Mann v. Balaban et al., [1970] SCR 74

Supreme Court of Canada

Mann v. Balaban et al., [1970] S.C.R. 74

Date: 1969-10-07

Warren Mann (Plaintiff) Appellant;

and

Walter Balaban

and

Fersu Hotel Limited (Defendants) Respondents.

1969: June 10, 11; 1969: October 7.

Present: Martland, Judson, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Assault—Alleged unlawful assault by beverage room waiter causing severe injuries to customer—Contradictory evidence—Onus of proof—Whether jury misdirected by trial judge—No objection at close of charge—New trial.

The plaintiff arrived at the defendant hotel company’s ladies’ beverage room at about 6 p.m. and sat at a table occupied by a woman with whom he was living as man and wife. She had been there since about 2 p.m. About 9 p.m. a noisy altercation developed between them. The defendant B, who was the bar manager employed by the company, testified that on several occasions he asked them to keep quiet. He said that when their language “really got rough” he walked from behind the bar, put his hand on the plaintiff’s shoulder and ordered him to get out. The plaintiff had no memory as to what occurred following the argument with his companion, but evidence given on his behalf was to the effect that B violently and without cause struck the plaintiff with the result that the plaintiff fell striking his head heavily on the tile floor. The evidence by B and supported by evidence of other customers was that he merely touched the plaintiff’s shoulder and arms and drew him to his feet and then left him standing while he turned to pick up the plaintiff’s jacket and the plaintiff, due to his intoxicated condition, fell to the floor and struck his head.

An action for assault against B and his employer was tried before a jury. The following question was answered by the jury in the negative: Did the defendant Balaban, without lawful excuse, commit an assault and battery on the plaintiff Mann? On the

[Page 75]

basis of this answer, the action was dismissed. On appeal, the Court of Appeal, by unanimous decision, dismissed the appeal. An appeal to this Court was taken solely on objection to the charge of the trial judge to the jury, the objection being that the trial judge misdirected the jury in saying that the onus of proof was on the plaintiff with respect to the issues of justification, lawful excuse and the use of reasonable force.

Held: (Martland and Judson JJ. dissenting): The appeal should be allowed and a new trial granted.

Per Hall, Spence and Pigeon JJ.: In an action for assault, it has been established that it is for the plaintiff to prove that he was assaulted and that he sustained an injury thereby. Then it is upon the defendant to establish the defences, firstly, that the assault was justified and, secondly, that the assault even if justified was not made with unreasonable force.

The trial judge did not put the case to the jury in accordance with these principles. In such a case as the present, where the evidence was wildly contradictory, the jury should be carefully instructed on which of the two parties bore the burden of proving a particular fact or establishing the particular issue.

The misdirection might well have affected the verdict and caused a miscarriage of justice. Therefore, despite the fact that no objection was made by counsel for the plaintiff at the close of the charge, the appeal should be allowed and a new trial granted.

Per Martland and Judson JJ., dissenting: The charge to the jury, in the light of the pleadings, the evidence adduced, and the agreement of the parties as to the issue to be put to the jury, was a proper one. In the circumstances, the jury was not called upon to determine whether a particular degree of force was or was not excessive. If the jury believed the story told by the plaintiff’s witnesses, the force used was obviously excessive. If they believed the defendant’s story, no assault had been committed at all. That was the position at the conclusion of the trial, and in the light of all the evidence the question of onus was no longer of any significance.

Furthermore, even if the charge could be said to be inadequate in relation to the matter of onus of

[Page 76]

proof, there was no substantial wrong or miscarriage of justice occasioned to the plaintiff which would permit the ordering of a new trial within the requirement of s. 28(1) of The Judicature Act, R.S.O. 1960, c. 197.

[Cook v. Lewis, [1951] S.C.R. 830; Miska v. Sivec, [1959] O.R. 144; O’Tierney v. Concord Tavern Ltd., [1960] O.W.N. 533; Ristow v. Wetstein, [1934] S.C.R. 128; Leslie v. The Canadian Press, [1956] S.C.R. 871, referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal from a judgment of King J., which was rendered on the verdict of a jury and in which the plaintiff’s action for assault was dismissed. Appeal allowed and new trial ordered, Martland and Judson JJ. dissenting.

J. Sopinka, for the plaintiff, appellant.

G.H. Lochead, Q.C., for the defendants, respondents.

The judgment of Martland and Judson JJ. was delivered by

MARTLAND J. (dissenting)—This case involves an action for assault against the defendant, Balaban (hereinafter referred to as “the defendant”), and his employer, Fersu Hotel Limited (hereinafter referred to as “the Company”). The incidents which gave rise to it occurred in the Ladies’ Beverage Room in the Company’s hotel, in Galt, Ontario, during the evening of December 23, 1965, when the defendant sought to have the plaintiff leave the premises.

The action was tried before a jury, which, in answer to the following question, gave the following answer:

Question 1: Did the defendant Balaban, without lawful excuse, commit an assault and battery on the plaintiff Mann?

Answer: No.

On the basis of this answer, the action was dismissed, no order being made as to costs. An appeal to the Court of Appeal of Ontario, by unanimous decision, was dismissed, with costs. There were no written reasons. The present appeal is from that judgment.

[Page 77]

There was a sharp conflict in the evidence presented at the trial, in respect of some of the incidents which had occurred. The plaintiff arrived at the hotel at about 6 p.m. and was seated at a table, with Evelyn Killoran, with whom he was living as man and wife. She had been there since about 2 p.m. About 9 p.m. a noisy altercation developed between them.

The defendant, who was the bar manager employed by the Company, on several occasions asked them to keep quiet. The defendant said that when their language “really got rough” he walked from behind the bar, put his hand on the plaintiff’s shoulder and ordered him to get out.

The evidence as to what then occurred is conflicting. The plaintiff had no memory as to what occurred, but Mrs. Killoran said that, without having said anything, the defendant hit the plaintiff on the side of the head, picked him up and threw him hard on the floor. Two other witnesses said that the defendant had thrown the plaintiff to the floor.

The defendant said that, after being told to leave, the plaintiff started to get up. He was not steady on his feet, and the defendant grabbed him to prevent his falling. When the plaintiff got to the aisle, near the table where he had been sitting, the defendant released his hold, and the plaintiff fell to the floor. This version of the incident was supported by several other witnesses.

The plaintiff struck his head on the floor and sustained serious injuries.

Following the evidence, the learned trial judge charged the jury. No objection, save as to one minor matter, not relevant to this appeal, was made by counsel for the plaintiff. The questions put to the jury were framed with the agreement of counsel for all parties.

Counsel for the appellant, in this appeal, contends that there was misdirection, or non-direction, in the charge to the jury, as to the onus of proof, occasioning a miscarriage of justice to the appellant.

[Page 78]

The objection to the charge relates chiefly to the following passages in it:

Now, in this action the plaintiff, Mr. Mann, says he was unlawfully assaulted by the defendant, Mr. Balaban, and that he sustained damages by reason of the injuries he suffered because of this assault. If the plaintiff is to succeed, he must prove it and he must prove it on the reasonable balance of probabilities. In other words, for the plaintiff to succeed you members of the jury must be satisfied that he was probably assaulted without lawful excuse by the defendant, Mr. Balaban, and that, as a result of this, he probably sustained damages and, if this has been done, you will then assess a sum which will reasonably compensate Mr. Mann for such damages.

Now, in addition to this, if the plaintiff is to succeed against the defendant hotel company, you must be satisfied not only that Mr. Balaban probably assaulted the plaintiff without lawful excuse, but that he did so in the course of his employment with the defendant hotel company. As I have said, in so far as this trial is concerned, an assault without lawful excuse may be defined as the intentional application of unlawful force by the defendant to the person of the plaintiff.

* * *

Now, for the plaintiff, of course, the case is that Mr. Balaban used excessive force under the circumstances; that the force he used was unreasonable and was entirely out of proportion to what the occasion required. That is what the plaintiff submits. It is for you to say whether that is true or not. You see, for the plaintiff, Mr. Mann, it is said, “Well, let us say he was arguing in the beverage room. Let us say he was using foul language. Let us say he was creating some disturbance that nevertheless, assuming all this to be the case, there should have been some way for Mr. Balaban to remove him from the premises without fracturing his skull.”

* * *

Now, there is the case pretty well, you see. For the plaintiff the case is that there was an excess of force used that Mr. Balaban came around and that he picked the plaintiff, Mr. Mann, from the chair and threw him on the floor. That is one part of the case.

* * *

Well, there is the one story of Mr. Balaban with force that was unreasonable and unwarranted so it

[Page 79]

is submitted by the plaintiff picking the plaintiff up out of the chair and by the excess of force causing him to find himself on the floor of the beverage room with a fractured skull.

And the other picture that is presented by the defence is that the defendant, Balaban, in keeping order in the beverage room, as he was entitled to do, assisted, and was assisting, the plaintiff to get from the chair in which he was sitting out so that he could be removed from the beverage room and that he wasn’t using any more force than was reasonable or necessary to accomplish that purpose. And that he had previously asked the plaintiff to leave, but the plaintiff had not left.

Immediately following the passage just cited, the learned trial judge went on to say as follows:

Now, it is for you to say what you believe in connection with this. You have heard all the witnesses as to just what occurred.

Now, this is what I would like to say to you, and this is the law, with respect to this matter of expelling a person from premises. If you wished someone to leave your premises ordinarily no force at all is justified until he has been requested to leave and has been given a reasonable opportunity to leave. If it becomes necessary to use force to make someone leave your premises then it is lawful to use only such force as may be necessary to accomplish that purpose. It is not lawful to use more force than is necessary to accomplish that purpose. Where greater force than necessary or reasonable has been used to expel an intruder that constitutes an unlawful assault. That is an assault without lawful excuse and the intruder is entitled to compensation for the excess of force so used.

It is argued that the learned trial judge should have directed the jury that, if the plaintiff proved an assault, the onus shifted to the defendants to prove that such assault was justified or made with lawful excuse and that the force used was reasonable. Reliance was placed upon the judgment of the Court of Appeal of Ontario in O’Tierney v. Concord Tavern Ltd.[1], in which it was held that the trial judge had misdirected the jury when he said, when instructing them in an action for assault, arising out of the plaintiff’s ejection from a tavern, that the burden of proof

[Page 80]

was on the plaintiff to show that the defendant used excessive force.

The report of the case states:

The Court was unanimous in the opinion that on that ground the appeal must succeed. It had been laid down in Miska v. Sivec, [1959] O.R. 144, that in an action of this nature where the defendant set up a plea of justification for the force used, the burden of proving that the force used was not excessive in the circumstances rested upon the defendant.

The defendant, in the present case, did not set up any plea of justification. The plaintiff, in his statement of claim, pleaded as follows:

4. The Defendant Walter Balaban was employed with the Royal Hotel as a waiter and unlawfully committed a grievous bodily assault upon the Plaintiff, causing severe, painful and personal injuries and causing personal injuries to the Plaintiff.

The defendant, by his statement of defence, denied this.

Counsel for the plaintiff, in his opening remarks to the jury, outlined what he proposed to prove, as follows:

Now, I propose to call evidence which will show that Warren Mann was a patron and a customer at the Royal Hotel and he was sitting in the ladies’ beverage room and he was sitting with his lady friend who he lives with in a common law relationship. They had lived so for a year or so. It was their custom to imbibe at the Royal Hotel in Galt and did on this date which was December 23rd, 1965.

Now, I propose to call evidence which will indicate that they were having an argument regarding a proposed trip by Warren Mann to Toronto and getting money for the trip from Mrs. Mann. And while this was going on, I will call evidence to indicate that Mr. Walter Balaban, the bar manager, who was standing behind the bar, came out from behind the bar and struck and threw Mr. Warren Mann to the floor.

It is clear that counsel for the plaintiff did not contest the right of the defendant to eject the plaintiff, under the circumstances, because, in the course of his charge, the learned trial judge said this:

You see, for the plaintiff, Mr. Mann, it is said, “Well, let us say he was arguing in the beverage

[Page 81]

room. Let us say he was using foul language. Let us say he was creating some disturbance that nevertheless, assuming all this to be the case, there should have been some way for Mr. Balaban to remove him from the premises without fracturing his skull.”

The issue before the jury was stated in the question, which had been agreed upon by counsel:

Did the defendant Balaban, without lawful excuse, commit an assault and battery on the plaintiff Mann?

It is in the light of these circumstances that the charge to the jury must be considered and it must be considered as a whole, and in relation to the evidence which had been adduced. The plaintiff’s case, upon the evidence of his witnesses, was that he had suffered serious injuries as a result of having been hurled to the floor by the defendant. The defendant’s case was that there had been no assault causing injury to the plaintiff. If the laying of his hand by the defendant on the plaintiff’s shoulder could be regarded as a technical assault it was abundantly clear that that act could not and did not cause any injury to the plaintiff. According to the defendant’s evidence, supported by witnesses, apart from this act, all that the defendant did was to steady the plaintiff, when he rose to his feet, to prevent his falling.

The essential issue was, therefore, clear. Did the jury accept the plaintiff’s contention that he had been thrown to the floor, or the defendant’s contention that the plaintiff had not been thrown to the floor.

In the circumstances of this case the jury was not called upon to determine whether a particular degree of force was or was not excessive. If the jury believed the story told by the plaintiff’s witnesses, the force used was obviously excessive. If they believed the defendant’s story, no assault had been committed at all. That was the position at the conclusion of the trial, and in the light of all the evidence the question of onus was no longer of any significance.

[Page 82]

That issue was clearly stated by the learned trial judge in the passage from his reasons, already quoted, when he said:

Well, there is the one story of Mr. Balaban with force that was unreasonable and unwarranted so it is submitted by the plaintiff picking the plaintiff up out of the chair and by the excess of force causing him to find himself on the floor of the beverage room with a fractured skull.

And the other picture that is presented by the defence is that the defendant, Balaban, in keeping order in the beverage room, as he was entitled to do, assisted, and was assisting, the plaintiff to get from the chair in which he was sitting out so that he could be removed from the beverage room and that he wasn’t using any more force than was reasonable or necessary to accomplish that purpose. And that he had previously asked the plaintiff to leave, but the plaintiff had not left.

Now, it is for you to say what you believe in connection with this. You have heard all the witnesses as to just what occurred.

In my opinion the charge to the jury in this case, in the light of the pleadings, the evidence adduced, and the agreement of the parties as to the issue to be put to the jury, was a proper one. Furthermore, even if the charge can be said to be inadequate in relation to the matter of onus of proof, in the circumstances of this case I can find no substantial wrong or miscarriage of justice occasioned to the plaintiff which would permit the ordering of a new trial within the requirement of s. 28(1) of The Judicature Act, R.S.O. 1960, c. 197, which provides:

28.—(1) A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question that the judge at the trial was not asked to leave to the jury, or by reason of any omission or irregularity in the course of the trial, unless some substantial wrong or miscarriage has been thereby occasioned.

I would dismiss the appeal with costs.

The judgment of Hall, Spence and Pigeon JJ. was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pro-

[Page 83]

nounced on March 4, 1968. By that judgment, the Court of Appeal dismissed, without written reasons, an appeal from the judgment of King J. pronounced on February 2, 1967. That judgment was rendered on the verdict of a jury and was one in which the plaintiff’s action was dismissed.

The action was for damages which the plaintiff sustained in the premises of the defendant Fersu Hotel Limited on December 23, 1965. In the statement of claim, the plaintiff alleged that the defendant Walter Balaban, being an employee of the Royal Hotel as a waiter, unlawfully committed a grievous bodily assault on the plaintiff causing severe injuries. The defendant Balaban denied that he unlawfully committed an assault on the plaintiff and alleged that he was acting in the course of his employment and on the instructions of his employer. The defendant Fersu Hotel Limited also pleaded that the defendant Balaban had not committed an unlawful assault and further that if he had done so he was not acting in the course of his employment.

Counsel for the respondent in this Court relied on the issue set up in those pleadings and submitted that the jury’s answer had been simply a factual one that no assault had occurred. However, when one refers to the evidence at trial, it is clear that the plaintiff’s claim was that he had been assaulted and assaulted unlawfully, and the defendant put in issue that the assault was merely a technical assault, that was fully justified and that no unnecessary force had been used. The defendant also sought to prove that the plaintiff had not been injured by any such technical assault as he had sustained his injuries when he fell on the floor of the beverage room and that such fall was caused by his own intoxicated condition rather than by any action of the defendant Balaban.

The first question which the learned trial judge put to the jury was this:

Did the defendant Balaban, without lawful excuse, commit an assault and battery on the plaintiff Mann?

The jury’s answer to that question was “No”.

[Page 84]

Other questions were put to the jury but the jury did not find it necessary, in view of the above answer, to deal with any of the other questions.

The appeal to this Court is taken solely on objection to the charge of the learned trial judge to the jury. The objection is that the learned trial judge misdirected the jury in saying that the onus of proof was on the appellant, that is, the plaintiff, with respect to the issues of justification, lawful excuse and the use of reasonable force. Before I deal in some detail with that charge, a short recital of some facts should be given.

There was a great mass of contradictory testimony but certain circumstances are established. in the evidence without any contradiction. The plaintiff, the appellant here, arrived at the Fersu Hotel Limited premises, known as the Royal Hotel, in the City of Galt, at about 6:00 p.m. on the afternoon of December 23, 1965. There is no evidence that the plaintiff, prior to that time, had on that day consumed any liquor. The plaintiff swore that he had not done so. Following the events with which this action is concerned, at a time firmly established by the evidence of Constable Landry as being between 11:20 and 11:30 p.m., he saw the plaintiff sitting or lying against the front wall of the Royal Hotel with a waiter leaning over him who was either attempting to assist the plaintiff to his feet or lowering the plaintiff to the sidewalk. Therefore, the plaintiff had been inside that beverage room and of course there for the purpose of consuming beer from 6:00 p.m. until a moment or two before 11:20 p.m. The plaintiff has testified that he had 7 or 8 drinks of draft beer during that period and little is needed to infer that at the time of the occurrence giving rise to this action he was intoxicated to a very considerable extent. The action, however, is simply one for assault and is not based on any allegation that the defendant Balaban or his co-defendant the hotel company permitted the plaintiff to become intoxicated and incapacitated.

[Page 85]

The plaintiff himself, due to the effect of his injuries and particularly to a concussion which he received when his head struck the floor, has no memory whatsoever of anything following an argument between him and his companion Mrs. Killoran with whom he was living as man and wife at the time. Therefore, the evidence as to what occurred is given by various patrons of the beverage room and by the defendant Balaban and other waiters. As one might expect, under those circumstances, the evidence given on behalf of the plaintiff would appear to be to the effect that the defendant Balaban violently and without cause struck the plaintiff with the result that the plaintiff fell striking his head heavily on the tile floor. The evidence by the defendant Balaban and supported by evidence of other customers was that he merely touched the plaintiff’s shoulder and arms and drew him to his feet and then left him standing while he turned to pick up the plaintiff’s jacket and the plaintiff, due to his intoxicated condition, fell to the floor and struck his head. After the latter event, however it had been caused, another waiter simply took the plaintiff, put him over his shoulder, carried him out to the street and set him down against the wall. It was this latter action which was observed by Constable Landry at between 11:20 and 11:30 p.m.

In the light of these circumstances, I turn to the consideration of the charge by the learned trial judge. Having outlined the essential law as to what is an assault, the learned trial judge said:

Now, in this action the plaintiff, Mr. Mann, says he was unlawfully assaulted by the defendant, Mr. Balaban, and that he sustained damages by reason of the injuries he suffered because of this assault. If the plaintiff is to succeed, he must prove it and he must prove it on the reasonable balance of probabilities. In other words, for the plaintiff to succeed you members of the jury must be satisfied that he was probably assaulted without lawful excuse by the defendant, Mr. Balaban, and that, as a result of this, he probably sustained damages and, if this has been done, you will then assess a sum which will reasonably compensate Mr. Mann for such damages.

[Page 86]

Now, in addition to this, if the plaintiff is to succeed against the defendant hotel company, you must be satisfied not only that Mr. Balaban probably assaulted the plaintiff without lawful excuse, but that he did so in the course of his employment with the defendant hotel company. As I have said in so far as this trial is concerned, an assault without lawful excuse may be defined as the intentional application of unlawful force by the defendant to the person of the plaintiff.

After discussing some of the evidence, the learned trial judge continued:

Now, for the plaintiff, of course, the case is that Mr. Balaban used excessive force under the circumstances; that the force he used was unreasonable and was entirely out of proportion to what the occasion required. That is what the plaintiff submits. It is for you to say whether that is true or not. You see, for the plaintiff, Mr. Mann, it is said, “Well, let us say he was arguing in the beverage room. Let us say he was using foul language. Let us say he was creating some disturbance that nevertheless assuming all this to be the case, there should have been some way for Mr. Balaban to remove him from the premises without fracturing his skull.

And having dealt with some of the evidence further, both that given on behalf of the plaintiff and that given on behalf of the defendants, the learned trial judge continued:

And the other picture that is presented by the defence is that the defendant, Balaban, in keeping order in the beverage room, as he was entitled to do, assisted, and was assisting, the plaintiff to get from the chair in which he was sitting out so that he could be removed from the beverage room and that he wasn’t using any more force than was reasonable or necessary to accomplish that purpose. And that he had previously asked the plaintiff to leave, but the plaintiff had not left.

Now, it is for you to say what you believe in connection with this. You have heard all the witnesses as to just what occurred.

He then outlined the law, saying, in part:

Now, this is what I would like to say to you, and this is the law, with respect to this matter of expelling

[Page 87]

a person from premises. If you wished someone to leave your premises ordinarily no force at all is justified until he has been requested to leave and has been given a reasonable opportunity to leave. If it becomes necessary to use force to make someone leave your premises then it is lawful to use only such force as may be necessary to accomplish that purpose. It is not lawful to use more force than is necessary to accomplish that purpose. Where greater force than necessary or reasonable has been used to expel an intruder that constitutes an unlawful assault. That is an assault without lawful excuse and the intruder is entitled to compensation for the excess of force so used.

In an action for assault, it has been, in my view, established that it is for the plaintiff to prove that he was assaulted and that he sutained an injury thereby. The onus is upon the plaintiff to establish those facts before the jury. Then it is upon the defendant to establish the defences, firstly, that the assault was justified and, secondly, that the assault even if justified was not made with any unreasonable force and on those issues the onus is on the defence.

In Cook v. Lewis[2], the present Chief Justice of this Court said at p. 839:

With the greatest respect, I think that the learned trial judge did not charge the jury correctly in regard to the onus of proof of negligence. While it is true that the plaintiff expressly pleaded negligence on the part of the defendants he also pleaded that he was shot by them and in my opinion the action under the old form of pleading would properly have been one of trespass and not of case. In my view, the cases collected and discussed by Denman J. in Stanley v. Powell (1891), 1 Q.B.D. 86, establish the rule (which is subject to an exception in the case of highway accidents with which we are not concerned in the case at bar) that where a plaintiff is injured by force applied directly to him by the defendant his case is made by proving this fact and the onus falls upon the defendant to prove “that such trespass was utterly without his fault.” In my opinion Stanley v. Powell rightly decides that the defendant in such an action is entitled to judgment if he satisfies the onus of establishing the absence of both intention and negligence on his part.

[Page 88]

In Miska v. Sivec[3], Morden J.A. at p. 148, in discussing the plea of self-defence in an assault charge, said:

Self-defence is an answer to a claim for assault but only when the force used was not unreasonable in the circumstances. The reasonableness of the force is an integral part of the defence and, in my opinion, must be established by a defendant pleading son assault demesne.

In an action based on circumstances much similar to the present one, O’Tierney v. Concord Tavern Ltd.[4], at p. 533 Roach J.A. said:

The Court was unanimous in the opinion that on that ground the appeal must succeed. It had been laid down in Miska v. Sivec, [1959] O.R. 144, that in an action of this nature where the defendant set up a plea of justification for the force used, the burden of proving that the force used was not excessive in the circumstances rested upon the defendant.

With respect, I am of the view that the learned trial judge did not put the case to the jury in accordance with the principles which I have outlined. When the learned trial judge said:

Now in this action the plaintiff, Mr. Mann, says he was unlawfully assaulted by the defendant, Mr. Balaban, and that he sustained damages by reason of the injuries he suffered because of this assault. If the plaintiff is to succeed, he must prove it and he must prove it on the reasonable balance of probabilities. In other words, for the plaintiff to succeed you members of the jury must be satisfied that he was probably assaulted without lawful excuse by the defendant, Mr. Balaban, and that, as a result of this, he probably sustained damages and, if this has been done, you will then assess a sum which will reasonably compensate Mr. Mann for such damages.

the learned trial judge was putting on the plaintiff the burden of proving that he was assaulted and that there was no lawful excuse for the assault. The defendants should have had put upon them the burden of proving that there was lawful excuse

[Page 89]

for the assault. Again, in the paragraph as to excessive force which I have cited above, the charge is cast on the basis that the plaintiff must prove that the force was “unreasonable and entirely out of proportion to what the occasion required”, while it should plainly have been put that the defendant had the onus of proving that the force used was reasonable and was in proportion to what the occasion required. In my view, it is not sufficient to say, as the learned trial judge did:

Now it is for you to say what you believe in connection with this. You have heard all the witnesses as to just what occurred.

without stressing to them the fact that the burden of proving the allegation shifted from plaintiff to defendant after the plaintiff had proved the assault and the damage which he alleged was caused by the assault. In such a case as the present, where the evidence was wildly contradictory, the jury should be carefully instructed on which of the two parties bore the burden of proving a particular fact or establishing the particular issue. So, the answer of the jury to the question which I have set out above cannot be considered an answer that the plaintiff failed to prove assault but rather that it may well be interpreted that the plaintiff failed to prove an assault without legal justification and might reflect the jury’s erroneous assumption from the learned trial judge’s charge to them that the plaintiff had the duty of proving that there was no legal justification.

For these reasons, I am in agreement with the submission of counsel for the appellant that the learned trial judge’s charge was defective and defective in a most important particular.

Counsel for the respondent has pointed out that at the close of the learned trial judge’s charge to the jury, there was no objection made to the charge by the counsel for the plaintiff. In fact, counsel for the plaintiff said: “I have no comments, My Lord. As far as I feel, you properly charged the jury and I see no objection to it.” Therefore, the counsel for the respondents con-

[Page 90]

tended that, under these circumstances, the plaintiff cannot now successfully obtain an order for a new trial. This matter has been considered on many occasions both in this Court and elsewhere. In Ristow v. Wetstein[5], Smith J., said at pp. 132-3:

There was a complete failure to direct the attention of the jury to this evidence on which a finding of negligence on the part of the driver might have been properly based, and in addition there was an express direction that the jury might disregard the most vital part of it. This was misdirection involving a mistrial and a miscarriage of justice in the sense that the plaintiff’s case was not properly submitted to the jury. A new trial was therefore properly ordered, notwithstanding the fact that no objection was taken to the charge.

In Leslie v. The Canadian Press[6], Kerwin C.J. was considering the trial judge’s charge in a libel action and said at p. 874:

… I am of opinion that the preferable rule and the one that should be adopted is that it is sufficient for the complaining party to show that a misdirection may have affected a verdict and not that it actually did so; and that, if an appellate Court is in doubt as to whether it did or not, it is then for the opposite party to show that the misdirection did not in fact affect the verdict.

For the reasons which I have already outlined, I am of the opinion that the misdirection might well have affected the verdict and caused a miscarriage of justice. Therefore, despite the fact that no objection was made by counsel for the plaintiff at the close of the charge, I would allow this appeal and grant a new trial. In view, however, of that lack of objection, I am of the opinion that the plaintiff should not be allowed any costs of the first trial. However, in the notice of appeal to the Court of Appeal for Ontario, the fourth ground of appeal is set out as follows:

4. The jury were misdirected as to the law in respect to assault and also the law in respect to

[Page 91]

trespass and as to what is involved in law in the excessive use of force.

Therefore, in my view, the appellant should have the costs incurred in the Court of Appeal and in this Court. The costs of the new trial should be in the discretion of the judge presiding thereat. I would dispose of the appeal in the above fashion.

Appeal allowed with costs, MARTLAND and JUDSON JJ. dissenting.

Solicitors for the plaintiff, appellant: Simmers, Edwards, Jenkins, Thompson & Jenkins, Galt.

Solicitors for the defendant, respondent, Fersu Hotel Ltd.: Lochead, Sills, Osborne, Madorin & Bean, Kitchener.

Solicitors for the defendant, respondent, Walter Balaban: Sims, Baver, Sims & Giffen, Kitchener.