COURT OF APPEAL FOR ONTARIO
CITATION: Radmanish v. Sulaimankhail, 2016 ONCA 432
DATE: 20160602
DOCKET: C59480
Cronk, Blair and Pardu JJ.A.
BETWEEN
Karim Radmanish
Plaintiff (Respondent)
and
Gulbadin Sulaimankhail, Khan Sulaimankhail and Jumadin Sulaimankhail
Defendants (Appellant)
Marvin J. Huberman, for the appellant
Peter A. Grunwald, for the respondent
Heard: May 27, 2016
On appeal from the judgment of Justice Stephen E. Firestone of the Superior Court of Justice, dated September 19, 2014, with reasons reported at 2014 ONSC 4373.
ENDORSEMENT
[1] The respondent, Karim Radmanish, worked in a butcher shop with the appellant, Jumadin Sulaimankhail, and Jumadin’s two brothers. On March 3, 2004, the respondent was assaulted by them. At trial, the appellant admitted that he and his brother, Gulbadin, had assaulted the respondent, but argued that damages should be reduced because the respondent provoked the assault. On appeal, despite the admission of fault at trial, the appellant says that the judgment should be set aside or, in the alternative, there should be a new trial.
[2] The appellant submits that the trial judge made the following errors:
- he should not have made favorable credibility findings in relation to the respondent and a witness, Kamran Dar, because there were inconsistencies and contradictions in their testimonies, and he should not have rejected the appellant’s testimony;
- he should have found that the respondent provoked the assault; and
- he should not have found that the appellant and Gulbadin were joint tortfeasors.
[3] We reject each of these grounds of appeal.
A. THE EVIDENCE AT TRIAL
(1) The First Incident
[4] The respondent testified that he was having lunch when the appellant asked him to go to another store to do some work. The respondent asked if he could finish his lunch first, to which the appellant responded, “Leave your lunch – I’m telling you let’s go.” The respondent went to call Khan, the owner of the shop and the appellant’s other brother, to see if it was alright to leave, as Khan had made him responsible for taking care of the meat section. The respondent had the phone in his hand when the appellant allegedly said, “I’m the boss of the store”, took the receiver, and hit the respondent on the top of the head with it. The respondent said he was bleeding and dizzy, and remained in the lunchroom for three hours.
[5] The respondent called Khan to tell him about the incident. Khan arrived at the shop at about 8:00 p.m. and told the respondent that they would talk when the store closed at 10:00 p.m.
[6] Another employee, Kamran Dar, testified that he was working in the store that day. He said that, after the first incident, which he did not witness, the respondent worked the rest of the afternoon.
[7] The appellant’s account was very different. He testified that he asked the respondent to shelve groceries, to which the respondent said, “You’re not my boss and I’m not listening to you.” The respondent wanted to call Khan. The appellant told the respondent that, since he was not listening, he was fired. This angered the respondent, who then pushed the appellant and they began fighting. The appellant denied hitting the respondent with the phone. He said he pushed the respondent back, causing him to hit his head on a shelf. After the fight, the respondent spoke with Khan and then went home.
(2) The Second Incident
[8] The respondent said that while he was mopping at about 9:30 p.m., the appellant asked him to come outside to talk, with an apologetic demeanour. When he got outside, the appellant was there with his brother, Gulbadin, and another man. The appellant said, “Kill him”, at which time Gulbadin and the other man began beating the respondent with a stick. The respondent started screaming for help. Khan came outside with Kamran and two other employees. Khan also started punching the respondent, while the appellant and Gulbadin held him. Kamran and another employee separated them and brought the respondent inside.
[9] Kamran testified that he observed the appellant take the respondent out the store’s back door. He heard yelling and went outside with two other employees. He saw the appellant and Gulbadin punching and kicking the respondent. The respondent was trying to duck. Kamran said he did not remember observing anyone using a weapon to hit the respondent.
[10] The appellant again had a different version of events. He said that while he and Gulbadin were cleaning the store, the respondent and three other people, including the respondent’s brother, grabbed him by the collar, pulled him outside, and began attacking him.
(3) The Third Incident
[11] The respondent testified that after he was brought inside, Gulbadin came in and struck him with a knife on his right temple. During cross-examination, he said it was the appellant who attacked him, and that he had previously been confused. The respondent testified that Khan then came in and took him to the basement. Khan had calmed down. He asked the respondent not to call the police and threatened to harm him and his family if he told anyone about what happened.
[12] Kamran testified that after the respondent was brought back into the store, Gulbadin ran in the back door from outside and hit the respondent in the back with a screwdriver.
(4) Aftermath
[13] Three days later, the respondent gave a statement to the police. The police took photographs of his entire body, which were entered as exhibits at trial. The respondent sustained numerous physical and psychological injuries from the incidents, which have impacted his work as a butcher.
[14] In a criminal proceeding, the appellant and Gulbadin pleaded guilty to assaulting the respondent.
B. TRIAL JUDGE’S ANALYSIS
[15] The trial judge found that the respondent was a credible witness and that he was honest and straightforward, although sometimes confused. He also accepted Kamran’s evidence and found he was an impartial witness who corroborated the respondent’s account of the events.
[16] The trial judge further found that what Kamran testified he observed – the appellant and his brother beating the respondent, who was trying to duck in order to protect himself – were not the actions of a person who started and was actively participating in a fight. The trial judge therefore held that the defence of provocation could not be relied upon to mitigate or reduce damages.
[17] The trial judge also concluded that the appellant and his brother were joint tortfeasors. Although he found that it was Gulbadin who struck the respondent in the face with a knife or screwdriver in the third attack, that incident occurred shortly after the second attack, in which both brothers participated and acted in concert. The trial judge therefore held the third attack was in furtherance of a common plan between them, the purpose of which was to beat up the respondent.
C. CONCLUSIONS ON APPEAL
[18] We see no basis in the record to support the appellant’s submission that the trial judge’s assessments of credibility were flawed. The trial judge’s appreciation of the evidence attracts deference from a reviewing court. He was not required to address every inconsistency in the witnesses’ evidence. His reasons confirm that he considered and rejected the appellant’s and his brothers’ versions of events. His factual findings were reasonably open to him on the evidence. The appellant essentially asks this court to retry the case, which is not our function.
[19] Nor did the trial judge err in his treatment of provocation. He allowed the appellant to adduce evidence of provocation because it could have been relevant to the quantum of damages. However, he found as a fact that the respondent did nothing to provoke the assaults. He based this finding on evidence he found credible, particularly that of Kamran, who witnessed the second incident.
[20] On the same basis, it was open to the trial judge to conclude that the appellant and his brother were joint tortfeasors. Kamran described a joint assault by the brothers upon the respondent during the second incident, and the third incident occurred shortly afterwards.
[21] The trial judge indicated:
Regarding the second attack, it is clear that both Gulbadin and Jumadin acted in concert and participated in it. They are therefore joint tortfeasors and are both responsible for the damages sustained.
I find that Gulbadin alone struck Karim in the face with a knife or screwdriver in the last attack. This however occurred immediately following the second attack. I therefore find that this third attack was in furtherance of the common plan, in which both Gulbadin and Jumadin participated, the common purpose of which was to beat up and cause harm to Karim.
[22] The appellant candidly acknowledged in oral argument that if these findings could be sustained on the evidence, a finding that the appellant and his brother were joint tortfeasors followed. In our view, there is no basis to disturb the trial judge’s findings of fact.
[23] The appellant did not pursue the other grounds of appeal advanced in his factum.
[24] Accordingly, for these reasons, the appeal is dismissed, with costs payable to the respondent in the agreed sum of $11,300, all inclusive.
“E.A. Cronk J.A.”
“R.A. Blair J.A.”
“G. Pardu J.A.”