Court of Appeal for Ontario

Date: July 10, 2019 Docket: C65169

Feldman, Hourigan and Brown JJ.A.

Between

Ashley Dermann Appellant

and

Daniel Baker and Graham Baker Respondents

Counsel: 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 appellant's 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 expert's 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 appellant's 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 appellant's 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. Kopyto's cross-examination, the appellant's counsel reviewed with him the appellant's 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 appellant's 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 wasn't asked that question.

Q. But you were asked in cross-examination, so I'm 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. There's no indication that she couldn't work, if that's 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. Kopyto's 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 judge's 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. Kopyto's evidence did not impermissibly go beyond the scope of testimony for a non-party expert during direct examination. It was the appellant's counsel who invited additional evidence by asking the witness about the appellant's 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. Kopyto's 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 judge's 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 judge's failure to recount part of her family doctor's 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 judge's 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 counsel's addresses: Berthiaume-Palmer, at paras. 14-15.[^1]

[15] In this case, although there were sporadic references to the appellant's 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 judge's 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 judge's 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 judge's 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' counsel's 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 plaintiff's personal representative of any claim that the plaintiff or the plaintiff's 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.

[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 defendant's 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 defendant's offer, the plaintiff is indemnified for costs incurred until the date of the offer and the defendant for costs incurred subsequently. The rule provides:

Defendant's 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.