GoAIn.
APPEAL from the judgment of the Appellate Division of the Supreme Court of Alberta, affirming the judgment of the trial judge, Tweedie J., with a jury and maintaining the respondent's action for damages.
The respondent was a butcher by trade and was employed as such by the appellants in June, 1931.
He was dismissed from his employ in August, 1932. The appellant Libin, owner of the Shoprite Stores, in September of the same year, sent to his clientele a circular letter, in which he stated inter alia that he had decided to dispense with the respondent's services "because Mr. Gardiner did not conduct the meat department in a sanitary way." The respondent, alleging that these statements were false and malicious, brought an action for libel against the appellants. The trial judge with a jury, maintained the action for $2,000 general damages and $100 special damages, which judgment was unanimously affirmed by the appellate court.
J. B. Barron for the appellants.
The judgment of the Court was delivered orally by C.J.-Mr. Barron has, as usual, prepared his case with great industry and has, no doubt, said everything that could be said in support of his client's appeal. Nevertheless, we have had an opportunity of examining the evidence with care and we have come to the conclusion that it is not necessary to call on counsel for the respondent. We agree with the view of the pleadings taken by the Appellate Division.
As regards the other matters, we do not think it necessary to say whether we do or do not concur with the view of Mr. Justice Tweedie that the publication of the libellous matter-of the libellous communication-to the customers of the meat market would, in the absence of proof of express malice, be protected as privileged communication. All that is necessary to say is that we are quite clear that the appellant has no ground to complain against the ruling of the trial judge on that point.
Then, as to misdirection; first, in respect of privilege. There again we are quite satisfied that the appellant has no ground for complaint. In some respects it may be that matters were put to the jury rather more favourably to him than he was entitled to require.
DuffCJ. As to express malice,-when the charge is read as a whole, we think the jury could have been under no misapprehension as to the meaning of the learned trial judge. We think he made it quite clear to them that they must be satisfied of the existence of express malice in order to escape the result of his ruling as to privilege.
There are some other matters of misdirection in respect to which it will be necessary to mention only two. One concerns the plea of justification. The complaint there is that the jury were not told that they might find upon that issue favourably to the appellant, upon circumstantial evidence alone. It is quite clear to us that if a direction of that kind was desired counsel ought to have asked for it. In addition to that, no complaint was made in respect of any such misdirection in the notice of appeal. We have no doubt that, where one of the grounds of appeal is misdirection, under rule 323, the misdirection must be stated with reasonable definiteness in the notice of appeal. In these circumstances, we consider that particular ground is not open in this Court.
The other matter in respect of which misdirection is charged-the only other matter requiring notice by us-is what the learned trial judge said at the conclusion of his charge upon the failure of the defendant to establish his plea of justification as being something which the jury might take into consideration as matter in aggravation of damages.
There again the learned judge's attention was not called to the inaccuracy of his language, and there, also, the matter now complained of is not mentioned in the notice of appeal. In the circumstances, that ground also is not open here.
In the result, we think the appeal should be dismissed with costs.
Appeal dismissed with costs. Solicitor for the appellants: A. L. Barron.
Solicitor for the respondent: J. McKinley Cameron. OF
CANADA LIMITED
APPEAL from the judgment of the Court of King's Bench, appeal side, province of Quebec, affirming unanimously the judgment of the trial judge, Marchand J., and dismissing the appellant's action with costs.
The appellant claimed the sum of $23,900 as damages for an illness which he alleged he contracted whilst in the employ of the respondent, between May and September, 1929. The appellant's claim was that his disease (Bright's disease in chronic form) had been caused by his having absorbed gases in respondent's establishment in Shawinigan Falls, and he attributed it to a number of alleged defects in respondent's establishment, absence of or defect in ventilation, faulty handling of material, absence of masks or breathing apparatus, absence of instructions on the dangers, excessive heat, too long hours of work exceeding appellant's and other workmen's strength, exposure to cold after intense heat, bad quality of drinking water, use of metals causing undue danger.
The appellant alleged that a great many other workmen who were employed in respondent's establishment became ill as a result of the conditions existing there and that he was suffering permanent incapacity. The respondent pleaded that, if the appellant was affected by any disease, it was not caused by any noxious substances emanating from the metals that he was handling or that were being treated in the company's workshops, but that his state of health was weak for a long time previous to his employment; that his illness was due to causes absolutely foreign to the work that he performed for the respondent or the things that the respondent had in its care; that many Co. o. men employed by the respondent remained in its employ for a great many years without suffering any ill-effect, that its establishment was operated in accordance with the law respecting industrial establishments and the law respecting hygiene for the province of Quebec; that its process of manufacture was most modern; that its operations were carried on according to the rules of art and that its establishment was kept in healthy and sanitary conditions, considering the kind of production that has to be done by the respondent; that in the remelting department where the appellant worked there were no gases or metallic evaporation which could cause the illness of which he complained and that the working conditions in that department were normal; that previous to his employment by the respondent, the appellant was in a poor state of health; that he had been weak for many years and suffered from earache; that the disease (Bright's disease) affecting the appellant was not caused by his working conditions when employed with the respondent.
The appellant's action was dismissed by the trial judge, Marchand J., who delivered elaborate reasons for judgment dealing with all the facts of the case; and the judgment was unanimously affirmed by the appellate court.
Louis A. Pouliot K.C. for the appellant.
J. A. Prud'homme K.C. and Lgon Girard for the respondent.
On the appeal to this Court, after hearing argument of counsel for the appellant, without calling upon the respondent's counsel, the Chief Justice delivered orally the judgment of the Court.
C.J.-We think, Mr. Prud'homme, it is unnecessary to call upon you. We have had some opportunity of looking into the appeal since it was opened yesterday afternoon and have had the advantage of & very exhaustive and able argument by Mr. Pouliot in which, we are quite S.C.R.]
satisfied, everything that reasonably could be said has been said in support of the appeal.
The appellant's case is put upon article 1054 C.C. as well as on article 1053 C.C. Mr. Pouliot, with frankness and candour, agrees that, in every respect of the case, the onus was upon the plaintiff (now the appellant) to establish causal relation between the faults of the respondents or the plant or something under the care of the respondents and the malady from which the appellant suffers and in respect of which he claims reparation.
The learned trial judge found, not only that the appellant had not acquitted himself of the onus upon him in respect of this issue, but he found that, in fact, the causal relation did not exist. The Court of King's Bench confirmed that finding by the declaration in its formal judgment that there was no error in the judgment of the Superior Court. In this Court, in view of the concurrent findings of the courts below, we are not called upon to say what we should have done if one of us had been sitting in the place of the trial judge. We say nothing whatever about that. The onus was upon the appellant to establish that the courts below were clearly wrong in the manner in which they disposed of the issue, and, in order to do that, it is necessary that something should be pointed out that is definitely wrong in what they did. Our attention has not been called to any error of law, to any error with respect to the burden of proof, to any material misapprehension of the effect of the evidence, and we are satisfied that, on the whole, this is a case in which we could not properly interfere.
The appeal will be dismissed with costs.
Appeal dismissed with costs.