IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130207

Docket: 44156

Registry:
Kamloops

Between:

Heidi
Louise Carson

Plaintiff

And

Susan
Ann Henyecz

Defendant

Before:
Master R.W. McDiarmid

Reasons for Judgment

[1]            
This is an assessment of the bill of costs of the plaintiff. At the
commencement of the assessment, counsel advised that by agreement, coloured
printing of $781.00 which was claimed at $1.50 per copy for a total of
$1,171.50 would be allowed at $1.00 per copy for a total of $781.00, a
reduction of $390.50 and associated taxes.

[2]            
Counsel also agreed that a claim for two sessions of LexisNexis research
in the total amount of $164.00 would be reduced from the account.

[3]            
The disbursements were proven by copies of the receipts which were
attached to the affidavit of David B. McDougall, one of the plaintiff’s counsel
in his affidavit made and filed January 15, 2013 (“Mr. McDougall’s affidavit”).
In the result, non-taxable disbursements are allowed at $488.00. Taxable
disbursements, including the tax imposed under the Social Services Tax Act,
R.S.B.C. 1996, c. 431 (the “Act”) for disbursements incurred prior to
July 1, 2010, are allowed at $156.36 and the balance of taxable disbursements
are allowed at $21,796.48, together with HST of $2,615.58 for a total of $22,412.06.

[4]            
The parties agreed that the units allowable under tariff item 1 would be
2 units, under tariff item 10(a) would be 3 units, under tariff item 45 would
2.5 units and at tariff item 46 would be 1.5 units. There was no issue taken
with the number of units claimed by the plaintiff under items 19(b), 20(a) and
(b), 29, 30, 34, 35, 40 and 41.

[5]            
I was advised at the commencement of the hearing of the parties’
positions on the number of units to be awarded for the items in dispute as
follows:

BACKGROUND

[6]            
On April 12, 2010, the plaintiff issued a writ of summons and a
statement of claim which alleges in paragraphs 1 to 3 the following:

1.         The Plaintiff is currently unemployed and resides
in the City of Kamloops, in the Province of British Columbia, and has an
address for delivery at 700 – 275 Lansdowne Street, in the City of Kamloops, in
the Province of British Columbia.

2.         The Defendant, Susan Ann Henyecz, is the
Plaintiff’s mother, and resides with the Plaintiff at 575 Singh Street, in the
City of Kamloops, in the Province of British Columbia.

3.         On or about the 11^th
day of May, 2008, at 575 Singh Street in the City of Kamloops, in the Province
of British Columbia (the “Property”), the Defendant was backing up her motor
vehicle on the driveway at the Property, when her vehicle struck the Plaintiff,
who had entered onto the driveway from a sidewalk (the “collision”).

[7]            
The balance of the statement of claim sets out the particulars of
negligence and particulars of the injuries alleged by the plaintiff and claims
general and special damages and costs.

[8]            
It is what I would consider a “boilerplate” pleading.

[9]            
The statement of defence alleged that the collision was solely the
result of the plaintiff’s negligence or alternatively that the plaintiff was
contributorily negligent.

[10]        
By a consent order entered November 15, 2011, the parties agreed to
sever the issues of liability and quantum.

[11]        
The liability trial was heard by Madam Justice Hyslop on February 1-3,
2012. In her judgment dated March 1, 2012, cited at Carson v. Henyecz,
2012 BCSC 314, Hyslop J. found the defendant 100% responsible for the accident
and awarded the plaintiff costs at Appendix B, Scale B. Subsequent to the
reasons for judgment being issued, an order was entered confirming these terms.

[12]        
In her reasons, Hyslop J. made the following findings, which are
relevant to the issues in this assessment:

[3]Mrs. Henyecz did not give evidence at this trial as she
was unable to do so as she suffers from Dementia. On August 10, 2010, her
doctor, Dr. Kruger, wrote the following:

RE: SUSAN HENYECZ

…

To Whom It May Concern:

Patient has been diagnosed with fronto temporal dementia in
October 2008. She has significant problems with her memory and functioning. She
will be of very little help in getting information regarding the accident as
she has problems with memory.

…

[20] Since 2004, Ms. Carson has
received a modest People with Disabilities allowance. Ms. Carson has health
problems: chronic depression; post-traumatic stress disorder; and a permanent
knee injury. Ms. Carson stated that for the months leading up to the accident
she was feeling good. She stated that she had had difficulties with prescribed
medication. Except for medication that she takes for a thyroid condition, and
since the beginning of March of 2008, she is free from taking prescribed
medication.

[13]        
The quantum assessment trial was heard by Mr. Justice Powers on October
15-19, 2012. His decision is dated December 4, 2012 and cited at Carson v.
Henyecz, 2012 BCSC 1815. Para. 1 of that decision is as follows:

[1] Ms. Carson was injured in a
motor vehicle accident when her mother backed into her while she was standing
in the driveway of her mother’s home. Her mother was found to be 100 percent
liable when the issue of liability was tried earlier this year. This decision
deals with the assessment of damages. This assessment is complicated by Ms.
Carson’s long history of ongoing psychological problems.

[14]        
In reaching his decision, Powers J. analyzes the plaintiff’s pre-accident
condition at paras. 14-41 and her post-accident psychological condition in
paras. 42-81.

[15]        
His decision is summarized at paras. 132-134 as follows:

[132] Therefore, I have awarded
the following:

[133] I am not aware of any deductions that need to be taken
from this amount, or any special expenses the parties may have agreed upon.

[134] Barring any circumstances
that I am unaware of at this time, the plaintiff will have her costs at Scale
B.

[16]        
No order has as yet been entered, but counsel agreed that the assessment
should proceed on the basis of the decision and order of Hyslop J. and the
decision of Powers J.

[17]        
In Mr. McDougall’s affidavit he deposes at paragraph 3 as follows:

The case was complicated by the
fact that the Defendant, subsequent to the accident, suffered from dementia.
More significantly, the Plaintiff has a very complicated and lengthy history of
psychiatric conditions, back complaints and knee problems. It was the
Defendant’s position that the Plaintiff was entirely at fault for the accident.

[18]        
He deposes at paragraphs 5 to 8 as follows:

5.         My practice, as well as the practice of other
lawyers and staff in our office, is to record time spent on files, including
contingency fee files. I have reviewed the time records kept in the office.
Over the course of the case I recorded 218.6 hours and the total amount of time
spent by lawyers, articling students and staff on the file amounts to 504.3 hours.

Tariff Items 10 and 11

6.         Over the course of the lawsuit, our office
prepared an initial List of Documents on November 26, 2010 followed by five
supplemental Lists of Documents. A copy of the most recent Amended List of
Documents is attached hereto and marked as Exhibit “A”. Many of the
individually listed documents contain lengthy records. Some of the listed
documents are summaries which involved extracting information from a variety of
sources and the preparation of schedules to assist the court in better
understanding the evidence such as treatment dates, characterization of
medications and changes in types and quantities of medications.

7.         Over the course of preparing for both the
liability trial as well as the assessment of damages trial, it was necessary to
retain and consult with a number of experts. The defence also retained experts
and presented reports from a number of witnesses on their behalf. Attached
hereto and marked as Exhibit “B” is a summary of the significant
procedural steps as well as a summary of the Plaintiff’s experts and the
Defendant’s witnesses. The summary identifies the dates that I personally met
with the experts retained for the Plaintiff and the time spent in preparing
those witnesses.

8.         Attached hereto and
marked as Exhibit “C” is a summary of significant dates as well as the
approximate time I spent attending those events.

[19]        
Exhibit B sets out, inter alia, a summary of the plaintiff’s expert
witnesses. The plaintiff called three witnesses at the trials. The plaintiff
and Gerald Sdoutz, an accident reconstruction expert, testified at the
liability trial. Dr. Kruger, the plaintiff’s general practitioner, Dr. Wiehahn,
a psychiatrist and the plaintiff testified at the quantum assessment. In
addition, a video deposition of Alison McLean, an occupational therapist, was
taken and put into evidence at the quantum assessment.

[20]        
Exhibit B documents 14 hours of time expended by Mr. McDougall preparing
the four expert witnesses. This includes the time for the video deposition. As
noted above, there was no issue as to tariff item 20(a) which was the
examination of Alison McLean for half a day, agreed to at 4 units.

[21]        
The plaintiff was a witness in both trials. The plaintiff did not call
any non-expert witnesses apart from giving her own testimony at either trial.

THE LAW

[22]        
Neither party provided me with any authorities relevant to their
positions. The British Columbia Annual Practice (2013), Dillon and
Turriff, pp. 601-607 gives summaries of some decisions relating to the tariff
items, and I have reviewed those.

[23]        
Fairchild v. Vancouver Coastal Health Authority, 2011 BCSC 616 (reversed
in part, but only with respect to disbursements – see 2012 BCSC 1207) contains
a discussion of the principles to be applied on an assessment of costs, and
contains discussion with respect to tariff items 2 (paras. 30-33), 6 (paras.
34-36) 17 and 18 (paras. 44-52) and 31 and 32 (paras. 57-60).

[24]        
The most significant dispute between counsel was with respect to item
18. The plaintiff submitted that the process associated with interviewing
witnesses included interviewing those witnesses with respect to their
attendance at trial. The plaintiff submitted that this included interviewing
the plaintiff, who was of course a witness on her own behalf in both trials. It
was also submitted by plaintiff’s counsel that item 18 would also permit units
to be awarded for interviewing the experts with respect to their attendance at
trial.

[25]        
Defendant’s counsel argued that “witnesses” under item 18 did not
include expert witnesses, nor did it include the plaintiff. As part of her
submission, defendant’s counsel submitted that there would be no additional “contacting”
beyond what would be encompassed in items 1, 2, and with respect to experts,
item 17. It is common ground there were no subpoenas issued to anybody.
Defendant’s counsel submitted that “interviewing” would not be performed in
addition to what was covered by items 1, 2, and presumably (although her
argument was not put in this way) 34, the 5 units permitted for preparation for
trial for each day of trial.

[26]        
In Fairchild, at para. 51, the registrar writes:

… in my view, this Item
[referring to item 18] 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.

[27]        
By “catchall” the registrar is referring to the wording in items 1 and 2
which reads: “for which provision is not made elsewhere in this tariff.” I
interpret the registrar’s view that item 18 was inapplicable in the context of
the case before her.

[28]        
In this case, the plaintiff led evidence through Mr. McDougall’s
affidavit and made submissions as to why the plaintiff is entitled to units
under item 18.

[29]        
At case planning conferences, it is typical to canvass whether or not
there will be testimony from the parties, and how long that testimony will
last. Put another way, are the parties going to be “witnesses”? If the party is
a corporation, there is often discussion about which individuals will provide
evidence on behalf of that corporate party.

[30]        
Forms 20 and 21, the case plan proposal and case plan order, have
separate sections for expert witnesses and contain provisions for providing a
witness list. Form 41, the trial brief, has a heading entitled “Witnesses to be
Called On,” which requires the parties to provide the names and addresses of
the witnesses the filing party intends to call at trial, together with an
estimate for the time each witness will need for giving direct evidence. There
is no differentiation on a trial brief between witnesses who are parties,
witnesses who are representatives of corporate parties, expert witnesses, or
other witnesses.

[31]        
From this I conclude that a party can claim under item 18 with respect
to all witnesses for all parties, including in this case the plaintiff and
including expert witnesses.

[32]        
However, care must be taken to ensure that there is no overlap between
allocating units under item 18 and allocating units under items 1, 2, 17 and
34.

[33]        
Item 17 encompasses all dealings with experts, up to and including
finalization of the expert report. That report is then served. If an opposing
party requires attendance of the expert for cross-examination, or if the party
relying on the expert opinion chooses to call the expert instead of relying on
the report, some additional time is expended contacting the expert to advise of
the necessity for his or her attendance, and interviewing the expert with
respect to that attendance. Care must be taken to ensure that units are not
allocated which would be subsumed under preparation for trial.

[34]        
In the case at bar, interviewing the plaintiff with a view to having her
attend as a witness in both trials is different from the taking of instructions
for which units are allocated under items 1 and 2, and is different from
preparation for trial. This is so because in this case the plaintiff had a
“complicated and lengthy history of psychiatric conditions”. Mr. Justice Powers
found that the plaintiff had a long history of ongoing psychological problems.
Madam Justice Hyslop found that the plaintiff had chronic depression and
post-traumatic stress disorder. In considering this evidence, I have concluded
that in this case the process for interviewing the plaintiff as a witness does
entitle her to some units under item 18.

DECISION

[35]        
Considering the evidence before me and the reasons of judgment issued
here, and in recognition of the fact that there are two trials, I conclude as
follows:

SUMMARY

[36]        
The number of units on which there is an agreement as to entitlement,
set out in para. 4 above, totals 147 units. The number of units determined by
me in para. 35 totals 41 units. Together, the plaintiff is entitled to 188
units.

[37]        
I have endorsed a certificate reflecting my assessment.

[38]        
If there has been an offer to settle costs which affects this assessment,
the parties have leave to make further submissions and for leave to present an
amended certificate.

“Master R.W. McDiarmid”

MASTER McDIARMID