



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

Sulaimankhai
l

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 Jumadins 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 appellants 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  Im telling you lets go. The respondent went to call Khan, the owner
    of the shop and the appellants 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,
    Im 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 appellants account was very different. He testified that he asked
    the respondent to shelve groceries, to which the respondent said, Youre not
    my boss and Im 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 stores 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 respondents 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 JUDGES 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 Kamrans
    evidence and found he was an impartial witness who corroborated the respondents
    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 liable as
    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 appellants submission that the trial
    judges assessments of credibility were flawed. The trial judges 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 appellants 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
    judges 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.


