IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120628

Docket: M117342

Registry: New Westminster

Between:

Jacquelyn Dawn Kezel

Plaintiff

And:

Timothy D Greenslade and John Francis
Turnbull

Defendants

Before: District Registrar Cameron

Oral Reasons for Decision

[1]            
This assessment of
costs follows the settlement of personal injury claims brought by the
plaintiff, Jacquelyn Kezel, arising from two motor vehicle accidents that occurred
on July 5th and July 24th, 2007. Both claims settled when the plaintiff accepted
a formal offer to settle dated March 31st, 2011 in the amount of $46,000 plus
taxable costs and disbursements. That acceptance occurred on April 7th, 2011.

[2]            
The parties have
settled the claims for costs in both actions, save for the costs of this
assessment. They have also settled the claims for many of the disbursements.
The disbursements that remain in issue are as follows:

(a)      Medical/legal
report of Dr. Cameron

(b)      Medical/legal
report of Dr. Schmidt

(c)      Functional
Capacity Evaluation of Dominic Shiu

(d)      Cancellation
Fee from Viewpoint Medical

(e)      Outside
counsel legal fees

(f)       Mediation
administration fee

(g)      Photocopies

(h)      Legal
Alternative Courier charges

(i)       Office
supplies

[3]            
With respect to
the medical reports of Dr. Cameron, Dr. Schmidt, and the evaluation
report of Mr. Shiu, the defendants do not take any issue with the amounts
claimed. Rather, they assert that the plaintiff does not meet the requirement
to recover the disbursements pursuant to Rule 14-1(5) of the Supreme Court
Rules that reads:

Disbursements

(5)        When
assessing costs under subrule (2) or (3) of this rule, a registrar must

(a)        determine
which disbursements have been necessarily or properly incurred in the conduct
of the proceeding ….

Dr. Cameron

[4]            
In his supporting
affidavit filed on behalf of the plaintiff, Mr. Spraggs, says: 

This action
arises out of personal injuries sustained by the plaintiff as a result of a
motor vehicle accident which occurred on July 5th, 2007 (the first accident).

The plaintiff
attended my office for the first time on July 20th, 2007 with respect to the
first accident. At that meeting, she reported that she had been a passenger in
a car that was making a left turn from Kingsway into the Tim Horton’s parking
lot near the Mary Hill Bypass in Maple Ridge. A car travelling in the opposite
direction stopped for them to make the turn but another car travelling behind
the car that stopped went around the stopped car at a high rate of speed and
t-boned the plaintiff’s vehicle on the passenger side.

During the
meeting on July 20th, 2007, the plaintiff reported that as a result of the
impact in the first accident she had hit her head. She indicated that she had
fainted at the scene and did not have any memory of approximately 20 minutes
surrounding the first accident. The plaintiff further reported that in terms of
injury, she had sustained a black eye which completely impaired the vision in
her left eye for at least one week and was still fuzzy at the time of the July
20th, 2007 meeting. She also reported suffering a concussion in the first
accident symptoms of which including headaches, dizziness and nausea had been
ongoing since the date of the first accident on July 5th, 2007. She also reported
pain in her neck and back.

On July 24th,
2007, the plaintiff was involved in another motor vehicle accident (the second
accident).

The plaintiff
attended my office with regard to the second accident on July 25th, 2007. At
this meeting the plaintiff reported that she had been the driver of a vehicle
travelling in the left lane on Gaglardi Way in Burnaby. She was stopped in a
line of traffic when she was rear-ended in a three-car collision. She felt only
one impact and was not pushed into the vehicles in front of her.

The
plaintiff reported that although an ambulance did not attend the scene of the
second accident, she went to the Emergency Room at Ridge Meadows Hospital that evening. At the time of the meeting on July 25th, 2007 the plaintiff reported
that she was experiencing an aggravation of her neck and back pain from the
first accident as well as further nausea, vomiting, and double vision.

[5]            
Against this
backdrop of his understanding of the plaintiff’s apparent injuries, Mr. Spraggs
went on to say:

Given
the severity of the plaintiff’s symptoms from the first accident and the
proximity and time of the second accident and the consequent injury symptoms as
reported by the plaintiff I was concerned about the possibility of a brain
injury. Accordingly I took steps to arrange for independent medical examination
appointments with Dr. Donald Cameron, a neurologist, and Dr. James P.
Schmidt, a neuropsychologist.

[6]            
Mr. Spraggs
also noted that on August 27th, 2007 he received a CL-19 medical report from
ICBC. That report was prepared by Dr. Lind and is dated July 23rd, 2007.
Dr. Lind confirmed that the plaintiff had suffered a concussion in the
first accident and that she had fainted getting out of the car. He also noted
that she had suffered from headaches, dizziness and nausea and that she had
blurred vision and bruising to her face and left eye. He concluded the
plaintiff would be unable to work full time for some period of time.

[7]            
Mr. Framingham
for the defendants noted that no referral for any specialist was sought or was
thought to be required by Dr. Lind, and submitted that it was not
necessary or proper to incur the disbursements for the two specialists being
the neurologist, Dr. Cameron, and the neuropsychologist, Dr. Schmidt.

[8]            
Ms. Gardner
for the plaintiff pointed out that there were objective signs and symptoms that
needed to be explored with the benefit of medical experts to determine whether
the plaintiff had suffered a post traumatic brain injury.

[9]            
I am satisfied
that it was prudent for plaintiff’s counsel to obtain the medical opinion of Dr. Cameron
in the circumstances that prevailed when that report was commissioned (see Van
Daele v. Van Daele, 56 B.C.L.R. 178). Whether a disbursement will be
allowed must be judged by the situation at the time the expense was occurred.

[10]        
The report from Dr. Cameron
would be important to have to make a proper assessment of the case and the
treatment needed for the plaintiff and to ensure that appropriate advice would
be given to her on the resolution of her claim.

[11]        
Dr. Cameron
opined that the plaintiff probably suffered symptoms consistent with a post
traumatic brain injury for several weeks after the first motor vehicle accident.
This disbursement is allowed.

Dr. Schmidt

[12]        
Dr. Schmidt
is a specialist in neuropsychology and he evaluated the plaintiff on March 31st
and April 8th, 2008. Mr. Spraggs was concerned to better understand the
plaintiff’s ongoing complaints of soft tissue injuries, continuing anxiety, and
mild depression and for that reason he continued with the evaluation with Dr. Schmidt.

[13]        
Mr. Framingham
says that with the reports from Dr. Lind and Dr. Cameron in hand, it
was not reasonable or necessary to have Dr. Schmidt provide his opinion.

[14]        
It is my view that
given the continuing complaints of the plaintiff and the diagnosis of Dr. Cameron
that it was reasonable for counsel to obtain the opinion of Dr. Schmidt.
Dr. Schmidt reported that the plaintiff suffered a mild traumatic brain
injury or concussion and indicated that the emotional trauma from the first and
second accidents resulted in a disruption of her sleep and wake pattern,
continuing cognitive problems, emotional disruption, and possible post
traumatic stress disorder with generalized levels of anxiety, irritability, and
depression.

[15]        
In this regard, I
refer to the decision of Master Horn sitting as Registrar in McKenzie v.
Darke, 2003 BCSC 138 at para. 21. His Honour said:

[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.

[16]        
This is not a case
where counsel has obtained opinions from multiple sources that essentially
"duplicate one another". The perspective brought by Dr. Cameron
and Dr. Schmidt read together provide a comprehensive guide to the
plaintiff’s injuries and prognosis and allowed for settlement discussions to
ensue that ultimately were fruitful. I will allow this disbursement.

Functional Capacity Evaluation

[17]        
The rationale for
obtaining this opinion is found in Mr. Spraggs’ affidavit as follows:

On June 4th,
2010 I sent a letter to the plaintiff confirming her conversation with a staff
member at our office that day including that her physical injuries from both accidents
remained ongoing and while she had applied to enter policing that she had
barely passed the physical test and was asked to reapply in one year. The
plaintiff also indicated that she was in the process of moving out of British
Columbia.

Given
the information regarding the impact of the plaintiff’s injuries on her career
and with regard to the costs associated with having my client return to the
Lower Mainland to participate in further medical/legal assessments, I arranged
for a functional capacity evaluation with Mr. Dominic Shiu to be conducted
prior to the plaintiff’s departure from British Columbia.

[18]        
A summary of the
report from Mr. Shiu is provided by Mr. Spraggs in his affidavit as
follows:

39.       On
September 20th, 2010 I received a functional capacity evaluation report dated
September 8th, 2010 from Mr. Shiu when he confirmed that Ms. Kezel
was restricted in her capacity for certain activities including vertical and
horizontal reaching, below waist work requiring bending and stooping, tolerance
for sitting while maintaining a work intensive position and in her endurance.
Mr. Shiu also explained that due to ongoing physical injuries the
plaintiff was unable to pass the physical test required for entering the police
force and was asked to reapply next year.

[19]        
Mr. Framingham
submitted that this report would not likely have been helpful to the Court if
the matter had proceeded to trial and that it was borne out of excessive
caution or zeal.

[20]        
I am satisfied
that the report may have been of assistance at trial and given that the
plaintiff had left her employment in British Columbia consequent upon moving to
Alberta, it was important for her to know in her search for employment what her
limitations may be. There was some evidence that one of her chosen occupations,
police work, may not have been viable and this was worthy of exploration. I
will allow this disbursement.

Cancellation fee from Viewpoint Medical

[21]        
An appointment was
set to have the plaintiff examined by a physiatrist in Alberta on April 8th,
2011. As had happened the offer to settle was received on April 1st, 2011 and
it was clear that if accepted costs and disbursements would be to the plaintiff
to the date of delivery of the offer. The offer was accepted on April 7th, 2011.
The appointment was cancelled that day but this triggered a late cancellation
fee. If the appointment had been cancelled more than three days in advance, no
fee would have been incurred for that cancellation.

[22]        
Ms. Gardner
says it was reasonable to allow the plaintiff the time she took to accept the
offer on April 7th, 2011 and she should be reimbursed for the cancellation cost.
I do not disagree with the proposition that six days was not an unduly long
period of time to accept the offer. However, Mr. Framingham puts his
opposition on a plain reading of the accepted offer. No costs after the date of
delivery would be paid to the plaintiff. I asked Ms. Gardner if she had
thought or anyone in her office had thought to ask for accommodation from
defendants’ counsel to cover the possible late cancellation and she did not
believe that had been done. Moreover, the appointment could have been cancelled
upon receipt of the offer on April 1st, 2011 and then reset if settlement did
not result. There was ample time before the September 2011 trial date for that
to happen. Accordingly, I find this cancellation fee was not necessarily
incurred and the defendants are not responsible for it.

Outside legal fees

[23]        
After my order
adjourning this assessment was made on December 2nd, 2011 to allow plaintiff’s
counsel to prepare and provide an affidavit of justification in keeping with
the Court of Appeal decision in Holzapfel v. Matheusik (1987), 14
B.C.L.R. (2d) 135 plaintiff’s counsel sought advice from outside counsel with a
recognized expertise in matters of costs and remuneration. I was advised that
this was done to ascertain whether or not to appeal my decision mandating
additional evidence to be provided as to the challenged disbursements.

[24]        
While this advice
may well have been helpful to the plaintiff’s counsel in deciding how best to
proceed, in my view the expense should not be visited on the defendants. Plaintiff’s
counsel was made aware of the governing case law in advance of the assessment
on December 2nd, 2011 in a letter by Mr. Framingham and chose not to
provide the requested supporting particulars. The letter sets out the
disbursements that are put in issue and then says:

With
the respect to the disbursements at issue generally my client requires and
hereby demands strict proof. You may wish to review Holzapfel v. Matheusik
in which the Court held that when strict proof is demanded there is no
alternative but to provide it.

[25]        
I am not persuaded
that the assistance of outside counsel was necessary to address this issue at
least before the assessment had concluded and a Certificate were to be issued. In
further support for my conclusion, I refer to the Court of Appeal decision in Baiden
v. Vancouver (City) Police Department, 9 B.C.L.R. (5th) 257 that stipulates
that only in limited and exceptional circumstances will an expense for
outsourced legal work be recoverable as a disbursement. In this case, I do not
see anything exceptional or unusual about the matters that advice was sought
upon and I disallow this disbursement.

Mediation administration fee

[26]        
A claim is made
for $100.00 for a third party to make administrative arrangements to schedule
and find a location for a mediation that as matters transpired did not take
place. It was not clear to me on the evidence why this provider was required. I
asked counsel if this was not something counsel could not have arranged on
their own or through their offices and I was not advised that that could not be
done. I do not see this as a necessary disbursement and I disallow it.

Photocopies

[27]        
I will take a
"rough and ready" approach to this disbursement following Sovani
v. Jin, 2006 BCSC 855. Mr. Framingham suggested an allowance in the
range of $400.00 to $600.00. I have reviewed the record of the proceedings and
considered the number of outside experts and consultations that were involved
and I allow $1,000 for photocopying.

Legal Alternative Couriers

[28]        
This concerns
objected courier deliveries totalling $3.95. These were objected to as Mr. Framingham
felt they were incurred due to the "false start" requiring a second
day of hearing for this assessment. It is my view that the documents were
needed and while they were delivered later than asked for, the cost of
delivering them are reasonable and I will allow the charge of $3.95.

Office Supplies

[29]        
I consider these
to be matters of overhead and there are many decisions on other assessments
that reach the same conclusion and I disallow them.

COSTS OF THE ASSESSMENT

[30]        
The plaintiff is
entitled to her costs of the assessment which I allow in the amount of $369.60
inclusive of taxes and disbursements.

[31]        
If the parties
require a Certificate, they may submit one through the Registry with the
endorsement of counsel confirming the amount.

“District
Registrar Cameron”

_______________________

District Registrar Cameron