IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130424

Docket: M092423

Registry:
Vancouver

Between:

Christine Turner

Plaintiff

And

John
Walter Whittaker, Dorothy Whittaker and William John Whittaker

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
Master MacNaughton

(Sitting
as Registrar)

Reasons for Decision

Introduction

[1]            
This combined bill of costs arises from actions filed by Christine
Turner who was involved in two motor vehicle accidents in 2008.

[2]            
The first accident occurred on August 30, 2008 and was serious. Ms.
Turner was a passenger in a pickup truck. The vehicle owned by John and Dorothy
Whittaker, and driven by their son William John Whittaker, crossed the centre
line and collided head-on, at high speed, with the pickup truck. The second
accident occurred two months later and was less serious. Both accidents were
litigated together and this bill of costs relates to both although, it has only
been delivered in this action.

[3]            
A 12-day jury trial was scheduled to proceed on June 25, 2012, but the
matter settled a week before trial. It is not disputed that virtually all of
the preparation for trial had been completed before the settlement. Although denied
in the statements of defence, liability was later admitted in both actions. The
settlement included a payment of $250,000. There continues to be an ongoing
dispute about Ms. Turner’s entitlement to No fault/Part 7 benefits.

[4]            
Counsel have agreed on the number of units claimed and resolved a number
of the disbursement claims. The disbursement issues remaining for determination
are for: scanning and photocopying documents; couriers, including Legal
Alternative; photographs; investigation; and medical reports.

The Applicable Legal Principles

[5]            
Counsel were also able to agree on the following legal principles which
are applicable on an assessment of disbursements:

1.              
Rule 14-1(5) requires an assessing officer to determine which
disbursements were necessarily or properly incurred in the conduct of a proceeding
and to allow a reasonable amount for those disbursements.

2.              
The consideration of whether a disbursement was necessarily or properly
incurred is case-and circumstance-specific and must take into account
proportionality under Rule 1-3. (Fairchild v. British Columbia (Vancouver
Coastal Health Authority), 2012 BCSC 1207).

3.              
The time for assessing whether a disbursement was necessarily or
properly incurred is when the disbursement was incurred not with the benefit of
hindsight. (Van Dael v. Van Dael, 56 B.C.L.R. 176 (SC) rev’d 56 B.C.L.R.
178 at para. 4 (CA))

4.              
A necessary disbursement is one which is essential to conduct
litigation; a proper one is one which is not necessary but is reasonably
incurred for the purposes of the proceeding. (McKenzie v. Darke, 2003
BCSC 138, para. 17-18)

5.              
The role of an assessing officer is not to second guess a competent
counsel doing a competent job solely because other counsel might have handled
the matter differently. (McKenzie v. Darke, 2003 BCSC 138, para. 21)

[6]            
Those are the factors that I will apply to the disbursements which
remain in dispute.

Scanning Charges

[7]            
Ms. Turner claims $2,362.04 for scanning based on a charge of $0.25
cents a page. At that rate per page, there must be a mathematical error in this
claim but I expect that it will be resolved between the parties.

[8]            
In his affidavit and submissions, Mr. Gibson, counsel for Ms. Turner,
explains that his firm uses an electronic scanning system into which all medical
information and records are scanned into digital format. They are then
available, in a searchable form, for subsequent steps in the litigation. Mr.
Gibson also explains the necessity and justification for scanning these
documents and that there is a cost for scanning each document into the system.

[9]            
Scanning and preparing electronic copies of documents for use by experts,
for document sharing, and for use in preparation for, and at discovery and
trial, is a reality of today’s litigation practice and the courts are encouraging
this direction. Master Muir expressed this in Naidu v. Cahill, an
unreported decision, released on June 26, 2012. There, she allowed a disbursement
for scanning by an outside document assembly service.

[10]        
In Stapleton v. Charambidis, 2010 BCSC 1642, Master Baker
endorsed the use of scanned documents which he felt encouraged efficiency and,
eventually, would reduce costs. I agree with his views. In the absence of
complete evidence, but to encourage the use of electronic documents, he allowed
$500 for scanning. He does not set out the basis on which he arrived at the
allowed amount.

[11]        
In this case, the claim is for a per page amount for in-house document
scanning. In his submissions, Mr. Gibson indicated that Primafact, his firm’s scanning
system, was purchased for approximately $50,000. It requires an ongoing
licensing fee for access to the software and for updates, a maintenance
contract, and dedicated staff whose sole function is to scan and name documents
in accordance with a naming protocol.

[12]        
In his submissions on behalf of ICBC, Mr. Harris argues that it is not appropriate
to assign a per-page cost for scanning documents. He submits that, unlike
photocopying, which involves equipment, paper and toner, once a document has
been scanned, it is virtual and can be transferred on disc or memory stick with
minimal additional cost. He suggests that the cost of scanning should be
considered an overhead cost.

[13]        
Conceptually, because scanned electronic documents are a substitute for
photocopies, and because the courts are encouraging use of this new technology,
I conclude that it is not just an overhead cost and that a disbursement amount
should be allowed. Rather than set a block amount for each case in which
scanning is used, I conclude that it is more appropriate to allow an amount per
page for scanned documents. That is because scanning is intended to reduce, and
eventually replace, photocopying and both processes create an image of each
page of an original document.

[14]        
The Administrative Direction with respect to photocopying allows $0.25
cents per page. I was not persuaded that it is reasonable to allow the same
amount for scanning. I accept that scanning involves an initial capital outlay
for equipment and ongoing support costs which, based on Mr. Gibson’s
submissions, may be higher than those for photocopying. However, most of those
costs would be part of a firm’s overhead. Scanning does not involve paper and
toner; it creates electronic documents which are viewable and transferrable
electronically. That suggests that some lesser amount is appropriate.

[15]        
In all the circumstances, and because the appropriate rate is not
capable of mathematical calculation (at least not on the evidence before me in
this case), I allow scanning charges at the rate of $0.15 cents a page.

[16]        
In determining the reasonableness of the amount claimed here for
scanning, I also consider that scanning serves many purposes. Here, for
example, counsel is greatly assisted in handling the file as the documents are
key-word searchable and, presumably, can be sorted on an issue by issue basis. They
are portable and accessible by computer. They are easily located in preparation
for examinations for discovery and trial and can be put before a witness
quickly. They are also available for digital presentation of evidence at trial.

[17]        
In his affidavit, Mr. Gibson says that those experts who were
comfortable working with electronic copies of Ms. Turner’s medical records were
provided with them on disc. He was able to demonstrate, on the record, that this
also resulted in some courier and photocopying cost savings.

[18]        
It is inevitable that it will take time for the legal and medical
communities, and the courts, to become fully comfortable with electronic
documents and that, in the interim, there will be an ongoing need for both
scanned copies and photocopies. As a result, it is not possible to directly
correlate a reduction in photocopies and the use of scanned. The reasonable
disbursement amount will therefore be somewhat rough and ready.

[19]        
Taking into account the multiple purposes for scanning documents, and
that the concurrent use of two different technologies has some cost
duplication, I reduce the total number of pages scanned by 20%. It is not
reasonable to expect ICBC to compensate for counsel’s convenience or for
duplication.

[20]        
The exact number of pages scanned is not apparent on the record but I
presume that, having read these reasons, counsel will be able to calculate the appropriate
amount based on the formula I have set out.

Photocopying Charges

[21]        
The claim here is for $4,561.25 excluding applicable taxes. That amount represents
18245 copies based on a per-page rate of $0.25. Mr. Gibson has already reduced
the amount claimed by 10% to take into account those photocopies properly
attributed to the Part 7 action.

[22]        
As explained in Sovani v. Jin, 2006 BCSC 855 and Gill v.
Widjaja, 2011 BCSC 1822, the assessment of the reasonableness of
photocopying charges is not an arithmetical exercise but rather requires consideration
of what is reasonable in the circumstances of the action. In other cases, this
has been described as a “rough and ready” calculation.

[23]        
The cases also make clear that not all photocopies made on a file are
made for the purposes of the litigation and are necessary. This was reiterated
by Registrar Sainty in Raju v. Bui and Insurance Corporation of British
Columbia, 2008 BCSC 1230.

[24]        
Presumably, if a registrar allows a claim for scanned documents, there
should be a reduction in the number of photocopies required in a file. But, as
I set out above, a direct correlation is not possible. In this case, there does
not seem to have been a significant reduction in the number of photocopies.

[25]        
I take the following evidence into account when determining the
reasonable number of photocopies in this case. Mr. Gibson’s firm carefully tracks
copies made by staff by requiring a file number to be entered into the
photocopier. The records attached as an exhibit to Mr. Gibson’s affidavit show
the number of copies claimed. Mr. Gibson explained that the records do not
reflect all copies on a file as any copies made by him, for his purposes, are
not tracked in the system.

[26]        
Mr. Gibson’s affidavit indicates that Ms. Turner had a complicated
medical history which resulted in a large number of medical records. In
addition, she operated a nail design and manicuring business as a sole
proprietorship. As a result of the accidents, she was unable to continue in her
chosen career. Proof of her loss of past and future income, and loss of
capacity claim, involved review of a large number of business records. Mr.
Harris acknowledged that the business records were contained in a number of
banker’s boxes. To limit the photocopying involved, Ms. Turner’s business
records were catalogued and only those requested by the expert business
valuator were produced to him. In addition, the documents were not separately
listed on Ms. Turner’s list of documents and Mr. Harris did not request copies
of all of them.

[27]        
Mr. Gibson also explained that Ms. Turner was only sent copies of those
documents he considered essential to her understanding of the processing and
advancement of her claims. To the extent possible, Mr. Gibson said he
communicated by email. This reduced photocopying, postage and courier charges.

[28]        
Because there were two actions, there were two sets of pleadings.

[29]        
In his affidavit, Mr. Gibson sets out the extensive clinical records
which were compiled on behalf of Ms. Turner and the number of medical reports. He
explained that it is his practice to circulate medical reports among the
various experts to keep all fully informed.

[30]        
Taking all of these factors into account, and because this litigation
settled so late in the process, on a rough and ready basis, I allow $4,000 as a
reasonable amount for photocopying charges.

Courier Charges

[31]        
Mr. Gibson explains the courier charges in his affidavit. After a
reduction of two charges relating to the Part 7 action, the remaining amount
claimed is $407.29.

[32]        
There are some courier invoices which were not attached to Mr. Gibson’s
affidavit but I accept his evidence that these amounts were incurred as they
appear on the internal ledger with respect to Ms. Turner’s file.

[33]        
I accept that these disbursements were necessarily incurred in the
conduct of this action. In light of the number of medical experts who were sent
copies of Ms. Turner’s medical records and medical reports as they became
available, and the need to protect the confidentiality of those documents, it
was necessary to use couriers. I conclude that the charges are reasonable.

Legal Alternative

[34]        
Legal Alternative is a courier service that was used by Mr. Gibson to
send regular correspondence to defence counsel’s office and to doctor’s offices.
Mr. Harris objects to these charges on the basis that the $233.25 claimed
is extravagant. He submits that the same amount would have purchased a lot of
postage stamps. He also submits that email and fax could have been used more
economically.

[35]        
I accept that some use of Legal Alternative was appropriate in this case
but Mr. Gibson, who has the burden of justifying the necessity and
appropriateness of these disbursements, has not provided a detailed explanation
of why the regular correspondence sent to defence counsel’s office could not
have been mailed, emailed or faxed. I accept that the use of this service for
correspondence to doctor’s offices is appropriate in light of privacy concerns.
As a result, I allow $175 for this disbursement, slightly more than half of the
amount claimed.

Photographs

[36]        
In this case, colour copying of photographs was done in-house. Mr.
Gibson explains that it is his firm’s policy to charge $1.85 for colour photographs
and that, in this case, there were approximately 56 photographs of the accident
scene and the vehicle damage. He acknowledges that 20 photographs were copied
for the purposes of the summary trial application in the Part 7 action and that
they should not for part of this bill of costs.

[37]        
Mr. Gibson explains that copies of these photographs were provided to
the medical experts so that they could appreciate the force of the collision which
caused Ms. Turner’s injuries.

[38]        
Mr. Harris submits that the extent of vehicle damage does not directly
relate to Ms. Turner’s injuries and that it was extravagant and unnecessary for
these photographs to be sent to the medical experts.

[39]        
A medical expert assesses a plaintiff’s accident injuries and
post-accident condition by considering the subjective evidence provided by the
plaintiff and the objective evidence obtained from various tests, scans and
images. To support this claim as being necessarily or properly incurred, Mr.
Gibson would need to lead evidence from the medical experts establishing, for
example, that the photographs enhanced their ability to provide an opinion
about Ms. Turner’s condition and their task would have been hampered without
them. There was no such evidence before me.

[40]        
I am prepared to accept that providing this service in-house saves
ancillary costs, such as courier charges, and results in efficiency. Therefore,
I accept that the amount charged per copy was reasonable.

[41]        
I agree that some photographs were necessarily and properly reproduced
for the benefit of the jury and the trial judge. I therefore allow the amount
of $131.15 for the photographs reproduced on May 28, 2012. Mr. Gibson advised
that these were for the jury.

Investigation

[42]        
There are two investigative invoices, for $1,848.15 and for $177.10. With
respect to the first invoice, Mr. Gibson acknowledges that some time was spent
by his investigator speaking to Ms. Turner’s husband, and that was not
necessary or proper as Mr. Turner was a cooperative witness who could have been
spoken to by Mr. Gibson himself. It did not require the special skills of an
investigator. He proposes a reduction of $100 for that time spent.

[43]        
Mr. Harris submits that the investigations were an extravagance and
unnecessary because, despite the denial of liability in the pleadings, Mr.
Gibson ought to have known that it was a technical denial made because of an
alleged policy breach and the insured owner’s minimum coverage.

[44]        
Mr. Harris also submits that the special skills of an investigator were
unnecessary in this case and that the investigation would not have been
necessary if Mr. Gibson had waited for the complete police report to become
available as it established that the defendant driver crossed the centre line
in accordance with Ms. Turner’s evidence.

[45]        
I have concluded that some investigation was both necessary and proper. Although
Ms. Turner said that the defendant driver was responsible for the accident, the
severity of the impact, potential policy limit issues, and the likelihood that
liability would be initially denied, meant that an investigation was prudent to
preserve evidence and find corroborative witnesses. In the early stages, Mr.
Gibson could not be sure that the denial of liability was technical and it was
appropriate for him to investigate causation to confirm the evidence of Ms.
Turner and her husband who both had an interest in the outcome. Independent
evidence allows counsel to prepare the case without being in the dark about
potential liability issues for the many months it may take to get the police report.

[46]        
Applying the reasoning in McKenzie, I am not prepared to
second guess Mr. Gibson because other counsel might have waited for the
police report before determining whether further investigation was necessary.

[47]        
I also conclude that it was proper for Mr. Gibson to use a Vancouver
investigator despite the additional travel time and cost to travel to Powell
River. The Vancouver investigator was already involved in the file and it would
not have been efficient, or practical, to bring a local investigator up to
speed. I therefore allow, as reasonable, a disbursement of $1,748.15 for the
first investigation.

[48]        
I disallow the invoice for the second investigation. I am not satisfied
that it was necessary or proper. It appears that the investigator opened a file
on June 1, 2009, but then did nothing until January 14, 2010 when the police
report was reviewed and there was an “attempt to locate witnesses”. Some 12
days later, liability was admitted, and the investigation file was closed. After
having waited more than six months to commence the investigation, it would have
been reasonable for the investigator to contact counsel before doing any
further unnecessary work.

Experts

[49]        
Turning now to the issue of the disbursements for expert’s reports.

[50]        
In Dosanjh v. Martin, 2001 BCSC 1759, Registrar Sainty said that
without good reason, a registrar should not interfere with the amounts charged
by experts. She explained that “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.” (para. 50)

[51]        
To properly advise a plaintiff with respect to the range of possible
outcomes for their case and to consider the reasonableness of settlement
offers, plaintiff’s counsel is required to determine the extent of the
plaintiff’s injuries and to understand the cause of them. Doing so requires obtaining
the opinion and assistance of experienced and trained medical experts.

[52]        
In this case, the medical experts relied on by Mr. Gibson included two
treating professionals and a number of independent specialists. The treating
professionals, whose invoices are in dispute, are: Dr. Aaron Windt, the
plaintiff’s treating family doctor; and Mia Robinson, a kinesiologist, who
treated the plaintiff over an extended period. The independent specialists, whose
invoices are in dispute, are: Dr. William Craig, a physiatrist; Ms. McLean, an
occupational therapist who prepared a cost of future care report and an
addendum; and Dr. Douglas Hamm, a specialist in occupational medicine who
prepared an initial and an updated report on Ms. Turner’s functional
capacity to perform her job requirements.

[53]        
Mr. Gibson’s affidavit sets out in some detail Ms. Turner’s complicated
medical history and the nature of the specialty of the various experts he
retained as her injuries and prognosis evolved. He also explained why he
obtained the reports.

[54]        
In addition to specific submissions with respect to individual experts,
Mr. Harris made a number of general submissions. First, that the number of
experts in this case was not proportional to the issues in dispute in the litigation.

[55]        
While I agree that proportionality is a relevant consideration, it is a
concept that cuts both ways. Mr. Gibson advised that his initial assessment of Ms.
Turner’s damages was about $500,000. The actions eventually settled for
$250,000 plus costs but only on the eve of trial. That is a significant settlement
which was, I am certain, achieved in part because Ms. Turner’s injuries and
losses were so well documented and supported by the medical evidence. I
therefore conclude that the number of medical experts retained was not
disproportional to the significance of this case.

[56]        
Second, Mr. Harris submits that the content of the expert’s reports
overlapped. He points to several examples where he says that the conclusions
reached by one expert mirror those reached by another. In essence, Mr. Harris
submits that there were too many experts saying the same things.

[57]        
On a review of the reports, I conclude that the various experts’ reports
did not result in overlapping or unnecessary opinions. Each gave their expert
opinion, in their specific specialty area, and each was part of the reasonable
investigation and exploration of the scope of Ms. Turner’s injuries. I conclude
that Mr. Gibson was right to be concerned that none of his experts opine beyond
the scope of their expertise. In light of: Ms. Turner’s complex medical
history, which included a prior psychological history; her significant physical
and emotional injuries; and her change of career following the accidents and
resultant economic losses, the retainer of all of the experts was necessary and
proper.

[58]        
Third, Mr. Harris submits that it was extravagant to have reports from both
treating professional and independent specialists. In support of that position,
he relies on Djukic v. Hahn, 2006 BCSC 154, which he argues makes
clear that an adverse inference should not be drawn when treating physicians
are not called by a plaintiff.

[59]        
I do not agree that it is clear that a court will never be asked to draw
an adverse inference when a treating professional is not called. Certainly
there is no such assurance where, as here, the trial was to be by jury.

[60]        
I conclude that it was reasonable and prudent for Mr. Gibson to be
concerned about negative inferences that might be drawn by a jury if it was
suggested that he was only calling “hired medical guns” and that the medical
professionals who knew Ms. Turner best had not been called to testify. A proper
approach was to have a balance of experts who were treating and independent
specialists.

[61]        
I also conclude that, with the exception of Dr. Windt, the amounts
charged by the various experts were reasonable and that there is no reason to
interfere with the disbursements claimed.

[62]        
With respect to Dr. Windt, the BC Medial Association fee guide for a family
doctor’s report is $1,634.04. That amount is only a guide and a higher amount
may be allowed in a particular case. Mr. Gibson acknowledges that the amount
claimed for this item is unusually high. He explains, and Dr. Windt’s letter
confirms, that Dr. Windt only began to treat Ms. Turner some months after
the accident. Dr. Windt took seriously his obligation, under the Rules,
to be independent. In preparation of his report, he reviewed his own medical
file and her prior medical history. Doing so avoided the need for reports from previous
family doctors. I therefore conclude that it is reasonable to allow the fee
guide amount and an additional amount of $1,000 for Dr. Windt’s extra work.

Conclusion

[63]        
In conclusion, I have determined that the following disbursements were
necessary and proper and have set the following amounts as reasonable in all
the circumstances:

a)    For scanning, I
have allowed $0.15 per page and have reduced the number of pages claimed by
20%;

b)    For
photocopying, I have allowed $4,000;

c)     For
courier charges, I have allowed $407.29;

d)    For Legal
Alternative courier, I have allowed $175;

e)    For investigation,
I have allowed $1,748.15; and

f)      For
experts reports I have allowed:

                   
i.       
for Dr. Craig, $2,940 and $1,125;

                 
ii.       
for Alison McLean (OT Consulting), $6,471.25;

                
iii.       
for Dr. Hamm, $4,950;

               
iv.       
for Mia Robinson (Symmetry Rehab), $1,512; and

                
v.       
for Dr. Windt, $2,634.

Cost of the Assessment

[64]        
Ms. Turner is entitled to her costs of the assessment, including
applicable taxes and disbursements. If the parties are unable to agree on those
costs they may seek to appear before me to resolve the quantum.

[65]        
If the parties require a Certificate, they may submit one through the
Registry with the endorsement of counsel confirming the amount.

“Master MacNaughton”