Wilkins, John

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York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 3, Number 3 (October 1965) Article 12Torts: Levi J. Jerome v. Donald J. Anderson, DavidCass-Beggs, Saskatchewan Power Corporation[1964] S.C.R. 291John WilkinsFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljCommentaryThis Commentary is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationWilkins, John. "Torts: Levi J. Jerome v. Donald J. Anderson, David Cass-Beggs, Saskatchewan Power Corporation [1964] S.C.R. 291."Osgoode Hall Law Journal 3.3 (1965) : 493-497.http://digitalcommons.osgoode.yorku.ca/ohlj/vol3/iss3/12Supreme Court ReviewTORTSLevi J. Jerome v. Donald J. Anderson, David Cass-Beggs, Saskat-chewan Power Corporation [1964] S.C.R. 291.JOHN WILKINS°LIBEL - DEFENCE OF JUSTIFICATION - JUDICIAL - DISCRETION TOPOSTPONE REBUTTAL OF JUSTIFICATION.In the recent decision of Jerome v. Anderson' the Supreme Courtof Canada has accepted the existence of a discretion in trial courtjudges to permit the plaintiff in a defamation action to reserveevidence of rebuttal to the defence of justification until after thedefendant has made his plea. After giving evidence of malice, Jeromewas permitted to refrain from presenting his whole case, and toseparate that evidence pertinent to rebuttal of justification untilAnderson had presented his evidence as to the plea of justification.Jerome had been an employee of the Saskatchewan Power Corpor-ation who was dismissed from his job in a most inconsiderate andabrupt fashion, after only a cursory examination of the relevantfacts. The letter of dismissal, written by Anderson, was published tofour other officers of the corporation. This letter contained severallibelous allegations allegedly based on certain past conduct by Jerome,the same conduct, apparently, as was alleged in the particulars sub-mitted by the defendant. The letter was the ground on which anaction was brought. Anderson defended by pleading justification anddelivered nine pages of detailed particulars alleging a series of pre-vious incidents purporting to bring Jerome's honesty into question.At trial Jerome succeeded in proof of malice and this finding wasupheld by the Supreme Court of Canada. After presenting his evidenceas to malice the plaintiff requested, and was granted, permission tocomplete his evidence in rebuttal to justification after the defendanthad made his plea of justification. The defendant then elected not toenter evidence of justification.On appeal, the trial decision was reversed on the basis of failure toprove malice, but the court did not deal with the procedural issue. TheSupreme Court of Canada unanimously reversed the findings of theappellate court with regard to malice, reaffirming the trial decision. Onthe second issue, the majority, Judson J. dissenting2 , affirmed the exer-cise, by the trial judge, of the discretion to permit the alteration in theprocedure of presenting evidence. The Supreme Court rested theirdecision directly upon the cases of Maclaren and Sons v. Davis et al.,3*Mr. Wilkins is a second year student at Osgoode Hall Law School.1 [1964] S.C.R. 291.2 Id. at 309.3 (1890), 6 T.L.R. 327.1965]OSGOODE HALL LAW JOURNALBrowne v. Murray4 and Beevis v. Dawson,5 most reliance being placedupon the last mentioned case.The Court in Bevis v. Dawson exercised this discretionary powerto vary the usual procedure, indicating it was a tool which the trialjudge could use to mould the course of the action in a manner bestfitted for the aims and goals of judicial process. In further defining theboundaries of this discretion, Singleton L.J. stated that after permis-sion had been granted to postpone the evidence tending to rebut thedefence of justification, no questions could be put to the plaintiff incross examination pertaining to justification.6 Thus there could be noseparation of the evidence of rebuttal of justification but there could bea partition into evidence of malice and evidence of rebuttal. In Brownev. Murray the same changes in procedure were permitted at the dis-cretion of the Court, Abbot L.J. stating that if the plaintiff did adduceevidence of rebuttal of justification after being granted the request todivide his evidence, he would have to proceed with his whole case.7 So,it appears that in order to quality for this special privilege, a plaintiffin a defamation action must sever the pattern of his evidence intoalmost watertight compartments.The distinction between proof of malice and rebuttal of justifica-tion must, of necessity in many cases, be a hairline difference. The taskof separating evidence, as indicated above, is one of formidable propor-tions. In a great number of instances the same facts will be equallyrelevant to proving malice and to refuting the defence of justification.Similarly, questions in cross examination dealing credibility must, inmany cases, be questions involving the facts alleged as a basis ofjustification. In view of this, it becomes obvious that a compartmentali-zation of evidence along any semblance of rigid lines must, in somecases, be virtually impossible without the superficial mental gymnas-tics which result from refined levels of semantic differentiation. Theseproblems of shades in meaning are more within the realms of philoso-phy than the practicalities of the procedure of a court of law and if thecourt is to preserve the special privilege granted to the plaintiff, thenit must be prepared to deal in a high degree of abstracts in order to rulewith great precision upon the admissability of both evidence and ques-tions at specific times in the progress of the trial. This would lead to amorass of complex technical problems in evidence resulting in a con-stant procedural wrangling over admissabiity, the final outcome beingto make an action so involved that, as in Beevis v. Dawson, it becomesdifficult for the trial judge to manage and virtually impossible for ajury to comprehend.The possible difficulties arising when the rebuttal to justificationis postponed must be considered by the trial judge called on to exercise4 (1825), 1 R.Y. & M. 254.5 [1957] 1 Q.B. 195.6 Boevis v. Dawson, supra footnote 5 at 250.7 Id. at 254.[voL. 3Supreme Court Reviewhis discretion. It would seem likely that on balance, the negative effectsmust outweight the positive, and the exercise of such a discretion mustbe virtually precluded at jury trials.The roots of this special discretion in defamation actions are fairlyobscure. In Canada there are few reported cases which deal with thisissue at either the trial or the appeal level. In Rees v. Smith8 LordEllenborough held that when the plaintiff was aware, before the action,of the defendant's pleading, he was obliged to bring his whole case first,though he might later make reply to specific facts. This was an actionfor trespass, but the same logic applies to defamation. In an old case,J'Anson v. Stuart9, the court held that "a plaintiff cannot come to trialprepared to justify his whole life". This appears to indicate the reasonbehind the discretion to alter trial procedure in an action for defama-tion. The postponement of the rebuttal of justification is a proceduraldevice to protect the plaintiff, and the court, from extraneous eviden-tiary presentment, as well as surprises after the trial has commenced.In Maclaren and Sons v. Davis et al.'o, the rebuttal of justificationwas delayed to spare the court the useless process of proving that everyarticle and advertisement ever published in the plaintiff's journal hadnot been stolen. The discretion was used in order that the plaintiffneed only rebut the allegations specifically made on certain articles.In the light of such a potential waste of the court's time, the exerciseof special judicial discretion appears most justifiable.Under the current rules of procedure, where plaintiffs in actionsfor defamation may move for further particulars on the statement ofdefence, the alteration of usual trial procedure in such cases as theMaclaren case becomes less necessary. A complete enumeration of allincidents alleged by the defendant in his plea of justification to theplaintiff must be delivered. The court will, on the other hand, strike outvexatious and irrelevant pleadings, thus prevent the defendant frompadding his allegations for purposes of embarassing the plaintiff.Rees v. Smith" and Beevis v. Dawson'2 both indicate that thisspecial discretion may not be granted where adequate particulars havebeen made available. In Arnold and Butler v. Bottomley,' 3 Farwell, L.J.states that the defendant pleading justification must state all the factshe intends to rely upon in his statement of defence, the right to dis-covery being limited to only these facts. Then, with regard to particu-lars, in Marks v. Wilson Boyd 4, the Court found it a usual procedure todeliver particulars in addition to the statement of defence. In thismanner the plaintiff becomes fully aware of all the allegations he mustmeet prior to the trial of the action. In view of this, the further advan-8 (1825), 2 Stark N.P.L. 31, 32.9 (1787), 1 Term Rep. 748, 752.10 (1890), 6 T.L.R. 372.1l Supra, footnote 8 at 32.12 Supra, footnote 5 at 205.13 [1908] 2 K.B. 151, 156.14 [1939] 2 All E.R. 608.1965]OSGOODE HALL LAW JOURNALtage of the postponement of the rebuttal to the defence of justificationhas the appearance of sheer redundancy.In the two leading cases involving this procedural issue the finaldecisions were rendered with the omission of essential evidence. InJerome v. Anderson15, the defendant intentionally did not bring proofof his allegations of justification, while in Beevis v. Dawson16, theplaintiff failed to bring any evidence of rebuttal of justification in theconfusion following the court's decision to permit the plaintiff's dicho-tomy of evidence. In both instances, had the plaintiff followed the nor-mal course of procedure by presenting his full case initially, all thefacts would have come before the court, and, as Judson J. indicatedin Jerome v. Anderson,17 an entirely different complexion might havebeen created had this evidence been brought. In both cases the finaleffects of the exercise of judicial discretion left much to be desired.With these cases in mind, the value of this extraordinary procedureis put further in doubt.One major distinction between the Beevis case and the Jeromecase is that in the former, the plaintiff never took the witness stand. Ifthe plaintiff does not take the stand before the defendant brings hisevidence of justification, many of the technical difficulties arising froma postponement of the plaintiff's rebuttal are removed. In such in-stances, the judicial discretion is well used and affords a compactapproach to trial procedure. However, few plaintiffs are in the fortun-ate position of not having to bring evidence as to malice. Thus itappears that in Jerome v. Anderson,'s the court has accepted a moregeneral discretion where initially only a rather rare exception hadexisted.The second distinction between these cases is that the action inthe Beevis case was before judge and jury whereas the Jerome decisionwas before judge alone. Combining the differences into four possibili-ties there are actions before judge and jury where the plaintiff does, ordoes not bring, evidence prior to the defendant's plea of justification,and actions before judge alone where prior evidence is, or is not,brought. In either case where no prior evidence is given by the plaintiff,the trial judge would find this special discretion a useful tool. However,if prior evidence is given, only a trial before judge alone is reasonableas a trial procedure in the light of the possible difficulties mentionedabove. Jerome v. Anderson was heard before judge alone, so it ispossible that the Supreme Court of Canada would limit the applicationof this discretion to actions before a judge who, sitting alone, is betterable to sort out the difficulties than would be a jury. Even with nojury the trial judge who permits the postponement of rebuttal will befaced with problems which he would have to consider in detail beforegiving a ruling. Under section 55 of the Judicature Act all actions for15 [1964J S.C.R. 291.16 Supra, footnote 5.17 Supra, footnote 1 at 310.Is Ibid.(VOL. 3Supreme Court Reviewdefamation must be tried before a jury, except by agreement of theparties. The majority of defamation actions would thus be heard beforea jury, since most defendants would be unwilling to voluntarily givethe plaintiff procedural advantage. The inferance from this is thatactions which might ordinarily be heard by judge alone would nowbe heard before a jury, resulting in a longer delay and higher trial cost,both of which are undesirable side affects.As things stand at present, the discretion of the court to postponethe rebuttal of justification is limited to a minority of actions.Jerome v. Anderson may be looked upon as only widening the accepteduse of this procedural discretion to encompass the non-jury actionwhere prior evidence is given by the plaintiff. With regard to anaction before a jury where the plaintiff gives prior evidence, JudsonJ., in Jerome v. Anderson,19 stated in his dissent that to postpone therebuttal by the plaintiff would have been an error so serious as towarrant a new trial being ordered. This strong dissent, in obiter, couldnot be ignored in future defamation actions, and indications are thatthis procedure would not be available under these circumstances. Onthe whole, the discretionary alteration of procedure has little to sup-port it in terms of logic, and to limit it to actions where no prior evi-dence has been brought by a plaintiff offers the best alternative. How-ever, it would appear from the Jerome v. Anderson decision that itsrecognized use has now been broadened.Campbell v. Royal Bank of Canada [1964] S.C.R. 85.G. W. D. MCKECHNiv-*NEGLIGENCE - TNVITOR AND INVITEE - UNUSUAL DANGER - FAILURETO USE REASONABLE CARE - DEFENCE OF VOLENTI NON FIT INJURIA.Since the decision in London Graving Dock Co. v. Horton,' therehas been some doubt as to the scope of an occupier's duty to an invitee.Two of the contentious issues have been; (a) whether an objective orsubjective test should be used in ascertaining what is meant by an"unusual danger", and (b) the relevance of an invitee's knowledge ofsuch a danger in discharging the invitor's duty to the invitee. Recentlythese issues were considered by the Supreme Court of Canada in thecase of Campbell v. Royal Bank of Canada.2In that case the plaintiff, a customer of the defendant bank,slipped and fell in some water which had collected around the teller'swicket. Snow had been tracked inside the bank and had melted,19 Supra, footnote 1 at 311.*Mr. McKechnie is a second year student at Osgoode Hall Law School.1 [1951] A.C. 737; [1951] 2 All E.R. 1.2 (1963), 46 W.W.R. 79; 43 D.L.R. (2d) 341; [1964] S.C.R. 85.1965]

Torts: Levi J. Jerome v. Donald J. Anderson, David Cass-Beggs, Saskatchewan Power Corporation [1964] S.C.R. 291

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Torts: Levi J. Jerome v. Donald J. Anderson, David Cass-Beggs, Saskatchewan Power Corporation [1964] S.C.R. 291

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