Lessons from Pre-Trial

Justice Koehnen’s Endorsement in Rososhansky v Williams, 2018 ONSC 1964 provides a cautionary tale for insurers and defence counsel alike.

Case Facts

The underlying dispute involved a motor vehicle accident where the plaintiff was rear-ended at a traffic light. The plaintiff claimed head and neck injuries supported by medical reports from statutory accident benefits examiners and treating physicians. The defendant had not obtained independent medical assessments.

Key Judicial Finding

Justice Koehnen determined the defendant’s “zero liability” position lacked evidentiary support and rendered the pre-trial conference “substantially a waste of time.” He awarded the plaintiff $5,090.09 in costs under Rule 50.12 of the Rules of Civil Procedure — a rarely invoked provision.

Critical Criticism

The judge expressed concern that defendants maintained “absolute confidence” about an uncommissioned medical report’s contents, stating: “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.”

Standards Going Forward

Justice Koehnen clarified that defendants may legitimately take firm positions on liability if grounded in law or evidence. However, positions contradicting the evidentiary record constitute unreasonable defence strategy. This decision serves as an important reminder that both sides must approach pre-trial conferences in good faith with positions supported by the evidence.