the same day and taken to the police station, where he remained in custody in a police cell with other prisoners until about midnight, when he was released on bail.

On the morning of December 11 he was arraigned, pleaded not guilty to the charge that with intent to defraud he obtained a portable radio from Radio Centre by false pretences. The case was remanded for a week.

In the meantime, Mr. Libin had learned by inquiring of the bank over the telephone that the second cheque was good, and he sent an assistant to the police station to have the charge withdrawn. For an undisclosed reason this was not done but the respondent was successful later in the day in having the case brought up again in the afternoon, when the charge was withdrawn, leaving him free to go, as he had intended, to the school in Los Angeles where he was taking a course in T.V.

On these facts the learned trial judge held that there were no reasonable grounds for the appellant, Mr. Libin, to believe that the plaintiff had committed a crime.

After hearing the argument this court dismissed the appeal with costs, stating that reasons would be given later. The appeal from the dismissal of the third party notice was also dismissed with costs for the reasons given by the trial judge.

The action is one for false imprisonment and not for malicious prosecution. There was no information or complaint laid before a magistrate on which a summons or warrant might have been issued, and the question of malice does not arise as on such a proceedIng. Under the older form of pleading, the action would be one for trespass for false imprisonment, and not an action on the case for malicious prosecution: Stonehouse v. Elliott (cited below).

The plaintiff was taken into custody the police officer without a warrant, and the real issues are whether or not the defendant, H. L. Libin, was responsible for the imprisonment, or, if so, whether or not it was justified.

See Lamont, J. in Washburn v. Robertson (1912) 3 WWR 209, at 211, 22 WLR 490, quoted by Williams, C.J.Q.B. in Green v. Pike and Bagley (1953) 8 WWR (NS) 369, at 372, 61 Man R 81, 16 CR 354; also Wing Lee v. Jones (1953) 9 WWR (NS) 322, at 325, 61 Man R 206, and the cases there cited.

On the first question the trial judge has found in effect, on the facts stated, that the appellant, H. L. Libin, was responsible for the imprisonment of the plaintiff, and we agree with his finding. He not only set the criminal law in motion, but directly caused the arrest. It is not a case where he placed facts before the police officers for them to investigate and act according to their discretion. The arrest was the direct consequence of what he told them was about to happen, and without investigation by any police officer into the facts. In so far as he had the power or influence to do so, he directed them to make the arrest.

The case differs in this respect from that of Wing Lee v. Jones, supra, relied upon by appellants’ counsel. It falls within the cases cited on p. 327 of the (WWR) report of that decision, viz., Stonehouse v. Elliott (1795) 6 Term R 315, 1 Esp 272, 170 ER; 354,and others also cited therein.

The defendant, H. L. Libin, must justify his action. He could do so by proving that there were reasonable and probable grounds for so believing and that he did believe – or, as it is sometimes stated, that he held a reasonable and honest belief – although I prefer the former since it is the tribunal before which the issue is tried that must be satisfied that justification existed; and those are the words used in sec. 30 of the Criminal Code, RSC, 1927, ch. 36, authorizing a peace officer to arrest without warrant in certain cases, and in sec. 33 authorizing any person to arrest without a warrant where a crime has been committed for which the offender might be arrested without a warrant, and there are reasonable and probable grounds for suspecting the person arrested of having committed it.

We agree on this issue also with the trial judge. He pointed out the fact that the plaintiff produced a bank account showing the recent balance, and stated that this should have been a warning that there was possible error in the matter of the endorsement of "No account," more so than if the cheque had be n marked N.S.F.

In my view, the trial judge exercised considerable restraint when, in giving judgment, after referring to the above fact, he said:

He [Mr. Libin] should have gone to the police and asked them to delay action pending further investigation but he didn’t; he went home, apparently preferring to jeopardize the Freedom of the plaintiff than to lose the $75.00.

I would add to this that the heritage of liberty of the person won by the Magna Carta, and confirmed later in the Petition of Right, as it has been defined and developed by the courts in England and Canada, cannot be subordinated to the expediency of collecting a debt without statutory authority. What was done is contrary to our concept of civil liberty.

The point was not raised as to whether the actions of the one partner in the circumstances of this case would bind the other, and no consideration has been given to it. Consequently, the judgment as entered against all the defendants will stand.

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
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