IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120621

Docket: M106222

Registry:
Vancouver

Between:

Giuseppe
Jason Perone

Plaintiff

And

Gabriel
Baron and Adam Joshua Baron

Defendants

Before:
Master McDiarmid

Reasons for Judgment

[1]            
The issue in the application before me is to determine how much is to be
the “payment [for 240 pages of photocopying] in advance of the cost of
reproduction and service”, as set out in Rule 7-1(16) of the Supreme Court
Civil Rules (“Civil Rules”).

[2]            
The application by the defendants is for an order that counsel for the
plaintiff provide a copy of certain documents set out on the plaintiff’s
combined list of documents to counsel for the defendants, and for an order that
the reproduction cost at the rate of 30¢ per page shall be paid forthwith to
counsel for the plaintiff.

[3]            
The application is opposed. The essence of the opposition is set out in
the application response, part 4, factual basis, which I will reproduce in its
entirety:

1.         These
two actions involve damages arising from injuries suffered by the Plaintiff in
motor vehicle accidents that occurred on March 8, 2009 and April 2, 2011.

2.         The
Plaintiff has listed various documents in a Combined List of Documents.

3.         The
Defendant has requested that the Plaintiff produce copies of various documents
that the Plaintiff has listed. The combined number of pages in those documents
is approximately 240 pages. The majority of these documents are clinical
records from doctors, physiotherapists, and massage therapists.

4.         The
Plaintiff has advised they will produce copies of the requested documents on
the condition that the Defendants agree to pay $0.35 per page. The Plaintiff
has not requested any further charges from the Defendants for the delivery of
the documents. The Defendants have said they will not pay $0.35 per page, but
rather they will only pay $0.30 per page. The Defendants’ current application
therefore concerns a difference of $0.05 per page for approximately 240 pages,
totalling approximately $12.00.

5.         For
some years prior to 2006, Plaintiff’s Counsel charged $0.30 a page for
photocopying of documents for similar requests. In 2008, Plaintiff’s Counsel
increased his charge to $0.35 to reflect increases in the cost of paper,
energy, staffing and other general increased costs of doing business.

6.         According
to Statistics Canada consumer price index, from 2002 to 2011 in the Vancouver
region of British Columbia, the cost of paper and similar products has
increased by 18.9%, the cost of energy has increased 51.7%, and the cost of
[Goods] and Services has increased by 16.5%. The increases in the same
commodities have increased by a significantly larger margin from 1996 to 2012.

7.         Farber
and Folk, Anjos & Co., Stanley A. Schwartz Law Corporation, McAlister
Hallam, Monterio Law, McLarty Wolf and Simpson Thomas & Associates, charge
$0.35 per page for similar requests.

8.         The BC
Medical Association fee guidelines recommend doctors charge $1.50 for the first
10 pages and $0.30 per every subsequent page. The Physiotherapy Association of
British Columbia recommends that physiotherapists charge $1.50 per page for
copying. The Massage Therapists Association of British Columbia recommends
Massage Therapists charge [$1.00] or $0.50 percent per page, whichever is
higher. The BC Chiropractic Association charges $1.25 for the first 10 pages
and $0.30 for all subsequent pages.

9.         Appendix C of Schedule 1 of the
Rules of Court sets copying fees to the crown at $1 per page.

[4]            
All of the facts set out above are supported by evidence, namely, the
first affidavit of Winnie Ing made and filed May 17, 2012, including exhibits A
and B attached to that affidavit. There is some additional evidence which I
considered in reaching my decision:

a)    On December 21,
2011, counsel for the applicants wrote to counsel for the respondent requesting
various documents and advising “I will honour any photocopying invoice at the
prescribed rate of $0.30 per page”;

b)   
In a letter from counsel for the respondent to counsel for the
applicants dated January 5, 2011, Mr. LeBlanc encloses his draft statement of
account in the amount of $63.62 for reproduction of the requested documentation.
Mr. LeBlanc writes “Once I receive your prepayment I will mail you the
above-noted documentation. Please remit.” As set out in paragraph 12 of the
first affidavit of Debra Rutley made and filed May 9, 2012, “In the invoice
provided by Mr. LeBlanc (Exhibit “F”), it did not indicate the number of pages
to be reproduced, nor the photocopying rate per page. Only the total amount
owing of $63.62 (including tax) was shown”;

c)    
On January 7, 2012, counsel for the applicants wrote to counsel for the
respondent – the body of the letter stated: “Regarding your photocopying
invoice. Are you billing $0.30 per page?”

d)   
In a letter dated January 9, 2012, counsel for the respondent wrote to
counsel for the applicants. The body of the letter is as follows: “Further to
your letter dated January 7, 2012, I confirm that I am billing $0.30 per page.”
The letter is not signed by Mr. LeBlanc; rather, it is obviously signed by
someone on behalf of Mr. LeBlanc as above the name there is printed Mr.
LeBlanc’s name in quotation marks;

e)   
By letter dated January 13, 2012, counsel for the applicants wrote to
counsel for the respondent as follows: “The maximum acceptable registrar’s rate
is $0.30 per page. Please resubmit your account accordingly and I will pay it
promptly”;

f)     
On February 16, 2012, counsel for the applicant wrote to counsel for the
respondent enclosing the applicant’s counsel’s cheque, drawn on his
professional law corporation account, for $54.43;

g)   
By letter dated February 22, 2012, counsel for the respondent wrote to
counsel for the claimants, returning the cheque and advising: “I will not
forward the documentation noted in my letter dated January 5, 2012 until my
account is paid in full”.

[5]            
There followed some additional correspondence, including a letter from
counsel for the applicants to counsel for the respondent, wherein counsel for
the applicants writes:

Please understand that my client probably pays for several
million photocopies year and, if it is simply just glibly paid whatever
Plaintiff’s Counsel felt it could charge, the net difference would be in the
hundreds of thousands of dollars range, if not more.

Accordingly, this is not a “me
versus you” grinder/grindee situation as you have alluded to in the past. As
Counsel for the Defence, it is my duty to ensure that costs are kept in line
even if it is something as straightforward as five cents per photocopy.

[6]            
The matter was raised at a case planning conference, following which
this chambers application was brought.

[7]            
The starting point for analysis is Rule 7-1, subrules 16 and 17 of the Civil
Rules which read as follows:

Copies of documents

(16) If a party is entitled to inspect listed documents under
subrule (15), the listing party must, on the request of the party entitled to
inspection and on receiving payment in advance of the cost of reproduction and
service, serve on the requesting party copies of the documents, if
reproducible, for which a request has been made.

Order to produce document

(17) The court may order the
production of a document for inspection and copying by any party or by the
court at a time and place and in the manner it considers appropriate.

[8]            
Subrule (16) is similar (at least insofar as the issue of cost of
reproduction and delivery) to former Rule 26(9) of the Rules of Court which
read as follows:

Copies of documents

(9) Where a party is entitled to
inspect documents in the possession or control of another party, the other
party shall, on request, deliver copies of any of the documents, if
reproducible, on payment in advance of the cost of reproduction and delivery.

[9]            
Respondent’s counsel provided the court with a number of cases: Matt
v. Mair Jensen Blair, 2003 BCSC 1596; Curtin v. Mair Jensen Blair, [1998]
B.C.J. No. 566; and Baxter v. Mary Fus Law Corp., 2010 BCSC 1399,
wherein Masters on Legal Profession Act reviews allowed 35¢ per page for
photocopying. In Matt, Master Hyslop, as she then was, writes at para.
8, under the heading “PHOTOCOPYING”:

The legal assistant hourly rate
is being billed to the client at $90.00 per hour for photocopying, as well as
the law office billing the client $.35 for each photocopy. A review of the
retainer agreement calls for photocopies at $.35 per page. This is not an
unusual charge by lawyers to their clients. However, there is nothing in the
agreement which would lead the client to believe that he would be charged an
additional expense of someone to run the photocopier at $90.00 per hour.

[10]        
In Curtin, Master Patterson, as registrar, writes at para. 31:

No real issue was taken with the
rate of .35 [¢] per page, but in my view, that is not an unreasonable amount to
be charged by the law firm.

[11]        
In Baxter, Master Shaw reduced a bill by a lawyer to the client
wherein the lawyer charged $1.00 per page for photocopies, and on a review,
Master Shaw allowed 35¢ per page.

[12]        
Counsel for the respondents also provided the case of Garth A. Wright
Law Corporation v. Insurance Corp. of British Columbia, 2012 BCSC 149. The
issue in that case was whether during negotiations a party’s insurer requests
photocopies of documents from the other party, made the latter party’s counsel
use the Legal Profession Act to pursue payment from the insurer. In that
case, it was apparent that an Insurance Corporation of British Columbia’s
litigation adjuster in Prince George had paid the lawyer photocopying accounts
at the rate of 40¢ per page.

[13]        
Counsel for the applicants relied on a number of case authorities to
bolster its submission that I should grant the order sought (the rate of 30¢
per page).

[14]        
In Madigan v. Naidu, [1994] B.C.J. No. 525, Master Patterson
wrote:

[5] It seems clear from
Rule 26(9) that there is no obligation on the part of the defendant [the
requesting party] to pay anything more than reasonable reproduction costs and
delivery costs. Upon payment of those costs, the plaintiff is obliged to
deliver a copy of the document in question provided, as here, that privilege is
not in issue. … I intend to fix the costs of reproduction at this time at 30[¢]
per page, so that it is clear that costs of reproduction do not include the
plaintiff’s costs of obtaining the reports. …

[15]        
In Wightman v. Ellis et al, New Westminster Registry
M104909, an oral decision of Master Tokarek given April 17, 2008. Master
Tokarek states:

The authorities make it clear that
the reasonable cost of reproduction is not to be fixed to the registrar’s rate
of 30¢. Coincidentally, the registrar’s rate of 30¢ happens to be an
approximation gathered together from a variety of sources as to what the actual
cost is. … I am satisfied that 30¢ a page is the appropriate amount to be
charged.

[16]        
In Kind v. Leung, New Westminster Registry M95565, an oral
decision of Master Caldwell in chambers on October 25, 2006, Master Caldwell
states:

This is an application relating
to the provision of copies of documents. A list of documents has been provided
and the actual copies of documents are agreed to be provided by the plaintiff,
but they indicate that the cost of their copying would be 50 cents per page.

[17]        
He goes on to consider Rule 26(9), and to consider that the defendant
was proposing 30¢ per page and the plaintiff 50¢ as noted. He states:

The difficulty with the
plaintiff’s position is that there is no breakdown indicating that the cost of
reproduction is anything approximating 50 cents per page.

[18]        
He concludes his reasons as follows:

… I am not able to indicate or
to determine on the material provided by the plaintiff that their costs exceed
30 cents a page. The rate set will be 30 cents per page.

[19]        
The “registrar’s rate” is the rate set pursuant to Administrative Notice
5, entitled “Photocopy and Fax Charges Guideline,” which I will reproduce in
full:

The Administrative Notice establishes the guideline amount
that parties may claim on a Bill of Costs for photocopying and fax charges.

Direction:

1.         The
following charges may be allowed on a party/party bill of costs:

a.         photocopying 25¢ per page

b.         faxes 35¢ per page.

2.         Parties are reminded that these
amounts are 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.

[20]        
There seems to be some confusion as to precisely what the registrar’s
rate is. In Farrokhmanesh v. Sahib, 2010 BCSC 497, Registrar Sainty
clarifies that the registrar’s rate is as set out in Administration Notice 5;
namely 25¢ per page. That was an assessment of party/party costs, so the
registrar’s rate was directly applicable.

[21]        
In that case, there was an effort by the party responsible for paying
the costs to show that the actual cost was or should have been different from
the guideline charges. This effort involved affidavit evidence as to bulk
photocopying at significantly less than 25¢ per page, and an attempt to
quantify in-house costs of the party responsible for paying the account by its
staff. Registrar Sainty considered the arguments and concluded in para. 57:

I am satisfied that the cost of
the copies to the plaintiff was at least equal to registrar’s rates and I will
allow the copies here at that rate ($0.25 per page).

[22]        
I was also referred to terms of an order in Haigen v. Baya, New
Westminster Registry S109526, where Master Scarth, on November 20, 2008, set
the cost of photocopying at 30¢ per page payable by the defendant for
production of documents.

[23]        
As can be seen, most of the cases relied on by the respondent are cases
which set a cost per copy based on considerations relevant in Legal
Profession Act reviews. These will often (perhaps almost invariably)
involve a consideration of contractual rates agreed to between the lawyer and
client.

[24]        
Many of the cases relied on by counsel for the applicants are cases
assessing party/party costs, where the registrar’s rate governs unless it can
be shown that the actual cost was or should have been different from the
guideline charges.

[25]        
In Giuliani v. Saville (1996), 105 B.C.A.C. 209, 55 B.C.L.R. (3d)
292, Esson J.A. writes:

[4] The issue before the master was whether the
defendant should be required to pay 15 cents per page or 30 cents per page,
which was the basis for the plaintiff’s invoice. Master Donaldson gave
extensive reasons and concluded as follows:

[15] I am satisfied that in 1997, in British Columbia, a
realistic cost of reproduction as is contemplated by Rule 26(9), given the
practice in the community of law firms is appropriately 30 cents a page. I
therefore order that the copies requested by the defendant be produced upon the
advance payment being made to the plaintiff of 30 cents per page for each page
requested by the defendants, together with the cost of postage and an
appropriately sized envelope, or the cost of a courier if that is requested.

[5] The appeal from that decision was heard by Madam
Justice Koenigsberg who, in written reasons, Giuliani v. Saville, [1997] B.C.J. No. 2685, considered at some length the
submissions of the defendant and concluded that she could not find that the
master was clearly wrong because, in her view, "he was clearly
right". …

…

[8] Furthermore, with all
respect, it seems clear that the decision in Demeria v. Morita was not
sound in law. It appears to have been based on the premise that, because the
issue arose in the course of litigation, the amount required to be paid under
Rule 26(9) had to be equated to the amount which would be allowed on a party
and party taxation. But Rule 26(9) is something entirely apart from the
provisions governing party-party costs. Furthermore, to order that the amount
to be paid at the stage of production should be 15 cents but with liberty to
apply to the trial judge "if he deems it should be more" is an
unworkable approach to the matter, and has no relationship to the language of
Rule 26(9) which contemplates that the amount to be charged will be settled and
paid before delivery of the copies. It would also appear to have been error in principle
to make such an order without reference to the basis on which the master had
made his decision and without regard to the respect traditionally accorded by
judges to the decisions of registrars and masters in matters of this kind. No
doubt there are sound reasons why masters and registrar generally allow 15
cents on a party-party taxation [NB: this was before the promulgation of
administration notice 5], generally allow 30 cents on a solicitor-client
taxation, and regard the Rule 26(9) situation as more analogous to the
solicitor-client relationship. The amount to be paid in a given case cannot be
a question of law. On the other hand it is highly desirable to encourage
litigation to be carried on without undue squabbling over petty trifles, that there
be consistency in the amount allowed in each type of situation. That desirable
end cannot be achieved without a certain amount of arbitrariness on the part of
the registrars.

[26]        
Leave to appeal Madam Justice Koenigsberg’s decision was dismissed.

[27]        
In Buller Estate (Re), 2003 BCSC 1584, District Registrar Bouck
considered the issue of cost per page for photocopying. In submissions made
before her, one of the parties stated that his business in Vancouver pays 2¢
per copy at a local “quick copy” centre, and suggested 3.5¢ per page as being
reasonable in the circumstances. It should be noted that this was an assessment
of costs on a passing of accounts pursuant to the then Rule 57(3)(e). Registrar
Bouck noted at para. 51 that:

‘…in most instances, a bill for
special costs will usually be about 80% to 90% of a similar bill assessed under
the Legal Profession Act’

The comment, though, was in the context of legal fees,
and not disbursements.

[28]        
Registrar Bouck goes on to discuss the issue of photocopying charges at
paras. 58 through 72 of her decision. At para. 68 she writes:

[68] Establishing a "reasonable" per page
charge for photocopies is not an exact science. There is seldom evidence
justifying the "per page" cost charged by the lawyer to the client.
These evidentiary difficulties were recognized by the Federal Court of Canada
over a decade ago. They are well described in an excerpt from United
Terminals Ltd. v. Canada (Minister of National Revenue – M.N.R.) [1991]
F.C.J. No. 705 @ p. 8:

"…I should take judicial notice of the commercial
realities of the practice of law and exercise my discretion accordingly: there
is no practical and cost-effective method to measure via analysis of labour,
ink, toner, paper supply etcetera, the cost of each individual photocopy".

[29]        
While allowing what was charged in that case [25¢ per page), she
discusses that there may be evidence to the contrary, and in paras. 71-72
writes:

[71] Other caveats apply to the allowance of 25
[cents] per page for photocopying in a party/party bill:

1. the amount allowed may well be less than 25 [cents] per
page if volume or the type of document warrants out-sourcing to a bulk
photocopier operation. As Mr. Buller has noted in this case, the charges of
bulk copiers can be as low as 2 [cents] per page. Clearly, in such cases, an
award of 25 [cents] would provide the claiming party a profit not intended by
the Rules;

2. my fellow registrars are not bound to accept 25 [cents]
as a reasonable per page charge. The Notice to the Profession emphasises that
the figure is a guideline only;

3. the guideline of 25 [cents] per page is not a license for
law firms to increase the amount charged to the client if the actual cost is
less. A party is not entitled to a profit on the photocopying charges.

[72] It follows that if 25
[cents] per page is reasonable on a party/party assessment, it is more than
reasonable in the assessment of special costs. Traditionally, the registrars
have allowed 30 [cents] per page in special costs assessments: Giulani v.
Saville, supra.

[30]        
The respondent’s evidence was directed to having me conclude that
because of inflation, as shown by the consumer price index evidence placed
before me, and based on evidence of inflation set out in paragraph 6 of the Ing
affidavit, in conjunction with what others charge, the amounts allowed in any
of the cases before me, when adjusted for inflation, would result in charges
higher than 35¢ per page.

[31]        
The problem with that approach is that while inflation in general has
resulted in overall price increases, technological advances have substantially
reduced costs in some areas; photocopying is one such area. I take judicial
notice of the fact that in lawyers’ photocopying charges there is a profit
component built into the per page charges made by lawyers to their own clients.

[32]        
No doubt because of the significant difficulty in providing evidence of
the actual cost per page, I am unaware of any recent party-party costs
assessment cases which have successfully varied the current registrar’s rate of
25¢ per page.

[33]        
I accept what Esson J.A. wrote, namely that photocopying charges under
Rule 7(1)(16) are more closely akin to what would be allowed in a
solicitor-client costs review. I also note, though, that at the time Giuliani
was decided, just over 14 years ago, the registrar’s rate was only 60% of
what it is now.

[34]        
After reviewing the facts before me and the law presented to me, I
consider that the rate of 30¢ per page is appropriate. I order the production
of the documents by the respondent on the terms sought. Paragraphs 1 and 2 of
the application are granted.

[35]        
As was apparent from the extract from the letter from counsel from the
applicants to counsel for the respondent dated March 1, 2001, this was something
in the nature of a test case. Accordingly, even though the respondent was
unsuccessful, this is an application in which each party should bear his or
their own costs.

“Master R.W. McDiarmid”

MASTER McDIARMID