



COURT OF APPEAL FOR ONTARIO

CITATION: Dermann v. Baker, 2019 ONCA 584

DATE: 20190710

DOCKET: C65169

Feldman, Hourigan and Brown JJ.A.

BETWEEN

Ashley Dermann

Appellant

and

Daniel Baker and Graham Baker

Respondents

Daniel Roncari, for the appellant

Daniel Reisler, for the respondents

Heard: July 3, 2019

On appeal from the judgment of Justice Thomas Lofchik of
    the Superior Court of Justice and costs ordered on March 9, 2018.

REASONS FOR DECISION

A.

Introduction

[1]

The appellant, Ashley Dermann, was a passenger in a car that was
    involved in a collision with a second car owned by Graham Baker and driven by
    Daniel Baker (the respondents). The appellant brought a tort action against the
    respondents for physical and psychological injuries she sustained as a result
    of the collision. The respondents admitted that they were liable, but disputed
    the extent of her injuries.

[2]

Shortly before the trial was originally scheduled to begin, the respondents
    requested an adjournment. In return, they agreed to pay a $20,000 non-refundable
    advance on the appellants recovery in addition to $5,000 for costs thrown
    away. A motion judge made an order to that effect.

[3]

A large body of medical evidence was introduced by the parties at trial.
    In the end, the jury awarded the appellant $50,000 in non-pecuniary damages.
    The trial judge reduced this amount by a $37,983.33 statutory deductible
    pursuant to s. 267.5(7) of the
Insurance Act
, RSO 1990, c I.8. Because
    the net amount of $12,016.67 was less than the $20,000 already paid in advance,
    the trial judge entered a $nil judgment for the appellant and ordered her to
    pay $61,801.56 in costs.

[4]

The appellant appeals against the judgment based on several procedural
    irregularities she argues occurred during trial and requests a new trial. She
    also seeks leave to appeal against the costs imposed. For reasons explained
    below, we dismiss the appeal against the judgment. We also grant leave to
    appeal against costs, but dismiss the costs appeal.

B.

Issues

(1)

Qualification of Expert Witnesses

[5]

The appellant submits that the trial judge erred in qualifying as
    experts certain witnesses called by the respondents.

[6]

At trial, the respondents sought to lead opinion evidence from Dr.
    Howard Weinberg, Dr. Peter Diakow, and Dr. Allan Kopyto. The appellant objected
    to all three witnesses on the basis that the requirements of r. 53.03 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, had not been complied with.
    That rule requires a party intending to call an expert witness to timely file
    the experts report containing certain information. Years before trial, Drs.
    Weinberg, Diakow, and Kopyto had each examined the appellant and prepared medical
    assessment reports for use by the appellants statutory accident benefits (SABS)
    insurance provider. Although the appellant had received these reports, she
    contended that they did not satisfy the r. 53.03 requirement.

[7]

The trial judge rejected the appellants objection. He considered that
    r. 53.03 was designed for expert witnesses engaged by a party to prepare a
    report for the purposes of litigation. The trial judge held that the witnesses
    called by the respondents were not in that category and could provide expert
    opinion evidence within the confines of their reports.

[8]

During Dr. Kopytos cross-examination, the appellants counsel reviewed
    with him the appellants complaints about pain in her back, shoulders, and
    neck, noting that she avoided certain physical activities such as bending and
    lifting. Counsel asked the witness whether such restrictions would affect the
    appellants ability to work as a personal support worker. In response, Dr.
    Kopyto expressed uncertainty. During re-examination, the following exchange
    occurred between Dr. Kopyto and the respondents counsel:

Q. You were asked in cross-examination if restrictions in
    bending and lifting would make it difficult for her to do the job of a PSW.
    When you saw her back in July of 2012, did you find that she was unable to
    work?

A. Well, I wasnt asked that question.

Q. But you were asked in cross-examination, so Im asking you
    now. Based on your physical examination, what you reported on  recorded and
    reported on in your report, is there any indication there that she was disabled
    from working?

...

A. Theres no indication that she couldnt work, if thats your
    question.

[9]

On appeal, the appellant submits that, because the respondents did not comply
    with r. 53.03, Drs. Weinberg, Diakow, and Kopyto should not have been qualified
    as experts. The appellant also submits that Dr. Kopytos evidence veered
    impermissibly outside the confines of his report when he gave opinion evidence
    about her ability to work.

[10]

In
    our view, the trial judge correctly found that r. 53.03 did not apply to the
    witnesses called by the respondents. In
Westerhof v. Gee Estate
, 2015
    ONCA 206, 124 OR (3d) 721, this court observed that the rule only applies to a
    specific class of expert witnesses; namely, those who are engaged by or on
    behalf of a party to provide opinion evidence in relation to a proceeding:
Westerhof
,
    at para. 81. Experts retained by a non-party to the litigation, like a SABS
    insurance provider, do not belong to this class and are instead considered non-party
    experts:
Westerhof
, at para. 6. Rule 53.03 does not apply to
    non-party experts as long as their opinions are limited to those formed based
    on observations made for a purpose other than litigation:
Westerhof
, at
    paras. 62-64.

[11]

In
    this case, the three witnesses called by the respondents were clearly non-party
    experts. Subject to the trial judges discretion, they were entitled to give
    expert opinion evidence within the confines of observations they made to
    prepare medical assessment reports for the SABS insurance provider. As long as
    the witnesses remained within those confines, they could be qualified as
    experts without compliance with r. 53.03.

[12]

In
    our view, Dr. Kopytos evidence did not impermissibly go beyond the scope of testimony
    for a non-party expert during direct examination. It was the appellants
    counsel who invited additional evidence by asking the witness about the
    appellants ability to work as a personal support worker. Under these
    circumstances, the respondents were entitled to ask further questions of the
    witness on re-examination in order to clarify that issue. Regardless of whether
    Dr. Kopytos evidence on re-examination went beyond the scope of his report, we
    are of the view that it was proper.

(2)

Charge to the Jury

[13]

The
    appellant takes issue with three aspects of the trial judges charge to the
    jury. First, she argues that, because the fact of her insured status was
    mentioned by several witnesses, the trial judge should have instructed the jury
    not to consider collateral benefits when determining the quantum of damages. Second,
    the appellant submits that the trial judges failure to recount part of her
    family doctors evidence on her good state of health about four months before
    the collision made the charge unfair and deficient. Third, she submits that the
    trial judge misstated the evidence when he referred to a diagnostic imaging
    report as the first time there are any real physical symptoms of anything
    unusual going on with the neck and back.

[14]

We
    do not give effect to these submissions. A trial judges charge in a civil
    trial is not reviewed on a standard of perfection, and a new trial will not be
    ordered even when there is misdirection unless the error leads to substantial
    wrong or miscarriage of justice:
Berthiaume-Palmer v. Borgundvaag
, 2010
    ONCA 470, 273 O.A.C. 397, at paras. 16-17. Moreover, a trial judge is not
    required to review all of the facts in a civil jury trial, and the charge
    should be evaluated within the greater context of the trial, including the
    counsels addresses:
Berthiaume-Palmer
, at paras. 14-15.
[1]


[15]

In
    this case, although there were sporadic references to the appellants insured
    status, such references were often made in conjunction with evidence that the
    insurance coverage was limited or that certain treatments were not approved. Having
    heard all of this conflicting evidence, the trial judge was best positioned to
    determine whether an instruction about collateral benefits was necessary or
    potentially confusing in these circumstances. As this court noted in
Samms
    v. Moolla
, 2019 ONCA 220, at para. 90, [p]rovided those discretionary
    calls are in compliance with the law and the charge as a whole is balanced and
    provides the jury with the necessary tools to properly decide the live issues
    before them, deference must be shown.

[16]

The
    trial judges failure to recount a particular aspect of the evidence favourable
    to the appellant did not render the charge as a whole deficient. He provided a
    balanced charge and repeatedly instructed the jury that they were the sole
    judges of fact and that it was their recollection of the evidence that
    mattered.

[17]

While
    his comment was inelegantly put, the trial judges remark that the diagnostic
    imaging results were the first real physical symptoms meant that the images
    were the first objective evidence of those symptoms. We are satisfied that the
    jury would have understood the judges meaning, and while he could have
    clarified his comment, his failure to do so does not constitute an error in the
    context of the entire charge.

(3)

Costs Appeal

[18]

The
    appellant submits that the application judge erred in his costs assessment
    because he declined to give effect to the cost consequences of an offer to
    settle under r. 49.10(2). However, we are of the view that the rule was
    inapplicable to the circumstances of this case.

[19]

By
    way of background, on October 20, 2017, the respondents made an offer to settle
    this action for $150,000. This offer was never accepted. On November 16, 2017,
    a consent order was issued adjourning the trial because of the respondents
    counsels unavailability. The order provided that:

1. The Defendant shall pay $5000 to the
    Plaintiff for costs thrown away  payable forthwith.

2. A $20,000 advance to be paid by the
    Defendant to the Plaintiff. Cheque to be made out to the [Plaintiff] directly.

[20]

As
    noted above, the jury returned a verdict of $50,000, which was reduced to
    $12,016.67 due to the application of a statutory deductible. The trial judge
    entered a judgment of $nil after further reducing that amount by the $20,000
    advance payment. He ordered costs against the appellant, whom he considered to
    be in the same position as if the action had been dismissed.

[21]

On
    appeal, the appellant concedes that the trial judge entered the correct judgment
    amount. Section 120 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43,
    provides that a plaintiff who receives a payment from a defendant releases the
    defendant from liability to the extent of that payment, and will only be
    entitled to a reduced judgment:

Advance payments

120
(1) If a defendant makes a payment to a
    plaintiff who is or alleges to be entitled to recover from the defendant, the
    payment constitutes, to the extent of the payment, a release by the plaintiff
    or the plaintiffs personal representative of any claim that the plaintiff or
    the plaintiffs personal representative or any person claiming through or under
    the plaintiff or by virtue of Part V of the Family Law Act may have against the
    defendant.



Payment to be taken into account

(3) The court shall adjudicate upon the matter first
    without reference to the payment but, in giving judgment, the payment shall be
    taken into account and the plaintiff shall only be entitled to judgment for the
    net amount, if any.
[2]

[22]

Nevertheless,
    the appellant submits that the trial judge should not have considered the
    advance payment in his costs analysis. She argues that, in spite of the $nil
    judgment, she was successful against the respondents because she obtained a
    verdict greater than the statutory deductible. The appellant acknowledges that,
    even before deducting the advance payment, her recovery was less than the
    respondents offer to settle. As a result, she relies on r. 49.10(2) for the
    position that she is entitled to be partially indemnified for costs she
    incurred until the date of the respondents offer to settle and that the
    respondents are only entitled to be indemnified for costs they incurred after
    that date.

[23]

We
    do not accept this submission. Under r. 49.10(2), the costs consequences
    flowing from a defendants offer to settle depend on the judgment obtained, not
    other amounts received during the litigation. If the plaintiff obtains a
    judgment less favourable than the defendants offer, the plaintiff is
    indemnified for costs incurred until the date of the offer and the defendant
    for costs incurred subsequently. The rule provides:

Defendants Offer

49.10(2)
Where an offer to settle,

(a) is made by a defendant at least seven days
    before the commencement of the hearing;

(b) is not withdrawn and does not expire before
    the commencement of the hearing; and

(c) is not accepted by the plaintiff,

and the plaintiff obtains a judgment as favourable as
    or less favourable than the terms of the offer to settle, the plaintiff is
    entitled to partial indemnity costs to the date the offer was served and the
    defendant is entitled to partial indemnity costs from that date, unless the
    court orders otherwise.

[24]

As
    this court noted in
S & A Strasser Ltd. v. Richmond Hill (Town)
(1990), 1 O.R. (3d) 243, at p. 245, this rule has no application where the
    plaintiff does not recover any judgment.

[25]

In
    this case, the appellant obtained a $nil judgment. It was therefore not an
    error for the trial judge to consider the appellant to be in the same position
    for costs purposes as she would have been had the action been dismissed: see
Hibbs
    v Billings
, [1994] OJ No 3106 (C.J.), at para. 7. Therefore, in our view
    the trial judge did not err in his costs analysis.

C.

Disposition

[26]

We
    dismiss the appeal against judgment, grant leave to appeal against the costs
    award, and dismiss that appeal. We also order costs of the appeal payable by
    the appellant to the respondents in the agreed-upon all-inclusive sum of
    $15,000.

K.
    Feldman J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.





[1]

In this case, we note that the parties did not file a
    transcript of the closing addresses.



[2]

Similar provisions can be found in
Insurance Act
,
    R.S.O. 1990, c. I.8, s. 256.


