IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100714

Docket: M054154

Registry:
Vancouver

Between:

Surinder
Smagh

Plaintiff

And

Baldeep
Singh Bumbrah

Defendant

Before:
Master Shaw

Reasons for Judgment

[1]            
This is an assessment of the second amended bill of costs (“bill of
costs”) of the defendant, Baldeep Singh Bumbrah.

[2]            
This matter was heard on April 29, 2010. Further written submissions
were provided by the defendant and by the plaintiff.

[3]            
The bill of costs arises from a personal injury action arising out of a
motor vehicle accident which occurred in 2004. Liability was admitted. The writ
and statement of claim was filed September 15, 2005, pursuant to Rule 66 of the
Rules of Court (the “Rules”). The statement of defence was filed
February 20, 2006.

[4]            
The parties attended mediation on October 26, 2006. The mediation was
not successful.

[5]            
The parties attended a pre-trial conference on November 20, 2006. The
trial  was adjourned and the action was removed from Rule 66. A trial by jury
was set for January 19, 2009 and took ten days.

[6]            
The defendant served a formal offer to settle which was dated October
26, 2006. The plaintiff declined.

[7]            
At trial, the plaintiff was awarded an amount that was less than the
defendant’s formal offer to settle.

[8]            
The defendants were awarded their costs from November 2, 2006 onwards.

[9]            
The plaintiff and defendant jointly identified the areas of dispute in
the bill of costs.

Item 1B

[10]        
The defendant seeks 20 units. The defendant submits that the defendant
was required to conduct significant research of the plaintiff’s employment
history as there were questions to be answered in relation to the plaintiff’s
businesses. The defendant says location and interviews of former owners of the
business purchased by the plaintiff and a partner had to be done. The plaintiff
collected employment insurance at times and this caused the defendant to
investigate the plaintiff’s work and employment insurance claims. Corporate searches
and property searches were done, including research of mortgages.

[11]        
A major area of concern for the defendant’s case was causation elements
of the plaintiff’s alleged injury. The defendant obtained MSP clinical records
and Pharmanet records. The defendant brought a motion for the production of
documents. The defendant admits the plaintiff co-operated and produced records.
The defendant submits the work required in this case under Rule 1B of the Tariff
was more than the usual.

[12]        
The plaintiff says the defendant went to the extreme to investigate the
business the plaintiff had minimal involvement in. The plaintiff states the
defendant engaged the services of a third party to conduct interviews and
searches, including Land Title Office searches, document retrievals and
interviews of witnesses.

[13]        
The plaintiff argues the defendant made the case out to be more
complicated than it was.

[14]        
On the evidence, I find the complexity of the case, the necessary and
reasonable steps taken by the defendant, as well as the factor that the work to
be considered is from November 2, 2006 onward, supports 15 units for item 1B.

[15]        
I set 15 units for Item 1B.

Item 6A

[16]        
Item 6A is withdrawn.

Item 7(a)

[17]        
The list of documents numbered no more than 100. The defendant says the
discovery of documents was more difficult and time consuming than the average
motor vehicle accident case. The plaintiff says the discovery of documents was
not out of the ordinary.

[18]        
The plaintiff further submits that the defendant is only entitled to
costs from November 2, 2006 onward, and that the majority of the discovery
occurred before November 2, 2006. The plaintiff argues no mortgage documents or
Land Title Office extracts were marked as exhibits at trial. The defendant says
the documents were used for preparation and cross-examination. I find that the
necessary and reasonable work done under this category is above average, but I
find the substantial amount of work in document discovery was done prior to
November 2, 2006.

[19]        
I set 7 units for the entire action and pro-rate the units to 3 for the
work done for Item 7 on and after November 2, 2006.

Item 8

[20]        
Item 8 is withdrawn.

Item 12

[21]        
Item 12 is no longer in dispute and is agreed to at 1 unit.

Item 13A

[22]        
The defendant seeks 5 units. There were four experts the defendant dealt
with:

·      
Dr. Mattishak, a neurosurgeon;

·      
Dr. Boyle, an orthopaedic surgeon;

·      
Dr. Schwaggle, an orthopaedic surgeon; and

·      
an economist.

[23]        
Dr. Mattishak assessed the plaintiff and prepared two reports as well as
attending trial as a witness. Dr. Boyle was retained by the defendant. He
examined the plaintiff and produced a report and two addendums. The original
report and one addendum were provided prior to November 2, 2006. For the second
addendum, Dr. Boyle reviewed other evidence.

[24]        
Dr. Schwaggle, the second orthopaedic surgeon, was not retained by the
defendant. The plaintiff was referred to Dr. Schwaggle by the plaintiff’s
family doctor. The defendant consulted with Dr. Schwaggle. The plaintiff
submits the consultation by the defendant was minimal.

[25]        
The defendant retained an economist to respond to the expert report
prepared by the plaintiff’s economist. A full economic loss report was not done,
but a response to the multipliers prepared by the plaintiff’s expert was
prepared.

[26]        
I find, based on the evidence, Item 13A is set at 4 units.

Item 13B

[27]        
The defendant seeks 7 units.

[28]        
The defendant issued ten subpoenas, all after November 2, 2006. Two
estimators from the Insurance Corporation of British Columbia were subpoenaed,
a former chief executive officer from the plaintiff’s places of employment ,
three bank officials and a physiotherapist attended at trial. The defendant
subpoenaed, but did not call, a doctor and an employee of the plaintiff’s
business. The defendant says that even with witnesses who were not called, there
was considerable work in contacting and interviewing the witness and reviewing
the evidence.

[29]        
The plaintiff says the defendant hired a company to investigate and
interview witnesses. The defendant is seeking to have the disbursement paid. The
plaintiff argues the bulk of the work was done by the interviewer. The
plaintiff objects to allowing the defendant any units for subpoenas to their
own employers, the two estimators.

[30]        
I find that it was reasonable for the defendant to subpoena eight
witnesses, which does not include the two estimators. In addition, it was
reasonable and necessary for the defendant to arrange contact of the witnesses,
review the evidence obtained by the interviewer and prepare witnesses for
trial.

[31]        
I set 5 units for Item 13B.

Items 16(b), 17(b), 20, 21, 22 and 23

[32]        
I set the following units for these items:

·      
Item 16(b)     1 unit

·      
Item 17(b)     2 units

·      
Item 20         1 unit

·      
Item 21         2 units

·      
Item 22         4 units

·      
Item 23         5 units

Items 30 and 31

[33]        
Items 30 and 31 were agreed to at 1 unit for each item.

Items 32, 34A and 34B

[34]        
Items 32, 34A and 34B were withdrawn.

SUMMARY

[35]        
The total units for each item are as follows:

DISBURSEMENTS

[36]        
The defendant provided an amended schedule of disbursements. The
plaintiff did not oppose the submission of the amended schedule and it was
allowed. The schedule lists claims of disbursement by number and the defendant
organized his documents to support the claim for the disbursement by tabs with
the number assigned on the schedule. I will refer to the schedule/numbers as I
review the disbursements.

Disbursement 3, Agents – Pacific Coast Total Solutions Inc.

[37]        
The total of this disbursement is $567.20, and certain items under this
category are disputed by the plaintiff.

Disbursement 3.1 dated December 8, 2008

[38]        
This relates to a charge of $23.84 for a mortgage search. The defendant
says searches were done to obtain information on possible money sources for
funding of the plaintiff’s business. The plaintiff says the PID number does not
show any known property related to the action. The defendant located the
mortgage search result document to confirm relevance.

[39]        
On review of the document, the property search charge was for a search
of the property in the name of a company and the land title form was signed by
the plaintiff. I accept the evidence and submissions of the defendant that the
expense was reasonable and proper given the claim of the plaintiff, and the
necessity of the defendant to investigate possible income sources of the
plaintiff.

[40]        
This disbursement is allowed.

Disbursement 3.2 dated December 12, 2008

[41]        
This invoice is in the amount of $39.00 for a search of a court file to
obtain copies of the writ, statement of claim and pleadings of a law suit involving
the business the plaintiff had an interest in. The defendant submits the
relevance of the search was to investigate the loss of income claim of the
plaintiff. The defendant submitted the credibility of the plaintiff was at
issue. The plaintiff says the search was only done one month before trial and
was not necessary or relevant.

[42]        
There was no evidence that the search resulted in evidence or
information that was used at trial. The search was not done prior to
examinations for discovery, nor was there evidence of the search being done in
relation to any specific concern that arose from the issues being litigated.

[43]        
I do not find the disbursement to be reasonable, necessary or
sufficiently relevant. I disallow this disbursement.

Disbursement 3.3 dated November 26, 2008

[44]        
This relates to invoice #643262 in the amount of $123.90 for service of
the defendant to appear at trial.

[45]        
I am satisfied that under the circumstances of the defendant’s wife
being pregnant and about to deliver, that the concerns of counsel for the
defendant about the defendant not appearing at trial were reasonable. I further
find using a process server was reasonable. I find this expense to be
reasonable and proper.

[46]        
I allow this disbursement.

Disbursement 3.4 dated December 18, 2008

[47]        
Invoice #65416 in the amount of $47.25 is for service of a letter and
subpoena on a physiotherapist. The physiotherapist attended trial, gave
evidence and was cross-examined. The plaintiff submits professional witnesses
do not need or want to be served by a process server, therefore, the subpoena
could and should have been provided without a process server.

[48]        
I am satisfied service of the subpoena on the witness by a process
server was reasonable, proper and prudent. I allow this disbursement.

Disbursement 3.5 dated January 21, 2009

[49]        
Invoice #654162 in the amount of $110.25 is for service of Ms. Susan
Robinson. Ms. Robinson attended at trial and gave evidence. I find the expense
reasonable, proper and prudent.

[50]        
I allow this disbursement.

Tab 4 – Scott Process Services

[51]        
The invoice in the amount of $105.00 is for service of subpoenas to
compel three loans officers to attend at trial. Records were produced by the
loans officers. The loans officers did not attend or give evidence at trial.
The defendant submitted that it was the process of having the loans officers
subpoenaed that gave rise to the production of the records. The defendant
submitted the records provided information which was used to impeach the
plaintiff.

[52]        
I find that the expense of $105.00 for service of the subpoenas to be
reasonable and I accept the evidence of the defendant that, through the loans
officers, information used for the trial was produced. I find the expense to be
proper.

[53]        
I allow this disbursement.

Tab 5

[54]        
The plaintiff’s objection to the $84.14 paid on January 22, 2009 to
Trufax Services Ltd. was withdrawn.

[55]        
This disbursement is allowed.

Tab 9 dated July 23, 2008

[56]        
This relates to invoice #1870/08 in the amount of $416.95 payable to
B.C. Professional Legal Interpreters.

[57]        
The plaintiff and defendant attended examinations for discovery. The
plaintiff required an interpreter.

[58]        
The defendant retained an interpreter who attended in the morning. The
defendant submitted the interpreter was booked for the entire day. The
discoveries finished at around 1:30 p.m. The interpreter billed for four hours.

[59]        
The plaintiff submits the defendant should have and could have been more
efficient with the timing and attendance of the interpreter. I do not accept
that submission.

[60]        
I find the expense of retaining an interpreter necessary and I find the
disbursement to be reasonable and a proper expense.

[61]        
I allow this expense.

Tabs 19, 20 and 21

[62]        
One of the expert witnesses, Mr. Sandhu, physiotherapist, provided
invoices:

·      
Tab 19, Invoice #17894 in the amount of $20.00 for conduct money;

·      
Tab 20, Invoice (letter dated December 17, 2008) in the amount of
$175.00 for attendance with Mr. Lyszkiewich; and

·      
Tab 21, Invoice (letter dated February 2, 2009) in the amount of
$1,225.00 for attendance of Mr. Sandhu at trial (7 hours x $175.00 per hour);

for a total cost of $1,420.00.

[63]        
Most of the expense of $1,420.00 is for the attendance of Mr. Sandhu at
trial.

[64]        
Mr. Sandhu billed for 7 hours over two days at $175.00 per hour. The
plaintiff argues the hourly rate is too high and the defendant could have been
more efficient with the timing of Mr. Sandhu’s attendance so that he was not
waiting to testify. Mr. Sandhu did not charge for travel time or preparation
time. At trial, Mr. Sandhu gave direct evidence and was cross-examined.

[65]        
On the evidence presented, I do not find that the defendant could have
or should have been able to reduce the 7 hours billed by Mr. Sandhu for
attendance at trial over two days.

[66]        
The plaintiff argued the hourly rate charged by Mr. Sandhu is too high
and should be reduced.

[67]        
I do not have any evidence before me to support the argument that it is
inappropriate for Mr. Sandhu to charge $175.00 per hour. No evidence was
produced from the Association of Physiotherapists or any other physiotherapist
to show that Mr. Sandhu’s hourly rate is too high.

[68]        
I find the disbursement charged by Mr. Sandhu to be reasonable and his
attendance at trial necessary.

[69]        
I allow this disbursement.

Tabs 29 and 30

[70]        
Multi-Line Claims Service sent invoices dated December 29, 2008 in the
amount of $1,506.70 and January 30, 2009 in the amount of $789.75. The two
charges are for work performed for the defendant by a private investigation
company. Invoice #01-83980 dated December 29, 2008 is for witness interviews by
the investigator. The defendant submits the employees and owners of ABC Linen, a
company the plaintiff had an interest in, were interviewed about the
plaintiff’s day-to-day involvement in the company. Five witnesses were
contacted and interviewed. Invoice #01-94036 in the amount of $789.75 was a
bill for interviewing eleven people. Prior to the interviews, all witnesses had
been identified by defence counsel. Multi-Line’s investigator conducted the
interviews.

[71]        
The plaintiff relies on Bell v. Fantini, [1981] B.C.J. No. 1268,
32 B.C.L.R. 322 (S.C.) and Noble v. Wong, [1982] B.C.J. No. 1493, 38
B.C.L.R. 246 (S.C.) affirmed (1983) 28 B.C.L.R. (2d) 331 (C.A.), which set out
the proposition that the fees of a private investigator who performs work that
is normally done by lawyers, such as interviewing witnesses, will not be
allowed unless it can be shown that there was some special reason why the
skills of an investigator were required. The plaintiff submitted there were two
lawyers for the defendant who could have interviewed the witnesses.

[72]        
I find the service provided by the investigator was not investigative
but was simple interviewing of identified witnesses. I find the nature of the
services to be work normally done by the lawyer. There was no evidence of any
special reason why the work required a special investigator.

[73]        
I find the expense is not reasonable, proper or necessary.

[74]        
I disallow both invoices.

Tab 31

[75]        
Invoice #43522 is from MEA Forensic Engineers & Scientists dated May
8, 2007 in the amount of $1,749.75. There were two parts to the services
provided by the engineers: a review and summary followed by details being
provided by the engineer verbally. The speed change-velocity as well as the impact
between the two vehicles were analyzed. The engineer reviewed photographs as
opposed to examining the vehicle itself.

[76]        
The engineer provided an opinion on seatbelt usage derived from known
models and manufacturing specifications. Actual damage was compared to what was
to be expected. No written report was generated. Counsel for the defendant
states the information and opinion was used for assistance with
cross-examination of the plaintiff and the direct of the defendant.

[77]        
The plaintiff submitted the defendant failed to provide sufficient
details on the nature of the work done. Following the assessment hearing,
counsel provided written submissions. Additional information was provided by
letter from the principal and senior biomechanical engineer of MEA Forensic
Engineers & Scientists Ltd. with further details on the nature of the work
done.

[78]        
The plaintiff argues the work the engineer did would be for Part 7
purposes and not the tort claim, and as this is the assessment for the tort trial
the expense should not be allowed.

[79]        
The disbursement was presented by the defendant as a disbursement in
relation to the tort trial. There was no evidence to support the submissions of
the plaintiff that the report of the engineer was used for the Part 7 claim.

[80]        
Based on the evidence, I do not accept that argument.

[81]        
The plaintiff argues the engineer’s report was never disclosed to the
plaintiff.

[82]        
The plaintiff relies on Van Daele v. Van Daele, [1984] B.C.J. No.
1050, 56 B.C.L.R. 178 and Stephen Moffett Ltd. v. New Brunswick, [2008]
N.B.J. No. 20, 289 D.L.R. (4^th) 629.

[83]        
In Stephen Moffett, the province brought on an appeal from the
trial judge’s decision to allow two disbursements for two expert reports. Although
the two expert reports were produced in preparation for litigation, neither expert
testified and neither report was admitted in evidence. One expert report was
not disclosed to the other side.

[84]        
The court in Stephen Moffett states at para. 18:

In order for a party to be
reimbursed for an undisclosed report, it must: (1) produce evidence stating why
the report was ordered; (2) explain what it says; (3) describe why the party
strategically or otherwise decided not to use it; and (4) assert why it is
reasonable that the party be reimbursed for it.

[85]        
In this case, the defendant retained an expert to do an analysis of the
impact damage of the vehicles and seat belt usage. Only an oral report was
obtained. The information or opinion was never intended to be provided to the
plaintiff.

[86]        
Reviewing the factors set out in Stephen Moffett for an expense
of an undisclosed report to be considered:

1)    the defendant
has provided evidence stating why the report was ordered: the defendant
provided a letter from MEA Forensic dated May 5, 2010, which states:

MEA
Forensic was asked to assess the injury potential of the rear-end collision in
terms of causing a lumbar disc herniation.

2)   
the MEA Forensic letter describes
the process of the analysis and reporting. The evidence does not give the
details of the results reached by the expert or any details of the verbal repor

3)   
the defendant retained MEA
Forensic November 9, 2006 to May 8, 2007. The defendant submitted the opinion
was required for assistance with direct of the defendant and cross-examination
of the plaintiff. The defendant did not give details of the relevancy of the opinion
to the evidence.

4)    
the defendant seeks reimbursement of this
expense as a reasonable and necessary expense for the preparation for trial.

[87]        
On review of the factors in Stephen Moffet, I find that the
defendant has satisfactorily met the onus of explaining why the expert was
retained and has provided some explanation why the expense should be paid.

[88]        
I further find that a written report was not provided. No details of the
oral report were given to allow an assessment of relevancy or necessity of the
oral report.

[89]        
In Van Daele, at trial, the plaintiff was successful in her claim
for a declaration of a 50% trust interest in the shares of the defendant’s
company. Judgment entitled her to costs. A dispute arose over the inclusion of
the cost of an expert report valuing the shares. The court set out at para. 11:

…The proper test, it seems to
me, from a number of authorities referred to us this morning is whether at the
time the disbursement or expense was incurred it was a proper disbursement in
the sense of not being [extravagant], negligent, mistaken or a result of
excessive caution or excessive zeal, judged by the situation at the time when
the disbursement or expense was incurred.

[90]        
In Van Daele, the test to be met is whether at the time the
disbursement was incurred it was a proper disbursement in the sense of not
being extravagant, negligent, mistaken or a result of excessive caution or
excessive zeal.

[91]        
The disbursement or expense was incurred for what appears to be counsel
preparing themselves for analysing other evidence and asking questions of
witnesses.

[92]        
The total account is $1,749.75.  On the circumstances of this action and
on the evidence before me, and on reviewing the factors set out in Stephen
Moffet, I am not able to conclude this expense was necessary. I find that,
given the nature of the claim and the insufficient evidence on the details of
the report, and reviewing the factors set out in Van Daele, I am unable
to find this expense is a proper disbursement and is not extravagant. I find
the disbursement not to be reasonable.

[93]        
This disbursement will not be allowed.

Tab 33 – Mileage and Parking

[94]        
Mileage and parking has been submitted in the amount of $146.30. The
defendant submits the mileage and parking expense was for counsel to travel
from his office in New Westminster to Vancouver for the trial and for his
parking expense.

[95]        
The plaintiff relies on the information in the publication Practice
Before the Registrar, s. 5, Parking [§2.61] under Assessments wherein it
states:

Parking for parties or witnesses
may be allowed as part of reasonable travel expenses. Parking may be allowed
for counsel when Item 36 (counsel’s travel expenses) applies, but otherwise
parking for counsel is generally considered to be part of lawyers’ overhead.

[96]        
As noted below, I have not allowed the disbursement under Item 36. I
consider the parking expense to be part of the lawyer’s overhead.

[97]        
This disbursement is not allowed.

Item 36

[98]        
Item 36 in Appendix B states:

Travel by a solicitor to attend at any trial, hearing,
application, examination, reference, inquiry, assessment, or other analogous
proceeding where held more than 40 km from the place where the solicitor
carries on business, for each day upon which solicitor travels.

In addition, reasonable
travelling and subsistence expenses shall be allowed as a disbursement.

[99]        
Counsel for the defendant conceded the Vancouver courthouse was less
than 40 km from his office in New Westminster. Item 36 does not apply and I
disallow the mileage claim for counsel.

Item 36 – Photocopy Expense of $214.25

[100]     The
defendant calculated his photocopy expense by estimating his copies at 857
copies and using 25¢ per copy.

[101]     The
assessment of internal photocopying is a “rough and ready” estimate to arrive
at a sensible approximation of copies and expense. Presumptively, 25¢ per page
is allowed. The allowance is presumptive, not absolute, because parties need to
be encouraged to economize: Sovani v. Jin, 2006 BCSC 855.

[102]     Here, it
is clear on the materials that the defendant has underestimated the number of
copies he required for the conduct of the file. Defendant’s counsel can only
charge 5¢ per copy to his client. The plaintiff should not be put in a position
where she is to pay more per copy than the defendant pays their counsel.

[103]     The
defendant seeks $214.25 for internal copies. I allow 1000 copies at 5¢ per copy
for a total of $50.00.

[104]     The
balance of the claimed disbursements have been agreed to between the parties.

[105]     The
disbursements are allowed at $18,341.50, plus applicable taxes. In the event
the parties cannot reach consensus on the tax, I will hear further submissions.

SUMMARY

[106]     In
summary, I allow the following:

“Master
M.E. Shaw”

MASTER SHAW