Successful Court of Appeal Decision for Reisler Law PC
On July 10, 2019, the Ontario Court of Appeal released its decision in Dermann v Baker (2019 ONCA 584), ruling in favour of the defendants, represented by Daniel Reisler of Reisler Law PC.
The case arose from a routine motor vehicle collision in Hamilton. Liability was admitted by the defendants. The plaintiff claimed soft tissue injuries resulting in chronic pain, permanent disability and substantial future care needs. (Mr. Reisler also conducted the trial.)
The jury largely rejected the plaintiff’s claims, assessing the general damages at $50,000 and awarding nothing for the pecuniary losses. The generals had to be reduced by the “deductible” leaving about $12,000 but there had also been an advance payment of $20,000. Accordingly the trial judge entered judgment for “nil” damages, and awarded the defendant costs throughout as if the action had been dismissed. The plaintiff appealed, saying that costs should have been approached on the basis that she recovered some damages. Given that the amount was also less than the defendant’s Rule 49 offer, plaintiff said they should get their costs up to the date of the offer.
The Court of Appeal agreed with the trial judge that the regular rule (R. 49) regarding costs does not apply where the plaintiff does not recover any judgment.
They also rejected plaintiff’s argument that the defendant should not have been permitted to call the plaintiff’s AB doctors as defence experts at trial.
The Court of Appeal affirmed that:
- A “$nil” judgment is equivalent to a dismissal of the action for the purposes of costs; and
- Accident benefit assessors can also be experts in a tort trial, following the finding in Westerhof v Gee Estate (2015 ONCA 206).
Accordingly the (relatively modest) award to the defendant of $61,810 for costs of the action stands, and the respondent/defendant was awarded a further $15,000 on the appeal.