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Miska v Sivec, [1959] OR 144, 18 DLR (2d) 363 (Ont CA)

Facts:

This is a bad neighbor case. Sivec (S) unintentionally shoots Misa (M).

S is driving, M cuts him off. M runs at S with a bar and knife. S gets gun and fires warning shots, hits M. S argues provocation. Trial court makes guilty ruling.

This appeal is on the basis that court didn’t consider provocation when considering damages.

Issue(s):

What is the test for provocation?

Ratio:

Provocation is determined by whether the conduct would have caused a reasonable person to lose self-control.

Analysis:

Court says that there must be evidence of provocation; the court defined provocation strictly: which justifies not giving instructions to jury about provocation. The test is an objective one: Whether the conduct would have caused a reasonable person to lose self-control.


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