IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20120131

Docket: S1140043

Registry:
Prince George

Between:

Garth A. Wright
Law Corporation

Solicitor

And

Insurance
Corporation of British Columbia

Client

Before:
Master Baker

as
Registrar

Reasons for Judgment

ISSUE

[1]            
If during negotiations a party’s insurer requests photocopies of
documents from the other party, may the latter party’s counsel use the Legal
Profession Act[1]
(“the LPA”) to pursue payment from the insurer?

BACKGROUND

[2]            
On December 21, 2009 Ms. Gwendoline Greer was injured in a motor vehicle
accident and retained and instructed Mr. Wright to act on her behalf.  In the
usual course Mr. Wright contacted representatives of the Insurance Corporation
of British Columbia (“ICBC”) and began negotiations, specifically with Ms.
Reynolds, a Prince George ICBC adjuster.

[3]            
This is not the first client Mr. Wright has represented vis-à-vis ICBC;
he has practised law in Prince George for many years and has acted on many
claims arising from motor vehicle accidents.  It is also acknowledged by both
sides to this issue that photocopying costs and charges have been a chronic
irritant in Mr. Wright’s relationship with ICBC.

[4]            
In this particular case on July 15, 2010 Ms. Reynolds asked for copies of
clinical records and said in her letter:

We confirm that once we are in
receipt of the records, our office will forward a cheque reimbursing your firm
for costs incurred in obtaining same.

On such a
simple statement much seems to turn.

[5]            
Mr. Wright obtained 56 pages of medical records and sent them to Ms.
Reynolds along with his letter and invoice for the copies ($25.09, being $ .40
per page plus HST).  In his letter Mr. Wright said:

I also enclose my disbursement account for providing the
records which I trust you will find satisfactory.  I look forward to its
payment at your earliest convenience.

In fact, during
the hearing, Mr. Wright advised the court that his standard practise, over many
years, has been to invoice only those photocopy requests that exceed $10.00
(i.e. 25 or more pages).  That bill has not been paid and Mr. Wright seeks an
order under the LPA that the account be paid.  It is interesting to me
that, the account being in dispute, ICBC did not think to return the documents
and not use them until the issue was resolved.

[6]            
Mr. Wright brought this appointment under the LPA and ICBC
disputes the court’s jurisdiction to hear the matter under that legislation. 
That then becomes the threshold question.  Can this claim even proceed under
the LPA?

EVIDENCE

[7]            
Ms. Aviss, Mr. Wright’s long-time legal secretary, swore an affidavit in
support of the claim.  Much of the evidence relates more to the reasonableness
(or not) of the account, but some is helpful with the threshold issue.  In it
she confirms numerous points –

1)    ICBC
has “…fought with our office over the issue of our photocopy rate for some
years;

2)    The
office’s photocopy rate has been $.40 per page “…since some time in the
1990s”;

3)    If
the office is very busy it typically offers clients’ authorizations to ICBC so
that it can obtain non-party documents directly;

4)    When
documents are received by the office from non-parties at ICBC’s request “…Mr.
Wright typically reviews them in detail and we then photocopy the records and
send them to the ICBC adjuster along with an account for our photocopying”;

5)    The
office makes no other charge (postage, courier, etc.) for the copies to ICBC
and does not require payment in advance;

6)    Documents
are not always easy to copy; they are sometimes damaged or are on odd-sized
paper, coloured, or the like, necessitating particular care or steps in
copying;

7)    On
considering the cost of copies by the law office she and Mr. Wright have
concluded that the greatest cost is staff time;

8)    There
is further expense incurred when the invoice is entered into the office’s
accounting system;

9)    Other
law firms, in her experience, charge from $.30 to $.50 per page for copies, and
the Court Registry itself charges $1.00 per page.  Other agencies, such as the
RCMP, charge a service charge in addition to a per-page charge for providing
copies;

10) In 2009 ICBC agreed
to pay two different doctors for photocopies at the rate of $1.30 and $1.35,
respectively, for the first 10 pages and $.30 per page thereafter.  Mr. Wright
calculates that to be an effective rate of $.40/$.50/$.70 and $.45/$.55/$.75
per page for 100/50/25 pages, respectively[2]

11) Ms. Aviss believes
that ICBC began the practise of requesting production of “large number of third
party records” in approximately April, 2004 and that since that time the office
has sent 26 accounts to ICBC for photocopying, of which 5 remain unpaid and
outstanding, including the instant account;

12) Each of the three
ICBC litigation adjusters in Prince George has, at one time or another, paid
Mr. Wright’s photocopying accounts of $.40 per page;

13) No litigation had
been commenced when Ms. Reynolds made the request for documents;

14) Ms. Reynolds’
letter of request and Mr. Wright’s responding letter are appended to Ms. Aviss’
affidavit[3].

[8]            
The evidence for ICBC is contained in Ms. Reynolds’ affidavit.  She says
–

1)    She was
responsible for dealing with Ms. Greer’s claim and was the only ICBC
representative that communicated with Mr. Wright’s office in that respect;

2)    Prior to the
letters being exchanged she and Mr. Wright had a telephone discussion about
physiotherapy treatments for Ms. Greer, and Ms. Reynolds said ICBC would
require clinical records before considering paying for physiotherapy.  There
was no talk at that time of paying for the records;

3)    She received
some clinicals, approved treatment, but requested more records with her letter
of July 15^th;

4)    She denies
agreeing to pay for photocopying:

 At no time did I, as the ICBC representative, agree to pay
for reproduction or photocopying generally or specifically with respect to the
Disbursement Account, with anyone from Garth A. Wright Law Corporation,
including Mr. Wright himself[4];

5)    She was aware
throughout that Mr. Wright was Ms. Greer’s counsel and that “At no time did I
ask Mr. Wright to perform any legal services for me or for ICBC…”;

6)    She acknowledges
that, in the past, she and the other ICBC adjusters have received and paid Mr.
Wright’s photocopying accounts at the rate of $.40 per page.

PARTIES’ POSITIONS

Mr. Wright

[9]            
Mr. Wright submits a narrow point, that this court has jurisdiction
under ss. 69(1) and 70(3)of the LPA to consider the account.  Those
sections read:

69  (1) A lawyer must
deliver a bill to the person charged.

and

70 (3) Subject to
subsection (11), a lawyer may obtain an appointment to have a bill reviewed 30
days or more after the bill was delivered under section 69.

He argues that a party need only conform to the very narrow
definition of “person charged” to be subject to the provisions and process of
the LPA, and need not be the solicitor’s client per se.  He
likens the whole issue to a simple contract; Ms. Reynolds requested/offered, he
accepted, and thereby a contract, of sorts, arose.  He does not specifically
claim a contractual right in this transaction but simply uses the analogy and
submits that “the person charged” need not be a client, but need only be a
party that has agreed to pay for whatever service has been requested.

[10]        
Mr. Wright further argues that the specific wording of Ms. Reynolds’
request, whatever she in retrospect says she intended, must incorporate the
relatively routine payment by ICBC of Mr. Wright’s photocopy invoices since
2004, and that the only reasonable interpretation is that ICBC intended, on
receipt of the clinical records, to pay Mr. Wright’s copying charge.

ICBC

[11]        
Mr. Dunn takes a broader view.  He argues that to bring the matter
within ss. 69 and 70 the charge must be for legal services given as a result of
an agreement for those legal services.  He submits that all Ms. Reynolds agreed
to pay was the invoice that Ms. Greer’s doctor would (and did) render to Mr.
Wright for the records.  He argues that the only obligation to pay Mr. Wright
(or Ms. Greer) would arise as a result of an order for costs in the usual
course at the finish of litigation.

[12]        
Mr. Dunn also argues that Ms. Reynolds is not a person to be charged,
that the section refers only to anyone who has agreed to pay the client’s own
fee (a guarantor, as I understood the argument) and that Ms. Reynolds clearly
did not agree to pay Ms. Greer’s cost in that respect.  In fact, he submits
that since Ms. Reynolds did not ask for, nor did Mr. Wright agree to provide,
legal services to ICBC there can be no charge for the copying.

[13]        
Mr. Dunn points out that the LPA does not define “legal services”
but does define “practise of law” and that case authority has found the two
terms to be interchangeable or synonymous[5]. 
Taking the two terms to be essentially the same, then, he argues that what Mr.
Wright was asked to do (i.e. obtain and provide copies of medical records)
could not possibly come within the definition of the practise of law as
provided by s. 1 of the LPA, nor could it in any normal interpretation
be included in the meaning of “legal services”.  He also argues that the onus
is always on the solicitor to prove an alleged agreement to provide legal
services[6]
and that Mr. Wright has not met that onus; in the face of Ms. Reynolds’
specific denial of any such agreement it is incumbent on Mr. Wright to prove
the agreement.

[14]        
He argues that other British Columbia legislation supports his
position.  The Social Service Tax Act[7]
defines “legal services” as:

(a)  services that come within
the meaning of the practice of law under the Legal Profession Act…

but that this legislation specifically, through its
definition of “purchase price” and specific reference in s. 8.1, pointedly
excludes photocopying as a taxable disbursement incurred for legal services.  Photocopying
cannot therefore be a “legal service”, he argues.

[15]        
In sum, then, Mr. Dunn argues that at no time did ICBC agree to this
charge, so that neither ICBC nor Ms. Reynolds can be a “person charged” under
s. 69 and that, in any event, the actions of Mr. Wright or his firm cannot
reasonably come within the definition of “legal services” and that any account
referenced by ss. 69 and 70 can only be for legal services

Reply of Mr. Wright

[16]        
In reply Mr. Wright argues that all the cases that place either the onus
on the solicitor to establish the relationship or that give preference to a
client’s evidence over the solicitor’s (all other things being equal) were
decided in the context of a solicitor/client relationship, either real or
putative, and that this clearly is not that case.  The person charged, he
argues, is simply established by proving the person requested a service and the
service was given.

ANALYSIS

[17]        
First, there is no question that a conventional solicitor/client
relationship need not be established to bring a matter within ss. 69(1) and
70(3).  Master Horn, in Walker and Wilson v. Insurance Corporation of
British Columbia[8]
made that abundantly clear.  In that particular case the parties reached settlement
but, as the plaintiff was an infant, the Public Trustee’s approval was
required.  Plaintiff’s counsel’s letter in that respect said:

You will either engage counsel to
apply for approval of the settlement with the Public Trustee and pursuant to
the Infants Act bear all costs of that application, or pay our fees and
disbursements with respect to those applications.

In accepting the offer of
settlement ICBC’s adjuster replied, in part:

Also, we are prepared to pay your
reasonable costs on obtaining Public Trustee approval.

Counsel sent his account for the approval process to ICBC,
the corporation refused payment, and counsel then brought an appointment for
review under the LPA.  ICBC disputed the jurisdiction to hear the matter
under the LPA and argued that it had neither retained counsel, nor was it
a “person charged” under then s. 77 of the Act.  Essentially, ICBC said
that it had only agreed to pay the plaintiff’s normal, assessable, party and
party costs and disbursements under the Court Rules.

[18]        
Finding no precedents, Master Horn concluded[9]:

It is obvious though that if there were an agreement between
the solicitor and the Corporation that the Corporation would pay the
solicitor’s bill for services rendered on behalf of the solicitor’s client then
the Corporation is a “person charged”…

Clearly, then, by inference
Master Horn seemed to adopt Mr. Dunn’s view that the person charged must be one
who has agreed to pay the client’s own fee;  i.e. the guarantor perspective
(para. 12, above).  With respect, I do not take that as an exclusive view.  If
the legislature had wished to limit a “person charged” to someone in the role
of guarantor or indemnifier it could have said so.  In fact, I conclude that
the legislation specifically recognizes two separate roles: viz. s. 70(1):

70  (1) Subject to subsection (11), the
person charged or a person who has agreed to indemnify that person may
obtain an appointment to have a bill reviewed before…

[Emphasis
added.]

It cannot mean, therefore, that a “person charged” can only
be a person who is, through some means, responsible for the charges a solicitor
renders to his or her own client.  In any event, even taking ICBC at its word,
at the very least it agreed to pay the doctor’s charges for the records. 
Clearly, as Mr. Wright requested the records, the doctor could not charge
anyone but him (or perhaps Ms. Greer) for the records.  Did ICBC therefore not
undertake payment of Ms. Greer’s expense?  Of course it did.

[19]        
Do the actions asked of Mr. Wright by ICBC constitute “services” that
come under the LPA?  I think they do.  First, the Act does not at
any point refer to “legal services”.  Section 64(1) defines “agreement”
as:

…a written contract respecting
the fees, charges and disbursements to be paid to a lawyer for services provided
or to be provided…

While s. 65 of the LPA is
headed “Agreement For Legal Services”, the section itself does not refer to
“legal services”.  It states:

65  (1) A lawyer
or law firm may enter into an agreement with any other person, requiring
payment for services provided or to be provided by the lawyer or law firm.

But assume that it is a
reasonable inference that all such agreements must be restricted to legal
services (and must exclude, as Mr. Dunn argued, agreements for, say, car
repairs).  Did Ms. Reynolds request task Mr. Wright with a legal service?  I
think it did.  First, attempts to prove “legal services” synonymous with “the
practise of law” are over-reaching.  The Stoangi case (para. 13, above)
in my view is not authority for that conclusion.  In that case the Ontario
Court of Appeal was wrestling with a vague prohibition.  The Ontario
legislation directed that no one:

“…shall act as a barrister or
solicitor or hold themself [sic] out as or represent themself [sic] to be a
barrister or solicitor…”.

With no definition of “acting as a lawyer” or even “practice
of law” the Court reached to other provinces and even to a report on the
functions of paralegals to try and inject some specificity into the
legislation.  All that can be taken from the case is that giving legal advice
constitutes the practise of law.  No one is suggesting that ICBC asked Mr.
Wright to give it legal advice.

[20]        
Does that mean no service was given?  No, it does not.  It cannot be
that Mr. Wright would have to prove that he practised law on behalf of ICBC
before it becomes “a person charged”.  I regard the definition of “providing a
legal service” as broader than “practising law”.  By analogy, it would be safe
to say that a person would have to be doctor, nurse, or paramedic to practise medicine,
but that anyone offering or applying a Band-Aid or ointment would be giving a
medical service.  Similarly it is possible to provide legal services without
practising law within the terms of the LPA.

[21]        
Even so, and notwithstanding Mr. Wright’s argument that he does not have
to prove that complying with Ms. Reynolds’ request was giving a legal service,
I think it was.  There is absolutely no doubt that the process of obtaining and
forwarding medical records includes purely clerical acts, but it would be a
mistake to ignore other aspects that include legal expertise and judgment.  Ms.
Aviss’ evidence is that Mr. Wright routinely reviews the records on receipt and
prior to forwarding copies.  It is the responsibility of all litigation counsel
to review documents for relevance, privilege, and, occasionally, privacy. 
Medical records, in particular, routinely cause disputes as to the proper form
of production; should they be produced unedited (in British Columbia the
so-called Jones format), or should they be redacted (the Halliday
format)?  The only way for that to proceed is for counsel to exercise legal
skills and judgment.  That’s a legal service.

[22]        
I do not consider the court constrained in this proceeding by the
definitions contained in the Social Service Tax Act.  The definitions
and exclusions in that Act are for specific application of the purpose
of that Act; i.e. the taxation of various goods and services.  They
cannot have such a broad application that they trench on or restrict another
statute.

[23]        
There is no doubt that there was an agreement between ICBC and Mr.
Wright but, as in Walker and Wilson, I have the same question to answer
as did Master Horn.  What did the parties agree to?  I have concluded that the
parties agreed that ICBC would pay Mr. Wright’s reasonable costs of the
process, and that the costs were not restricted either solely to indemnifying
the doctor’s charges for the copies, nor to eventual party and party tariff
costs/disbursements.  As with Walker and Wilson, if there was
misunderstanding it was on Ms. Reynolds’ part.  I conclude that all elements in
the context of this transaction lead to the conclusion that what was reasonably
intended was reimbursement of both payment to the medical office and a photocopying
charge by Mr. Wright’s office.

[24]        
Those elements include –

a)    ICBC’s routine
payment to other agencies for their photocopying charges (para. 7, above);

b)    The fact that on
at least 21 previous occasions ICBC had paid the exact same charge to Mr.
Wright’s office;

c)     The mutual
acknowledgment that this has been a long-standing irritant between Mr. Wright’s
office and ICBC.  Mr. Wright has been unremitting in his expectation and
requirement that requests of 25 pages or more would be invoiced and paid.  It
is not possible for ICBC in such a case to see this instance as any different.

[25]        
If ICBC wished to depart from what I conclude was its normal practise
with Mr. Wright’s office (even allowing for friction on the subject) it could
have –

a)    been much more
specific in the original request and specified that only the doctor’s charge
would be paid;

b)    request,
instead, authorizations so that it could deal with the non-party directly
(subject, of course, to Halliday concerns, above);

c)     return the
documents, unused and un-copied, until the parties come to agreement;

d)   
decline to negotiate further until the issue is resolved.

None of these options, clearly, are attractive but any would
have focussed, narrowed, or resolved the issue.

SUMMARY

[26]        
Mr. Wright’s account to ICBC for obtaining, photocopying, and forwarding
the records of a non-party is a charge properly brought by appointment under
the LPA.

“D. Baker, M.”

Master D. Baker