IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120518

Docket: M063505

Registry:
Vancouver

Between:

Maggie Chow

Plaintiff

And

Van Loc Nguyen and
Tay Van Nguyen

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
Master McDiarmid as Registrar

Reasons for Judgment

[1]          
This is an assessment of the plaintiff’s bill of costs. The bill of
costs follows settlement of a claim for injuries she suffered in a motor
vehicle accident which occurred on October 10, 2004. From submissions made
before me, it would appear that the defendant, Van Loc Nguyen, while his
ability to operate a motor vehicle was impaired, drove through a red light and
“t-boned” the vehicle being driven by the plaintiff. From submissions made to
me and from a review of some of the expert reports provided to me, the
plaintiff may have been rendered unconscious, suffered significant injuries and
largely recovered. As a result of her own abilities, she minimized the impact of
her injuries on her future earnings.

[2]          
During the hearing of the assessment, I allowed a total of 115 units at
Scale B, which when the taxes imposed under the Excise Act of Canada
were added, totalled $14,168.00. All of the disbursements were agreed upon
except for five items.

[3]          
The plaintiff claimed $30.00 for document binding charges and $212.00
for binders and tabs paid for. Counsel for the defendant and third party argued
that these were items of overhead, which should be paid for out of the tariff
items which are intended to partially compensate the plaintiff for her legal
fees. I agree. Those items are not allowed.

[4]          
Counsel for the defendant and third party also objected to the photocopy
charges. She accepted plaintiff’s counsel’s representation that the 7,231
photocopies were in fact made. There was no argument that the photocopying was
not necessary or proper; rather, the argument was that the 25¢ per page was
excessive given the actual cost of photocopying. When assessing costs, a
registrar must determine which disbursements have been necessarily or properly
incurred in the conduct of the proceedings, and I must allow a reasonable
amount for those disbursements (Rule 14-1(5) of the Supreme Court Civil
Rules (the “Civil Rules”)).

[5]          
Pursuant to Rule 14-1(1) of the Civil Rules, I am to assess costs
in accordance with Appendix B. Administrative Notice 5 effective July 1, 2010
directs that photocopying charges may be allowed at 25¢ per page on a
party/party bill of costs. This amount is a guideline only. If it is shown that
the actual cost was or should have been different from the guideline charges,
the amounts allowed on an assessment may differ from the guideline amounts.

[6]          
The actual cost of photocopying is difficult to determine, in as much as
it involves a combination of fixed costs, per page costs, and labour costs.
There was no evidence before me to show what the actual cost was. I find that
in the circumstances of this case, the number of photocopies was both necessary
and proper, and I allow the photocopying charges as claimed in the amount of
$1,807.75, plus applicable taxes.

[7]          
The main argument before me concerned two accounts paid by the plaintiff
for expert reports.

[8]          
At the outset of the litigation, and indeed until shortly prior to
settlement of the litigation (which occurred in January of this year,
approximately one month before what was scheduled to be a four-week trial), the
plaintiff was concerned that the accident may have affected her ability to
continue on in her employment as an electrical engineer. She was also concerned
that her injuries would adversely affect opportunities to advance to management
positions with her employer, Consolidated Edison in New York, where she had
worked prior to the accident, and where she eventually returned to work after
the accident.

[9]          
The plaintiff and her counsel were faced with the often difficult task
of trying to predict the long-term effects of the accident on the plaintiff. The
plaintiff underwent a neuropsychological and psychological assessment from Dr.
Izabela Z. Schultz, PhD, R. Psych., a clinical psychologist and
neuropsychologist. She also underwent a functional capacity evaluation and cost
of future care analysis from an occupational therapist, Ralph Cheesman. Expert
reports were prepared for counsel and served on opposing counsel. Dr. Shultz
charged $11,867.00. Mr. Cheesman of Back in Motion Functional Assessments Inc.
(“Back in Motion”) charged $7,952.00.

[10]       
In order to assist counsel for Tay Van Nguyen, the car owner, and the
Insurance Corporation of British Columbia, the third party, who joined in this
proceeding as a consequence of the breach by the driver, Van Loc Nguyen, the
defendant and third party obtained a functional capacity evaluation report and
addendum from an occupational therapist, a report from a psychiatrist, a cost
of future care report (entitled “Assessment and Care Response Report”), an
assessment by a neurologist, and a neuropsychological consultation report which
was a critique of Dr. Schultz’ report.

[11]       
The accounts rendered by these experts (except for the
neuropsychologist’s consultation report) were consensually entered into
evidence as exhibit 4. They are as follows:

[12]       
In addition, the British Columbia Medical Association fee schedule “A”
was consensually entered into evidence. None of the medical experts, whose
accounts were before me, rendered accounts in conformance with this fee
schedule. All were substantially higher.

[13]       
The applicable law was summarized by Master Hyslop, as she then was, in Zaenker
v. Kirk, 2008 BCSC 916 at para. 24:

The onus is on the party seeking
to establish that the disbursements, … were necessary or proper at the time
they were incurred. (Hamilton v. Rose, 2007 BCSC 1805; Forsythe v.
Strader et al, 17 B.C.L.R. (2d) 124, and Van Daele v. Van Daele and
London Hotel (1951) Limited, 56 B.C.L.R. 178).

[14]       
In the circumstances of this case, I am satisfied that the assessment by
Dr. Schultz and subsequent report was both necessary and proper. Similarly, the
evaluation and report by Back in Motion was necessary and proper. Counsel for
the defendant and third party also requested assessments/evaluations of the
plaintiff and obtained reports dealing with the issues considered by Dr.
Schultz and Back in Motion. Counsel did not suggest that those reports were
unnecessary or improper. Argument was confined to the reasonableness of the
charges (disbursements).

[15]       
In dealing with the reasonableness of the amounts claimed for
disbursements, I am guided by the principles summarized by Registrar Sainty in Fairchild
v. Vancouver Coastal Health Authority, 2011 BCSC 616, and in particular her
comments in para. 23 as follows:

[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.

…

[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.

[16]       
In her letter dated April 16, 2012, admitted into evidence as part of
exhibit 1 before me, Dr. Schultz set out that her hourly rate was $235.00,
which she opined was “very much (if not slightly lower) in the range of fees
charged by other experts in the field”. She explained that the completion of
the full assessment and what she styled as a “comprehensive medical-legal
report” took 50 hours and 30 minutes, which Dr. Schultz states:

… is above average number of
hours for my typical reports but it is consistent with my fees for complex,
multifactorial cases, where many determinants of impairment had to be
disentangled. Ms. Chow’s case was complex because of combination of severe
physical injuries with pain-related, neuropsychological and psychological
impairments, in context of pre-existing emotional issues and personal and family
stressors. Based on my 20 year experience in the field, such cases are most
labour intensive as there are competing explanations for patient’s problems
that need to be carefully explored and premature judgment avoided. In addition,
in Ms. Chow’s case, the potential influence of culture and language factors had
to be taken into consideration, further obfuscating some of the clinical
issues. Extensive medical records from Canada and United States had to be
carefully reviewed and analyzed in order to rule out the impact of medical
factors on neuropsychological functioning.

[17]       
Some of this would seem to be less relevant than stated above – Ms. Chow
was fluent in speaking English. Cultural factors do not seem to have played any
significant role in the matters in issue in this case. The report stated on
page 5:

Although Ms. Chow’s native
language is Chinese, her English was fluent and she spoke primarily English at
home and at work.

[18]       
As was pointed out in the critique of her report prepared for the
defendant and third party by Arthur D. Williams, PhD., Dr. Schultz did not
evaluate the claimant’s “cognitive-academic language proficiency”.
Additionally, Dr. Williams, in his critique report, criticises what he views as
a failure of Dr. Schultz to explore pre-existing emotional issues and personal
and family stressors related to marriage problems.

[19]       
Plaintiff’s counsel had requested copies of accounts rendered to the
defendant and third party by Dr. Williams. The defendant and third party did
not provide these accounts. Plaintiff’s counsel asked that I draw an adverse
inference from the failure to provide the reports. In response, counsel for the
defendant and third party stated the report prepared by Dr. Williams was a
critique, as opposed to a medical evaluation which followed an assessment of
the plaintiff. It was intended to assist counsel in cross-examination of Dr.
Schultz. A review of Dr. Williams’ report confirms this. What Dr. Williams
would have billed for his report and for assisting in preparing counsel for
cross-examination would not assist me in determining what the plaintiff paid to
Dr. Schultz. I draw no adverse inference from the refusal to provide Dr.
Williams’ accounts.

[20]       
I have read Dr. Schultz’ reports. It is not “nothing more than
counsel could have done in argument”. It deals with issues of concern to the
plaintiff. It does not become “luxury”. The work done by Dr. Schultz is
explained in her justification letter. As previously noted in Fairchild,
at para. 144:

[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.

[21]       
The plaintiff paid $7,100.00 to Back in Motion for a functional capacity
evaluation and cost of care recommendation report, including giving the
associated costs of that recommended cost of care.

[22]       
In the letter justifying the fees charged by Back in Motion, the author
of the report, Ralph Cheesman, writes:

… this was a file with requests
both for a functional capacity evaluation and cost of care recommendations with
associated costs. This of course adds to the complexity of the services
provided and thus extra time and ensuing cost. Many times we are asked only to
provide either a functional capacity evaluation or a cost of future care
report. In this case you asked for both services, which were completed and
presented in one document for ease.

[23]       
Mr. Cheeseman goes on to provide the typical cost of a medical-legal
functional care evaluation from his firm, averaged just under $4,000.00, and
that would not include the cost of care recommendations and costings.

[24]       
The functional capacity evaluation done by O.T. Consulting-Treatment
Services Ltd. was billed at $2,806.72, plus H.S.T. The assessment and care
response report, which included costs of certain recommended medication and
health needs, daily living, activity and comfort needs, was placed into
evidence as part of exhibit 1. There are analogous parts of the Back in Motion
report, and in particular pages 27 to 29 of that report, which confirm Mr.
Cheeseman’s comment that the report included costings for future care. The
defendant and third party paid $7,382.45 (i.e. in excess of $7,100.00) for the
two reports requested from their experts. I am satisfied that the retention of
Back in Motion to provide both a functional capacity evaluation and cost of
care recommendations with associated costs was both necessary and proper. Keeping
in mind the principles set out in Fairchild, at para. 144, I find the
fee charged is reasonable.

Summary

[25]       
The amount claimed by the plaintiff which was paid to Back in Motion in
the amount of $7,100.00 is allowed in full. The amount claimed by the plaintiff
which was paid to Dr. Schultz in the amount of $11,867.00 is allowed in full. The
amount claimed by the plaintiff of $1,807.75 is allowed in full. I have
disallowed $242.00 from what the plaintiff has claimed for taxable
disbursements, resulting in taxable disbursements being allowed at $20,571.67.
H.S.T. on that amount is $3,428.60. Total taxable disbursements and H.S.T. are
allowed at $32,000.27.

[26]       
No issue was taken with the non-taxable disbursements totalling $488.00.

Summary

[27]       
If any offers to settle the bill of costs were made pursuant to s. 8 of
Appendix B, and an offer affects the costs claimed and cannot be resolved by
the parties, the parties have liberty to reset the matter before me by
teleconference to deal with that issue.

“Master R.W.
McDiarmid”

MASTER McDIARMID