COURT OF APPEAL FOR ONTARIO

DATE: 20060718

DOCKET: C44604

RE:

ELIM TECH INC. (Plaintiff (Respondent)) – and – BEIGI ENTERPRISE and MASOOD ESMAEILBEIGI (also known as MASOUD ESMAEILBEIGI) (Defendants (Appellants)

AND BETWEEN:

BEIGI ENTERPRISE and MASOOD ESMAEILBEIGI (also Known as MASOUD ESMAEILBEIGI (Plaintiffs by Counterclaim (Appellants)) – and – ELIM TECH INC. (Defendant by Counterclaim (Respondent))

BEFORE:

SIMMONS, ARMSTRONG AND LAFORME JJ.A.

COUNSEL:

Yehuda Levinson for the appellant

Gerald Kinasz for the respondent

HEARD & RELEASED ORALLY IN PART:

June 28, 2006

On appeal from the order of Justice Randall S. Echlin of the Superior Court of Justice dated May 27, 2004.

E N D O R S E M E N T

[1] Following a jury trial, Echlin J. granted judgment to the respondent for $35,126 representing the balance owing on account of prepaid telephone cards sold to the appellant plus pre-judgment interest and costs. Although the judgment does not refer to the appellant's counterclaim, it is implicit that, in accordance with the verdict of the jury, the counterclaim was dismissed.

[2] The appellant raised several issues on appeal. We called on the respondent only in relation to the issues raised concerning damages for slander. Dealing briefly with the other issues raised, in our view, the appellant has not met the threshold for establishing reasonable apprehension of bias. Further, viewed in context, we are not satisfied that the trial judge's erroneous comment to the jury concerning when the appellant acknowledged funds were owing to the respondent undermined the appellant’s position with the jury.

[3] Even if it was not technically open to the trial judge to grant a motion for partial judgment prior to the conclusion of the trial, we see no prejudice arising from the procedure adopted by the trial judge. The appellant acknowledges that, subject to his counterclaim, the sum of $35,126 is owing to the respondent. The jury found that the respondent did not defraud the appellant and the appellant has not raised any issue on appeal concerning his counterclaim for inducing breach of contract. For reasons that we will explain, we propose to order a new trial in relation to the appellant's counterclaim for slander.

[4] When the jury reached its verdict they sent a note to the trial judge stating:

We have come to a verdict and it will not be affected by the answer to our question. Can we add a recommendation to our verdict?

After consulting with the parties, the trial judge declined to receive the jury’s recommendation.

[5] In our view, while it would have been open to the trial judge to obtain and review the jury’s recommendation, because the jury stated specifically that the recommendation did not affect the verdict, the trial judge did not err by declining to do so.

[6] Turning to the grounds of appeal relating to damages for slander, we note at the outset that the appellant was unrepresented in the court below and that, in his counterclaim, he pleaded slander only and provided no particulars. At trial, evidence was led without objection of both libel and slander. Although the trial judge explained the difference between libel and slander in his charge, he did not tell the jury what evidence was capable of constituting either libel or slander. Moreover, as we will explain, the trial judge’s instructions on damages were incomplete and the only questions put to the jury on the issue of defamation related to slander. In their verdict, the jury found that the appellant was slandered either by the respondent or its principal, but assessed damages at zero.

[7] In our view, when dealing with the counterclaim for slander, it was incumbent on the trial judge to explain the concepts of general, special and nominal damages to the jury, and to also instruct the jury that, in an action for slander concerning the appellant's business trade or calling[^1], proof of special damages is not essential. Further, in respect of general damages, the trial judge should have instructed the jury that such damages are at large and presumed. In this case, the plaintiff's claim was for the balance owing on a contract. In order to dispose of that claim, it was unnecessary that the jury understand the concept of damages. Particularly in these circumstances, we are unable to conclude that the jury's verdict in relation to damages on the counterclaim would necessarily have been the same had they been properly instructed.

[8] For these reasons, the appeal is allowed in part and the judgment is amended to dismiss the counterclaim. As Mr. Kang was not made a party to this appeal, that portion of the judgment dismissing the counterclaim for slander is set aside against Elim Tech Inc. only. Further, given that the counterclaim proceeded on the basis of both libel and slander, that the trial judge charged the jury in relation to both causes of action without objection, and at the request of the appellant, it is ordered that there be a new trial in relation to the appellant’s counterclaim for defamation. The appellant shall deliver an amended counterclaim, which may include claims for both libel and slander and which shall provide particulars of the appellant’s claim(s). The respondent may deliver an amended defence to counterclaim raising any applicable defences.

[9] As success on the appeal was divided, there shall be no order as to costs.

Signed: “Janet Simmons J.A.”

“H.S. LaForme J.A.”

“Robert P. Armstrong J.A.”

[^1]: Here the alleged slander related to commission of a crime in the course of business.