IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101223

Docket: M91535

Registry:
New Westminster

Between:

David Hambrook

Plaintiff

And

Navtej Singh
Sandhu and Daljit Singh Sandhu

Defendants

Before:
Master Keighley

Reasons for Judgment

[1]            
This is an assessment of the defendants’ costs. The underlying claim
arose as a result of a motor vehicle accident which occurred on February 29,
2004. This action was commenced April 4, 2005. The defence filed shortly
thereafter denied liability.

[2]            
On July 26, 2007, the defendants delivered a formal offer to settle the
plaintiff’s claims for $75,000. On November 14, 2008, three days prior to the
commencement of the scheduled eight day trial, the plaintiff accepted the
offer.

[3]            
The parties were unable to resolve the issue of costs and spoke to the
issue before Verhoeven J. on April 1, 2010. His Lordship ordered, in part,
that:

(a)      The
defendants would pay the plaintiff his costs at Scale B and necessary
disbursements to July 27, 2007;

(b)      The
plaintiff would pay to the defendants their costs at Scale B and necessary
disbursements from July 27, 2007.

[4]            
The defendants’ proposed Bill of Costs, reads, in its entirety as
follows:

[5]            
With respect to the tariff items, Mr. Smith takes issue with only
items 20, 21, 22, and 34. By virtue of s. 10 of Appendix B of the Supreme
Court Civil Rules, B.C. Reg. 168/2009, specifically s. 10 of
Appendix B thereof, this assessment is governed by the tariff in effect prior
to July 1, 2010.

[6]            
With respect to tariff items 20 and 21, it is the general rule that
parties assessing costs are entitled to recover the costs of the assessment,
although the court may consider the degree of success and a party’s conduct
relating to the assessment. I see no reason in this case to depart from the
general rule that the assessing party will have the costs of the assessment.
The claim for tariff items 20 and 21 is allowed.

[7]            
With respect to tariff item 22, I will allow the amount claimed. It
seems to me that a claim for one and one-half units is an appropriate amount
for preparation relating to an unremarkable half day pre-trial conference.

[8]            
With respect to the defendants claim for five units under tariff item
34, relating to “negotiations and process for settlement” it does not appear to
me from the material at hand that negotiations played any significant part in
the resolution of this claim. Rather, it was the plaintiff’s acceptance of the
defendants’ offer on the threshold of trial. In order to allow recovery for
this tariff item, the proceeding must be wholly settled as a result of the
negotiations: Bray v. MacLeod (1978), 6 B.C.L.R. 295 at page 299. In the
absence of evidence as to the effect of negotiations, if any, on the settlement
of this claim, I cannot allow recovery of this tariff item.

[9]            
Accordingly, the defendants’ tariff claim will be allowed at 33 units
which multiplied by a unit value of $110 per unit results in a tariff of $3,630.
In addition to this amount I will allow PST on 30 units, HST on three units,
for additional amounts of $231 and $39.60 respectively, for a total of
$3,900.60.

[10]        
With respect to disbursements, it appears that the November 12, 2008
invoice from Lanki Investigations Inc. is subsumed in the following invoice of
November 13, 2008; accordingly, the claim for the November 12^th
invoice as a separate item is disallowed.

[11]        
As a general proposition, the party claiming reimbursement for sums
expended in the course of litigation bears the burden of establishing the
reasonableness of the charges claimed.

[12]        
I have suffered, on this assessment, from a paucity of evidence offered
by the defendants in support of the disbursement claims. With respect to the
Lanki Investigations Inc. invoices I have no evidence before me as to the
necessity for or results of these investigations. I am told by counsel that the
investigations, which consisted largely of video surveillance, were
instrumental in resolving this claim. I have no evidence as to this
effect, however, only records of the amount of time spent by various
individuals. I note that the surveillance took place after the delivery of the
offer to settle and in the last two weeks prior to trial. Mr. Smith says
that the surveillance materials were of little value and that the case settled
when it did because of a clarification in the law of costs and a change in his
client’s employment. The former, he says, meant that his client would
potentially net more money as a result of accepting the offer than he had
previously anticipated, and the second meant a substantial limitation of his
claim for loss of future earnings. These details are confirmed to some extent
by the plaintiff’s affidavit of February 6, 2009. In the circumstances, while I
am not prepared to say that the defendants’ expenses for surveillance were
entirely unreasonable, I am compelled by the tariff item and the case law to
allow them only if settlement was achieved as a result of the services
provided. In the absence of any evidence from the defendants on this point, I
cannot do so. The Lanki accounts are disallowed.

[13]        
Dr. Sinanan’s account of November 19, 2008 is one of the briefest I
have seen.

[14]        
After captioning the subject action, it merely says:

review of files –

discussion –

Rev. opinion

[15]        
A plus sign appears to have been written by hand in front of the words
“rev. opinion” and a hand written bracket joins the notations “review of files”
and “discussion” and it also includes the handwritten notation “8 hours +”. The
total amount of the bill, also handwritten, is $3,500.

[16]        
I am assuming, given its date, that this report relates to Dr. Sinanan’s
preparation for trial. That would be consistent with the claim for review of
files of discussion. I am not sure whether the words “Rev. opinion” refer to “revise
opinion” or “review opinion”, but assume it is the latter.

[17]        
Dr. Sinanan’s opinion letter was dated June 18, 2007 and consists
of eight pages. I do not know whether the notation “review of files” relates to
the review of Dr. Sinanan’s own files or the files of other physicians. I
note that the BCMA fee schedule sets a guideline fee of $356 per hour for
“court preparation”. In the absence of any evidence to the contrary it seems to
me that three hours should have been sufficient for Dr. Sinanan to prepare
himself for trial. Accordingly, I will allow his account $1,068.

[18]        
The balance of disbursements claimed are allowed.

[19]        
Accordingly, the allowed disbursements are: $2,162.52, plus HST of $1.44,
for total disbursements of $2,163.96. Allowed tariff items and disbursements total
$6,064.56.

“Master
Keighley”