Justice Koehnen’s Endorsement in Rososhansky v Williams, 2018 ONSC 1964 provides a cautionary tale for insurers and defence counsel alike. Koehnen J. held that the Defendant’s unreasonable damages position rendered the pre-trial “substantially a waste of time” and awarded the Plaintiff’s $5,090.09 in costs and disbursements under the rarely used Rule 50.12 of the Rules of Civil Procedure.
The underlying action is all too familiar and involved a motor vehicle accident in which the Plaintiff was rear-ended while waiting at a red light and alleged head and neck injuries.
The Plaintiff relied on two Statutory Accident Benefits medical reports and two reports from treating physicians. Plaintiff’s counsel indicated that he would be calling several lay witnesses to provide evidence of the Plaintiff’s inability to perform his pre-accident job activities. The Defendants had not conducted any medical examinations of the Plaintiff.
Koehnen J. found that the Plaintiff took a measured approach in the negotiations and
“Mr. Rososhansky demonstrated a substantial willingness to compromise on his claim during the pre-trial conference.”
Koehnen J. did not have the same view of the claims adjuster and defence counsel, who took the position that there were no damages as the Plaintiff did not meet the threshold test for motor vehicle injury claims. Koehnen J. was concerned that the Defendant’s position failed to address the Plaintiff’s loss of income and loss of competitive advantage claims and, more importantly, the Defendants did not have any evidence to substantiate their position. He thought the Defendants relied on isolated aspects of the Statutory Accident Benefits medical reports without considering the full opinion of the examiner or the concession that new information may alter his opinion.
At paragraphs 15 and 16, he provided a scathing evaluation of the Defendant’s conduct:
“Although the defendants had not conducted any medical examination of Mr. Rososhansky, or produced any medical report about him, they expressed an absolute degree of confidence that the medical report they would produce would demonstrate no injuries attributable to the accident. Their confidence in the contents of their uncommissioned medical report was used to further support their “zero chance” of financial liability position.
It is disturbing that the defendants have such certainty about the outcome of what is supposed to be an independent medical examination before they have even commissioned it.”
At paragraph 21, he provided some relief to those who might see his endorsement as an affront to justice:
“There is nothing wrong with a defendant taking the position at a pre-trial or elsewhere that there is no risk of liability. That position should have some rational foundation either in law or on the evidence. If a defendant takes a position contrary to an objective view of the evidentiary record, relies on evidence that has not yet been obtained and refuses any compromise other than to dismiss without costs, they are wasting the plaintiff’s time and needlessly running up costs for him.
That is a defence strategy courts should not encourage…”
This endorsement raises an important question, namely:
How much evidence is required for a Defendant to take the position that there is no risk of financial liability?
Koehnen J.’s opinion was that, for a Defendant to take such a hard position on damages, they must have some legal or evidentiary basis for that position. Otherwise, it would be unreasonable and “substantially a waste of time” for a Defendant to maintain such a position through pre-trial against “an objective view of the evidentiary record”.
In practice, this situation should not be a regular occurrence. If a Defendant seeks to rely on the opinion evidence of an expert witness at trial, Rule 53.03(2) of the Rules of Civil Procedure, RRO 1990, Reg 194, requires the responding report to be served at least 60 days before pre-trial. Where a Defendant has commissioned a responding report, it would seem unjust for a judge to penalize a Defendant for taking a strong position on the basis of same.
In Rososhansky, the Defendants failed to obtain such a report but expressed “certainty about the outcome of what is supposed to be an independent medical examination before they have even commissioned it.” One can imagine the attitude of the Defence which resulted in this comment by Koehnen J. It is problematic because a judge may not order such an examination at such a late date and it sends a bad message to a judge about the impartiality of the experts chosen.
Keep in mind that a Defence Report may not be necessary if the Plaintiff’s credibility is suspect due to surveillance or some other evidence. In Rososhansky, the Statutory Accident Benefits medical reports suggested no such issues and if that was the Defence theory here, it was not well articulated.
It should, therefore, remain unusual for a Defendant to be ordered to pay a Plaintiff’s costs at a pre-trial conference. If, however, they fail to comply with Rule 53.03 and take a position that has no support in the evidence, whether medical or otherwise, costs can, and apparently will be awarded. This may be the lesser punishment as a Pre-Trial Judge could also make an order that no further medical reports can be filed.