IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100121

Docket:
M052352

Registry: Vancouver

Between:

Glenda
Narvaez

Plaintiff

And

Yu
Zhang, Hui Chun Pang, and Openroad Auto Group Limited

Defendants

Before: The Honourable Mr. Justice S.R. Romilly

Reasons for Judgment

1. Nature of the Application

[1]            
The plaintiff, Glenda Narvaez is applying
pursuant to Rule 57(33) of the Rules of Court for a review of the
assessment of the bill of costs and disbursements, certified by Registrar Blok
on July 15, 2009 with respect to the following disbursements:

(a)      the reduction and disallowance of Dr. Cohen’s accounts by
$130.00 and $1,890.00;

(b)      the reduction of Dr. Doherty’s accounts by $17,757.01;

(c)      the disallowance of Dr. Sass’s account of $2,500.00;

(d)      the reduction of the MRI account by $2,313.57;

(e)      the reduction of Columbia Speech and Language’s account,
and Richard Green’s account, by $1,636.60;

(f)       the reduction of Karen Aznavoorian’s accounts by USD
$4,914.14; and

(g)      the reduction of Dean Powers’ and Harbourview
Rehabilitation’s account by $4,364.25.

[2]            
For clarity, three sets of reasons by Registrar Blok with respect to this proceeding will be
referred to in this judgment:

1)       Written reasons released March 30, 2008: Narvaez v.
Zhang, 2009 BCSC 426.

2)       Oral reasons given June 29, 2009: Narvaez v. Zhang
(29 June 2009), Vancouver M052352 (Chambers).

3)       Oral reasons given June 30, 2009: Narvaez v. Zhang
(30 June 2009), Vancouver M052352 (Chambers).

2. Procedural History/Background

[3]            
The plaintiff was struck by a SUV on January 9,
2004 while walking on a sidewalk in Richmond, BC.  The defendant – who possessed
a learner’s licence – lost control of her car.  She hit the gas instead of
the brake.  She accelerated onto the sidewalk, striking Ms. Narvaez and
throwing her 10 to 15 feet into the air.  Ms. Narvaez landed on concrete inside
the yard adjacent to where she was walking.

[4]            
Ms. Narvaez sustained musculoskeletal injuries. 
She complained of severe neck and back pain subsequent to the collision.  In
addition, she had shoulder pain that was ultimately diagnosed as shoulder
impingement.  Ms. Narvaez sustained multiple fractures to her skull including
the fracture of her eye orbits.  She sustained a significant brain injury.  The
CT scan taken shortly after the accident showed brain haemorrhages.  The MRI
ordered for litigation purposes four years after the accident showed that part
of the brain had died.  It also showed signs of diffuse axonal injury.

[5]            
The plaintiff was in the hospital for about four
weeks after the accident; part of that time she was in a coma.  The trial of
this lawsuit was set to start on Monday, October 20, 2008 for 35 days.  The plaintiff’s
case was founded upon a theory that there was a family plan for various members
of the family who originated from the Philippines to emigrate from the
Philippines to the United States via different routes.  The plaintiff’s route
was to have been through Canada where she was to have qualified as a registered
nurse, which would have given her enhanced immigration status to the United
States, and she would have then been able to join the remainder of her family
who had immigrated to the United States through other routes.

[6]            
The only admissible evidence of the plaintiff’s intention
to become a nurse is found in her discovery transcript where she swore under
oath that she intended to become a practical nurse.  The skill of a registered
nurse is transferrable to the United States of America but that of a practical
nurse is not.  Ms. Narvaez testified that she understood the difference between
a practical nurse and a registered nurse.  Counsel for the plaintiff advised
the Registrar that because of the injuries suffered by the plaintiff she was
mistaken when she testified at the examination for discovery.  Counsel for the plaintiff
told the Registrar during the taxation that her client really wanted to become
a registered nurse and not a practical nurse.  There was no evidence from any
member of the family about this plan which the plaintiff claimed to have had
before the accident.

[7]            
At any rate this case settled on the eve of
trial, Friday, October 17, 2008, for $850,000.00 plus costs and disbursements. 
After the settlement, the defendants contested the plaintiff’s bill of costs
totalling the sum of $182,010.96.

[8]            
The assessment of the plaintiff’s bill of costs
was heard by Registrar Blok over three days in March 2009 and June 2009.  The
learned Registrar, after hearing submissions from both counsel over this three
day period, assessed and certified the bill of costs at $133,672.32 on July 15,
2009.

[9]            
By letter dated December 23, 2008, the defendants
took exception to the inordinate amount of duplication of services undertaken
by the plaintiff in the litigation.  The defendants asserted it was not
necessary to obtain duplicate opinions from physiatrists, cost of care
specialists, occupational therapists and the like, both in Canada and the
United States.  The plaintiff was put on notice that the defendants, at
taxation, would require strict proof of the necessity for obtaining duplicate
experts in both jurisdictions.  Additionally, the defendants asserted that the
specific charges of the various experts were, for the most part, grossly
excessive, even where there had not been duplication.  The defendants put the plaintiff
on notice that they would require strict proof of the disbursements claimed in
accordance with the Rules of Court.

[10]        
At the hearing before the learned Registrar, the
defendants objected to the affidavit evidence filed by the plaintiff in these
proceedings.  In written argument the defendants cited New Brunswick v. Stephen Moffett Ltd., 2008 NBCA 9, 289 D.L.R. (4th) 629 for the
proposition that an affidavit in taxation must provide the court with
sufficient justification for disbursements and there must be a proper
evidentiary foundation before the court.

[11]        
The defendants further cited Guelke v. Hallett, [1990] B.C.J. No. 1240
(S.C.) as stating that some evidence must be provided to show the necessity of
obtaining consultant reports containing everyday information, or what might
fall into the realm of common knowledge. The defendants
submitted that the affidavit of Ms. Pawliuk sought to provide this type of
evidence through hearsay.  And further, that Ms. Pawliuk’s affidavit contained
improper argument and medical opinion evidence.

[12]        
The defendants submitted the case of McKnight v. Hutchison, 2003 BCSC
1240 for the proposition that affidavit evidence that
offends the hearsay rule cannot be given weight and is thus insufficient to
address necessity or reasonableness of disbursements.

[13]        
The defendants argued that as a
result of the above principles, the only admissible evidence of the plaintiff’s intention to become a nurse is found in
her discovery transcript wherein she swore under oath that she intended to
become a practical nurse.  On this basis the defendants argued that the opinions
premised on the theory that Ms. Narvaez would become a registered nurse must
fail.

[14]        
With respect to the plaintiff’s plan to move to the United
States, the defendants submitted the observations of the court in Fung v.
Berkun (1982), 36 B.C.L.R. 352 (S.C.) at pp. 354-355:

… in cases where
factual assumptions must be
made before costly expert opinions can be obtained, the disbursement for that
opinion must be premised on a thorough and reasonable attempt to ascertain the
assumed facts …

[15]        
There must be admissible evidence before the court
of factual assumptions upon which the obtaining of expert consultants is based.  If the evidence to
support the United States aspect of the case fell, then the international
expert disbursements for Sarkisian, Doherty, Aznavoorian and Garfinkle fail.  Similarly,
the defendants submitted, the costs related to travel must be disallowed. 
Finally, the defendants argued that if it is determined that there is a
sufficient foundation to permit some of these disbursements, then those
accounts were excessive and duplicative.

[16]        
Relying upon Hall v. Strocel, [1983]
B.C.J. No. 506 (S.C.), the defendants assert that parties may only recover
disbursements that have been reasonably incurred.  Furthermore, as noted in Bell
v. Fantini (1981), 32 B.C.L.R. 322 (S.C.) at pp. 327-328, the defendants
argued that expenses can be disallowed where inter alia:

1)       The services are duplicative;

2)       the amounts charged are excessive when compared to others;

3)       the reports contain extensive irrelevant narrative;

4)       experienced counsel consulted an American attorney
unnecessarily;

5)       an extravagant international search for a favourable
opinion was launched; or

6)       where two experts in the same specialty were used without
satisfactory explanation.

[17]        
At para. 16 of his written reasons released
on March 30, 2009, Registrar Blok declined to hold a “vicarious trial, or a
civil voir dire” citing that this concept had been rejected in similar circumstances
in Leverman v. Prince George (City), 2000 BCSC 697, at para. 25.
Registrar Blok held at para. 19 of his written reasons, that the role of
the registrar in assessing costs was limited to ascertaining that there was a
“sufficient basis to incur the cost of a disbursement relating to a certain
claim” and not to decide whether that claim would have succeeded at trial.

[18]        
The plaintiff’s basis for seeking a review of
the decision of Registrar Blok regarding some of the disbursements disallowed
or reduced lies with their assertion that Registrar Blok acted arbitrarily and
without regard to the evidence.  The plaintiff cites Mathwig v. Bachmaier (1990), 51 B.C.L.R. (2d) 389 (C.A.) for the proposition that proper and
necessary disbursements must be allowed unless they are unreasonable.  The plaintiff
further cites Dosanjh v. Martin, 2001 BCSC 1759, at para. 50, for the holding that a registrar
should not, without good reason, interfere with the amounts charged by experts.

3. The Law

i.        How disbursements should be dealt with

[19]        
Rule 57(4) of the Rules of Court
sets out that disbursements are to be allowed on an assessment if they were
necessarily or properly incurred:

(4)  In addition to determining the fees that are to be allowed on
an assessment under subrule (1) or (3), the registrar must

(a)  determine
which expenses and disbursements have been necessarily or properly incurred in
the conduct of the proceeding, and

(b)  allow a reasonable
amount for these expenses and disbursements.

[20]        
The onus of proof rests on the party submitting
the bill to establish affirmatively the necessity or reasonableness of the
charges claimed as disbursements.  When strict proof is demanded, there is no
alternative to providing it: Holzapfel v. Matheusik (1987), 14
B.C.L.R. (2d) 135 (C.A.).

[21]        
In Dosanjh, relied upon by the plaintiff,
Registrar Sainty observed as follows:

[16] The necessity or propriety of a disbursement is to be judged by the situation “at the
time when the disbursement or
expense was incurred”. [citation omitted]

[17]      The onus of proof of the necessity and propriety of the disbursement
rests on the party presenting the bill for review.

[18]      Accordingly,
I must determine if, at the
time the disbursements were incurred, they were “reasonable or necessary”.

[22]        
In considering the amounts charged, Registrar Sainty stated:

[47]      With respect, I do not believe that fees in motor vehicle cases should be treated differently simply because the
defendant is, essentially, the Insurance Corporation of British Columbia. I
must, however, satisfy myself that the fees charged were reasonable at the time
the disbursement was incurred.  It
is not essentially the province of the registrar to review the contracts
entered into between plaintiffs and their experts in respect of fees.  Registrars
however may, using their own experience and the B.C.M.A. fee guide as guides,
determine the reasonable amount that should be charged.  I may consider the
fact that other experts charged different amounts (those hired by the
defendants), but that is not determinative of my decision.

[48]      In
addition, I must satisfy myself
that, in respect of the amount charged for the cancelled
court appearances, the doctors could not have used the time suddenly available
to them in remunerative activities [citation omitted].

[23]        
At para. 50, Registrar Sainty concluded, on the evidence before her, the fees were not “unreasonable.” 
Nonetheless, the Registrar carefully reviewed the circumstances around the disbursement to determine if a reduction was
necessary or appropriate.  She did
not leave it to the experts to determine what constituted a necessary or
appropriate account.

[24]        
Mathwig
involved a situation where a registrar disallowed disbursements for reports
that had not been produced in
the litigation.  The British Columbia Court of Appeal reversed the registrar,
noting that the registrar was
bound to allow disbursements if they were reasonable and properly incurred at
the time the reports were ordered.  A failure to provide reports resulted in
inadmissibility of those documents only.

ii.       Scope of Review

[25]        
A judge should not override a registrar except on a matter of principle.  In Frost v.
Frost (1940), 56 B.C.R. 30, [1941] 1 D.L.R. 774 (C.A.), Chief Justice Macdonald, speaking for the British Columbia
Court of Appeal, observed as follows at p. 33:

The rule that a judge should not override a registrar
except on a matter of principle has never been due to any jurisdictional
restriction; it is simply a rule of policy and good sense, adopted because
registrars can go into details better than can judges.

[26]        
In Fantini, Legg J., in chambers, observed at p. 326:

I have examined
the registrar’s decisions on the basis that the court should rarely interfere
with a taxing officer’s ruling if it appears that he understood the governing
principle in reaching his conclusions:  see Bowers v. White (1977), 2
B.C.L.R. 355 (S.C.), per Craig J. (as he then was); Frost v. Frost, 56
B.C.R. 30, [1941] 3 W.W.R. 273, [1941] 1 D.L.R. 774 (C.A.); and Bereti v.
Schuette (1980), 17 C.P.C. 259 (B.C.S.C.).

[27]        
Similarly, in Swyers
v. Drenth, [1995] B.C.J. No. 2184 (S.C.), Errico J. observed:

2  This hearing is not a hearing de novo and no new evidence may be received.
The court may not interfere with the decision of the registrar unless it has
been demonstrated that the registrar erred in principle:  Godbout v. Lisson
(1988), 33 B.C.L.R. (2d) 334 (B.C.C.A.); Streifel et al v. First Heritage
Savings Credit Union, (July 24, 1992), Vancouver C855732 (S.C.) [unreported].

Also, at para. 18, Errico J. observed as
follows:

18  A helpful discussion of the
burden of proof and the registrar’s function in considering disbursements under
the former Rule 57(4) can be found in Halzapful v. Matheusik et al (1987), 14
B.C.L.R. (2d) 135 (B.C.C.A.).  MacDonald J.A. for the court adopts the
principle annunciated in Hall v. Strocel (1983), 34 C.P.C. 170 (B.C.S.C.), that
the onus clearly rests on the party submitting the bill for taxation to establish
affirmatively the necessity for and reasonableness of the charges by way of
disbursement, rather than leaving it to the other party to establish that it is
unreasonable. In doing so MacDonald J. A. also adopted the following passage
from the judgment of Legg J. (as he then was) in Bell v. Fantini; Fasciana v. C.N.R.
(1981), 32 B.C.L.R. 322:

I consider that R.
57(4) entitles the registrar to exercise a wide discretion to disallow
disbursements in whole or in part where the disbursements appear to him to have
been incurred or increased through extravagance, negligence or mistake or by
payment of unjustified charges or expenses. The registrar must consider all the
circumstances of each case and determine whether the disbursements were
reasonable incurred and were justified. He must be careful to balance his duty
to disallow expenses incurred due to negligence or mistake, or which are
extravagant, with his duty to recognize that a carefully prepared case requires
that counsel use care in the choice of expert witnesses and examine all sources
of information and possible evidence which may be of advantage to his client.

The registrar is not bound to accept an
affidavit of counsel that in counsel’s opinion the employment of the expert or
the incurring of the expense was justified or that it was necessary for the
attainment of justice when the registrar is considering allowing or disallowing
the disbursement under this ruled. He should give careful consideration to any
such affidavit and he must weigh what is deposed to against any affidavit that
deposes to the opposite effect. His duty under the rule is to determine whether
the expense is a reasonable and justifiable expense which should be borne by
the unsuccessful litigant…

Errico J. further observed at para. 22:

22 My responsibility on this review is not to substitute my discretion for that of the registrar
but to determine whether the
registrar made any error in principle in her assessment of this bill of costs. I have concluded that on
the principles discussed above, she did not, and the application is dismissed
with costs to the defendant.

[28]        
In Ebrahimi v. Stevenson, 2006
BCSC 983, Groberman J. (as he then was) observed as follows:

[3]        The parties agree that the court’s
role on an appeal from a registrar’s assessment of costs is limited.  In order
to succeed upon the appeal, the appellant must show that the registrar erred in
the principles that he or she applied in reaching his or her decision: Frost
v. Frost, (1941), 1 D.L.R. 774, 56 B.C.R. 30 (C.A.). The
registrar’s assessment of the reasonableness or otherwise of an item of cost
should not be interfered with unless the registrar’s decision was clearly wrong:
 Moss v. Blane (1984), 56 B.C.L.R. 266 (C.A.).

[Emphasis added.]

iii.       Discussion

[29]        
A review of the reasons for judgment of Registrar Blok shows that he was
acutely aware of all of the above legal principles that applied to his role. 
He properly considered whether these disbursements were reasonable and properly
incurred.  There was a balancing that went on.  In some instances, the plaintiff
was successful, and in others, the defendants were successful.  This was done
in accordance with the appropriate legal principles.

[30]        
Because of the amount of time that was
spent dealing with these disallowed disbursements, however, I have decided to
deal with each disputed item.

4. Review of the Individual Disbursements

i. Douglas Cohen, Neuropsychologist

(a)      Position of the Plaintiff

[31]        
Registrar Blok disallowed the payment of the “second assessment” by Dr. Cohen. 
This assessment was justified by a report made June 29, 2006 by Dr. Cohen
confirming that the “typical recovery arc for Traumatic
Brain Injury is about 2 years, with the majority of spontaneous recovery
occurring within the first 1 month” and Ms. Narvaez’s self-report of feeling
substantially and cognitively better.

[32]        
The plaintiff also submitted that Registrar Blok
was clearly wrong in rejecting the plaintiff’s claim for Dr. Cohen’s letter of December
23, 2004 for $130.00.

(b)      Position of the Defendants

[33]        
The defence position with respect to Dr. Cohen’s disallowed disbursement states in part that the neuropsychological evidence
possessed by Dr. Cohen was of no use given the plaintiff’s limited English
language skills.  At discovery, counsel for the plaintiff assured the defendants
that the plaintiff spoke English fluently.  Ms. Narvaez’s evidence at discovery
was that she wanted to become a practical nurse.  In subsequent correspondence
after the discovery, counsel for the plaintiff asserted that this statement was
made in error on the basis that the plaintiff was not fluent in English.  When
it was pointed out to counsel for the plaintiff that it followed that the
neuropsychological assessments were invalid, counsel for the plaintiff and Dr.
Cohen then asserted the plaintiff’s English skills were sufficient for the
purpose.

[34]        
Dr. Cohen billed a total of $18,532 for services
and multiple examinations of the plaintiff.  Dr. Magrega
and Dr. Williams both attacked the validity of Dr. Cohen’s testing based on the
plaintiff’s limited language skills in their reports.  Additionally, the defendants
submit there is no justification given for the multiple examinations that were
undertaken.

[35]        
Further, the defendants argue that the late
adjournment of a trial should not result in a windfall for an expert.  Dr.
Cohen charged $2,500 per day for the trial cancellation but no evidence was
given as to whether or not he attempted to fill the cancelled days.  Dr. Cohen
had at least five days’ notice to book other appointments.  Finally, the defendants
submit that Dr. Cohen’s bill for trial preparation, meeting with counsel and
file review was excessive.

(c)      The Registrar’s Ruling

[36]        
Registrar Blok addressed the above concerns in
his June 29, 2009 oral reasons for judgment:

[3]        …even with the benefit of Ms.
Pawliuk’s informal explanations, I am not persuaded that the cost of the second
assessment, with no trial date approaching, is an expense or disbursement that
was necessarily or properly incurred.  The justification given by Ms. Pawliuk
could be used to found many intermediate assessments, for example, if a matter
was carried on beyond – well, the same argument could be made for any number of
assessments and certainly there must be some element of restraint on that.  I
agree with Mr. Brun and I think he has reasonably conceded that the initial
assessment to establish a baseline was necessary or proper and on the evidence
before me I think that includes the first two bills because the second bill is
effectively a continuation of the first assessment through collateral
interviews, as I understood it.

[4]        So I would not allow the billings
in 2006.  I would allow the preparation of the further report in 2008.

[5]        …I
am not persuaded that the letter of December 23, 2004, is an item that relates
properly to events in the case for litigation purposes, but instead has as its
express primary focus the ongoing rehabilitation needs of the plaintiff and
thus that cost of $130, I think, quite clearly would have fallen under damages
and is not recoverable as costs.

(d)      Disposition

[37]        
As stated previously, the test for assessing a
disbursement is whether it was “necessarily or properly incurred” based on the
circumstances of the case at the time that it was incurred.  The Registrar’s
reasons clearly indicate that he was alive to that principle of law when he
disallowed these disbursements.

[38]        
I find the Registrar’s analysis in disallowing
these two disbursements to be beyond reproach.  I cannot say that he was
clearly wrong in allowing these two disbursements (the second assessment and
letter) such that his decision should be overturned.

[39]        
The appeal of these two disallowed disbursements
is therefore dismissed.

ii.       Dr. Doherty, Physiatrist

(a)      Position of the Plaintiff

[40]        
Counsel for the plaintiff submits that this case
was complicated by its international aspects.   Dr. Doherty is an American
specialist who practises in the San Francisco/Fresno area where the plaintiff
intended to ultimately reside with her family.  Dr. Doherty is a physical medicine
and rehabilitation specialist.  Registrar Blok disallowed the account of Dr. Doherty,
with the exception of an allowance of $3,000.00 for some additional work that
was done after Dr. Anton, the Canadian physical medicine and rehabilitation
specialist, performed his work.

[41]        
Counsel for the plaintiff submits that, in making
the decision to allow only $3,000.00 for this disbursement, Registrar Blok made
an error of mixed fact and law.  The plaintiff submits that Registrar Blok, in
his reasons for judgment cites the correct legal principle for determining
whether to allow a disbursement, that is to say the “necessary or proper” test,
but then does not apply the test in substance.

(b)      Position of the Defendants

[42]        
The defendants submit that the opinion of Dr.
Doherty was unnecessarily incurred.  Dr. Anton, a respected physiatrist in
British Columbia, assessed the plaintiff and prepared a report at a cost of
$2,862.50 plus GST.  Dr. Doherty is a physiatrist in the United States who
prepares similar reports at a cost of $13,745 U.S. ($16,017.05 Can.).  Dr.
Doherty then charged a further $825 U.S. to speak to Dr. Sarkisian and Ms.
Aznavoorian about their opinions and to review Dr. Sarkisian’s 33-page report.

[43]        
The defendants assert that there is no evidence
that Dr. Anton could not have provided the necessary recommendations.  The plaintiff
did not need two physiatrists.  And that Dr. Doherty’s report is grossly
excessive in cost.

[44]        
Dr. Doherty referred Ms. Narvaez to Dr. Goka,
another physical medicine and rehabilitation specialist, for some testing in
Fresno, California.  The defendants submit that the explanation for the need of
a third physiatrist has not been made evident.

(c)      The Registrar’s Ruling

[45]        
In his oral reasons for judgment given June 30,
2009, Registrar Blok says the following:

[3]        The authorities with which I am
well familiar on the matter of disbursements state that the time to determine
whether a disbursement is necessarily or properly incurred is at the time the
decision is made to incur it.  If it is determined that the disbursement meets
that test, the question then becomes what is – or is the claimed disbursement
reasonable or, if not, what is a reasonable amount.  On the evidence before me,
I am unable to conclude that it was necessary or indeed proper – in the words
of the Rule – to engage a U.S.-based physiatrist merely because the medical
delivery system in the U.S. was different.  It was not alleged that the medical
recommendations or rehabilitation recommendations would be any different and
indeed, in the brief time that I have had to scan Dr. Doherty’s report, she does
not appear to make any recommendations that are jurisdiction-based.  She
describes the need for further therapy, involvement by other professionals in
various fields, and matters of that sort, all of which an expert here could
deal with and indeed Dr. Anton did just that.

[4]        In
these circumstances, I am not persuaded that this disbursement was necessarily
or properly incurred in the conduct of the proceeding because it seems to be an
unjustified duplication of the work already done.  I accept that there was
additional work done by Dr. Doherty in the sense that by the time she did her
report, she had additional reports on which to comment and she did do
additional investigations that presumably could have been done by Dr. Anton at
a much cheaper rate.  For this reason, I think it appropriate to give an
allowance for the additional work that could have been done by Dr. Anton that
Dr. Doherty did.  I conclude that a reasonable sum for that work is $3,000.

(d)      Disposition

[46]        
Here again, the reasons for judgment of
Registrar Blok indicates how knowledgeable he is with respect to the issues
that were before him.  I may say that I would have had some difficulty finding
that the plaintiff had established that she was entitled to any of the
disbursements incurred by the American specialist.  Nevertheless, I cannot say
that the Registrar was clearly wrong in making the decision that he made on
this issue.

iii.       Dr. Sass, Optometrist

(a)      Position of the Plaintiff

[47]        
The plaintiff submits that this disbursement of
$2500 should have been allowed by the Registrar.  The plaintiff complained of
visual problems shortly after the accident and subsequently.  Both her eye
orbits were fractured.  She was seen by an ophthalmologist while she was resident
at the hospital.  When she was released, her visual problems persisted.

[48]        
Some of the examining experts recommended that
Ms. Narvaez should be assessed by a neuro-ophthalmologist for her visual issues
that arose from her injuries.

[49]        
Counsel for the plaintiff determined that
instead of a neuro-ophthalmologist, she preferred to hire a developmental
doctor of optometry who had a practice specializing in treating visual problems
related to brain injury.  The Registrar disagreed with the specialist counsel
chose to investigate the plaintiff’s visual problems and treatment
recommendations and disallowed the disbursement altogether.

[50]        
The plaintiff submits that it is for counsel to
decide which expert to retain.  As set out in Fantini at p. 327:

[The Registrar]
must be careful to balance his duty to disallow expenses incurred due to
negligence or mistake, or which are extravagant, with his duty to recognize
that a carefully prepared case requires that counsel use care in the choice of
expert witnesses and examine all sources of information and possible evidence
which may be of advantage to his client.

[51]        
Counsel for the plaintiff also drew my attention
to McKenzie v. Darke, 2003 BCSC 138, at para. 21, where Master
Horn made the following comments:

[21]      Taxing
officers ought not to second guess a competent counsel doing a competent job,
solely on the grounds that other counsel might have been more sanguine or less
cautious in determining how the job should be done. 

[52]        
Counsel for the plaintiff submits that there is
no doubt that issues arose in this case relating to Ms. Narvaez’s vision.  She
submits that Registrar Blok has, in substance, second guessed counsel’s
decision on which expert to retain, and has not assessed this disbursement of
Dr. Sass in accordance with the necessary or proper test based on the
circumstances existing at the time the disbursement was incurred.

[53]        
In her submission, counsel for the plaintiff
also reminded me that the fact that a report is not used does not, in and of
itself, preclude the disbursement from being assessed: Morrissette v.
Smith, [1990] B.C.J. No. 193 (S.C.); and Leverman, at
para. 20.

[54]        
Counsel for the plaintiff submits that Registrar
Blok erred in principle or was clearly wrong in his decision.  She submits that
assessment of visual difficulties and recommended treatment was an issue in
this case.  The dismissal of Dr. Sass as an expert without appropriate
credentials by Registrar Blok is clearly wrong.  The plaintiff submits that it
is totally within the function of counsel to determine what type of visual
expert would best develop the case in terms of assessment, treatment and thus
damages.

(b)      Position of the Defendants

[55]        
The defendants submit that the report from Dr.
Sass is “useless.”  Dr. Sass is an optometrist.  Dr. Sass gave opinions regarding psychology, neurology and psychiatry in the
report which was itself marked as a draft.  The defendants assert that the plaintiff
did not prepare any proper evidentiary groundwork to require this opinion.  Dr.
Sass went far beyond his area of expertise and no evidence exists that the need
for such an opinion existed.  The defendants submit that in light of all this
the report of Dr. Sass should be disallowed as a disbursement.

(c)      The Registrar’s Ruling

[56]        
Registrar Blok disallowed the cost of retaining
Dr. Sass, an optometrist with a practice involving treatment of brain injuries. 
In his reasons dated June 30, 2009, at para. 17, he stated:

[17]      THE
COURT:  For the reasons expressed by Mr. Brun, I conclude that an insufficient
basis has been shown for the retaining of this expert.  Dr. Anton, the
physiatrist, recommended a neuro-ophthalmologist.  Counsel did not retain a
neuro-opthamologist [sic].  Counsel did not even retain an ophthalmologist. 
Counsel saw fit, for reasons not explained other than they thought it was a
good idea, to retain an optometrist who admittedly describes some experience
with head injuries, but nonetheless is not the specialist recommended by Dr.
Anton.  In my view, an insufficient basis has been shown for the retaining of
this expert.  I disallow the disbursement.

(d)      Disposition

[57]        
Here again, I find the Registrar’s reasoning supporting
his decision on this issue beyond reproach.  I am again unable to find that the
Registrar was clearly wrong in the principles he applied in making the decision
that he did.  This ground of appeal is therefore dismissed.

iv. The MRI Accounts

(a)      Position of the Plaintiff

[58]        
The plaintiff submits that in disallowing this
disbursement, Registrar Blok was in error in failing to apply the principles
laid down in his own decisions in Phelan v. Newcombe, 2007 BCSC
714; and Ward v. W.S. Leasing Ltd., 2007 BCSC 877. 
Counsel for the plaintiff submits that judgment was applied and medical advice
was sought.  The circumstance of this case was that the plaintiff sustained a
significant brain injury.  Objective evidence four years after the accident
would be powerful evidence to negate the defence of recovery.  The MRI was
positive not only for diffuse axonal injury but for tissue necrosis.

(b)      Position of the Defendants

[59]        
The defendants assert that there was no legal
necessity to obtain MRIs.  It was clear from “day one” that Ms. Narvaez had
sustained a significant brain injury.  The defendants submit that hearsay
evidence was relied upon to provide a legal basis to request the MRI scans. 
The defendants assert that the proper foundation for obtaining evidence of this
type was not supplied and the scans themselves were unnecessary.

(c)      The Registrar’s Ruling

[60]        
In paras. 28-29 of his oral reasons given
June 30, 2009 on this issue, Registrar Blok referred to his earlier ruling in Phelan
where, at paras. 14-16, he disallowed an MRI citing another of his own
cases, Ward, to stand for the proposition that if the MRI is
ordered as standard practice by plaintiff’s counsel, it will not be allowed,
and that there must be some judgment applied in considering the necessity of
the MRI in a litigation context.  Registrar Blok said the following in Phelan:

[15]      I rejected this sort of blanket
approach in [Ward], where the lawyer in that case had a standard
practice of obtaining MRIs for his personal injury clients as soon as he was
retained, with no consideration given as to the necessity of an MRI in any
particular case.  I said (at para. 14):

I conclude that the claim fails for that
reason.  A blanket conclusion that an MRI is necessary in every personal injury
case renders the cost extravagant or as a result of excessive caution or zeal,
as that language was used in Van Daele v. Van Daele [(1983), 56
B.C.L.R. 178 (C.A.)].  In my view there must be some judgment applied, perhaps
with medical input, in considering the necessity for the procedure in a
litigation context, given the injuries involved, the likely damages, what the
MRI is expected to achieve from a litigation standpoint, and so on.  There is
no proper basis on which I can conclude that the MRIs were necessary, at the
time they were ordered, in this particular case.

(d)      Disposition

[61]        
Again, I am unable to find that Registrar Blok
was clearly wrong in making the decision that he made on this issue.  This
ground of appeal is therefore dismissed.

v.       Richard Green and Columbia Speech and Language
Services

(a)      Position of the Plaintiff

[62]        
The plaintiff submits that in making his
decision regarding the accounts of Mr. Green and Columbia Speech and Language Services
the learned Registrar acted arbitrarily and without foundation.  The Registrar
has erred in principle by interfering with the amount charged in the
circumstances.

[63]        
The plaintiff submitted that Mr. Green was originally
retained to address the speech production issue after a neuropsychologist
advised that Ms. Narvaez experienced deficits related to speech and language.  Mr.
Green discovered through testing that there was no speech production problem
but recommended a language assessment.  A language specialist was hired from
Columbia Speech and Language Services.

[64]        
The plaintiff asserts that the Registrar did not
consider these two accounts separately.  The Registrar assumed – without
foundation – that there were inefficiencies and that the substantive
portion of the report was out of proportion with the seven hours spent on its
creation.  The Registrar disallowed missed appointment fees, reduced the
accounts of Columbia Speech and Language Services, and assessed that account
along with Mr. Green’s at $2,500.  According to the plaintiff, this essentially
disallowed disbursement for all of the report writing as well as a portion of
Mr. Green’s account.

[65]        
The plaintiff argues that the Registrar acted arbitrarily
and erred in principle by interfering with the amount charged by the experts
retained.  The plaintiff submits that no reasonable basis exists for
determining that the amount of work billed was not put into the report; in
counsel for the plaintiff’s words:  “Less is often more.  Writing involves
organizing and reviewing the information collected, checking issues, and
presenting in a format that is useful to the reader.”

[66]        
With respect to the missed appointments, the plaintiff
asserts that the Registrar erred in disallowing disbursement for the time the plaintiff
spent in the wrong spot as a result of the cognitive defects caused by the
defendants.

[67]        
The assessment of the two accounts together was
unreasonable:  a review of the accounts shows that the rates and testing done
by Mr. Green and Columbia Speech and Language Services were totally different. 
The plaintiff argues that no judicious reason existed in light of the above that
could function as a basis for a deduction of these accounts and further that
this deduction was not within the Registrar’s discretion.

(b)      Position of the Defendants

[68]        
The defendants argue that the speech pathology
invoices and research are replete with duplication as well as unnecessary
services and charges for missed appointments.  The defendants submit that the
bills should be reduced to reflect the duplication and the excessive services
as well as the removal of any charge for missed appointments.

[69]        
The defendants submit that retaining Mr. Green
as well as Karen Salamon from Columbia Speech and Language Services was
excessive as they were both speech language pathologists.  Mr. Green spent four
hours writing his report and eight hours on testing.  Ms. Salamon’s report was –
in substance – four pages long but took almost seven hours to write in
addition to the 22.8 hours spent forming the opinion.  The defendants submit
that the disbursement should be reduced to reflect the duplicity, lack of
necessity, excessive amounts and charges for missed appointments found in the
invoices of Mr. Green and Columbia Speech and Language Services.

(c)      The Registrar’s Ruling

[70]        
In his reasons for judgment given on June 29,
2009, Registrar Blok stated at para. 31:

I conclude that
there must have been some inefficiencies in dealing with a person presenting
with speech-language problems in this bifurcated manner.  On a slightly
different topic, I accept that there were cognitive reasons why the plaintiff
had difficulty meeting appointments, but I do not see that that takes this to
the point that the defendants must pay for her failure to show at her
appointments with Columbia Speech and Language Services.  Finally, I share Mr.
Brun’s concern that the very brief substantive portion of the report of
Columbia Speech and Language Services seems out of proportion with the seven
hours said to have been spent in report preparation.  For all those reasons, I
assess these two items together at $2,500.

(d)      Disposition

[71]        
My role in this appeal is limited.  In order to
succeed, an appellant must show that the registrar erred in the principles he
applied in reaching his decision.  The registrar’s assessment of the
reasonableness or otherwise of an item of cost should not be interfered with
unless the registrar’s decision was clearly wrong.  Again, I cannot say that
the Registrar was clearly wrong in making this decision.  This ground of appeal
is also dismissed.

vi. Karen Aznavoorian

(a) Position of the Plaintiff

[72]        
The plaintiff’s submission on this issue is that
the Registrar’s ruling and deductions were nothing short of arbitrary.  The plaintiff
asserts that deductions made from the amount charged for Ms. Aznavoorian’s
services trivialized the work she did as nothing more than chauffeuring.  The
Registrar reduced the disbursement for the time Ms. Aznavoorian spent writing
her report by about one-third.  The Registrar failed to recognize that the 38
hours billed comprised not just writing the report but preparing the life care
plan and costing it.  Ms. Aznavoorian’s job as a future cost of care expert is
to take the recommendations of medical professionals, apply her own knowledge
as a life care planner and devise a plan which is not a quick and easy thing to
do.

[73]        
The plaintiff asserts that Ms. Aznavoorian spent
approximately 20 to 21 hours with Ms. Narvaez.  The geography suggests that Ms.
Narvaez and Ms. Aznavoorian spent around seven to nine hours driving together. 
Information was gathered during these drives but the evidence is clear that Ms.
Aznavoorian spent additional time interviewing Ms. Narvaez and taking notes
after driving.

[74]        
The plaintiff stresses that the Registrar failed
to recognize Ms. Narvaez’s characteristics and the need for the services that
Ms. Aznavoorian provided.  Ms. Narvaez had difficulty recognizing her own
cognitive deficits, she had trouble making appointments in her own city let
alone in cities she was unfamiliar with (such as San Francisco).  Ms. Narvaez
could not have been expected to take a cab, and taxi transportation would have
been more expensive and would not provide the security advantages Ms.
Aznavoorian could.  Additionally, the plaintiff asserts that the Registrar made
the deduction based on the erroneous assumption that there was much more
driving time than there actually was.  Ms. Aznavoorian met with Dr. Doherty,
accompanied the plaintiff to examinations, and spent additional time in her
company.  The amount Registrar Blok allowed for a taxi or caregiver to take Ms.
Narvaez to these appointments would have barely covered the cost of fuel.

(b) Position of the Defendants

[75]        
The defendants submit that Ms. Aznavoorian’s opinion relating to cost of care of the plaintiff
in the United States duplicates the cost of care opinions prepared in
Canada.  Ms. Aznavoorian billed $10,414 to prepare an opinion including
charging $3,000 to travel around with the plaintiff.  The report Ms.
Aznavoorian prepared allegedly took 38 hours to prepare but is in substance
nine pages long.  Ms. Aznavoorian’s report is duplicative and excessive and is
based upon a theory that the plaintiff might at some point in time go to live
in California.

[76]        
The defendants assert that Ms. Aznavoorian’s
report fails to take into account the true circumstances of the plaintiff
including that Ms. Narvaez has been working full-time since shortly after the
accident as a care giver for her pre-accident client.  The defendants characterize
this report as outrageous, extravagant, myopic and unnecessary.

(c)      The Registrar’s Ruling

[77]        
In his oral reasons for judgment given June 29,
2009, Registrar Blok stated at para. 17:

[17]      THE COURT:  I agree with some of
the things that both counsel have told me.  I accept that a large part of the
work of a cost-of-future-care consultant is found in the cost items which would
be reflected in the tables at the end of a report, not necessarily in the body
of the report itself.  I accept, as well, from some experience in other cases,
that the hourly rate seems to be about right for an American consultant in this
field.  I also accept that the amount of time spent on this report seems
excessive compared to other reports of this type I have seen, and I accept that
hiring a professional at considerable expense to ferry the plaintiff around to
some medical appointments, while convenient and no doubt reliable, is a luxury
for which the defendants ought not to be responsible.  I would not allow the
fees claimed that relate to driving the plaintiff around.

[18]      Allowing
for the apparent arithmetic error in the one entry, reducing the writing time
by about a third, and leaving an allowance for an alternative but cheaper taxi
driver or caregiver, if I can put it in a less pejorative way, to take the
plaintiff around to these appointments, I arrive at a sum — what I consider to
be a reasonable sum of $5,500, and that is U.S., I assume?  So all these
figures are U.S., are they?

(d)      Disposition

[78]        
I agree that Ms. Aznavoorian’s report would
appear to be duplicative and excessive and is based on the theory that the plaintiff
might at some point in time go to live in California.  The Registrar addressed
several issues and his own experience in coming to what he perceived as a
reasonable disbursement for this expense.  I am unable to say that his decision
on this issue was clearly wrong.  This ground of appeal is therefore dismissed.

vii.      Dean Powers and Harbourview Rehabilitation

(a)      Position of the Plaintiff

[79]        
In his oral reasons for judgment given June 30,
2009, at para. 25, Registrar Blok felt that there was a need for
“reasonable restraint” when engaging experts, and on this basis he determined
that the further situational assessment in Ms. Narvaez’s new employment was not
necessary or proper and reduced the disbursement accordingly.  The plaintiff
asserts that this principle, respectfully, is not the correct principle to be
applied, and the Registrar is clearly wrong.

[80]        
Mr. Powers is a vocational consultant hired to
do a situational assessment – to observe the plaintiff in various
situations to determine her abilities and disabilities as they would impact
upon her ability to work competitively.  When Ms. Narvaez obtained a job with
some responsibilities similar to a care aid, the less challenging volunteer
work she was doing previously was discontinued and Mr. Powers continued to
assess Ms. Narvaez in this environment.  The plaintiff submits that more could
be learned about Ms. Narvaez’s condition through observation in her new, more
challenging work environment.

(b)      Position of the Defendants

[81]        
The defendants submit that the services provided
by Mr. Powers were predominantly vocational in nature as opposed to acting as
an expert witness.  The individual invoices of Mr. Powers show that amounts for
vocational rehabilitation services and therapy are
included such as job searches and employer negotiations.

[82]        
The defendants submit that these expenses relate
to treatment and not the
provision of expert opinion evidence and are not properly included in the bill of costs.  The defendants
argue further that there is no breakdown between the
portion of services performed by Mr. Powers in relation to providing treatment
versus that portion spent towards his expert evidence, and thus his account
should be reduced substantially or disallowed.

(c)      The Registrar’s Ruling

[83]        
In his oral reasons for judgment of June 30,
2009, at paras. 25-26, Registrar Blok states:

[25]      In pondering the disbursement in
question, it struck me that it was very similar to cases in which claims for
surveillance costs are made, typically by defence counsel, although, as hard as
it might be to believe, at least on one occasion, there was
counter-surveillance, a case recently – but I digress.  In any event, in the
case of surveillance, it is such an open-ended type of engagement that can
quickly accumulate cost that persuades me that reasonable restraint must be
exercised in engaging experts for this type of activity and analogous
activities.

[26]      I have
concluded that it was reasonable for plaintiff’s counsel to engage Mr. Powers
to do a so-called situational assessment for the first employment, the
volunteer position, and to write a report, and for some incidental activities
around it such as conferring with the employer and reporting to the lawyer and
so on.  I am not persuaded that further situational assessment in the new
employment was necessary or proper or indeed reasonable in the circumstances. 
I would thus allow the activities up to and including those related to the
volunteer position and the report writing which by my calculation total $7,400
in fees.  I would not allow those related to the second employment situation,
as I have said, and nor has any case been made out on the evidence or on the
informal statements of counsel as to why billings continued past the date of
the delivery of the report.

(d)      Disposition

[84]        
Here again the plaintiff has not shown that the Registrar
erred in the principles that he applied in reaching his decision and has not
established that the Registrar’s assessment of the reasonableness or otherwise
of the item of cost was clearly wrong.  This ground of appeal is therefore
dismissed.

5. Conclusion

[85]        
I would note in closing that the situation before me may have
arisen from an overly technical critique of the Registrar’s rulings, two of
which were oral reasons given in chambers.  Where the result is not
satisfactory to a party it may be tempting to examine the decision maker’s
words so closely that the way those individual words and phrases fit into the
larger ruling is forgotten.  This is something the judiciary attempts to keep
in mind but perfection in this area is elusive.  Issuing rulings with flawless
phrasing may be especially difficult when ruling under the exigencies of
chambers.  The ruling of the Supreme Court of Canada in R. v. Davis, [1999] 3 S.C.R. 759, albeit in a very different context, may
serve to illustrate my point.  In Davis, Lamer
C.J.C. wrote, at para. 103:

With respect to the cases of T.R. and D.A.S.,
in the course of reviewing the evidence, the trial judge said that he was “not
convinced” that the complainants consented to the sexual activity in question.  Read
out of context, these comments suggest that the trial judge may have reversed
the burden of proof.  However, in my view, this is simply plucking colloquial
elements of the trial judge’s thorough reasons.  I agree with Green J.A., who
held at p. 316:

It is not sufficient to “cherry pick”
certain infelicitous phrases or sentences without enquiring as to whether the
literal meaning was effectively neutralized by other passages.  This is
especially true in the case of a judge sitting alone where other comments made
by him or her may make it perfectly clear that he or she did not misapprehend
the import of the legal principles involved.  As McLachlin J. said in [R. v.
B. (C.R.), [1990] 1 S.C.R. 717, at p. 737]:  “[t]he fact that a trial judge
misstates himself at one point should not vitiate his ruling if the preponderance
of what was said shows that the proper test was applied and if the decision can
be justified on the evidence.”

[86]        
On the basis of the foregoing, the plaintiff’s
appeal is dismissed with costs.

“Romilly
J.”