Jerome v. Anderson et al., [1964] SCR 291

Supreme Court of Canada

Jerome v. Anderson et al., [1964] S.C.R. 291

Date: 1964-03-12

Levi J. Jerome (Plaintiff) Appellant;

and

Donald J. Anderson, David Cass-Beggs, Saskatchewan Power Corporation (Defendants) Respondents.

1964: February 4, 5, 6; 1964: March 12.

Present: Cartwright, Martland, Judson, Ritchie and Hall JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN.

Libel—Express malice—Defence of qualified privilege destroyed—Discretion of trial judge to permit plaintiff to postpone evidence in rebuttal of plea of justification until after defendant has given evidence in support of plea—Cross-examination.

The plaintiff had been employed by the defendant power corporation for some eighteen years and had attained the position of a project foreman. The defendant C was the corporation's general manager and the defendant A was powerline construction engineer. The plain-

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tiff was told to report to the corporation's headquarters and on his arrival there was taken to A's office where, without any previous question or discussion, he was handed a letter of dismissal. The letter, copies of which were sent to four departmental officers, impugned the integrity, honesty and character of the plaintiff. In an action for libel the trial judge gave judgment in favour of the plantiff against A and the corporation for $28,500 and dismissed the action against C without costs. An appeal was allowed by the Court of Appeal and the action against all three defendants was dismissed with costs.

Held: The appeal should be allowed.

Per Cartwright, Martland, Ritchie and Hall JJ.: The finding of the trial judge that express malice had been proved was supported by the evidence and ought not to have been disturbed by the Court of Appeal. The words of the letter complained of were clearly defamatory of the plaintiff; their falsity was presumed and no evidence was led to rebut that presumption; the defence of qualified privilege ceased to avail the defendants in view of the finding of express malice.

Where a plea of justification is raised it is within the discretion of the court to allow the plaintiff either to give all the evidence he intends to offer in rebuttal at the outset, or to postpone giving such evidence and leave it to the defendant to make out his plea, and then give evidence on any matters which are properly admissible to rebut the plea. There is no hard and fast rule, and the practice is based on general convenience. Where the court has ruled that the plaintiff may so reserve his evidence, it rests in the discretion of the court to rule that the right to cross-examine the plaintiff's witnesses in support of the plea of justification be postponed as was done in the present case, or if counsel for the defendants is allowed in cross-examination to elicit facts in support of the plea of justification the fact of his having done so is not to deprive the plaintiff of the benefit of the ruling that he may reserve his general evidence in rebuttal of the plea of justification until after the defendants have given their evidence in support of that plea.

As to the question of the quantum of damages it could not be said that the amount at which these were assessed by the trial judge was excessive. The sum of $2,212 which had been paid by the defendants to the plaintiff, but not on account of the plaintiff's claim for damages for libel, should not have been deducted from the amount of damages. Accordingly, the amount of the judgment was increased by this amount.

Dickson v. Wilton (Earl) (1859), 1 F. & F. 419; Turner v. M.G.M. Pictures Ltd., [1950] 1 All E.R. 449; Maclaren and Sons v. Davis (1890), 6 T.L.R. 372; Browne v. Murray (1825), 1 Ry. & M. 254; Beevis v. Dawson, [1957] 1 Q.B. 195; Rees v. Smith (1816), 2 Stark 31, referred to.

Per Judson J.: The ruling of the trial judge permitting the plaintiff to postpone evidence in rebuttal of the defendants' plea of justification was erroneous. The plaintiff had given evidence—most of it directed to showing malice on the part of the defendants. It was the right of counsel for the defendants to then cross-examine at large and the normal conduct of a trial should not have been interfered with except

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on very grave grounds that did not exist in this case. Beevis v. Dawson, supra, distinguished.

APPEAL from a judgment of the Court of Appeal for Saskatchewan1, allowing an appeal from a judgment of McKercher J. Appeal allowed.

L. J. Jerome, in person.

G. J. D, Taylor, Q.C., and C. F. Tallis, for the defendants, respondents.

The judgment of Cartwright, Martland, Ritchie and Hall JJ. was delivered by

Cartwright J.:—This is an appeal from a judgment of the Court of Appeal for Saskatchewan2 whereby an appeal from a judgment of McKercher J. in an action for damages for libel was allowed and the action as against all three defendants was dismissed with costs. Following a trial without a jury which occupied twelve days, the learned trial judge had given judgment in favour of the appellant against the defendants Anderson and Saskatchewan Power Corporation for $28,500 and had dismissed the action as against the defendant Cass-Beggs without costs.

In the month of July 1959 and for some years prior thereto the appellant was employed by the respondent, the Saskatchewan Power Corporation; he had 18 years' seniority in service, some of which had been acquired with another company which was purchased by the defendant corporation. The appellant had attained the position of a project foreman.

The respondent corporation was incorporated under The Power Corporation Act, R.S.S. 1953, c. 35. The members of the board are appointed by the Lieutenant-Governor in Council, who also designates the chairman. The corporation now controls all rural electrification in the province of Saskatchewan.

At all material times the respondent Cass-Beggs was the general manager and the respondent Anderson was power-line construction engineer of the corporation.

The appellant was a project foreman with headquarters in Swift Current, Saskatchewan; he was under the direct

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supervision of L. A. Dowie, superintendent of light construction; Dowie in turn was under the direct supervision of Anderson. The appellant's duties consisted mainly of the supervision of contractors constructing rural power lines in the southern portion of Saskatchewan and included dealing with difficulties of contractors in respect of clearing right-of-way problems with property owners and tenant farmers along line routes. As of June 1, 1959, the appellant's salary had been raised from $456 to $474 per month.

On the afternoon of July 17, 1959, the appellant was working in the Coronach area checking rural power lines. At 1:30 that afternoon he received a note that he was to call Dowie in Regina immediately. He did so and Dowie told him that he was to come to Regina at once, because a Mr. Buehler had written a letter of a very serious nature. The distance the appellant had to travel was 161 miles and it was agreed he should try to be in Regina by 4:30 p.m. On his arrival in Regina Dowie took the appellant to Anderson's office. Without any previous question or discussion, Anderson handed to the appellant a letter of dismissal, dated July 17, 1959, which is the libel complained of. This reads as follows:

TO: L. J. Jerome,                                                                               FROM: D. J. Anderson,

I regret that the Saskatchewan Power Corporation must terminate your employment with the Corporation as of Friday night, July 17, 1959. As you are no doubt aware, your work has not been entirely satisfactory for the last two and a half years. Mr. Dowie has been forced to register several letters and to administer a large number of verbal reprimands for various things ranging from quantity and quality of your work to reporting private long distance telephone charges as being legitimate calls made for Company business, your attitude towards farmers and land owners and your practices in dealing with other Corporation staff. There is also a question of time which was taken off this past winter and spring, supposedly sick leave, which to my mind is at least very questionable although we have an indication from the doctor at Swift Current that some sick leave was required.

All these previously mentioned things add up to one thing, mainly that you do not have the type of integrity and character which is required by this Corporation for out of scope staff. In other words, we have arrived at the state where we now do not feel we can trust you.

The incident which brought all this to a head was the altercation which you had with Mr. Henry Buehler of Burstall. The type of language which you used to Mr. Buehler and the approach and attitude you made to him clearly show to me that you are no longer fitted for the type of work which you are now doing. If this were the only case, or if there were no other factors, then you would probably be demoted to some other position. However, in view of the factors mentioned previously, I feel that I am entirely justified in the suspension of your services.

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If you wish to submit your resignation to me in writing this afternoon, it will be accepted. This procedure will probably make it somewhat easier for you to obtain other employment.

We are very sorry to have to do this, however, your record over the past two and a half years and this last incident leaves me no choice.

"D. J. Anderson"

DJA/pa                                                                            Power line Construction Engineer

cc: W. B. Clipsham                                         —    Asst. G. M. i/c Engineering

D. G. Brown                                               —    Industrial Relations

R. J. Waller                                                —    Personnel

C. E. Smith                                                —    Public and Employee Relations

The second paragraph of this letter is set out verbatim in the statement of claim but the whole letter is complained of.

Evidence was given that the expression "out of scope staff" describes persons employed by the respondent corporation, the nature of whose duties and responsibilities is such that they are not eligible for membership in the union of the corporation's employees.

After the appellant had read this letter of dismissal, Anderson handed him a "Department memo" from the Honourable Russel Brown, chairman of the respondent corporation, addressed to Mr. Cass-Beggs, the general manager. This is dated July 14, 1959, and is headed "Re Henry Buehler, P.O. Box 60, Burstall". It reads as follows:

Some time ago the above mentioned called on me to discuss what he termed the abusive and disgusting approach of one of our foremen.

As the charges were, in my opinion, somewhat serious I asked Mr. Buehler to put his complaint in writing and assured him that on receipt of a letter from him I would have an investigation made.

I have now received a letter from Mr. Buehler in which in order to set out the facts and indicate the language used by our employee he uses some rather, shall we say, improper expressions. Hardly, I must say, fit for the eyes and ears of our respective secretaries. In any event, I am forwarding the letter to you and would ask that an immediate investigation be made of the charges contained therein. I would appreciate a detailed report at the earliest possible time.

Attached to this was Buehler's letter. The appellant read the memorandum and part of the Buehler letter; he put them in his pocket and stated he would read them when he had time. Anderson said they were not his letters and requested that they be returned to him and the appellant did this. Buehler's letter does not form part of the record.

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A conversation followed, Anderson, Dowie and the appellant being present. The appellant testified that he said to Anderson in discussing the memorandum of dismissal: "Don, what did you—what got into you to fire me like that?" and that Anderson replied: "Well, we are using that, Levi, but it's not that". The making of this answer was neither denied nor explained by Anderson. Dowie was not called as a witness.

It will be observed that Mr. Brown's memorandum requested an immediate investigation and a detailed report. Anderson said that he received Mr. Brown's letter on either the afternoon of July 16 or the morning of July 17. Asked whether he conducted any investigation, Anderson's reply was: "I discussed the matter with Mr. Dowie and this was all the investigation I conducted". Asked whether Dowie had urged him to fire Jerome, Anderson replied that he had not. Asked whether he had ever reprimanded Jerome, his answer was "No".

Anderson stated that after he had discharged Jerome and circulated the letter of dismissal, an investigation of Buehler's complaint was carried out by Mr. L. J. Bright. Mr. Bright's report was filed as an exhibit. It is dated August 5, 1959, addressed from "L. J. Bright, Field Relations" to "C. E. Smith, Public and Employee Relations". It contains a lengthy and detailed report of the investigation. The gist of it is that in the matter out of which his complaint arose Buehler had been unco-operative throughout and that Jerome had done all that could be expected of anyone. The only passage in any way derogatory of Jerome is the following:

I have already given you my impression of Mr. Jerome which from a public relations viewpoint and trouble prevention viewpoint was second to none in the Province; but, while I am sure that the vulgar language is greatly exaggerated, I do not condone it. However, in other cases which I have investigated, I have always taken into consideration education, occupation, characteristic adjectives, general attitude, and the amount of provocation. On this basis, I have exonerated men who habitually use far worse language than that quoted.

The report contains such statements as the following:

My only criticism having looked at the line would be that Mr. Jerome went to too much trouble to please a man who was non co-operative, obviously is generally disliked, and who wrote the defamatory and slanderous letter as a thank you note.

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He (a District Operator) said that Mr. Jerome was the best Foreman he had ever worked with that he was always pleased to see him come and that when Mr. Jerome checked the line he carried his hooks and shovel and used both of them. He said when I heard a good man like Mr. Jerome was fired, I could not sleep at night.

* * *

In reply to questions, Mr. Everest (a District Superintendent) stated that he had always found Mr. Jerome's public relations more than good. He further stated that Mr. Jerome was very conscientious in checking lines. He said he climbed poles to check tie-ins and walked out into fields to check poles otherwise not in view. He said that when he heard that Mr. Jerome was let out, he just didn't believe it.

* * *

He (Jerome) sure goes through a lot of trouble to avoid trouble.

Of course, this document is not evidence of the truth of the facts stated in it. Its significance is in the effect, or lack of effect, it had upon the defendants' attitude towards the appellant.

The appellant refused to resign, consistently maintained that the charges contained in the memorandum of dismissal were false and sought reinstatement in the position from which he had been discharged. After lengthy negotiations, the appellant was offered re-employment in an inferior position at reduced pay; the offer was couched in terms which implied that the charges were persisted in. It is not surprising that the appellant refused the offer. On the assumption that the charges were false, as they must now be taken to be, a self-respecting man could hardly have done otherwise. On February 29, 1960, this action was commenced.

The amended statement of claim alleged that Anderson, with the approval and authority of Cass-Beggs, had falsely and maliciously written the letter of July 17, 1959, that he had published it to W. B. Clipsham, D. G. Brown, R. J. Waller and C. E. Smith, and that both Anderson and Cass-Beggs were acting within the scope of their employment with the Saskatchewan Power Corporation. General damages of $100,000 were claimed.

The defendants filed a single statement of defence, pleading (i) qualified privilege, (ii) justification, (iii) that Cass-Beggs had assented to the dismissal of the plaintiff but not to the contents of the letter of July 17, 1959, and (iv) that the plaintiff's claim had been settled.

The statement of defence also recited an interlocutory order made in the action by Graham J. holding that the

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action was one for libel only and not an action for libel and in addition for damages for wrongful dismissal and stated that the statement of defence was pleaded on the basis of that order.

The ground on which the defendants asserted that the letter of July 17, 1959, was published on an occasion of qualified privilege is set out in particulars delivered by them as follows:

The memorandum was sent to the Plaintiff and also to Mr. W. B. Clipsham, Assistant General Manager in charge of Engineering, Mr. D. G. Brown, Industrial Relations Director, Mr. R. J. Waller, Personnel Director and Mr. C. E. Smith, Public and Employee Relations Director, all being persons employed by the Defendant Corporation in capacities which invested them with a right to receive the information in question, and to whom the Defendant Anderson had an obligation of communicating the said information.

The defendants delivered particulars of their plea of justification consisting of a little over eight pages of approximately 50 lines each. For reasons that will appear I do not find it necessary to refer to these in detail.

No evidence was led to support the plea of justification. This defence and that of settlement were rightly rejected by both Courts below and nothing more need be said about them except as to the conduct of the trial in regard to the plea of justification.

The learned trial judge held that the defence of qualified privilege was not established. He reached this conclusion on several grounds. On the view that the occasion giving rise to the suggested duty to publish was the request for an investigation and report made by Mr. Russell Brown, he held there was no duty to publish to any of the four persons named in the statement of claim. On the view that the occasion was the dismissal of the plaintiff by Anderson he held that there was no duty to publish to R. J. Waller or D. G. Brown. The Court of Appeal, on the other hand, were of opinion that the occasion was the dismissal of the plaintiff and that the privilege was not exceeded by publication to the four persons named.

I do not find it necessary to choose between these conflicting views as I am satisfied that the finding of the learned trial judge that express malice had been proved was supported by the evidence and ought not to have been disturbed by the Court of Appeal.

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On the assumption that the defamatory statement was published on an occasion of qualified privilege the onus of proving the existence of malice rested upon the plaintiff. Malice, in this connection, does not necessarily mean personal spite or ill-will; it may consist in some indirect motive not connected with the privilege or, as it was put by Lord Campbell in Dickson v. Wilton (Earl)3 at p. 427:

But by that term is meant, not only spite, for any indirect motive, other than a sense of duty, is what the law calls "malice".

The decision whether or not malice has been established involves an inquiry into the state of mind of the defendant at the time when the libel was published. The difficulty of proving the state of a man's mind at a particular time was commented on by Bowen L.J. in his famous dictum in Edgington v. Fitzmaurice4 at p. 483; but as was said by Lord Wright in Clayton v. Ramsden5 at p. 331: "States of mind are capable of proof like other matters of fact".

Questions of fact arising in civil cases are decided on the balance of probabilities. In Turner v. M.G.M. Pictures Ltd.6, an action for libel in which it was conceded that the publication was made on a privileged occasion, Lord Oaksey, at p. 470, stated the question as follows:

Did the appellant prove that it was more probable than not that the respondents were actuated by malice?

In the same case at pp. 454 and 455 Lord Porter said:

It is common ground, as I have indicated, that qualified privilege is rightly claimed by the respondents, but it is said that any reliance on it is ruled out by the existence of express malice on their part. Where such an allegation is made it is the duty of the plaintiff to establish the existence of malice and, unless he does so, the defendant succeeds. If, however, the plaintiff can show any example of spite or indirect motive, whether before or after the publication, he would establish his case provided that the examples given are so connected with the state of mind of the defendant as to lead to the conclusion that he was malicious at the date when the libel was published. No doubt, the evidence must be more consistent with malice than with an honest mind, but this does not mean that all the evidence adduced of malice towards the plaintiff on the part of the defendant must be set against such evidence of a favourable attitude towards him as has been given and the question left to, or withdrawn from, the jury by ascertaining which way the scale is tipped when they are weighed in the balance one against

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the other. On the contrary, each piece of evidence must be regarded separately, and, even if there are a number of instances where a favourable attitude is shown, one case tending to establish malice would be sufficient evidence on which a jury could find for the plaintiff. Nevertheless, each particular instance of alleged malice must be carefully analysed, and if the result is to leave the mind in doubt, then that piece of evidence is valueless as an instance of malice whether it stands alone or is combined with a number of similar instances.

I do not take the last sentence in this passage to mean that a number of items of evidence, each in itself insufficient to satisfy the tribunal of the existence of the fact sought to be proved, may not in combination be sufficient to attain that result.

I accept as accurate the statement in Wills on Circumstantial Evidence, 7th ed., at p. 435:

The effect of a body of circumstantial evidence is sometimes compared to that of a chain, but the metaphor is inaccurate, since the weakest part of the chain is also its strongest. Such evidence is more aptly to be compared to a rope made up of many strands twisted together. The rope has strength more than, sufficient to bear the stress laid upon it, though no one of the filaments of which it is composed would be sufficient for the purpose.

I do not find it necessary to go through all the grounds on which the learned trial judge found that express malice existed. He said in the course of his reasons while speaking of the letter of July 17, 1959, which was exhibit P. 14:

I find that such charges were made by Anderson recklessly and not in honest belief on the part of Anderson that all the allegations in P. 14 were true; and I further find that Anderson knew or should have known that the allegations were untrue.

In my opinion the learned trial judge was justified in making this finding on the statement made by Anderson, quoted earlier in these reasons, "Well we are using that, Levi, but it's not that." The fact that Anderson used these words is accepted by the Court of Appeal. It seems obvious that if Anderson had not used them he would have denied having done so and that Dowie, who was present, would have been called as a witness to support his denial. The making of the statement must be considered in the light of the other relevant evidence. Anderson's conduct, (i) in writing P. 14, within a matter of hours after receiving a request for an investigation and detailed report of the Buehler incident and without having made any investigation worthy of the name, (ii) calling the plaintiff in from a distance of 160

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miles and then giving him no opportunity to say a word of explanation or defence before publishing the libel, and (iii) failing to modify his stand when Bright's report was received, appears to me to be more consistent with the existence than with the absence of malice. I would, however, be prepared to support the finding of the learned trial judge as to the existence of malice on Anderson's undenied and unexplained statement. If there was any explanation of what he meant by the words quoted which was consistent with the absence of malice and of indirect motive surely it would have been brought out by counsel for the defendants.

The view taken by the Court of Appeal on this branch of the matter appears sufficiently in the following paragraph of their reasons:

The whole of the occurrence does give rise to some questioning in one's mind, but this question or suspicion does not supplant the evidence, substantially not contradicted, nor reasonably incapable of belief, that Anderson acted in good faith, on grounds which he believed to be adequate and true. A suspicion engendered by what was said and done, that some reason or reasons other than those given, actuated the defendant Anderson, unsupported, by evidence and thus remaining, at best, a suspicion, cannot be taken, as I have just said, to support a valid inference or conclusion of the existence of some improper motive or purpose. Accepting Anderson's evidence that he believed just cause existed to discharge the plaintiff, and that an employer need not give all or any reasons for discharging an employee, I cannot infer that Anderson wrote and published the letter intending to harm the plaintiff thereby, or for any other improper reason, or any reason other than to effectuate the discharge and give reasons therefor.

With respect, this passage appears to me to give insufficient weight to the finding of the learned trial judge expressed as follows:

I find—and I regret to have to do this—I find that from his, Mr. Anderson's demeanour in the witness box and his attitude there that Mr. Anderson is not a credible witness.

It is only in exceptional circumstances that an appellate court is justified in accepting and acting upon the evidence of a witness whom the trial judge has expressly disbelieved. I can find no such circumstances in this case.

It follows from what I have said above that the appeal must succeed. The words of the letter complained of are clearly defamatory of the plaintiff; their falsity is presumed and no evidence was led to rebut that presumption; the defence of qualified privilege ceases to avail the defendants in view of the finding of express malice.

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Before proceeding to the question of damages it is necessary to examine the contention of the respondents that if the judgment of the Court of Appeal is not affirmed a new trial should be ordered by reason of matters occurring in the course of the trial.

In this regard the respondents complain, (i) that the learned trial judge limited and interfered with the cross-examination of the plaintiff, (ii) that the plaintiff was permitted to adduce hearsay and irrelevant evidence, and (iii) that the plaintiff was permitted to split his case.

The first witness called by the plaintiff at the trial was D. G. Brown. He was neither examined nor cross-examined in regard to the matters alleged in the defendants' particulars of justification. Before calling the plaintiff, who was the next witness, his counsel, Mr. Wellman, told the Court that he proposed to postpone giving evidence to rebut the defendants' plea of justification until after the defendants had given their evidence in support of that plea. This course was objected to by counsel for the defendants. After a somewhat lengthy discussion the learned trial judge ruled that the course proposed by counsel for the plaintiff should be followed and that while counsel for the defendants would be at liberty to cross-examine the plaintiff's witnesses on matters going to credit he would not be permitted to elicit evidence in support of the plea of justification under the guise of attacking credit.

I think it clear that it was in the discretion of the learned trial judge to make this ruling, although, as was pointed out by Cave J. in Maclaren and Sons v. Davis et al.7, the exercise of that discretion may, in a proper case, be reviewed in an appellate court.

The judgment of Abbott Ld. C.J. in Browne v. Murray8, which was a ruling made during the course of the trial, appears to indicate the view that the plaintiff in a libel action has a right to choose which course he will take. The judgment reads as follows:

In actions of this nature, the plaintiff may, if he thinks fit, content himself with proof of the libel, and leave it to the defendant to make out his justification, and then the plaintiff may, in reply, rebut the evidence produced by the defendant. But if the plaintiff in the outset, thinks fit to call any evidence to repel the justification, then, I am of opinion, that he should go through all the evidence he proposes to give

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for that purpose, and he shall not be permitted to give further evidence in reply. It is much more convenient for the due administration of justice that this course should be adopted, otherwise there will be no end to evidence on either side, as the defendant would be entitled again to call witnesses to answer those last produced by the plaintiff to rebut the justification.

In Maclaren and Sons v. Davis, supra, the libel complained of described the plaintiffs as "unmitigated literary-thieves" and accused them of stealing articles from the defendants' paper and misleading advertisers into thinking that the plaintiffs' paper was that of the defendants. Cave J. said at p. 373:

The plaintiff might wait till the evidence of the defendant was given, and then the Judge should allow the plaintiff to give evidence in reply. Here there were two charges in the libel, one that the plaintiffs had stolen Davis's articles; secondly, that he had stolen Lowe's advertisements. The words were that he was "an unmitigated literary thief." Upon the question whether the plaintiff had stolen Davis's articles, the evidence of his securing advertisements, which should properly have gone to Lowe's paper, would have been irrelevant. It would have been most inconvenient for the plaintiff to have gone through all the articles and then have attempted to prove that they were not taken from the defendant's paper. It was obviously more convenient for the plaintiff to wait till he found what articles or what advertisements were dealt with by the defendants. That was shown in this case, as the defendants were not able to give proof of any advertisers having been misled. A great deal of time would have been wasted if the plaintiff had gone through all the advertisements. It was never convenient to prove a negative. When the defendant had set up something affirmative then was the time to dispose of it. The learned Baron had exercised an erroneous discretion in refusing to allow the rebutting evidence.

The report states that A. L. Smith and Vaughan Williams JJ. "concurred in saying there must be a new trial". It may be taken that they did not disagree with the reasons given by Cave J.

The proper practice in such circumstances is discussed in the judgments delivered in the Court of Appeal in Beevis v. Dawson9. In that case counsel for the plaintiff did not call upon the trial judge to rule as to the course which he proposed to follow. At p. 213, Singleton L.J. said:

The judge ought to have been asked to decide early on the mode or manner in which the case should be heard. If he had decided what, in his view, was most convenient, counsel should have followed that.

In the case at bar the request for a ruling and the ruling of the judge were made sufficiently early in the trial.

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At p. 203, Singleton L.J. said:

It is claimed on behalf of the plaintiff that, there being a plea of justification in the defence, the plaintiff was entitled to reserve his evidence upon that part of the case until later, and then to give evidence in rebuttal. That submission is based on statements of practice in several textbooks. I refer to one only Gatley on Libel and Slander, 4th ed., at p. 582: "Where there is a plea of justification on the record it is usual, and more convenient, for the plaintiff not to call any evidence in rebuttal as part of his own case, but to leave it to the defendant to make out his plea. The plaintiff may, however, anticipate, if he thinks fit, and give all the evidence he intends to offer in rebuttal at the outset. But he is not entitled to call some evidence in rebuttal in the first instance, and to reserve the remainder for reply to the defendant's case."

Singleton L.J. then quotes the whole of the judgment of Abbott Ld. C.J. in Browne v. Murray, supra, and considers the case of Rees v. Smith and Others10, an action for trespass, in the course of which, at pp. 32 and 33 of the report, Lord Ellenborough said:

As a general rule, I beg that it may be understood that a case is not to be cut into parts, but that when it is known what the question in issue is, it must be met at once. If, indeed, any one fact may be adduced by the defendant to which an answer can be given, the plaintiff must have an opportunity given for so doing; but this must be understood of a specific fact, he cannot go into general evidence in reply to the defendant's case. There is no instance in which the plaintiff is entitled to go into half his case and reserve the remainder.

Having referred to these two cases, Singleton L.J. continued at pp. 204 and 205:

I venture to doubt whether there is a hard and fast rule either way. The authorities seem to me to show that the practice is based on general convenience. It must depend, of course, upon the issues which are raised; obviously it must depend upon the pleadings in the case in which the issues are set out. If publication is admitted and justification is set up as a defence, the plaintiff is entitled to say that the onus is upon the defendant; that it is for him to prove his case. Equally if, by the answer to an interrogatory, the plaintiff can prove his case, and does so, the onus on the issue of justification is upon the defendant. In most cases there are other pleas, and the question arises as to what is the most convenient way of dealing with the matter in the interests of justice, in the interests of parties, and from the point of view of the court. Those interests are really all the same. If, after hearing submissions, the judge decides that one course is preferable to another, his decision should in general be treated as final. He will not deprive the plaintiff of the opportunity of reserving his evidence until he has heard the evidence of the defendant in support of the plea of justification, if he considers that any injustice can be done to the plaintiff by such a ruling. If the judge considers that the better course is that the plaintiff should be allowed to reserve his answer to the plea of justification until after

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the defendant's evidence in support of the plea has been given, the defendant's counsel cannot offset that by asking questions on that issue to draw the plaintiff's witnesses, as Mr. Platts-Mills suggests. It is not for the defendant to decide how the trial shall be conducted.

The judgment of Jenkins L.J. is to the same effect. He says at p. 215:

For my part, I do not think the principle which is stated in the case of Browne v. Murray, to which my Lord has referred, really amounts to a rule of law, or a right to which the plaintiff may invariably lay claim as a matter of law. The first sentence of Abbott C.J.'s judgment, if I may read it again, is this: "In actions of this nature, the plaintiff may, if he thinks fit, content himself with proof of the libel, and leave it to the defendant to make out his justification; and then the plaintiff may, in reply, rebut the evidence produced by the defendant." Then the Lord Chief Justice went on to say that the plaintiff should not sever his evidence on the issue of justification, leading some of the evidence in presenting his own case and some of it in rebuttal of the defendant's case. I think that the principle there stated may well reflect a practice which in appropriate circumstances it is right to follow, but is subject to the over-riding discretion of the court to give such directions as to the order in which the onus of proof is to be dealt with and in which witnesses are to be called as the court may find just and convenient in the circumstances of the particular case.

and at p. 216:

The rule of practice, as the learned Baron called it, may be the best to follow in some cases, whereas in other cases it could not but be productive of inconvenience. It seems to me that the decision must rest in the discretion of the court.

In the fifth edition of Gatley the passage corresponding to that quoted by Singleton L.J. is to be found at pp. 561 and 562 and reads:

Where there is a plea of justification on the record, it is within the discretion of the court to allow the plaintiff either to give all the evidence he intends to offer in rebuttal at the outset, or to postpone giving such evidence and leave it to the defendant to make out his plea, and then give evidence on any matters which are properly admissible to rebut the plea. There is no hard and fast rule, and the practice is based on general convenience. If the judge does consider that the plaintiff should be allowed to reserve his answer to the plea of justification, the defendant's counsel cannot offset that by asking questions on that issue in order to draw the plaintiff's witness. In any event, the plaintiff is not entitled to call some evidence in rebuttal in the first instance, and reserve the remainder for reply to the defendant's case.

This passage appears to me to be an accurate summary of the effect of the judgments in Beevis v. Dawson.

The earlier cases do not discuss the effect which the making of a ruling that the plaintiff may postpone giving

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evidence in rebuttal of a plea of justification has upon the right of defendant's counsel to cross-examine witnesses called by the plaintiff to prove other matters, such as e.g. publication; and there is no lengthy discussion of this question, in the-judgments delivered in Beevis v. Dawson. The following sentence from the judgment of Singleton L.J., at p. 205, has already been quoted:

If the judge considers that the better course is that the plaintiff should be allowed to reserve his answer to the plea of justification until after the defendant's evidence in support of the plea has been given, the defendant's counsel cannot offset that by asking questions on that issue to draw the plaintiff's witnesses, as Mr. Platts-Mills suggests. It is not for the defendant to decide how the trial shall be conducted.

This appears to have reference to passages in the argument of Mr. Platts-Mills which are reported as follows at p. 198:

The witnesses called, by the plaintiff at the outset were known as close associates of his and some of those witnesses in their cross-examination had revealed a good deal of the matter relied on in justification, which may have affected the jury in coming to their verdict.

and at p. 199:.

Where the plaintiff's case is made suspect by his own witnesses he may not exercise an option to call rebutting evidence. The answers given by the plaintiff's witnesses in cross-examination, although they are called only on the issue of publication, may alter the right of the plaintiff as to the order in which he deals with the issue of justification. It is not open to the judge to rule that counsel for the defence cannot cross-examine as to the issue of justification plaintiff's witnesses called on the issue of publication. If the judge has already given a ruling as to procedure, the position will be quite different, but here the judge had given no ruling. The evidence can change, the onus of proof. The moment there is evidence given by the plaintiff's witnesses tending to prove justification, they must be treated as rebutting witnesses, and the plaintiff no longer has a right to reserve further evidence in rebuttal until after the defendant's case is closed.

At this point in the argument Singleton L.J. interjected:

I think it was a matter of discretion for the judge, as a question of general convenience.

These passages appear to me to be susceptible of either or both of the following interpretations in cases in which the trial judge has ruled that the plaintiff may reserve his evidence in rebuttal of the plea of justification; (i) that the trial judge may rule that the right to cross-examine the plaintiff's witnesses in support of the plea of justification be

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postponed as was done in the case at bar, and (ii) that if counsel for the defendants is allowed in cross-examination to elicit facts in support of the plea of justification the fact of his having done so shall not deprive the plaintiff of the benefit of the ruling that he may reserve his general evidence in rebuttal of the plea of justification until after the defendants have given their evidence in support of that plea.

In my opinion it rests in the discretion of the trial judge to follow either of these courses and the manner in which that discretion should be exercised will depend on the circumstances of the particular case. There may well be cases in which it will prove more convenient, while preserving the plaintiff's right to reserve his rebuttal, to permit counsel for the defendant to cross-examine the plaintiff at large when he is first called; I do not think any hard and fast rule can be laid down.

I have already indicated my view that in the case at bar, it was within the discretion of the learned trial judge to make the ruling which he did make. I do not think it can be said that he exercised that discretion wrongly. In view of the nature of the particulars of the plea of justification delivered in this action it would, I think, have been highly inconvenient to call upon the plaintiff to prove the negative of that issue before having heard the evidence offered by the defendants in support of it.

It may well be, as counsel for the respondents contends, that from time to time during the putting in of the plaintiff's case his cross-examination was unduly limited even on the basis of the ruling which had been made; but it was made clear that the right of the defendants' counsel to cross-examine at large was not denied but was merely postponed. Had he wished to do so he could, after leading his evidence in support of the plea of justification, have asked that the plaintiff be recalled for cross-examination in regard to the matters raised by that plea. He did not do this; and when the plaintiff was recalled towards the end of the trial he did not cross-examine him. He had decided to pursue a different course.

Before calling the first witness for the defendants their counsel made the following statement:

Your Lordship will recall that on Thursday morning last, October 26th, Your Lordship ruled that the defendants were not, at the then stage of this

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trial, to be allowed to cross-examine the plaintiff in respect to paragraph 6 of the statement of defence and the whole of the particulars furnished with respect thereto, either to support the defendants' plea of justification or for the purpose of bringing into question the credibility of the plaintiff in respect of the testimony which he had already given in support of his claim. In the exercise of my best judgment on behalf of all the defendants, I wish to advise Your Lordship most respectfully that the defendants do not propose to adduce any evidence in proof of the plea of justification contained in paragraph 6 of the defendants' statement of defence or in respect of the particulars furnished pursuant thereto. I do this, My Lord, because it is my most respectful submission that Your Lordship's ruling is wrong in law and has made it impossible for the defendants to adequately present their defence based on paragraph 6 of the statement of defence and the particulars delivered in respect thereof, and for the further reason that the defendants do not wish, by leading evidence on paragraph 6 of the statement of defence and the particulars furnished with respect thereto, to be taken to have waived any rights whatsoever which the defendants may have with respect to an appeal from Your Lordship's ruling.

To order a new trial because the defence decided to adopt this course would be to disregard the statement of Singleton L.J., with which I have already indicated my agreement, that "it is not for the defendant to decide how the trial shall be conducted."

An examination of the lengthy record satisfies me that none of the matters of which the respondents complain in respect of the conduct of the trial resulted in a miscarriage of justice. To order a new trial in the circumstances of this case would, in my opinion, be a denial of justice to the plaintiff.

There remains the question of the quantum of damages. I am quite unable to say that the amount at which these were assessed by the learned trial judge was excessive. Without justification and without being heard in his own defence, the plaintiff, who had spent the greater part of his working life in the service of the respondent company and that of another company which it had acquired, was defamed as incompetent and untrustworthy and these charges were persisted in up to and during the trial. That the defendants were aware of the effect that these imputations would have on the plaintiff's chance of obtaining future employment is plain from the penultimate paragraph of the libel:

If you wish to submit your resignation to me in writing this afternoon, it will be accepted. This procedure will probably make it somewhat easier for you to obtain other employment.

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In arriving at the final figure for which judgment should be entered the learned trial judge deducted from the amount at which he decided the damages should be assessed the sum of $2,212 which had been paid by the defendants to the plaintiff. With respect I think this amount should not have been deducted. It was not paid on account of the plaintiff's claim for damages for libel, but either ex gratia or on account of his claim for damages for wrongful dismissal which, under the order of Graham J. and by the reasons of the learned trial judge, was excluded as a head of damage in this action. It is therefore my opinion that the amount of the judgment should be increased by this sum of $2,212.

It remains only to consider what order should be made as to the costs of the defendant Cass-Beggs. In my opinion, the learned trial judge did not err in deciding not to award costs to this defendant.

I would allow the appeal, set aside the judgment of the Court of Appeal, direct that the judgment at the trial be varied to provide that the plaintiff do recover from the defendants Donald J. Anderson and the Saskatchewan Power Corporation the sum of $30,712 and that, subject to this variation, the judgment at the trial be restored. The appellant will recover his costs in the Court of Appeal and in this Court from the defendants Donald J. Anderson and Saskatchewan Power Corporation. The action as against the defendant Cass-Beggs stands dismissed without costs and there will be no order as to his costs in the Court of Appeal or in this Court.

Judson J. (dissenting in part):—I think that the ruling of the learned trial judge in this case was erroneous and that it should not receive any approval in this Court based on what was said in Beevis v. Dawson11. Beevis v. Dawson was a case where the plaintiff did not give evidence himself. His counsel stated that he would call the plaintiff to give evidence in rebuttal after the defendant's evidence of justification had been heard. If a plaintiff wishes to conduct his case in this way, with its incidental risks, there is nothing to prevent him. No rule requires that he go into the witness box initially.

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But the present case is different. This plaintiff did give evidence—a lot of evidence—most of it directed to showing malice on the part of the defendants. Counsel for the defendants then proposed to cross-examine at large. This was his right and the normal conduct of a trial should not have been interfered with except on very grave grounds that do not exist in this case.

The defendants had delivered particulars which covered nine pages in the record. These are mostly concerned with alleged fraudulent expense accounts filed by the plaintiff. I. refer to only one of them—car expense account for 1958, for which the plaintiff claimed 34,858 miles, which, according to the speedometer reading, was the total mileage of the car, less three miles. Surely counsel for the defendants was entitled to cross-examine on this and similar matters when the witness was in the box, having given evidence of malice. After cross-examination on these matters it might well have been that the judge would have had a very different impression of the case and particularly of the reason given for the dismissal and testified to by Jerome.

It is also possible that the defendants could have gone a long way towards proving justification and absence of malice by cross-examination when the plaintiff was in the box initially. I see no reason why they should have to postpone the exercise of this right until they had put in their defence. If this had been a jury trial they had the right to make out their whole defence from the plaintiff when he was in the witness box. There is no doubt left by Singleton L.J. in Beevis v. Dawson on what he thought was the better course to follow. At p. 205 he said:

In these days particulars of justification have to be given, and the defendant is bound by them and cannot go beyond them. So that the plaintiff knows, before the hearing commences, what charges he has to meet, Thus there can be no element of surprise in the case before us. There were given abundant particulars of justification. One might have thought that a plaintiff seeking damages for libel would have been only too anxious to answer those charges. The plaintiff was not. He might have followed that which I regard as the usual practice, and have gone into the witness box; but he did not do so. His counsel said often that he proposed to do so later. The judge told him of the position, though he did not rule either way. As to general convenience, it cannot be doubted that it would have been better had the plaintiff been called and examined and cross-examined on the particulars of justification. That which happened in the present case gives as good an instance of inconvenience as could be found.

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Had this been a jury trial, I would have been prepared to hold that the error was so serious that it warranted the ordering of a new trial. However, there was no jury in this case. At some inconvenience the defence could have given evidence on the defence of justification and insisted on the plaintiff being called back for cross-examination. Instead of taking this course, counsel for the defence said that he would not call any evidence on the plea of justification in view of the serious error that he said existed in the judge's ruling. He took this course deliberately. He went on with the trial and there have been two appeals. In the circumstances, I do not think that a new trial should be ordered, but I wish to emphasize that in my opinion, there can be very few cases where a judge, in circumstances such as existed in this case, would be justified in ruling as the trial judge did here.

I agree that the appeal be disposed of according to the reasons of Cartwright J.

Appeal allowed with costs.

Solicitors for the defendants, respondents: Goldenberg, Taylor & Tallis, Saskatoon.