Fridays With Rogers Partners

This morning at our muffin meeting, Brian Sunohara discussed the Court of Appeal’s decision in Dermann v. Baker, 2019 ONCA 584.

The defendants had made an offer to settle of $150,000 in a motor vehicle accident case. This offer was not accepted, and the jury awarded the plaintiff just over $12,000 after application of the deductible.

One of the plaintiff’s grounds of appeal related to the trial judge’s ruling that the defendants could call three doctors who prepared reports for the purpose of the plaintiff’s statutory accident benefits claim, without those doctors complying with rule 53.03.

The Court of Appeal held that the doctors were clearly non-party witnesses and were entitled to give expert opinion evidence within the confines of observations they made to prepare their reports.

In re-examination, one of the doctors had given evidence on the plaintiff’s ability to work. The plaintiff argued that this impermissibly veered outside the confines of the doctor’s report.

The Court of Appeal held that, since plaintiff’s counsel, in cross-examination, asked the doctor about the plaintiff’s ability to work, defence counsel was entitled to ask questions on this issue in re-examination.

Brian also discussed the case of Eastwood v. Walton, 2019 ONSC 4019. We addressed this case in detail in a recent blog post.

An employee attended a staff Christmas party at a banquet hall. After the party, she drove while intoxicated and was involved in an accident, injuring someone else.

The banquet hall was sued and brought a summary judgment motion. The motion was dismissed.

The decision goes over some of the principles of commercial host liability. Where a defendant assumes a public role, or benefits from offering a service to the public at large, special duties arise.

For a commercial host who serves alcohol, one of these duties is to prevent foreseeable harm to third party users of highways.

Colleen Mackeigan reviewed the case of Health Genetic Center Corp. (Health Genetic Center) v. New Scientist Magazine, 2019 ONCA 576.

The respondent sought security for costs. This was denied by the Court of Appeal. The Court of Appeal stated that an order for security for costs on appeal is not routine.

A respondent must show that there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal.

To satisfy the “frivolous” requirement, the respondent must show there is good reason to believe that the appeal appears to be devoid of merit.

To satisfy the “vexatious” requirement, the respondent must show that the appeal was launched to annoy or embarrass the respondent or that the appeal has been conducted in a vexatious manner.