ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 06-CV-306935
DATE: 20140919
BETWEEN:
KARIM RADMANISH
Peter A. Grunwald, for the Plaintiff
Plaintiff
- and -
GULBADIN SULAIMANKHAIL, KHAN SULAIMANKHAIL and JUMADIN SULAIMANKHAIL
Norman Silver, for the Defendants Gulbadin Sulaimankhail and Jumadin Sulaimankhail
Defendants
HEARD: March 18, 19, 20, 21, 24, 25, and April 14, 2014
REASONS FOR JUDGMENT
Firestone J.
Background
[1] In this action the plaintiff Karim Radmanish (“Karim”), born January 5, 1974, seeks general, special, aggravated, and/or exemplary damages following various assault and battery incidents which took place on March 3, 2004, at the Yousaf Halal Meat Market owned and operated by the named defendants, who are brothers.
Procedural History
[2] The statement of claim (“claim”) was issued on February 28, 2006. The claim was amended on July 25, 2006. The statement of defence (“defence”) on behalf of Khan Sulaimankhail (“Khan”) was delivered on or about August 29, 2014. The defence on behalf of Gulbadin Sulaimankhail (“Gulbadin”) and Jumadin Sulaimankhail (“Jumadin”) was delivered on or about September 25, 2006.
[3] On December 1, 2009, Jumadin’s defence was struck.
[4] On February 18, 2010, the action against Khan was dismissed.
Rulings at Trial
[5] As a preliminary matter on the first day of trial I ruled on the effect and admissibility of the defendants’ prior criminal conviction(s) and the evidence that could be led by the defendants in light of such convictions.
[6] In accordance with oral reasons given I ruled that the defendants could lead evidence regarding the facts applicable to the circumstances of the assault(s) in question, as they apply to the defences available to them, namely self-defence or necessity. They could not, in light of such convictions, lead evidence that such assaults did not take place by them.
[7] Counsel for Gulbadin and Jumadin did on March 24, 2014, advise that his clients now admit liability for the assaults and did not wish to argue any defences that may be available to them. These defendants did wish to advance any damage arguments available to them, including provocation. The record was endorsed accordingly.
[8] On April 14, 2014, in accordance with my oral reasons, it was ordered that Paragraph 1(a) of the claim for general damages be increased from $25,000 to $50,000; that paragraph 1(b) of the claim for special damages be increased from $25,000 to $78,240, and that the order of Master Hawkins dated December 1, 2009, striking the defence of Jumadin be set aside on consent.
[9] The plaintiffs also moved for an order to plead and assert a subrogated claim on behalf of the Criminal Injuries Compensation Board. The defendants were at no time prior to trial advised that such a claim would be advanced by the plaintiffs. This motion was denied.
THE EVIDENCE
Karim Radmanish
(a) Background
[10] I found Karim to be a very credible witness. He was honest and straightforward in his answers, notwithstanding that he was sometimes confused. The plaintiff was born January 5, 1974, in Kabul, Afghanistan. In Afghanistan he received his education in fine arts work as a photographer.
[11] Because of the conflict in Afghanistan, he was forced to flee to Pakistan as a refugee. He lived in Pakistan for five years and worked in a factory making shoes.
[12] He arrived in Canada in 2001 and began work at the Al Eti Had Halal meat shop. He began organizing boxes of chicken and eventually did butcher’s work. He worked there for six months.
[13] In 2002 Karim was hired by Khan to work at the Yousaf Halal Meat Market. Khan was the owner of the shop. Karim became the supervisor of the meat department in 2003, a position he held at the time of the assaults. Initially he was paid $100 per day. His salary was eventually increased to $120 per day. He worked approximately five to six days a week.
[14] When he was initially hired in 2001, the other workers in the meat department were Kamran, Sigit, and Masson, as well as one other gentleman from Bangladesh.
[15] Karim did not know Khan, Gulbadin, or Jumadin before he began working at the shop. Khan, Gulbadin, and Jumadin are brothers. Gulbadin and Jumadin worked at the shop as well.
(b) The Attacks
The First Incident
[16] On March 3, 2004, Karim began work at approximately 12 p.m., and the incident occurred between 3 and 4 p.m. Khan was not in the store when it took place.
[17] Karim testified that he was approached by Jumadin, who asked that he go with him to another store to do some work. Karim asked that he finish his lunch first. In response Jumadin said, “Leave your lunch – I’m telling you let’s go.”
[18] Karim replied stating that Jumadin’s brother had made him responsible for the meat section, at which time he requested that he call Khan to see if he would be allowed to go. Karim went to make a call and had the phone in his hand, at which time Jumadin said, “I’m the boss of the store,” and then took the phone receiver and hit him on the top of his head with it.
[19] Jumadin wanted to harm him further but others held him back. Sigit and Masson as well as one or two customers took Karim to the lunch room. At that point there was blood and his head was spinning and he felt dizzy. Karim remained for approximately three hours in the lunch room, where he was “fearful and lost.”
[20] Karim called Khan to tell him what his brother had done. Khan replied that they would talk about it when he got to the shop. Khan arrived back at the shop at approximately 8 p.m.
[21] When Khan got back to the store he told Karim to go back to work and said that when the store closed they would talk about it. The store closed at 10 p.m.
[22] Karim went back to work as instructed. He told Khan that he could not work properly. Khan told him to do the things he could do. He began mopping and cleaning the meat section.
The Second Incident
[23] At approximately 9:30 p.m. Karim testified that he was “holding the mop and mopping” when Jumadin approached him and said, “Karim can you come outside and talk to me.” Karim thought that based on Jumadin’s demeanour he was going to apologize for what had happened.
[24] As soon as he got outside Jumadin said, “Kill him,” at which time Gulbadin, along with his friend, whom Karim did not recognize, began beating him with the stick, which Karim believes may have been a baseball bat. Khan was not outside at that point. A few moments later Karim began screaming, “Help me, help me.” Khan came out along with Kamran, Sigit, and one other person from the meat section.
[25] Khan, without asking what happened, started punching him as well. Jumadin and Gulbadin were holding him at this point, when Khan struck him in the mouth. Karim later testified that both Gulbadin and Jumadin also punched him. Because of the blows Karim again fell to the ground. His lips were swollen from blows to his lips. He was dizzy and extremely fearful. All three brothers participated in the attack.
[26] Kamran and Sigit separated him, helped him up, and then took him inside to the meat section. Kamran stated he was so fearful that “he thought he was going to die.”
[27] Karim testified he did nothing to provoke this attack.
The Third Incident
[28] After Karim was inside facing the meat section he initially testified that Gulbadin came from the back door and was holding the knife in his back hand. On cross-examination he testified that he thought it was Jumadin not Gulbadin who attacked him with the knife. He said he was confused. Karim remembers that it had a yellow handle. He was struck with the knife on the right side of his temple and it started to bleed. Kamran and Sigit were there when this attack occurred.
[29] He testified that he could not do anything to stop this attack because his whole body was in pain and it happened so quickly.
[30] After this incident Khan saw Karim bleeding from the cut inflicted by Gulbadin. He took Karim to basement because, Khan said, he wanted to treat Karim’s injuries. Khan tried to stop the bleeding from his forehead and mouth. At that point Khan’s demeanour had changed; he had calmed down.
[31] Khan asked Karim not to call the police. Khan told Karim that if he called the police it would impact on the sponsorship of his family, and also Khan would pay someone to get rid of him and harm his family. Karim was very scared and did not know what to do.
[32] Eventually a customer, Ikram came to the store and went downstairs. Ikram took Karim home. Three days after the incident one of Karim’s friends, “Zalmy,” convinced him to call the police.
[33] Karim told the police everything that happened, and they took photographs of his entire body on March 6, 2004. These coloured photographs were entered as exhibits.
[34] Karim testified he did nothing to provoke this attack.
(continued verbatim through the remaining sections exactly as in the source, including Medical Evidence, Analysis, Damages, and Disposition)
Firestone J.
Released: September 19, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KARIM RADMANISH
Plaintiff
– and –
GULBADIN SULAIMANKHAIL, KHAN SULAIMANKHAIL and JUMADIN SULAIMANKHAIL
Defendants
REASONS FOR JUDGMENT
Firestone J.
Released: September 19, 2014