IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101216

Docket: 0422386

Registry:
Prince George

Between:

Dean J. Ibbitson

Plaintiff

And

Gary Cooper and Lianne
Wagner

Defendants

Before:
The Honourable Mr. Justice Myers

Oral Reasons for Judgment

INTRODUCTION

[1]      Mr. Ibbitson was a helicopter logging faller.  On
July 21, 2001 he was driving home from the work site when, in Prince George, he
was broadsided by a car being driven by Mr. Cooper and owned by Ms. Wagner.  Mr.
Ibbitson’s three-quarter ton pickup truck was pushed into the opposing lane and
was hit almost directly head-on by an oncoming tractor, travelling without a
trailer.  Mr. Cooper had run the stop sign.

[2]      Mr. Ibbitson and his passenger, Gerald Healey,
were able to walk out of their vehicle, which was deemed to be a total
write-off.  Mr. Ibbitson suffered soft-tissue injury and broken glass lodged in
his peri-anal area.

[3]      Liability is admitted.  The parties’ respective
medical experts are in agreement on virtually all key points, and a good many of
the relevant facts are not in dispute, yet the parties have vastly different
views on the damages to which Mr. Ibbitson is entitled, particularly with
respect to past wage loss and future earning capacity.

I. Facts

[4]      Mr. Ibbitson was born in Quesnel in 1962.  He
has three children:  a 22 year old daughter from a prior marriage; and 10 and
12 year-old boys from his current relationship.

[5]      Mr. Ibbitson grew up in the forestry industry,
in which his father was involved.  Mr. Ibbitson did not finish high school and
began running equipment such as log skidders for his father.  Eventually he
started doing tree-falling, first for his father and then for others.

[6]      From 1986 to 1989 Mr. Ibbitson worked running
equipment at Gibraltar Mines because he wanted to be home with his young
daughter.  After that he returned to the forest industry.

[7]      As acknowledged by the parties and their
experts, hand-falling is one of the most demanding physical occupations there
is.  In about 1994 – it is not clear precisely when – Mr. Ibbitson began doing
heli-falling.  That was even more challenging than regular hand-falling because
of the steepness of the terrain on which heli-logging is normally carried out.  Further,
the heli-fallers normally have to hike through that difficult terrain, often
through snow, from the nearest road access to the logging site:  they are not
transported to it by the helicopters.  They must pack their gear with them.

[8]      Heli-falling also requires a greater skill set
than hand-falling.  Amongst other things, it is necessary for the faller to be
able to buck the logs into the correct weights so that they can be lifted by
the helicopters.  Heli-fallers are regarded as the elite fallers (and workers) in
the forestry business.  Mr. Ibbitson described himself as having “been born to
be a faller” and “born and bred on hard work”.

[9]      Mr. Ibbitson had several previous injuries and
pre-existing conditions which are germane to this damage assessment.  I will
detail those later, but prior to the accident they did not cause him ongoing or
permanent difficulty.  He was able to do the heli-logging and enjoy outdoor recreational
activities.  He considered himself to be a master fisher.

[10]    I described the accident at the outset of these
reasons.  Mr. Ibbitson’s wife picked him up at the accident scene and the day
after Mr. Ibbitson went to the Nechako Medical Clinic in Williams Lake.  He
complained of upper back, neck and chest pain.  He was prescribed Tylenol® No. 3.

[11]    Mr. Ibbitson provided a statement to ICBC on
July 23, 2002 mentioning pain in his neck and down his back.  He also said that
he had a bruise on the inside of his left leg, and that his right hand was
puffed up.

[12]    On August 1, 2002 Mr. Ibbitson filled out an ICBC
Accident Benefit Application form stating he had pain in his upper back, neck,
chest, knees.

[13]    In September 2002 Mr. Ibbitson’s back and neck
were improving, and on September 13, 2002 he attempted to work as a heli-faller
in the Mad Burn area near Kelowna.  He was only able to do this work for nine days
because of the pain he was experiencing.

[14]    Mr. Ibbitson was not sure whether he worked
again in 2002, but by 2003 he was working on a feller buncher for Mr. Rob
Menzies.  A feller buncher is a large piece of equipment that grasps a tree,
cuts the tree and moves it in one piece.  He has continued to operate a feller buncher
for a different employer up to the trial.

[15]    On December 10, 2002 Mr. Ibbitson provided
another Accident Benefit Application form stating “left & right knee pain,
lower back, shoulder.”

[16]    In June 2005, at the request of Mr. Ibbitson’s
lawyer, an MRI was conducted of his cervical spine.  It showed a disc
protrusion in the C6/7 vertebrae.  The medical experts agreed that the disc
protrusion occurred around the time that Mr. Ibbitson began to feel pain
down his left arm earlier in 2005, and that the disc problem is not related to
the accident.

a.       Mr. Ibbitson’s Trial Evidence

[17]    At the trial, Mr. Ibbitson described feeling “pain
all over” shortly after the accident.  He then began to focus on specific areas
of complaint.

[18]    Mr. Ibbitson said he knees began to bother him
shortly after the accident and that they felt unstable.  The pain has now
improved but he cannot use his knees as he once did.  For example, he can no
longer run or jog.  Before the accident he said his knees did not bother him.

[19]    After the accident, Mr. Ibbitson could not wear
his work belt (on which he carried tools and fuel) without experiencing pain on
his hips.  That is still the case.

[20]    Mr. Ibbitson’s back began to bother him almost
immediately after the accident and still causes pain.  He described it as
having “various problems from low to middle to top end from right to left”.  He
has trouble bending over and sleeping.  (He also attributed the sleeping
difficulty to arm numbness, which is most likely related to his disc
protrusion.)  He has regularly seen a chiropractor in Williams Lake.  Subsequent
to the accident Mr. Ibbitson slipped when maintaining a piece of equipment.  That
caused excruciating back pain and the loss of two weeks of work.

[21]    Mr. Ibbitson said his neck was fine before the
accident, but terrible afterwards.  He still experiences neck pain and he says
pain from his neck gives him headaches.

[22]    Mr. Ibbitson says that his right shoulder and
elbow began to bother him after the accident.  He is not able to straighten his
right arm fully.

[23]    Mr. Ibbitson spoke about wanting to start a
fishing expedition and guiding business and said he could not do that as a
result of the accident.  However, in cross-examination he acknowledged that the
main reason for not pursuing that opportunity was because of the segment of the
Nechako River for which he received a licence.

b.       Medical Evidence

[24]    The medical evidence from both sides was in
agreement that Mr. Ibbitson:

a.       as
a result of the accident, suffered soft tissue injury which has healed;

b.       had
pre-existing osteoarthritis in his knees that was asymptomatic before the
accident, but rendered symptomatic as a result of the accident;

c.       had
a pre-existing condition known as “wedging” in the T11, T12, L1 and L2
vertebrae that, in turn, caused osteoarthritis.  This was only occasionally
symptomatic but, as a result of the accident, it became chronically
symptomatic;

d.       due
to those injuries, is unable to work as a hand-faller, but is able to work
operating logging and heavy equipment, namely the type of work he is now
engaged in.

[25]    Dr. Schweigel, an orthopaedic surgeon called by
the defendants, addressed Mr. Ibbitson’s previous injuries and condition in
terms of what effect they would have been expected to have had on Mr. Ibbitson.
The opinions were not seriously challenged by the plaintiff’s experts.  With
respect to his knees, Dr. Schweigel opined that by “sometime between 2007 and
2012 this gentleman would have had problems similar to what he is currently
having in his knees regardless of this MVA”.  Dr. Schweigel acknowledged that
the precise time estimate was somewhat speculative.

[26]    Dr. Schweigel also testified that the wedging of
Mr. Ibbitson’s spine would have become progressively more painful apart from
the accident.

[27]    An MRI of Mr. Ibbitson’s shoulder – also done in
2005 – showed a torn rotator cuff.  After a careful review of the clinical
records, Dr. Schweigel concluded that it was likely that the tear occurred
after the accident and was not related to it.  Dr. Scheiwgel’s review of
Mr. Ibbitson’s prior records and medical history was the most thorough of the
medical experts and I accept that conclusion.

[28]    The glass in Mr. Ibbitson’s peri-anal area was
not addressed directly by a doctor.  Mr. Ibbitson said that he had been advised
that surgery would be too difficult to remove it and that it would eventually
come out on its own.  That evidence was not objected to and another doctor
addressed the same point when referring to Mr. Ibbitson’s medical history.
Mr. Ibbitson says the glass bothers him from time to time.

II. Non-pecuniary damages

[29]    The injury suffered by Mr. Ibbitson had a
significant impact on his life.  His self-image was in part tied to his
occupation as a tree-faller, and heli-faller in particular.  That has been
taken away from him.

[30]    Mr. Ibbitson was a man of few words on the
witness stand and it is clear to me that he is stoic about his injuries and
their effect.  He is one who has and will “tough it out”.  That should not be
penalized in assessing damages.

[31]    Having said that, it is important to take into
account that by approximately 2012 Mr. Ibbitson’s prior conditions would have resulted
in the same condition as the accident did in 2001, apart from the embedded
glass.

[32]    Mr. Ibbitson relies on several cases that are,
but for that very major factor, similar in nature.  They provide for a range of
damages from 80,000 to 100,000.  The defendant has cited a number of cases
where the range was from $30,000 to $50,000.  These cases were for injuries of
lesser severity or impact.

[33]    In my view the appropriate award for general
damages in this case is $70,000.

III. Past and future income loss and
loss of income-earning capacity

[34]    The plaintiff seeks $100,000 compensation for a
past loss of income earning capacity rather than a reimbursement for lost wages.
He seeks $250,000 future income loss on the same basis, namely loss of a
capital asset as opposed to an earnings approach.  It is therefore convenient
at the outset to deal with them at the same time, particularly since, as I
point out later, the division between them in this case is somewhat artificial.

[35]    Mr. Ibbitson’s work as a faller was done both as
an employee and as a contractor.  When he worked as a contractor, he was not
subject to source deductions and wage levies.

[36]    In addition, Mr. Ibbitson provided falling
services as a business, which until 2009 was unincorporated.  That involved Mr.
Ibbitson hiring fallers who worked under him.  Mr. Ibbitson therefore hoped to
earn a profit from the differential between what he charged the forestry
companies and what he paid his crew, whether as employees or as contractors.

[37]    Mr. Ibbitson’s bookkeeping was minimal.  It is therefore
not possible to segregate what he earned in each of the three capacities by
which he provided services.

[38]    The defendants
engaged a business valuation expert, Mr. Tidball, to review Mr. Ibbitson’s earnings.
Mr. Tidball provided the following table with respect to pre-accident
earnings:

(Emphasis in original)

The reason for the 1999 eight-month period is that in
1999 Mr. Ibbitson changed from a proprietorship reporting on a calendar year
basis to flowing income through his company which reported on a fiscal year-end
August 31 basis.

[39]    Mr. Ibbitson’s earnings after
the accident, calculated on the same basis, were:

[40]    The gross profit represents revenue less
variable expenses.  The actual income column deducts depreciation from the
gross profits, whereas the actual cash flow column does not.  Mr. Tidball
explains the difference as follows:

We do not know the history of the
Plaintiff’s equipment purchases and disposals. Amortization is non-cash expense
which allocates the historical cost of assets such as equipment over their
useful life. There is no argument amongst accountants experienced in income
loss measurement that amortization is a long term "real" cost of
business. Existing assets require replacement over time. However, reported
earnings in any given year can be skewed by the arbitrary recording of
amortization expense. Accordingly, in the table above we also presented the
Plaintiffs gross profit without deduction for amortization (which we labelled
as Actual Cash Flow) based on Schedule 1. Nevertheless, the Plaintiff s average
annual cash flow in 2003 to 2008 exceeded his average annual cash flow in 1997
to 2002.

[41]    As I indicated above, the only period in which
Mr. Ibbitson was not able to work at all was for, at most, three months
following the accident.  The defendants say that beyond that period off work,
Mr. Ibbitson lost no income and did not suffer an impairment of his income
earning capacity because his average cash flow, income and profit were all
greater than the 5.67 year average preceding the accident.  Further, the
defendants rely on Dr. Schweigel’s opinion that by 2007 to 2012 Mr. Ibbitson’s
prior condition would have caused him to reach the same condition that resulted
earlier from the accident.

[42]    The defendants also argue that the demand for
hand-fallers took a drastic downturn around the time of Mr. Ibbitson’s accident;
that and Mr. Ibbitson’s desire to work closer to home to be with his young
children would have resulted in Mr. Ibbitson working on the feller buncher
in any event.

[43]    In this case – like most personal injury cases –
the but-for analysis must be applied in determining causation and damages.  The
thin-skull rule as well as the crumbling-skull rule are relevant in the case at
bar.  The plaintiff is entitled to be put in the same position he would have
been had the accident not occurred, but not in a better position.

[44]    As I have said above, the medical experts
largely agree that the accident caused Mr. Ibbitson’s prior non-symptomatic
back and knee problems to become symptomatic.  Had that not happened, Mr.
Ibbitson would have continued to work as a heli-faller, but for how long?

[45]    All but one employer and co-worker called at
trial considered Mr. Ibbitson to be an excellent faller with an ideal work
attitude and ethic.  The one person who expressed anything negative about Mr.
Ibbitson was Mr. Froese, who was the falling foreman for the company Mr.
Ibbitson was working for when the accident occurred.  He thought that Mr.
Ibbitson was outspoken and talkative.  Mr. Froese also said that his company
was running two helicopters, one of which crashed shortly after Mr. Ibbitson’s
accident.  He therefore had to lay-off the secondary crew of which Mr. Ibbitson
was a member.

[46]    I prefer the evidence of the other witnesses who
spoke to Mr. Ibbitson’s work skills and abilities, to that of Mr. Froese,
because those witnesses spent far more time with Mr. Ibbitson.

[47]    I accept that there was a downturn in the
logging business, including heli-logging in the Interior shortly after the
accident.  Nevertheless, it is apparent from the evidence that there was work
to be had and because of Mr. Ibbitson’s skills he would have had a greater
likelihood than many other fallers to obtain that work.  That is not to say
that he would necessarily have worked the same hours.

[48]    I do not accept the defendants’ submission that
Mr. Ibbitson would have stopped heli-falling so he could be closer to home.  It
is true that he said he did less heli-falling work and did more regular hand
falling and equipment operation after his sons were born, but he had returned
to heli-falling by the time of the accident and that is what he was doing when
it occurred.

[49]    I accept Dr. Schweigel’s evidence that Mr.
Ibbitson’s pre-existing knee condition would have made him unfit to continue in
hand falling by “sometime between 2007 and 2012”.  Given
Mr. Ibbitson’s work ethic and obvious willingness to “tough it out” I would use
the 2012 “cut-off”.  The plaintiff’s occupational health expert testified that
the only job which Mr. Ibbitson would be precluded from doing as a result of
the accident was hand-falling work, whether regular or heli-falling.

[50]    Turning to the figures set out by Mr. Tidball,
Mr. Ibbitson says that in assessing the impairment of his income earning
capacity it is not reasonable to use the five-year pre-accident average as a
comparator because his income had gone up in 2002.  Further, when time off due
to the accident is taken into account, his actual income (calculated on the
same basis that Mr. Tidball used) would have been in the range of $59,000.

[51]    While, as argued by Mr. Ibbitson, it might not
be reasonable to use the 5.67 year pre-accident average as a comparator, it is similarly
not reasonable to use the single year of the accident, because it is so much
higher than the previous years.  That difference was not fully explained, nor
can it be assumed that the conditions that ensued in that year would continue
through to 2012.

[52]    It appears to me that the three years prior to
the accident should be used, adding in the amount that Mr. Ibbitson would have
made for the several months he was off work completely as a result of the
accident.  That has the benefit of ensuring that earnings in all three
capacities are captured as are fluctuations in the industry.  It also captures
the contingency that Mr. Ibbitson had some likelihood of continuing to increase
his earnings.  In determining that figure, it is not disputed that the “actual
income” figures as calculated by Mr. Tidball should be used.

[53]    Using the 2000 income of $23,599, the 2001
income of $26,300 and the adjusted 2002 income of $59,000 results in an average
income per year of approximately $36,000.  The only year after the accident
which had a result less than that was 2003, which was close to $28,000, and the
average income from the year after the accident through to trial was close to $42,000.

[54]    Apart from 2003, using the above figures, it
would appear that Mr. Ibbitson has largely mitigated his loss.  On that basis
he would only be entitled to minimal recovery.  However, that is not
necessarily an answer to Mr. Ibbitson’s claim based on loss of working capacity
as a capital asset, because, he argues, he has to work longer hours on the
feller buncher than he worked as a heli-logger in order to earn what he has.  As
I have said, the plaintiff argues that both his pre-trial and post-trial losses
should be calculated on the loss of capacity approach.

[55]    The maximum shift for a heli-logger was 6.5
hours of falling and Mr. Ibbitson earned between $455 to $545 per day.  He had
to travel to the nearest road access for the job, and then hike in.  He said
that could take up to two hours each way.

[56]    His current shift is 12 hours per day and he
makes $32.20 per hour.  He does have to travel to the work site and will soon
be moved to a different locale where he will be staying in a camp.  Mr. Todd,
his current employer, says that he is being paid more than some of his
co-workers because he pays his own expenses.

[57]    Given that the unpaid travel times can vary
whether working as a heli-faller or in his current capacity as a feller buncher
I think I can only assume the travel balances out, or close to it.  Therefore,
Mr. Ibbitson’s comment that he now has to work longer hours to make the same
money as he did as a heli-faller has force.

[58]    This raises the following question:  does a
plaintiff who, as a result of a defendant’s wrong, has to work harder to earn
the same money he did before the accident, have a claim for loss of income
earning capacity?  Both counsel advise that they have been unable to find any
authority directly on point.

[59]    I start with the view that it cannot be fair to
award no compensation for this; that would be a windfall to a defendant.

[60]    Both pre-trial and post-trial losses may be
viewed as a loss of income earning capacity.  As Saunders J. stated in Falati v. Smith, 2010 BCSC 465:

39        Though pre-trial losses are often spoken of as if
they are a separate head of damages, e.g. "past loss of income" or
"past wage loss", it is clear that both pre-trial and future losses
are properly characterized as a component of loss of earning capacity — Rowe v.
Bobell Express Ltd., 2005 BCCA 141. The principles governing the evaluation of
capacity claims have been articulated most clearly in judgments dealing with
future losses, that is to say, loss of future earning capacity: for example,
the recent decision of the Court of Appeal in Perren v. Lalari, 2010 BCCA 140,
in which the alternative "real possibility" and "capital
asset" approaches to assessment are reviewed and discussed.

40        The full assessment of damages for such losses may
involve, at least to some extent, consideration of hypothetical situations and
contingencies — what might have happened, or what might yet happen, had the
accident not occurred, as distinct from what actually has happened. However,
particularly where the claimed losses are derived from something other than a
measurable, conventional income stream, the determination of a plaintiff’s
prospective post-accident, pre-trial losses can involve considering many of the
same contingencies as govern the assessment of a loss of future earning capacity:
"The only difference is that knowledge of events occurring before trial
takes the place of prediction" — Prof. Waddams, The Law of Damages,
Looseleaf Ed. (2008) para. 3.360. When considering hypotheticals and
contingencies in the context of a pre-trial loss, the same general principles
which govern the assessment of lost future earning capacity may be equally
applicable — Waddams, ibid. As stated by Rowles J.A. in Smith v. Knudsen, 2004
BCCA 613, at para. 29,

"What would have happened in the past but for the
injury is no more ‘knowable’ than what will happen in the future and therefore
it is appropriate to assess the likelihood of hypothetical and future events
rather than applying the balance of probabilities test that is applied with
respect to past actual events."

[61]    In Moore v Brown, 2010 BCCA 419 at para.
39, the Court of Appeal reiterated what it had earlier said the concept of loss
of earning capacity entailed:

The approach to be taken in assessing an award for impaired
earning capacity was summarized by Huddart J. in Rosvold v. Dunlop, 2001 BCCA
1, 84 B.C.L.R. (3d) 158:

[8] The most basic of those principles is that a plaintiff
is entitled to be put into the position he would have been in but for the
accident so far as money can do that. An award for loss of earning capacity is
based on the recognition that a plaintiff’s capacity to earn income is an asset
which has been taken away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229 (S.C.C.); Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155
(B.C.C.A.). Where a plaintiff’s permanent injury limits him in his capacity to
perform certain activities and consequently impairs his income earning
capacity, he is entitled to compensation. What is being compensated is not lost
projected future earnings but the loss or impairment of earning capacity as a
capital asset. In some cases, projections from past earnings may be a useful
factor to consider in valuing the loss but past earnings are not the only
factor to consider

[62]    Mr. Ibbitson’s injuries have limited his
capacity to perform activities and have impaired his income earning capacity:  he
cannot do what he used to do, and he must work more hours to make the same.

[63]    In Perren v. Lalari, 2010 BCCA 140, the
Court of Appeal held that even where the plaintiff claims loss of income
earning capacity he must show that there is a real and substantial possibility
of a future event leading to an income loss in order to recover.  Does that
preclude recovery in the case at bar?  I do not think that to be the case. Perren
involved a situation where the plaintiff was involved in office work and
management.  As a result of her injury she was precluded from doing physical
labour, but that was not something she ever contemplated doing and the trial
judge concluded that the impairment would have slight or no effect on the
plaintiff’s actual ability to earn income.  Nevertheless he awarded her $10,000
for the impairment.  The Court of Appeal said that was incorrect.

[64]    That the Court of Appeal did not mean to address
a situation such as the one at bar is shown by the fact that it did not
consider several of its prior decisions to be in conflict with its ruling.  For
example, Garson J.A. referred at length to Pallos v. Insurance Corp. of
British Columbia (1995), 100 B.C.L.R. 260.  In that case the plaintiff was
working as a foreman at a scrap metal company at the time of the accident.  He
was unable to carry on with that activity, but his employer kept him on in
another capacity without a loss of pay.  Finch J.A. (as he then was) held that
the plaintiff did suffer a loss of income earning capacity.  He referred to Palmer
v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.), in which Southin J.A.
stated, at p. 59:

Because it is impairment that is
being redressed, even a plaintiff who is apparently going to be able to earn as
much as he could have earned if not injured or who, with retraining, on the
balance of probabilities will be able to do so, is entitled to some
compensation for the impairment. He is entitled to it because for the rest of
his life some occupations will be closed to him and it is impossible to say
that over his working life the impairment will not harm his income earning
ability.

[65]    It therefore appears to me that Perren v.
Lalari was meant only to address the very type of situation before it:  one
where the plaintiff was precluded by a wrongful injury from performing an
occupation that was never in the cards for him or her to do.  That is not this
case.  Here Mr. Ibbitson has been precluded from pursuing the very job he was
doing at the time of the accident.

[66]    Putting a value on Mr. Ibbitson’s impairment is
a difficult task because his ability to remain working in a different capacity and
earn essentially the same income – while working longer hours – has to be taken
into account.  This is a case where the assessment really is at large and
resembles an assessment of general damages.  The figures I have discussed above
cannot be plugged into a formula.

[67]    Further, the dividing line between past loss and
future loss becomes somewhat artificial, both because the assessment is at
large and, given the medical evidence I referred to above, the end-period for
future loss must be no later than 2012.

[68]    I must factor into account the downturn in
demand for hand fallers after the accident.  I have found that Mr. Ibbitson
would be likely to be employed but that does not mean for the same number of
hours per year.

[69]    Considering all of the above factors, I consider
the appropriate value for loss of income earning capacity to be $125,000:  $105,000
of this for past and $20,000 for future earning capacity.

[70]    If I were wrong in my conclusion that Mr.
Ibbitson’s situation did not sound in a loss of income earning capacity I would
have increased his general damages.

IV. Special
damages

[71]    Mr. Ibbitson claims special damages of $2,048.  This
includes a charge of $1,750 for an MRI scan.  That scan was ordered by Mr. Ibbitson’s
former counsel and therefore the defendant takes the position that that should
be treated as a cost item.  I think that submission has force and would not
allow that item as special damages.  The balance of the claim is not disputed
and is allowed.

IV. Cost of future care

[72]    Mr. Ibbitson’s claim for $176.49 is not
contested and is therefore allowed.

VI. Homemaking capacity

[73]    Mr. Ibbitson seeks $10,000 for loss of
homemaking capacity on the basis that he is less able to do things around the
house such as gardening.  However, his evidence was inconsistent in this
regard.  It appears to me is able to do the same work around his house that he
was doing beforehand.  Further, this claim is inconsistent with all of the
medical evidence which concludes that the only occupation that he is unsuited
for is hand falling.

COSTS

[74]    If necessary, counsel can make submissions in
writing with respect to costs and any matters related to taxes.

“E.M. MYERS, J.”