IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110510

Docket: S047217

Registry:
Vancouver

Between:

Alexa Suzanne
Fairchild

Plaintiff

And

Vancouver Coastal
Health Authority, Piotr A. Blachut, Pierre Guy, David Nelson, Mark Shekhman,
Aaron Jonah, Alison Hark, John and/or Jane Doe

Defendants

Before:
Registrar Sainty

Reasons for Decision

A.       Background

[1]            
This is the plaintiff’s assessment of her costs in a medical malpractice
action that settled on December 5, 2010 (the day before a 10 day trial of the
action was set to begin) for some $200,000 plus costs and disbursements.

[2]            
I first heard about this matter on March 14, 2011 when I conducted a
prehearing conference in advance of the assessment of the plaintiff’s costs
which assessment was set for March 17, 2011 for 90 minutes. At the prehearing
conference I determined that more than 90 minutes would be required to complete
the assessment. By good fortune additional registrar’s time was available on
March 17 and the matter remained on the list for that day. I was assigned to
hear the matter and did so on that date. There was insufficient time on the 17^th
for me to provide reasons following the conclusion of counsels’ submissions
and, as I wished to consider the evidence and submissions and review the case
law, I reserved my decision in this matter. These then are my written reasons
in this matter.

[3]            
A number of parties are involved in this medical malpractice matter: the
plaintiff; the Vancouver Coastal Health Authority (for Vancouver General
Hospital) (“VGH”): two nurses: Mr. Jonah and Ms Hark; as well as four
physicians: Drs. Blachut, Guy, Nelson and Shekhman.

[4]            
At the hearing, the plaintiff was represented by Mr. Dineley. Mr.
Stanger represented VGH and the 2 nurses and Ms Turner was in attendance
representing the physicians.

[5]            
At the hearing Mr. Orchard (who was lead counsel for the plaintiff in
the action) testified and was cross-examined by Mr. Stanger. Ms Turner chose
not to ask Mr. Orchard any questions.

[6]            
The only evidence tendered by the defendants on this assessment was an
affidavit of a legal assistant which attested to the numbers of photocopies
made by defendants’ counsel in the action.

[7]            
I will first provide a brief background of this matter and then deal
with the matters at issue.

[8]            
At around noon on January 10, 2003 Ms Fairchild fell while skiing at
Whistler and fractured her leg. She was removed from the ski hill by ski patrol
and taken to a clinic in Whistler. She was discharged from the clinic and sent
to VGH where she was admitted at around 8:00 p.m. I note here that I took this
timeline from a chronology filed as an exhibit in this hearing. While Mr.
Orchard was not specifically cross-examined on the contents of this chronology
I have used it as a reference to provide some background information and to
“set the stage” so to speak for these reasons. Any errors in timing are mine
(based on my faulty review of the materials and not counsel’s submissions).

[9]            
The next day (Saturday, January 11) at around 2 p.m. Ms Fairchild had
surgery on her leg (at VGH) to repair the fracture.

[10]        
On Sunday January 12, 2003 Ms Fairchild complained of pain in the leg
that she had fractured and which was subsequently operated on. That complaint
was noted in her chart but inadequate follow-up was done. Ms Fairchild
developed compartment syndrome which then required further surgery (a
fasciotomy) on Sunday evening at around 10:00 p.m. This medical malpractice
action was based on the supposition that, had adequate care been taken of Ms
Fairchild, she would not have developed compartment syndrome (or it could have
been diagnosed and treated sooner) and the fasciotomy would not likely have
been necessary.

[11]        
A skin graft was performed on January 24, 2003 and the plaintiff
underwent further surgeries in December 2003 and towards the end of 2004.

[12]        
As a result of the fasciotomy, Ms Fairchild suffered a permanent partial
disability — specifically a dropped foot and a left big toe drop. She also had
scarring and unsightliness in her left leg (which she described as a “hideous
muscle bulge”).

[13]        
At the time of the accident Ms Fairchild had completed her Masters in Fine
Art. At the time this action was commenced, Ms Fairchild was working as a
curator, I believe, for the Brooklyn Museum. She is apparently Canadian by
birth but married to an American and resident in New York City.

[14]        
Ms Fairchild did not retain counsel immediately after the accident. In
fact it was Ms Fairchild’s father, who is apparently a friend of one of Mr.
Orchard’s partners, who initially met with counsel. It was not until after that
meeting that Mr. Orchard met with the plaintiff. That latter meeting occurred
shortly before the limitation period for commencing the action was due to
expire. Based on that meeting and, after discussions with Ms Fairchild, Mr.
Orchard believed the plaintiff might have some basis for a claim against the
defendants. On Ms Fairchild’s instructions, counsel filed a writ of summons to
preserve the plaintiff’s claims in December 2004, almost two years after the
accident.

[15]        
Because he wanted to be certain that the plaintiff had a cause of
action, Mr. Orchard retained Dr. Marc Boyle to provide a preliminary opinion
about the merits of the plaintiff’s claim. Dr. Boyle’s initial report
indicated that the plaintiff had a cause of action.

[16]        
Mr. Orchard brought an application to extend the time for service of the
writ of summons. That application was granted and sometime after that the writ
was served on the defendants. Each of the defendants filed appearances. Mr. Orchard
then prepared and filed a Statement of Claim on December 12, 2005. The
defendants then filed statements of defence. Initially the defendants denied
liability. Their theory was, apparently, that the defendants’ delay was not
responsible for the plaintiff’s injury. Rather, they claimed that even had the
surgery (the fasciotomy) been conducted earlier, the plaintiff still would have
suffered the deficit.

[17]        
On December 5, 2008 the defendants made a partial admission of
liability. On that date Ms Foord (who was working with Mr. Orchard on the
plaintiff’s behalf) wrote to counsel for the defendants and suggested that the
issue of liability be resolved on the following basis:

1.         There will be an admission on the part of the
defendants Vancouver Coastal Health Authority, Aaron Jonah, Alison Hark and
Pierre Guy (collectively the “Defendants”) that the Defendants failed to meet
the standard of care with respect to their care and treatment of the plaintiff
and as a result caused injury, loss and damage to the plaintiff;

2.         The subject matter of the trial will be the nature
and extent of the injury, loss and damage to the plaintiff caused by the
Defendants as a result of their failure to meet the standard of care.

3.         Counsel for the Defendants will agree that they
will not argue, or take the position, at trial that the Defendants are not
responsible for certain injuries, loss or damage because those injuries, losses
or damages were caused or contributed to by the negligence of the defendants
Piotr A. Blachut, David Nelson and/or Mark Shekhman.

4.         The Defendants will be responsible for all of the
injury, loss and damage that are proven at trial to have arisen from the
collective action(s), or lack thereof, of all the named defendants (including
Piotr A. Blachut, David Nelson and Mark Shekhman) on January 11 and 12, 2003.

5.         The Defendants will be jointly and severally
liable to the plaintiff.

6.         Counsel for the plaintiff will endorse consent
dismissal orders in favour of the defendant Piotr A. Blachut, the defendant
David Nelson and the defendant Mark Shekhman. The consent dismissal orders will
not be filed but will form part of the final order following trial. The final
order will state that the Defendants are liable and that the plaintiff recovers
X damages and that the action is dismissed against the defendants Piotr
Blachut, David Nelson and Mark Shekhman.

7.         Counsel for the
Defendants will advise the presiding trial judge at the outset of the trial
that there has been an admission of liability on behalf of the Defendants and
that the subject matter of the trial is an assessment of damages.

[18]        
Mr. Santini (of Harper Grey, solicitors for the physician defendants) responded
to Ms Foord saying:

Further to our telephone
conversation of today’s date, we write to confirm that the terms as set out in
your correspondence of December 5, 2008 concerning settlement of liability are
acceptable.  To that end, please find enclosed consent dismissal orders in
favour of Drs. Blachut, Shekhman and Nelson for execution and return to our office.
Once we have received these executed orders, we will forward same to Ms. Harper
for execution.  As per the terms of our agreement, we agree that we will not
file the consent dismissal orders until the completion of the trial of this
matter.

[19]        
The trial was initially set for hearing in February 2009. However, Dr. Marc
Boyle, the plaintiff’s key expert witness on liability, causation and damages
took seriously ill before that date and the trial was adjourned by consent to
April 6, 2010.

[20]        
Between those two trial dates there was further discovery of the
plaintiff; further production of documents; further expert reports were commissioned;
and Madam Justice Kloegman conducted a judicial settlement conference on
January 22, 2010.

[21]        
The April 6, 2010 trial date was again adjourned, although not without
an application. Mr. Orchard testified that, at the application to adjourn, Mr.
Santini (counsel for VGH and the defendant nurses) suggested that no admission
of liability had been made. The adjournment application was then itself
adjourned but never reset as the parties consented to reset the trial to
commence December 6, 2010. On December 5, the matter was settled as I have
already said for a sum specific plus costs and disbursements to be agreed or
assessed.

[22]        
As the parties were unable to agree on the costs, they have come before
me to assess them. Many of the tariff items and several of the disbursements
claimed are in issue.

B. The Assessment

[23]        
In Wheeldon v. Magee, 2010 BCSC 491, Master Bouck (sitting as a
registrar) confirmed the principles to be applied on an assessment of costs. As
I cannot express these principles better myself, I simply reproduce paragraphs
20 – 29 of Her Honour’s decision here:

[20]      The assessment of party/party costs is an objective
exercise.

[21]      With respect to the tariff items, where the minimum
number of units are provided for an item, the assessing officer must consider
this question: “How much time, on a scale of 1 to X (where X is the maximum
units the tariff provides) should a reasonably competent lawyer have spent on
the work for which the costs are claimed?”: See Practice Before the
Registrar (CLE) at p. 2-22.

[22]      Although the assessing officer must consider the
nature of the proceeding, issues such as complexity or difficulty are matters
to be determined by the court in fixing the appropriate scale of those costs.
Furthermore, in most cases, the time records of counsel are of limited
assistance as these provide only a subjective measure of the time reasonably
spent.

[23]      The assessment of disbursements is governed by Rule
57(4) [now 14-1(5) which although worded slightly differently has not changed
in principle in my opinion]:

(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 those expenses and
disbursements.

[24]      It is trite law that where a disbursement is in
issue, an affidavit of justification is an indispensible requirement.

[25]      With respect to fees charged by experts, the
assessing officer may rely on experience in determining whether the charges of
those experts are reasonable in the circumstances: Hamo v. Khan, 2010
BCSC 205. However, the best evidence to present to the assessing officer will
include detailed invoices showing the hours spent by the expert and that
individual’s hourly rate. This evidence should come directly from the expert
who may then be subject to cross-examination on the affidavit’s contents. It is
often helpful to have evidence of comparable charges applied in the expert’s
area of expertise.

[26]      Experts’ charges may be disallowed or reduced for a
variety of reasons, including when:

·       
the cost is unreasonable, compared to the evidence of other
similar experts;

·       
the expert’s report includes, improperly, extensive narrative;
and

·       
when the suggested damages reported by the expert are
“preposterous” in the view of the court. [Emphasis added.]

Bell v. Fantini (No. 2) (1981), 32 B.C.L.R. 322 (S.C.)
(see also Leverman v. Prince George (City), 2000 BCSC 697 for a synopsis
of this decision)

[27]      With respect to the necessity and propriety of a
report, the assessing officer is not to “step into the shoes of the trier of
fact” but rather must focus “on whether in the circumstances, it was a proper
expenditure to fully and properly prepare the case for trial”: Freake v.
Wilson, 2000 BCSC 695; Morrissette v. Smith (1990), 39 C.P.C. (2d)
30. I observe that in this case, the trial judge has already rejected the
suggestion that the impugned charges of the experts be disallowed in their
entirety based on the jury’s verdict.

[28]      Nonetheless, an expert’s charges will be
significantly discounted if not disallowed in their entirety if their evidence
is “nothing more than counsel could have done in argument”: Moore v. Dhillon,
[1992] B.C.J. No. 3055.

[29]      One further principle is applicable to the issues
in this assessment:

In the law of costs, convenience — that which is beyond
necessity and propriety — is luxury. And luxury must be paid for from the
pocket of the indulging party: Hall (Guardian ad litem of) v. Strocel,
[1983] B.C.J. No. 506.

[24]        
I will add one other point to Her Honour’s recitation of the principles
to be applied in an assessment of this nature. In my view, in deciding the
proper number of units to award in respect of each tariff item, I must compare
this case with all of the other cases that come before the court and decide
where it fits in the spectrum of them. Was it a simple, straightforward (i.e.
“run of the mill”) case; or was it litigation involving numerous parties,
extensive legal issues, numerous experts and involving large sums of money?

The Tariff Items

[25]        
In the bill of costs the plaintiff claimed close to the high end in
respect of many of the tariff items. In his testimony, Mr. Orchard said that
prosecuting a medical malpractice action is not for the faint of heart and that
it requires diligence and precision on the part of counsel — to understand the
medical issues and the plaintiff’s claim. As well these actions are often
vigorously defended and much stamina is necessary on counsel’s part. I agree.
Generally speaking, a medical malpractice case would be more complex and
difficult to prosecute than a simple personal injury matter, for example (such
as a moderate whiplash matter). These types of cases are, in my view, generally
on the higher end of the spectrum referred to immediately above.

[26]        
I turn now to the disputed tariff items.

Item 1

[27]        
The first item disputed is Tariff Item #1 which is for:

Correspondence, conferences,
instructions, investigations or negotiations by a party until the start of the
proceeding, for which provision is not made elsewhere in this tariff.

The plaintiff claims a total of 5 units under this Item. As
I noted earlier, Mr. Orchard said that he needed to understand the plaintiff’s
injuries and whether she had a cause of action before commencing the
proceeding.

[28]        
In his submissions, Mr. Stanger noted that the writ of summons was filed
shortly after Ms Fairchild met with counsel and that the investigations Mr. Orchard
testified to actually took place after the writ was filed but before the
statement of claim was drafted and served. He suggests that 2 units are more
appropriate for this item.

[29]        
Mr. Stanger is correct. The investigations occurred after the writ was filed
but before the statement of claim was filed and served. In fact there was
little time between the initial meeting between counsel and Ms Fairchild and
the commencement (by filing of the writ of summons) of the action. Therefore, I
agree with the defendants’ submission that 2 units are more appropriate for Item
1 and that is what I will award.

Item 2

[30]        
Item 2 is for:

Correspondence, conferences,
instructions, investigations or negotiations by a party after the start of the
proceeding to the completion of the trial or hearing, for which provision is
not made elsewhere in this tariff.

The plaintiff claims a total of 30 units under this Item.[1]

[31]        
Mr. Dineley mentioned that this matter took some six years to conclude.
He told me that there was an enormous amount of correspondence. As the
plaintiff resides in the United States, when she visited Vancouver, there were lengthy
and involved conferences. In his submission in respect of this Item, Mr.
Dineley reiterated Mr. Orchard’s evidence that medical malpractice cases are
not for the faint of heart and that these types of actions require significant
work and commitment on counsel’s part. He noted that even after the parties
agreed on liability, the matter continued to be vigorously defended, hard
fought and difficult.

[32]        
The defendants, on the other hand, argue that this matter does not
warrant the maximum number of units. Mr. Stanger suggested that 18 units is
more appropriate. He said that this action concerns a one day event at VGH. He
called it an “ordinary medical malpractice” matter that warranted a Buick not a
Cadillac. The matter settled for a reasonable, but not substantial, amount: $200,000.
Mr. Stanger then reminded me that I ought to keep proportionality in mind in
making my decisions in respect of this Item (in accordance with the objects of
the newly promulgated Supreme Court Civil Rules). By contrast, Mr.
Orchard in his affidavit deposed that, at trial, the plaintiff intended to
present a claim for damages in excess of $800,000. In their brief for the judicial
settlement conference, the defendants suggested that damages of $60,000 might
be appropriate.

[33]        
In my view, this was a matter that required a great deal of attention.
It settled for a not insignificant sum. It is, in my view, a matter on which a
significant of time ought ordinarily to have been spent (see Supreme Court
Civil Rules, Appendix B, s. 3(3)(b)). It is not however the most difficult
(or even one of the most difficult) actions to have been brought before the
court (thus warranting the very top end of the range of units). In my view,
this action merits 23 units under this Item and that is what I will award.

Item 6

[34]        
Under Item 6 (“all process, for which provision is not made elsewhere in
this tariff, for commencing and prosecuting a proceeding”), the plaintiff
claims 7 out of a possible 10 units. Mr. Dineley said that the pleadings here
were not boilerplate. To prove a medical malpractice case a detailed statement
of claim is required. As I have noted, the writ was originally filed and then
renewed once while counsel investigated the merits of the plaintiff’s claim.

[35]        
Mr. Stanger said that the pleadings were “nothing special” but did not
really address me further in respect of this Item.

[36]        
In my view the pleadings (and that is what this tariff item compensates
the plaintiff for) were reasonably complex and required time to formulate.
Meticulous detail is required as the injuries must be properly pled or the
plaintiff may be left without recourse against the defendants. I agree with the
plaintiff that 7 units are appropriate for this Item and that is what I will
award.

Items 10 and 11

[37]        
The next Items claimed (and disputed) are items 10 and 11. Item 10 is
awarded for the “process for obtaining discovery and inspection of documents”.
Item 11 is for the “process for giving discovery and inspection of
documents”.  The plaintiff claims 8 out of a possible 10 units for Item 10 and
10 out of 10 units under Item 11. Mr. Orchard testified that there were a
large number of medical records (24 sets of clinical records for example) all
of which had to be read and understood. I was also told that the trial
conference brief contained some 40 documents to be used at trial — mostly
clinical and employment records.

[38]        
Mr. Dineley said that, from the plaintiff’s perspective, the documents
were voluminous, particularly as there were 5 years between the accident and
the eventual trial date. As well, I was told that obtaining all of the
plaintiff’s employment and medical records from the United States was “quite an
endeavour”.

[39]        
In response Mr. Stanger said that not too many actual documents were exchanged
between the parties and that many of the documents listed by the plaintiff were
duplicated by the defendant: i.e. listed on all parties’ lists. He
suggests I ought to award no more than 3 units for Item 10 and 5 for Item 11.

[40]        
In my view these tariff items are not awarded simply for the number of
documents exchanged. I must also consider the “process” involved in the
discovery and inspection of all of the documents. That process might involve
the “endeavours” required to secure the documents from the plaintiff’s US
employer and medical practitioners. Further, as District Registrar Bouck (as
she then was) noted in Albert v. Conseil Scolaire Francophone de la
Colombie-Britannique [2007] B.C.J. No. 1413; 2007 BCSC 928, paragraph 38:

While the number of documents
listed by a party is some measure of the time to be ordinarily spent, that is
not the only measure. The nature of the documents themselves must be
considered. For example, some documents will need to be carefully scrutinized
for solicitor-client privilege claims. Others will be so benign, but yet
relevant, that little time need be spent in their review.

[41]        
This passage supports my general view (and I have mentioned this in
other cases I have heard) that, in most instances, “giving” discovery and
inspection of documents is more time consuming than “obtaining” discovery and
inspection of documents for precisely the reasons noted by Master Bouck in Albert,
supra.

[42]        
In my view, in respect of Item 10, the time which should ordinarily have
been spent on obtaining discovery and inspection of documents in this case is 6
units. As for Item 11 (giving such discovery) I award the plaintiff 8
units.

Item 12

[43]        
This Item is for the “process for serving interrogatories”. One set of
interrogatories containing two questions (asking the defendant to provide the
name of a physiotherapist who attended on the plaintiff while she was at VGH
and at what time) were prepared and served. The range of units under Item 12 is
1 to 10. The plaintiff has claimed 2 units for the interrogatories. Mr. Stanger
did not spend a great deal of time opposing the units claimed under this Item.
He simply suggested that the number was a bit high considering the length and
nature of the interrogatories. I agree. One unit is more appropriate and that
is what I will award.

Item 17

[44]        
Item 17 is for:

All process and correspondence
associated with retaining and consulting all experts for the purposes of
obtaining opinions for use in the proceeding.

[45]        
The range of units is 1 to 10. The plaintiff claims 10 units under this
Item. Eight experts were retained. Each did an initial report. I believe there was
a total of 31 addendums (in the form of updated reports and/or letters) from
those eight experts.

[46]        
Mr. Orchard met with most of the experts to prepare himself for trial.
The matter was complex from a medical point of view and Mr. Orchard needed to
understand the plaintiff’s condition, the recommended treatment, ongoing issues
she might have (if any) with her permanent disability, as well as the extent of
her losses, including wage losses, that resulted from the defendants’
negligence.

[47]        
Mr. Stanger suggested this Item would not have been particularly
time-consuming in so far as setting up the meetings was concerned. Also, he
noted many of the revised reports took the same format as the initial reports
and, in his view, added little to the equation.

[48]        
I must disagree with Mr. Stanger’s characterisation. In my view, this is
an Item that required a good deal of counsel work. I am mindful that these
types of cases (medical malpractice) are not easy and require meticulous proof and
are usually very vigorously defended (as was this one). In my view, the
appropriate number of units to award for this Item is 8.

Item 18

[49]        
Item 18 is for:

All process and correspondence
associated with contacting, interviewing and issuing subpoenas to all witnesses.

[50]        
Outside the experts, the plaintiff’s witnesses were members of her
family and her common-law partner. None of them required subpoenas to attend at
trial. Mr. Stanger submits that this latter element (issuance of a subpoena) is
a necessary adjunct to the award of this Item. I disagree. In my view, this Item
does not require that subpoenas be issued to witnesses for the item to be
claimed. It is awarded for “all process and correspondence associated with
contacting, interviewing and issuing subpoenas”, not simply taking steps to
subpoena, witnesses. To suggest otherwise would, in my view, be nonsensical as,
unless an action had a myriad of reluctant witnesses, it is not likely that a
registrar could ever assess costs under this Item at the top end of the range.

[51]        
That being said, in my view, this Item does not apply to preparing a
party to an action for his or her testimony. That is more properly subsumed
under Items 1 and 2 in that one confers with and receives instructions from a
party and that “process” is included in those “catchall” provisions of the
tariff.

[52]        
The number of units that I consider were proper or reasonably necessary
to conduct this portion of the proceeding is 5 and I award the plaintiff 5
units under Item 18.

Items
19 and 20

[53]        
These Items are awarded for the examinations for discovery conducted of
the plaintiff by the defendants, by the plaintiff of the defendant and of some
of the experts as noted on the plaintiff’s bill of costs.  The parties have
agreed that the plaintiff is entitled to the following units in respect of
these items:

Item                                                                Units

19(a)                                                            18.0

19(b)                                                              7.5

20(a)                                                            36.0

20(b)                                                            12.5

Items
21 and 22

[54]        
These Items are for preparation for and attendance at applications. The
parties have agreed that the plaintiff is entitled to units in respect of these
Items as follows:

Item                                                                Units

21(a)                                                              1.0

21(b)                                                              3.0

22(a)                                                              2.0

22(b)                                                              5.0

Item
28

[55]        
I was told that a number of applications were set and then the parties
reached agreement on the matters at issue. The defendants agree that the
plaintiff is entitled to a total of 12 units under this Item.

Item
29 and 30

[56]        
Units are awarded under these Items for the preparation for and
attendance before a registrar in respect of the assessment of the plaintiff’s
costs. The plaintiff has claimed 2 units under Item 29 and 4 units under Item
30. Her entitlement to those units is not disputed and I will allow such units
as claimed.

Item
31 and 32

[57]        
There was a full day judicial settlement conference on January 22, 2009.
A half day trial management conference (“TMC”) was held on October 22, 2010.
The plaintiff claims 3 units for preparing and 5 units for attending the
judicial settlement conference (the maximum units allowable under the tariff). She
seeks an award of 1.5 units for preparation and 2.5 units for attending at the
TMC.

[58]        
Mr. Stanger told me that the TMC only occupied about one hour’s worth of
judicial time. He pointed out to me that there is a range of units for these Items
and therefore some discretion on my part to decide the appropriate number of
units keeping in mind the length of the TMC and the matters it dealt with.

[59]        
It is true that these Items have a range of units assigned to them: 1-3
units may be awarded for preparation and 1-5 units for attendance at a
settlement conference, case planning conference or trial management conference.
No doubt the judicial settlement conference deserves the maximum (3 units for
preparation and 5 units for attendance) for both items (a fact, that was not
really disputed).

[60]        
As for the TMC, the notes made at it confirm that it was perfunctory in
nature. It appears it only took about 15 minutes from start to finish.
Therefore it only deserves units at the low end of the spectrum and I will
award the plaintiff one unit under each of Items 31 and 32 for preparing for and
attending at the TMC.

Item
34

[61]        
Initially (on the bill of costs before me at the pre-hearing conference)
the plaintiff claimed 50 units under this item. At that prehearing conference, I
pointed out to counsel the provisions of section 4(4) of Appendix B of the Supreme
Court Civil Rules which provide:

4(4)      If, in the Tariff,
units may be allowed for preparation for an activity, the registrar may allow
units for preparation for an activity that does not take place or is adjourned
up to the maximum allowable for one day.

When the actual assessment of the plaintiff’s costs came
before me, the plaintiff had revised the bill of costs to claim a total of 15
units under this Item: 5 units for preparation for each of the scheduled trials:
February 2, 2009, April 6, 2010 and December 6, 2010.

[62]        
Mr. Stanger suggested that a total of 5 units ought to be awarded under
this Item. He said that the first adjournment occurred quite some time before
the February 2009 trial and there was no evidence that counsel spent any time
preparing for that trial date. He also noted that both adjournments were at the
plaintiff’s request and, while for reasons outside plaintiff’s control, they
were not adjournments sought by the defendants. Therefore he argues, the
defendants ought not to compensate the plaintiff who requested the adjournments
for them.

[63]        
I agree with Mr. Stanger. Both the first and second adjournment were at
the plaintiff’s request.  The plaintiff should then not be compensated by the
defendants for seeking these adjournments particularly as the defendants are
not at “fault” for them. I will not award the plaintiff units for preparing for
the trials set for February 2, 2009 or April 6, 2010.

[64]        
I will however award the plaintiff 5 units (the maximum available) for
preparation associated with the December 6, 2010 trial. I also note that, in
deciding the number of units to award under Item 2, I had in mind the fact that
the trial settled “on the proverbial courthouse steps” so to speak and my award
under that Item took that into account.

Items 40, 41, 45 and 46

[65]        
The parties have agreed that the plaintiff is entitled to costs in
respect of these items as follows:

Total Units

[66]        
The plaintiff is therefore entitled to a total of 191 units which at
$110 per unit results in total tariff items of $21,010.00. HST of 12 percent
must then be added to that amount ($2,521.20) resulting in a total award of $23,531.20,
including taxes to the plaintiff in respect of the tariff items.

The Disbursements

[67]        
I turn now to the disbursements. I will comment only on those
disbursements that are in dispute. Those that have been agreed to will be
awarded in the amounts set out in the plaintiff’s bill of costs produced to me
at the hearing.

Court Transcript

[68]        
Mr. Stanger says that it was not necessary, reasonable or proper for the
plaintiff to order an expedited transcript of an attendance in Chambers before
Master Donaldson on October 28, 2009.

[69]        
The transcript ordered was of the attendance before His Honour wherein
the plaintiff sought to adjourn the second trial date. I was told that, as the
defendants would not initially consent to the requested adjournment, the
plaintiff brought an application seeking same. That application was commenced
before Master Donaldson on October 28 but was not concluded. Apparently one of
the arguments raised before His Honour in defence of the plaintiff’s motion was
that it was imperative that the trial proceed expeditiously as the issue of
liability remained to be determined. This was contrary to the agreement in
respect of liability reached earlier (the particulars of which I have set out
earlier in these reasons). Mr. Orchard told me that in his judgment, it was
prudent to order the transcript of the hearing to be sure of what had been said
so that, when the parties returned to conclude their arguments, the fact of
what had been said could be put to Master Donaldson.

[70]        
The test for whether a disbursement is allowable is set out in Van
Deale v. Van Deale (1984), 56 B.C.L.R. 176 (S.C.), revd 56 B.C.L.R. 178
(C.A.), where the Court of Appeal held, 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.

[71]        
The onus of proof of the necessity and propriety of the disbursement
rests on the party presenting the bill for review.

[72]        
Further, in deciding if a disbursement is necessary or proper, I must
have regard to its necessity and propriety at the time it was incurred. I
cannot for example say that, in hindsight, as the application did not conclude
as agreement was reached it was then not necessary to order the transcript.

[73]        
In addition, I note that counsel have a responsibility to fairly pursue
the plaintiff’s claims and take all reasonable steps to prosecute it fully. While
the plaintiff and her counsel are free to pursue those investigations in
whatever manner they see fit, the defendants are only obliged to reimburse the
plaintiff for a reasonable amount for expenses incurred and for those expenses
incurred as a result of the defendants’ actions.  The “but for” test, I call it
— in order to be reimbursable, I must decide that, but for the defendants’
actions, the plaintiff would not have incurred that cost.

[74]        
In the circumstances of this case, I am satisfied that it was necessary
to order the transcript to have a record of what the defendants said to Master
Donaldson about the issue of liability at the application. Surely the
transcript would have been necessary had the matter been reset to remind His
Honour what defence counsel had said (especially as the plaintiff intended to
attach to the affidavit material copies of the latter agreement on liability).
I therefore allow this disbursement.

Online Legal Research

[75]        
The plaintiff seeks $360 for Westlaw searches and $234.13 (before July
1, 2010) and $210.82 (after July 1, 2010) for QuickLaw searches.

[76]        
This (the reimbursement on a bill of costs of the costs of online legal
research) has received varying judicial treatment over a number of years. Registrars
have allowed all amounts claimed for computerised legal research (see Girocredit
Bank Aktiengesellschaft Der Sparkassen v. Bader 1999 BCCA 58 (Registrar); Summers
v McGinnis, 2005 BCSC 523 (Registrar) and Parsons v. Canada Safeway Ltd.,
[1995] B.C.J. No. 1947 (S.C. Registrar). Registrars have disallowed these types
of disbursement in their entirety (see Stapleton v. Charambidis 2010
BCSC 1642 (Registrar); and Powar v. British Columbia [1995] B.C.W.L.D.
1098 (S.C. Registrar)). Others have allowed a reduced amount awarded for legal
research, mostly on a somewhat arbitrary basis (see Denmar Equipment Rentals
v. 342699 B.C. Ltd. et al, 2004 BCSC 1169 (Registrar); and Rohani v.
Rohani, 2004 BCSC 353 (Registrar)).

[77]        
In Prevette v. Cusano, 2001 BCSC 1104, in regards to the issue of
QuickLaw research I said:

[38]      The law on whether to award a disbursement for
legal research is unsettled. In Parsons v. Canada Safeway Ltd., [1995]
B.C.J. No. 1947 (S.C.), Master McCallum (as Registrar, allowed a disbursement
for Quicklaw expenses. He stated, at para. 19, as follows:

There was an issue taken with the plaintiff’s disbursement
for "Quicklaw" of $214.30. There was no reference in the affidavit of
plaintiff’s counsel to the Quicklaw disbursement but I accept that the amount
was one incurred by the plaintiff’s counsel in the course of preparing for
trial. I was told, and I accept, that many unreported decisions are now only available
through access to the Quicklaw data base. In the circumstances, and given the
investigation required of the issue of occupier’s liability, the Quicklaw
disbursement is allowed.

[39]      The decision in
Parsons was made in 1995. Since 1996, the Superior Courts of this Province have
maintained an extensive website containing most to the decisions of the Court
of Appeal and Supreme Court. Most counsel should have access to this website
through their offices or, if not, through the BC Courthouse Law Library
Society. Although counsel for the plaintiff noted that some cases from outside
British Columbia and some pre-1996 cases were used, I do not feel that this
disbursement was "reasonable or necessary". In my opinion, most of
the cases relied upon would be available either on the Courts’ website or at
the library. Accordingly, I would disallow this disbursement.

[78]        
I am even more convinced today that the cost of computerised research is
properly an item of overhead than I was in 2001 when I decided Prevette v. Cusano.
In this current electronic age there are even more resources available (at no
cost) for conducting legal research online than ever before (for example, there
is now the CanLii system and our own courts website — which includes the vast
majority of the court’s written reasons issues since 1999, at least). Therefore
absent convincing evidence that pay-per-use type of computerised legal research
was a necessary adjunct of the prosecution of this case, I will not allow the
claim for these amounts.

[79]        
In respect of the Westlaw charge, Mr. Orchard said that his law firm
(Borden Ladner Gervais) does not maintain a monthly subscription service for
Westlaw. Each search is billed to the firm as it is conducted and the costs of
those searches are then passed on to the client. As to why a Westlaw search was
required, Mr. Orchard said that Westlaw has an excellent database for searching
cases in respect of quantum.

[80]        
On that basis, I will allow the amount claimed for Westlaw as I agree it
was reasonable and necessary to conduct searches on the quantum of damages. This
was a specific type of search (not simply a generic looking for possible cases)
and therefore ought to be reimbursable to the client.

[81]        
As for the charge for QuickLaw, it is true that in some cases, QuickLaw is
a necessary and proper disbursement. But that is not a given. There must be
some evidence justifying its use. Here, I was not told why QuickLaw searches
were necessary or proper or why searches could not have been conducted using
free online services, as opposed to a pay-per-use service such as QuickLaw. I
am not aware that this case involved any unusual legal issues requiring
QuickLaw’s use.

[82]        
The plaintiff has not justified the necessity or propriety of this
charge. It is disallowed.

Photocopies/Printing –
Internal

[83]        
The plaintiff claims a total of $14,418.25 for reproduction expenses
made up as follows:

[84]        
As I noted earlier, the only evidence presented by the defendants on
this review was an affidavit of Robin Harper wherein she deposes that, all
told, the defendants recorded a total of 15,854 photocopies and laser prints to
their respective files in connection with this action. That affidavit was
provided to contrast, I presume, the numbers of copies made by the defendants
with those made by the plaintiff. The plaintiff apparently made 57,673 copies
compared to the defendants who, all told, made 15,854.

[85]        
The issue of the appropriate number of photocopies to allow on assessments of costs has been termed a “perennial,
never-ending and vexing question” and a “rough and ready exercise” (see Sovani
v. Jin, 2006 BCSC 855 (Registrar)). In Sovani v. Jin, Registrar Blok
(as he then was) said (at paragraph 4):

The assessment of photocopying
costs is typically a rough-and-ready exercise, which is very much in accordance
with the comments of the English Court of Appeal in a case called Re
Eastwood, [1974] 3 All E.R. 603 (C.A.), where the Court said that the
assessment of costs was a matter of rough justice insofar as it admitted of
much sensible approximation, or words to that effect.  That is exactly what
registrars must apply when assessing photocopying expenses or considering the
volume of photocopying claimed in a case.  Thus it is not an exercise of
arithmetic or math or the examining of photocopying machinery expenses or
matters of that sort, but is often looking at an array of binders, a collection
of banker’s boxes, assessing what copies were needed for experts, what document
discovery was involved, whether there was a jury such that they required
individual copies, and all those sorts of matters, and applying experience
gained from numerous other cases, to arrive at a sensible approximation of the
volume of necessary copy work.

[86]        
In Ontario, photocopying expenses have been held to be an item of
overhead and thus not compensable on a bill of costs (see Caressant Care
Nursing Home of Canada Ltd. v. London & District Service Workers‘ Union,
Local 220, 207 O.A.C. 343).

[87]        
The law in Ontario is not, currently, the law in this Province.
Registrars in British Columbia are guided by an administrative notice issued by
(then) Registrar McCallum which establishes the guideline amount that parties
may claim on a bill of costs for photocopying and fax charges as $0.25 per page
and $0.35 per page, respectively. Although the administrative notice confirms
that those amounts are a guideline only, it seems to me that the fact that
there is a guideline at all confirms that a party may claim an amount on a bill
of costs for photocopying necessarily or properly incurred in the conduct of
the proceeding, and the registrar is to allow a reasonable amount for those
copies (see Rule 14-1(5) of the Supreme Court Civil Rules).

[88]        
However, the number of copies claimed must be reasonable. There does
indeed appear to be some unnecessary or, at the very least, superfluous photocopying
here. A party may, of course, prepare its case as it wishes. However, the party
paying costs should only be liable for the necessary (or proper) costs of that
preparation (again the “but for” rule — the copies must have been made directly
in connection with the litigation, and not, for example, merely to inform one’s
client of the happenings in it).

[89]        
In my opinion, some effort could have been made to reduce the numbers of
copies (perhaps, for example, documents might have been stored electronically
and only printed when absolutely necessary; or copies of medical records or
medical legal opinions could have been provided to others electronically —
using pdf technology, perhaps). I am also not satisfied on the evidence before
me that each copy made was “necessarily or properly incurred” for the conduct
of this case. The only evidence I have on this item is the affidavit of Mr.
Keir (#8 sworn March 14, 2011) which deposes to the numbers of copies made but
not to the necessity or propriety of them.

[90]        
No doubt a significant number of copies were made. That being said, in
my view the numbers made are excessive. Using my experience in matters of this
nature and employing some “rough and ready” justice (see Sovani
v. Jin, supra), I will compensate the
plaintiff for 60 percent of the amount claimed for all of the copies said to
have been made ($14,418.25), divided on a pro rata basis between those made
before and those made after July 1, 2010 (to account for the GST/HST
difference). Accordingly, I award the plaintiff the sum of $8,650.95 (total)
for copies (including internal printing); $6,637.80 to be attributed to copies
made before July 1, 2010; and $2,013.15 to those made after that date. GST of
$331.89 and HST of $241.58 must be added to those sums resulting in a total
award for copies of $9,224.42.

Expert Reports

[91]        
The plaintiff retained a number of experts. The defendant disputed a
number of those disbursements on two bases. For most experts, the defendant
says that the amounts claimed are too high and should be reduced significantly
(most specifically related to updates the plaintiff had many of her experts prepare
as the last trial date approached). For some of the experts, the defendants say
there was no need to employ the expert at all and thus the plaintiff should not
be reimbursed at all for the work done by such experts.

(a)      Brenda Williams

[92]        
Ms William is a registered nurse hired by the plaintiff to give an
opinion in respect of the (potential) negligence of the nurses on shift at VGH
who were monitoring the plaintiff post-surgery. Mr. Orchard testified Ms
Williams has many years of experience as an RN in an orthopaedic unit. Ms
Williams’ opinion was, in Mr. Orchard’s view, vital since the plaintiff
included the nurses on staff as defendants in the action. Ms Williams concluded
that the nurses’ conduct was below the accepted standard of care. Ms Williams’
initial opinion was sought and obtained before the defendants made any
admission of liability.

[93]        
Ms Williams’ first report was dated September 17, 2008. She did a
follow-up report in July 2009 on instructions from counsel to consider,
specifically, the issue of pain control and following review by Ms Williams of
the examination for discovery transcript of Aaron Jonah (the nurse-in-charge of
the plaintiff’s care at the critical time) and the plaintiff’s chart
documentation (specifically to consider matters raised by Dr. Boyle’s review of
the same).

[94]        
Ms Williams charged a total of $1,687.50 for her work at the rate of $45
per hour. That amount includes 12 hours of chart review, meetings and
discussions with counsel, review of the discovery transcript and preparation of
her reports. It also includes one hour to prepare a CV (as requested by
counsel) and a further one hour to prepare her invoice.

[95]        
Mr. Stanger said that Ms Williams was fundamentally a liability expert.
After December 2008 (when liability was admitted) there was no need to further
engage Ms Williams. Further, he submits, Ms Williams’ second report does not
differ in any substantive way from her first report and it did not add anything
new to the case. Finally he notes that the costs for preparing a CV and the
invoice are certainly not proper and the defendants ought not to reimburse the
plaintiff for those costs.

[96]        
Certainly I agree with Mr. Stanger’s last submissions — the defendants
should not bear the costs of Ms Williams’ time to prepare her CV nor her invoice.
I do not think the defendants dispute that they ought to pay something for the
first report. The issue is mainly with the costs of the second report. That
question — the necessity of a second report after liability was admitted — is a
theme in this assessment. The defendants argue that, once the liability
admission was made, the plaintiff had no need of any further medical reports
relating to causation of the plaintiff’s injuries. Rather they say that
thereafter only matters relating to quantum were relevant.

[97]        
Mr. Orchard testified that he saw the liability admission as limited. He
said that, even though the defendants admitted liability, their defence was premised
on the assumption that, even had the plaintiff’s condition been diagnosed and
treated earlier, there would have been no different result; i.e., even
had the plaintiff received an immediate fasciotomy, her prognosis would have
been the same regardless. Mr. Orchard was adamant that, in the face of that
defence, it was imperative to pursue expert opinions that rebutted it.

[98]        
I agree that it was necessary to continue to contest the defences being
promulgated by the defendants. Specifically, as regards Ms Williams, in my
view, it was necessary and proper for the plaintiff to seek a further report
from her following the examination for discovery of Mr. Jonah. Mr. Orchard
stated, in his testimony, that the facts of the case were not all contained in
the charts and notes and that further information came to light upon Mr.
Jonah’s examination for discovery. Asking Ms. Williams to consider this
new information and report on it was not unreasonable.  The expense associated with
this was not one that was unnecessary or extravagant. I allow a total of
$1,597.50 for Ms Williams’ costs. I have reduced the amount sought by $90 (the
two hours charged by her (at $45 per hour) to prepare her CV and her invoice
which certainly ought not to be paid by the defendants).

(b)      Dr. Younger

[99]        
Dr. Younger is a foot and ankle specialist. Mr. Orchard told me that Dr.
Younger was retained specifically to rebut the defence report provided by Dr.
Wing (also a foot and ankle specialist). Dr. Younger prepared a report in
advance of the final trial date (on July 27, 2010). The opinion received was
not, in Mr. Orchard’s view, helpful to the plaintiff. Following receipt of Dr.
Younger’s opinion, Mr. Orchard spoke to Dr. Younger who did not feel he could
change his opinion. Because of this, Mr. Orchard decided not to serve Dr. Younger’s
report on the defendants.

[100]     Dr.
Younger issued two invoices: one for $5,200 (for preparing his medical legal
report) and reviewing some documentation); and a second for $224 (including $24
of HST) for a telephone discussion with counsel.

[101]    
Mr. Stanger made two submissions about Dr. Younger[2]:

(a)        First he said there was no need for the plaintiff
to engage Dr. Younger at all as she already had an orthopaedic expert (Dr.
Boyle); and

(b)        Second, even if I
find it was necessary and proper for the plaintiff to engage Dr. Younger, his
hourly rate ($600 per hour) is simply too high and the costs ought to be
reduced.

[102]     I cannot
accede to the defendants’ first submission. In my view it was reasonable for
the plaintiff to retain a foot and ankle specialist, especially in light of the
fact that the defendants had engaged a like expert.

[103]     As for the
costs of that report, of course the onus is on the plaintiff to justify the
amount paid to Dr. Younger.

[104]     Mr. Keir’s
affidavit #9 indicates that Dr. Younger’s hourly rate ranges from $600 to $700
per hour depending on the complexity of the file he is working on. No other
evidence was provided as to the “usual” hourly rate for a medical expert with
Dr. Younger’s expertise. I must then rely on my own experience in matters of a
like nature: see Vincent v. Foster [1993] B.C.J. No. 455 (S.C.); Prehara
v. Royer, 2007 BCSC 912; and Hamo v. Khan, 2010 BCSC 205.

[105]     In my
experience, without specifically considering Dr. Younger’s hourly rate, I am
not surprised by the cost of the medical legal report he prepared. It is within
the range of the costs of like reports I have seen throughout my many years as
a sitting registrar. The report itself does not contain superfluous or
unnecessary information. It lists a number (some 32) sets of records and
reports reviewed by Dr. Younger in preparing his report. It reviews the
plaintiff’s condition and provides an opinion as to that condition and a
prognosis.

[106]     Relying on
the evidence presented and my own experience, I allow Dr. Younger’s charges for
the first report and document review at $5,200.00.

[107]     As for the
second account (for the telephone consultation) it was reasonable for counsel
to contact the expert and discuss his report and conclusions with him. The
costs sought for that telephone consultation are also, in my view, reasonable
and I will allow the invoiced amount ($200.00).

[108]     I note
here that in the bill of costs, the plaintiff only included a claim for $5,200.
The invoices provided to me are clear; as was the evidence and submissions. Dr.
Younger billed $5,200 for his report and an additional $200 for the
telephone consultation. In his evidence Mr. Orchard testified as to the two
invoices and Mr. Dineley directed me to them both in his submissions. In my
view, the plaintiff ought to recover the costs of both and I will amend the
bill of costs to allow the plaintiff to recover both amounts. I also note that
Dr. Younger did not charge tax on his first invoice but did charge $24 of HST
on his second.  I will be sure to only apply tax to this second amount in
calculating the full amount awarded to the plaintiff.

(c)      Joseph Hohmann (Vocational Pacific Ltd.)

[109]    
Mr. Orchard testified that an element of the plaintiff’s claim was for “impairment
of a capital asset”; i.e. she was seeking compensation from the
defendants for a loss of capacity and impairment of her earnings potential.
Part of the plaintiff’s claim was based on her contention that she had suffered
a permanent partial disability as a result of the defendants’ negligence. Mr.
Hohmann prepared a report dated September 5, 2008. At page 4 of that report he
opined that:

From a vocational perspective, her rehabilitation efforts
have been commendable, in that as soon as she was able to mobilize sufficiently
well to get on and off a bus and to use public transit, she returned to New
York and to her educational program. On completion, she obtained full-time
employment and has worked steadily since that time. There is no information to
suggest that Ms. Fairchild will not continue to pursue this pattern of positive
engagement in the future.

At the same time, although she
is fully employed at the present time, it is likely that she has lost part of
her capacity to fully pursue all of the occupations that would otherwise have
theoretically been open to her. This is the hidden vocational reality. In this
way, her vocational capital has been somewhat decreased as a result of her
reduced assets, tolerances and limitations.

[110]     Mr.
Orchard testified that he intended to use this report to show that the
plaintiff was not as competitive (in terms of employability) as a fully
able-bodied person.

[111]    
Mr. Hohmann provided two invoices to the plaintiff:

(a)        Invoice dated September 8, 2008 for 19 hours of
time (at $195 per hour) essentially for the review of documents, testing of the
plaintiff, research and report preparation. That invoice is for $3,970.58
broken down as follows:

(b)        Invoice dated December
7, 2010 for preparing for, travelling to and attending at a meeting with Mr.
Orchard on November 1, 2010 for

[112]    
Mr. Stanger submits that the plaintiff needed a medical opinion
supporting her contention of impairment of her employability. In this regard,
he relies on the decision of Master Powers (as he then was) in Rule v.
Wareing, [1994] B.C.J. No. 645 wherein the learned Master held (at
paragraph 13):

However, it is my conclusion
that in this case at the time the plaintiff decided to incur this expense [of a
vocational rehabilitation report] the only medical evidence which supported the
plaintiff’s position was that of her general practitioner, Doctor McLeod. In
addition, the plaintiff was aware of the conflicting opinions of her own
doctors and the existence of the extensive pre-accident medical history. Prior
to incurring the expense of a vocational rehabilitation report, I think the
plaintiff should have, at least, had a further medical opinion supporting the
plaintiff’s position. Therefore, I conclude that the expense was not
necessarily or properly incurred and have disallowed it.

[113]     Here the
plaintiff did not change her employment. She finished her training after her
injury and then became employed at the Brooklyn Museum. In fact, I believe she
was employed at that institution when she first saw Mr. Orchard. I agree with
counsel for the defendants that the issue of impairment of a capital asset of
the plaintiff’s was something that could have been dealt with in argument. No
report was necessary. I find that the commissioning of this report was not
necessary or proper in that it was commissioned out of excessive caution or zeal.
I therefore disallow the expense for this disbursement.

(d)      Dr. Marc Boyle

[114]     By far the
largest of the claimed disbursements are for the reports of Dr. Marc Boyle.

[115]     Mr.
Orchard spent a good deal of time at the hearing testifying about the nature of
Dr. Boyle’s reports and providing me with his (Orchard’s) views of the
necessity and propriety of each of them as well as his view of the
reasonableness of the amounts charged by Dr. Boyle for the work he undertook.

[116]     Dr. Boyle
prepared three separate reports, 4 addenda and one letter. He billed a total of
$14,395 for that work.

[117]     The first
report was commissioned after the writ of summons was filed but before the
statement of claim was prepared. Mr. Orchard testified that he felt it was imperative,
before undertaking the prosecution of a medical malpractice suit (which he says
he expected to be vigorously defended), to obtain a preliminary report on the
issue of liability. He said he needed to satisfy himself before proceeding that
there was in fact a cause of action and a reasonable chance of success (my
words, not his but the thought is there). Dr. Boyle prepared his first (very
preliminary) report without meeting with Ms Fairchild and based solely on his
review of the VGH records and some pertinent literature. His expert opinion was
that the defendants had been negligent and that, had the fasciotomy been
performed earlier, the plaintiff may have avoided some of the resultant
necrosis and paralysis, numbness, diminished function and contractures of which
she complained.

[118]     Dr. Boyle
charged the plaintiff $3,000 for this initial report.

[119]     The second
report (September 17, 2006) is noted to be an addendum to the first (September
22, 2005) report. For that report, Dr. Boyle interviewed and examined the
plaintiff.  Dr. Boyle found that the plaintiff’s rehabilitation had been
optimised as at the date of that report. He noted that her condition was
“permanent”.

[120]     The
invoice for the second report (which I believe is for the examination of the
plaintiff and preparation of the report[3])
totals $3,395.00.

[121]     The next
document authored by Dr. Boyle is a letter to Mr. Orchard dated May 17, 2007.
It appears to have been prepared after a conversation between Mr. Orchard and
Dr. Boyle on May 14, 2007 and notes Dr. Boyle’s opinion of when it was
necessary to diagnose the compartment syndrome and treat it such that the
ischema could be reversed. Dr. Boyle charged the plaintiff $500.00 for this letter.

[122]    
On May 14, 2008, Dr. Boyle prepared a letter addendum to the September
22, 2005 report following a review by him of the transcripts of the
examinations for discovery of Drs. Blachut, Guy, Shekhman and Nelson, as well
as the OR slate for January 13, 2003. In that addendum Dr. Boyle opines that:

. . . failure of the orthopaedic
surgical staff in ensuring proper postoperative vigilance over this patient is
primarily the cause of the late diagnosis and subsequent complications. It is
this writer’s opinion that the failure of the nursing staff to recognize the
difficulty this patient was in and communicate these concerns to the surgical
staff was a contributing but lesser factor.

[123]     Dr.
Boyle’s invoice issued contemporaneously with that addendum requests payment of
$900 (for the report) and an additional $600 for “meeting with lawyer”.

[124]     On
November 5, 2008, Dr. Boyle charged a further $600 to the plaintiff for two
telephone conference calls (I believe with Mr. Orchard):  one on August 11,
2008; and a second on October 20, 2008. The cost for each teleconference was
$300.00.

[125]     Another
addendum was prepared (November 14, 2008) following a review of a report
prepared by Dr. McCormick, a defence expert. Dr. Boyle disagreed with Dr.
McCormick’s conclusions and reiterated his opinion that the patient was not
able to avoid the significant complications of a compartment syndrome and the
long-term deficits because of the delay in diagnosis and treatment.

[126]     Shortly
after writing that latter addendum, Dr. Boyle followed up with a further
addendum (December 1, 2008) consisting of one short paragraph relating to the
issue of skin grafting wherein Dr. Boyle notes the possibility that earlier
diagnosis and sooner fasciotomy might have lessened Ms Fairchild’s swelling and
might have alleviated the need for skin grafting .

[127]     Dr.
Boyle’s invoice for those two addenda totals $800: $500 for the November 14 “medico-legal
report” [his description of the work as contained on the invoice] and $300 for
the one dated December 1.

[128]     On
December 30, 2009 Dr. Boyle prepared a further report following an interview
and examination of Ms Fairchild on December 22, 2009. This report is
comprehensive. It reports on all of the plaintiff’s injuries, symptoms and
complaints following the examination and interview as well as Dr. Boyle’s
review of all of the defence reports. In this report, Dr. Boyle recommends that
Ms Fairchild see a foot and ankle surgeon to determine the cause of her ankle
complaints and their possible treatment. Dr. Boyle’s fee for this examination
and report was $1,500.00.

[129]     On August
27, 2010 Dr. Boyle billed the plaintiff’s solicitors $100 for “addendum to
IME’s”. I do not believe I was provided with a copy of this addendum.

[130]    
Finally, on November 14, 2010 Dr. Boyle reviewed Dr. Wing’s report[4]
and accompanying literature. Dr. Boyle’s conclusions were favourable to the
plaintiff. He disagreed with Dr. Wing’s characterisation of the plaintiff’s
injuries and his synopsis of the literature.

[131]    
Dr. Boyle sent two invoices to plaintiff’s counsel in connection with
this review:

(a)        Invoice dated November 18, 2010 in the amount of
$1,500 for “meeting of November 14, 2010 and addendum report”;

(b)        Invoice for $1,500
dated December 7, 2010 for “Addendum re Dr. Wing’s report; Preparation for
court date of December 7, 2010 (3 hours); Review of material received December
6, 2010.

[132]     All told
Dr. Boyle’s invoices total $14,395.00.

[133]     In respect
of Dr. Boyle, Mr. Stanger submits that many of his opinions are duplicative. Dr.
Boyle only saw the plaintiff twice. Mr. Stanger also says that not much changed
in relation to the plaintiff’s condition over time and therefore the second
full medical-legal report was unnecessary, as well as duplicative considering
the plaintiff had the opinion of Dr. Younger and the fact that there was little
change in the plaintiff’s functional capacity as noted by Mary Richardson (who
did a functional capacity assessment about which I will have more to say later
in these reasons).

[134]    
I am mindful in making my decision about Dr. Boyle’s fees of the
decision of Master Horn (as Registrar) in McKenzie v. Darke, 2003 BCSC
138 wherein his Honour said, at para. 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.

[135]    
Having noted that, however, I should also note that there is one very
important difference between the former Supreme Court Rules (under which
Master Horn’s decision was made) and the current Supreme Court Civil Rules. 
That difference is that is under current Rule 14-1(2)(b) a registrar assessing
costs is specifically directed to consider Rule 1-3, which provides:

1-3(1)  The object of these Supreme Court Civil Rules is to
secure the just, speedy and inexpensive determination of every proceeding on
its merits.

(2)        Securing the just, speedy and inexpensive
determination of a proceeding on its merits includes, so far as is practicable,
conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[136]    
Thus under the Supreme Court Civil Rules I must consider
proportionality. Master Baker (sitting as a registrar) noted this specifically in
Stapleton v. Charambidis, 2010 BCSC 1642 at paragraph 32:

But fourthly and significantly,
there are the new Rules of Court and their emphasis on proportionality.  Much
of the thrust of the quest for proportionality is, of course, directed to steps
and processes in the litigation itself as in, for example, the discovery of
documents, limitations on examinations for discovery and, indeed, the necessity
at an early stage for an overall litigation plan.  But surely this proportionality
must, in appropriate circumstances, extend to disbursements expended by the
parties.

[137]    
What is also the case however is that, even under the former Supreme
Court Rules the case law made it clear that a registrar was required to
assess whether a given disbursement was extravagant or the result of excessive
caution or zeal. In making that determination, a consideration of
proportionality would inevitably be involved. In McKenzie v. Darke, supra,
Master Horn distinguished between the words "necessary" and
"proper" in Rule 57(4). He wrote:

[17]      Rule 57(4) provides that necessary or proper
disbursements and expenses shall be allowed.

[18]      There is a difference
between a disbursement which is necessary and a disbursement which is proper. A
"Necessary" disbursement is one which is essential to conduct the
litigation. A "proper" disbursement is one which is not
"necessary" but is reasonably incurred for the purposes of the
proceeding. (For these propositions, see Fraser & Horn, Conduct of Civil
Litigation in British Columbia ss. 28.28 and 28.30).

[138]     I have no
doubt that it was imperative, in the initial stages, that Mr. Orchard receive
an opinion from a qualified medical practitioner as to whether the plaintiff
had a cause of action against the defendants. Once he had that opinion and had
received instructions from the plaintiff to commence the action, a more fulsome
opinion was necessary — one based on a meeting with an examination of the
plaintiff. In fact I do not think that the defendants dispute that in any way.

[139]     Further, I
am also certain that it was reasonably necessary and proper to ask Dr. Boyle to
review and comment on the opinions of the defence experts and on the evidence
as matters unfolded (for example, after the examinations for discovery of the
defendants were conducted and a more complete picture as to what happened on
the day in question became known). To some extent these latter addenda to Dr.
Boyle’s September 2007 opinion are a continuation of that assessment based on
an evolving evidentiary picture. In that “group”, I include all of the
additional reports after September 2006 up to and including December 1, 2008. Each
of those addenda was, in my view, necessary and proper.

[140]     I am also
satisfied that the second full opinion (based on a meeting with and examination
of the plaintiff) in December 2009 was necessary and proper, even though the
plaintiff’s capacity had not changed. This second “full” report (of December
30, 2009) was apparently prepared for a trial expected to take place in April
2010. I understand it was done in December to coincide with a visit by the
plaintiff to British Columbia from her home in New York.

[141]     Mr.
Stanger submits that, as the defendants admitted liability on December 5, 2008,
there was no need for any further report from Dr. Boyle who was essentially a
“liability” expert. I do not agree. The uncontradicted evidence of Mr. Orchard
was that the admission of liability was a limited one in that the defendants
intended to argue (on the basis of reports by Drs. Wing and McCormick, at the
very least) that the plaintiff’s outcome would have been no different had she
undergone surgery earlier; i.e., the defendants were claiming that the
plaintiff’s condition could not be blamed on their negligent treatment of her.
It cannot then be said that Dr. Boyle’s opinion was superfluous. It was
necessary to support the plaintiff’s contention that, had she been treated
earlier, there may have been a different result.

[142]     Further, in
my experience, it is useful (and usually necessary and proper) to obtain an
updated expert’s report in advance of trial. Most trial judges would expect to
have current information about the plaintiff presented to them at trial. I find
that, with Dr. Boyle, who was the plaintiff’s leading expert on issues of
causation and liability, it was necessary and proper to obtain an updated
report. It was also necessary in my view for the plaintiff to have Dr. Boyle
opine on Dr. Wing’s November 15, 2010 report. Of course, Dr. Boyle would
also have commenced his trial preparation before the matter settled and should
expect to be paid for his time for that.

[143]     Having
determined that each of the disbursements (the reports) was necessarily or
properly commissioned at the time it was commissioned, I turn now to the
reasonableness of the amount charged by Dr. Boyle for his work on the
plaintiff’s behalf. Dr. Boyle’s hourly rate apparently ranged between $350 and
$400 per hour during the time he was retained as the plaintiff’s expert.

[144]    
I have previously held (see Dosanjh v. Martin 2001 BCSC 1759)
that expert’s fees ought only to be reduced where there is a clear overcharge.
Specifically I said:

[50]      In my opinion, a
registrar should not, without good reason, interfere with the amounts charged
by experts. The plaintiff hired the experts in good faith to assist with the
plaintiff’s case. Those experts charge what they charge. In my view, the
defendant should not be rewarded (and the plaintiff penalised) by a registrar
reducing expert fees except in cases where there is clearly an overcharge or it
is determined that the fees were unreasonable. (See Reap v. Insurance
Corporation of British Columbia, [2000] B.C.J. No. 2258 (Registrar). I
cannot say that there was a clear overcharge or that the disbursements were
unreasonable for any of the medical legal reports provided by Drs. Yasin and
Khan. I will therefore allow the disbursements for the medical legal reports
prepared by each of Drs. Khan and Yasin.

[145]    
That view has been tempered by subsequent cases and, as I have noted,
I must now consider proportionality in all assessments. For example, in Mohr
v. Dent (1983), 40 C.P.C. 8; [1983] B.C.J. No. 323 (S.C.) Hutchison J.
noted, at para. 54:

Whether those sums charged are
fair as between the doctor and his patient is of course not for me to concern
myself with. They may well have been contracted for. If they were being charged
against the patient on a quantum meruit basis I would find the fees
excessive.

[146]     All of
that being said, in my experience, $350 to $400 per hour is within the range of
what I might expect an expert with Dr. Boyle’s experience and expertise to
charge for the work he did. Further the actual amounts set out on the invoices
(e.g. $3,000 for a “full” medical-legal report” and $1,500 for an
addendum) are not unexpected amounts — they are not, in my view, extravagant.

[147]     I
therefore will allow in full all of Dr. Boyle’s invoices.

(e)      Mary Richardson

[148]    
Ms Richardson is an Occupational Therapist Consultant. Based on the
evidence that the plaintiff had suffered a permanent partial disability, Mr.
Orchard concluded that there was a care component of the plaintiff’s claim that
needed to be assessed. Ms Richardson met with the plaintiff and prepared a
report (dated August 16, 2007) entitled a “Cost of Future Care Analysis”. Ms
Richardson makes a number of recommendations in her report regarding services,
equipment and supplies the plaintiff is likely to need on a go-forward basis to
bring Ms Fairchild’s independence level to her pre-injury status. The cost of
that report (including tax) was $3,625.65 broken down as:

Consultation/File Review                        $128.70

Cost of Future Care – in office                 $915.20

Report Preparation                               $2,376.52

Sub-total $2,929.03

GST – 5%                                                $205.23

Total                                                    $3,625.65

[149]     Ms Richardson
billed the plaintiff $120 on July 23, 2008 for reviewing a medical report. I
did not hear any evidence at the hearing regarding what report was reviewed or
why it was reviewed.

[150]    
On November 28, 2008 Ms Richardson prepared an addendum to her initial
report on counsel’s instructions to consider the impact on her opinion of the
defendants’ position that:

Ms Fairchild would have
experienced the same functional deficits even in the absence of any negligence
on the part of the defendants, therefore, the bulk of the future care items
recommended by you are not compensable.

In that report, Ms Richardson also considered the impact on
the cost of the recommended equipment and services of the plaintiff’s residence
in the United States, not Canada.

[151]     Mr.
Orchard testified that one of the reasons he commissioned this second report
was so that Ms Richardson might consider several of the defence experts’
reports and their impact, if any, on the cost of the plaintiff’s future care.
This he said was especially necessary since, as an occupational therapist, Ms
Richardson could not diagnose the plaintiff’s conditions — she could simply
report on the impact of the diagnosed conditions and the need for the plaintiff
to receive care for the diagnosed problems. Ms Richardson billed $1,751.43
(including tax) for this November 2008 report.

[152]     Mr.
Orchard next asked Ms Richardson to provide an updated report in anticipation
of the April 2010 trial date. Ms Richardson met with Ms Fairchild on December
17, 2009 and issued a second, comprehensive cost of future care report. Mr.
Orchard testified that, in his opinion, this second report was necessary in
that the plaintiff’s condition had changed since 2007 (the date of the first
comprehensive report). In fact, he told me that this second report reduced the
amount requested for Ms Fairchild’s future care on the basis of some of these
changes.

[153]    
The cost of this next report was $3,095.48, inclusive of taxes, broken
down as:

Cost of Future Care – in office                 $600.00

Consultation/File Review                        $345.00

Report Preparation                               $1,984.03

Sub-total $2,929.03

GST – 5%                                                  146.45

Total                                                    $3,095.48

[154]     Finally,
Ms Richardson provided an addendum to her January 20, 2010 report because Dr.
Hershler made a recommendation in his report that affected the potential costs
of the plaintiff’s future care and a recalculation was therefore necessary,
according to Mr. Orchard. Ms Richardson charged the plaintiff $397.63 for this
addendum.

[155]     One
further invoice was issued dated December 7, 2010 for “court preparation”,
“travel costs” and “travel time” for $317.48. Mr. Orchard testified that to the
best of his recollection this invoice related to trial preparation in his
office. He noted that Ms Richardson must have been requested to attend at the
trial for cross-examination by the defendants and therefore it was necessary to
meet with her to prepare her for her testimony at trial.

[156]     Mr.
Stanger only took issue with the second report. He simply submitted that the
second report was duplicative and unnecessary; particularly as there was no
significant difference in the plaintiff’s condition between the date of the
first report and the date of the second one.

[157]     There is
no doubt that counsel must exercise reasonable restraint when engaging experts.
Here, the second report was an unnecessary luxury. There is no reason why
counsel could not simply have addressed the changes to the plaintiff’s
condition at trial by performing a mathematical calculation in which some of
the items were merely deleted and new totals provided. For these reasons, I
will disallow the cost of the second comprehensive report ($2,929.03, plus GST
of $146.45).

[158]     As noted, Mr.
Stanger did not question the reasonableness of Ms Richardson’s fees. Based on
my experience, the amounts charged by Ms Richardson for her work are
commensurate with amounts I have seen charged by experts with similar
experience and expertise engaged to provide cost of future care analyses. I
will therefore allow the balance of Ms Richardson’s charges being $5,847.48,
plus applicable taxes ($206.42 on the sum of $5,208.45 billed before July 1,
2010 and $76.68 on the $639.03 billed after July 1, 2010) for a total allowed
of $6,184.58.

(f)       Robert Carson

[159]    
Robert Carson is a Consulting Economist with Associated Economic
Consultants (“AEC”). He was engaged to do two different types of reports:

(a)        one relating to the plaintiff’s (potential) loss
of earnings in respect of her loss of capacity claim; and

(b)        a second calculating
the costs of the future care items recommended as necessary by Ms Richardson in
her cost of future care reports.

[160]     All told,
Mr. Carson prepared three different sets of reports. The first set of reports
was done to assist Mr. Orchard to prepare for a scheduled mediation. Mr.
Orchard told me that he felt it important to go to the mediation with some
numbers on which he could base settlement discussions with the defendants’
counsel. The second set of reports was prepared for use at the originally
scheduled trial. And the final set of reports was prepared for use at the
December 2010 trial.

[161]    
Mr. Carson billed the plaintiff a total of $11,035 for all of his
reports broken down as follows:

(a)        For the first reports: $1,535.00;

(b)        For the December 2, 2008 reports: $6,185.00;

(c)        On an Invoice dated 1/29/22010, for “Work-To-Date
on Costs of Future Care”, the plaintiff was billed $640.00;

(d)        On 9/15/2010 Mr. Carson billed $2,425.00 for:

Economic Loss Report (September 10, 2010)
Certifying Letter (September 10, 2010)
Costs of Future Care (September 3, 2010)

(e)        By invoice dated
11/17/2010, the sum of $250 was charged for “Case Discussion Meeting” (November
12).

[162]     Mr.
Orchard told me that, in his view, all of Mr. Carson’s reports were necessary
and proper and that the costs “are what they are”. In fact he suggested that
the amounts charged were low based on his experience with similar experts.

[163]    
The first set of reports was done based solely on census data. They did
not specifically relate to the plaintiff. In theory, there is nothing wrong in
an expert preparing a report based on census data. In fact, that methodology
was found to be acceptable by Master Baker (sitting as registrar) on an
assessment of costs in respect of a report prepared by Mr. Carson’s firm, AEC.
In Bailey v. Thiessen, [2005] B.C.J. No. 1673; 2005 BCSC 1108, Master
Baker said (at paragraph 30):

In his affidavit prepared and
sworn for this assessment Mr. Struthers observed "My two reports attached
to this my Affidavit are typical reports on this topic. There is nothing
unusual". With respect, I agree. I see nothing amiss in an expert,
particularly an economist or an actuary, preparing a report based on census
data or provincial/regional/gender averages. Obviously, at trial, counsel would
have to convince the court that such averages are acceptable, but there is
nothing unusual in that. Moreover, I see no criticism in then qualifying such a
report and, effectively, refining its conclusions, when more specific or
particular information becomes available. It seems reasonable to me that if an
expert makes the original calculations, re-calculation by that expert at a
small cost is appropriate.

[164]     That
however does not end the issue. I still must satisfy myself that the work done
was appropriate and that it was necessary and proper for the plaintiff to
retain an expert to provide this information. It has been held (Letroy v.
Fillo, [1996] B.C.J. No. 472; Moore v. Dhillon, [1992] B.C.J. No.
3055; and Wheeldon v. Magee, supra, that these types of reports
are opinion in the guise of argument and ought not to be claimed as
disbursements on bills of costs.

[165]     In
particular, in Moore v. Dhillon, Master Wilson (as he then was), in
respect of a claim for reimbursement of monies paid to AEC for expert evidence
in respect of material relating to a plaintiff’s alleged loss of future
earnings said, at paragraph 262: “I think I would commit an error if I allowed
these two disbursements.”

[166]    
His Honour then quotes from the decision of McEachern, C.J.S.C. (as he
then was) in Sengbusch vs. Priest (1987) 14 B.C.L.R. (2d) 26 (B.C.S.C.)
wherein His Lordship said, at page 40 of that decision:

In my view it is appropriate for the court to enforce
reasonable limits upon the admissibility of opinion evidence. Too often, as in
this case, persons with special training or experience are retained to
construct scenarios or advance arguments in the form of an opinion when, with proper
assistance from counsel, the court is able to analyze the evidence and reach a
proper conclusion on commonplace problems such as suitability for employment or
calculations in personal injury, family matters or other areas of litigation.
The same applies in matters such as the care of children where opinion evidence
is frequently tendered unnecessarily although it is sometimes necessary to
arrange for investigations which the court cannot conveniently undertake. That
is a different matter.

It is unnecessary, however, for
experts to perform the court’s function or for counsel to adduce arguments in
the guise of evidence.

[167]    
Master Wilson then continues:

[264]    In my opinion, the
information contained in the first and second parts I have referred to above,
was nothing more than counsel could have done in argument. What is the point in
legislating a discount factor if parties are going to continue to call evidence
upon it?

[168]    
In Wheeldon v. Magee, supra, in determining whether to allow the
costs of AEC to address a plaintiff’s past and future wage loss claims, Master
Bouck said:

[91]      A significant portion of the work performed in
addressing the past wage loss claim is more appropriately work done by counsel.
For example, the economist has created tables which review the plaintiff’s past
reported earnings. A table shows the plaintiff’s T4 earnings, the taxable
benefits, average annual hourly wage and average annual hours of pay for the
years 2000 to 2004. Another table created by this expert shows the estimates of
past earnings from the accident date to the trial date, excluding employer paid
benefits. All of these tables are simply arithmetic calculations based on the
source data provided by the plaintiff. As such, the expertise of an economist
is not required.

[92]      The second part of the report addresses the
plaintiff’s loss of future earnings claim. The economist provides present day
multipliers to assist in quantifying this loss. A table is then produced
"intended only to provide general examples of the use of multipliers"
(the author’s emphasis). The expertise of an economist might be required to
provide the multiplier for use by the trier of fact. However, it is my
experience that the examples used in the report are standard fare in any
economist’s report addressing future loss. As such, the creation of this
information does not require the significant use of the expert’s time or
expertise as might be suggested in the overall charges presented.

[93]      In those circumstances,
a reduction of the charges presented is warranted.

[169]     I agree
with these general principles.

[170]     In respect
of the reports dealing with the plaintiffs’ alleged economic losses, most of
the work done relating to the wage loss claims is work that, more
appropriately, ought to be done by counsel. Certainly the reports here are very
much the same as those before Master Bouck in Wheeldon v. Magee. The
tables attached to the reports calculate the plaintiff’s potential past wage
loss and provide an estimate as to a potential for a future wage potential wage
loss. Much of this work could have been done by counsel. It was not required
that an expert be engaged to create this information. This is particularly so here
where the plaintiff was, by the time the action was commenced, fully engaged in
the career of her choice and working, I understand, for her preferred employer.

[171]     As for the
“costs of care” reports, the first such report was done on the basis of information
provided by Ms Richardson and presumed a trial date of December 2009. In my
view, that report was necessary and proper.

[172]     The second
“costs of care” report is almost a verbatim recitation of the narrative portion
of the first “costs of care” report. Additionally, the differences in the
calculations are insignificant and most certainly could have been done by
counsel. Thus there was no need for the second “costs of care” report in my
view.

[173]     The third
and final “costs of care” report was also, in my view, unnecessary. While it is
based on revised information provided by Ms Richardson and is premised on a
later trial date, again, the narrative portion of the report only varies
slightly from the previous reports. In addition, while the costs for Ms
Fairchild’s future care have been reduced, the revised calculations could have
been done by counsel who could have presented the information to the trial
judge.

[174]     I do not
have a specific breakdown as to how Mr. Carson allocated his fees between the “costs
of care” and “economic loss” reports. Some “rough and ready” justice then must
be employed. The total costs for Mr. Carson are $8,360. In my view, an
appropriate amount for the defendants to pay in relation to this expert’s
reports and opinions is the sum of $3,000.00. I will divide that amount between
before July 1, 2010 (75% = $2,250) and after July 1, 2010 (25% = $750).

(g)      Dr. Kaushansky

[175]    
Mr. Orchard said that Dr. Kaushansky (a psychologist) was retained
because there was thought to be a psychological element to the plaintiff’s non-pecuniary
damage claim. Dr. Kaushansky provided a preliminary opinion (one page in
length) on December 17, 2009. In that opinion he stated that:

Based on some of the personality
measures that were administered, as well as through my interview with Ms
Fairchild, it is apparent that she continues to have difficulty in coping with
the trauma that ensued following the repair of her fractured left keg and its
sequelae. Specifically, she is presenting with features of a Post Traumatic
Stress Disorder (PTSD) and a moderate degree of depression…

[176]     Based on those
findings, Mr. Orchard asked Dr. Kaushansky to provide (and he did provide) a
more comprehensive report (dated January 22, 2010). Mr. Orchard said that the
purpose of retaining Dr. Kaushansky was to assist the court in understanding
the psychological aspects of the plaintiff’s claim. She had a large cosmetic
deformity on her leg which she had described as a “hideous muscle bulge”. The
plaintiff sought counselling in New York on Dr. Kaushansky’s recommendation.

[177]    
Dr. Kaushansky issued two invoices for his work:

(a)        Invoice dated January 22, 2010 for the two
interviews with the plaintiff, file review and the writing of comprehensive
report in the amount of $2,345.00; and

(b)        Invoice dated
December 6, 2010 for $325 for file review; prep time and “team meeting” on
November 9, 2010.

[178]     Dr.
Kaushansky’s hourly rate as noted on these invoices was $250 per hour.

[179]     Mr.
Orchard testified that in his opinion, it was necessary and proper to obtain an
opinion from Dr. Kaushansky and that his fees for the work done were
reasonable.

[180]     Mr.
Stanger submitted that Dr. Kaushansky’s report is essentially argument in the
guise of opinion. It does not provide any true psychological diagnosis. It only
states that the plaintiff has moderate depression and “features” of PTSD. He
submits that I ought to allow nothing for this consultation and report.

[181]     I accept
the defendants’ submission. Dr. Kaushansky’s report did not add anything to the
mix, in my view. The plaintiff appears to have pursued a report from Dr.
Kaushansky out of excessive caution. That does not justify the expense being
borne by the defendants. Viewed objectively, it was not reasonable (at the time
or at all) to incur this expense for the purpose of the proceeding and, in
particular, to prove the plaintiff’s disability: McKenzie v. Darke, supra.

[182]     It follows
that the charge for the consultation and the subsequent report are disallowed.

C.       Summary

[183]     As noted
earlier, the plaintiff is awarded a total of 191 units which, when multiplied
by the unit value of $110 per unit, results in tariff fees of $21,010 plus
taxes of 12 percent ($2,512.20) on such fees, for a total award of $23,531.20.

[184]     As for the
disbursements, the plaintiff is awarded disbursements as follows^[5]:

“Registrar Sainty”