Mann v. Balaban et al.

Mann v. Balaban et al.

Majority held the trial judge misdirected the jury by casting on the plaintiff the burden to disprove lawful excuse and to prove excessive force; established law requires plaintiff to prove assault and injury, after which the defence must prove justification and reasonableness of force; because evidence was sharply contradictory the misdirection could have affected the verdict and amounted to a possible miscarriage of justice, so appeal allowed and new trial ordered (dissent would have dismissed appeal).

Citation
[1970] SCR 74
Parties
Plaintiff/appellant: Warren Mann; Defendant/respondent: Walter Balaban; Defendant/respondent: Fersu Hotel Limited
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
7 October 1969
Procedural Posture
Tort Assault (civil Action) on Appeal to Supreme Court of Canada / Appeal From Court of Appeal for Ontario; Judgment on Jury Verdict; New Trial Ordered by Majority
Outcome
Appeal allowed by majority; new trial ordered (Martland and Judson JJ. dissenting)
Legal Topics
Assault and Battery, Onus/burden of Proof, Jury Direction/misdirection, Justification/self Defence, New Trial and Miscarriage of Justice
Source Language
English
Tort Criminal Law (assault) Civil Procedure Assault and Battery Onus/burden of Proof Jury Direction/misdirection Justification/self Defence New Trial and Miscarriage of Justice

Case Brief

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Parties

Warren Mann

Plaintiff/appellant

Walter Balaban

Defendant/respondent

Fersu Hotel Limited

Defendant/respondent

Procedural Posture

Tort Assault (civil Action) on Appeal to Supreme Court of Canada / Appeal From Court of Appeal for Ontario; Judgment on Jury Verdict; New Trial Ordered by Majority

Legal Issues

  1. 1 Whether the trial judge misdirected the jury by placing the onus on the plaintiff to disprove lawful excuse/justification and to prove the use of excessive force
  2. 2 Whether, in an action for assault, the burden shifts to the defendant to prove justification and that force was reasonable after plaintiff proves assault and injury
  3. 3 Whether the alleged misdirection may have caused a miscarriage of justice entitling plaintiff to a new trial despite no contemporaneous objection

Ratio Decidendi

Majority held the trial judge misdirected the jury by casting on the plaintiff the burden to disprove lawful excuse and to prove excessive force; established law requires plaintiff to prove assault and injury, after which the defence must prove justification and reasonableness of force; because evidence was sharply contradictory the misdirection could have affected the verdict and amounted to a possible miscarriage of justice, so appeal allowed and new trial ordered (dissent would have dismissed appeal).

Court Disposition

Appeal allowed by majority; new trial ordered (Martland and Judson JJ. dissenting)

Orders

  • New trial ordered
  • No costs to appellant for the first trial