IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20130607

Docket: 91837

Registry:
Kelowna

Between:

Katherine Gail
Trotter

Plaintiff

And

Jessyca Marie
Nielsen

Defendant

Before:
Master Young
(as Registrar)

Reasons for Decision Re Costs

[1]            
This decision relates to an assessment of the bill of costs of the
plaintiff, which is attached to the appointment filed March 28, 2013. Many of
the tariff items have been agreed upon. I have made a decision on those few
tariff items which were not agreed to. The most contentious issues relate to
certain disbursements and those issues will be dealt with here.

Background

[2]            
This is a personal injury action. It was scheduled for a 10-day trial to
commence March 4, 2013. The dispute resolved two days prior to the trial date,
and the settlement agreement was entered into reserving the issue of costs to
either be agreed upon or assessed before the registrar.

[3]            
The following chart sets out the decisions I have made with respect to
the tariff items:

Tariff Items

Disbursements

[4]            
The following is a list of disbursements that are in dispute; all other
disbursements are allowed as claimed.

1.     Dr.
Woodworth – Report ($475)

2.     Dr. Zettl
– Report (February 1, 2011) ($900)

3.     Dr. Zettl
– Trial preparation and cancellation ($2,362.50)

4.     Marie
Clarke – Cancellation Fee for Examination for Discovery
(April 30, 2012) ($400)

5.     Photocopies
($2,873.20)

6.     Viewpoint –
Cancel Dr. Killian at trial ($2,850)

Dr. Woodworth – Report ($475)

[5]            
Dr. Woodworth is a registered psychologist. He provided counseling
services to Ms. Trotter arising from the diagnosis that she was suffering from
posttraumatic stress, as a result of the motor vehicle accident. The defendant
says that the expense for Dr. Woodworth’s first report was unnecessary or it was
incurred through extravagance, negligence or mistake. The defendant also said
in his report that Dr. Woodworth went beyond his area of expertise, and so
it should have been clear to the plaintiff that Dr. Woodworth’s report would be
inadmissible. He says that it was extravagant because one page of
recommendations would have sufficed.

[6]            
Dr. Woodworth assessed Ms. Trotter on one occasion and then answered the
following questions posed by plaintiff’s counsel:

1.     What
Ms. Trotter is being treated for

2.     Whether
the treatments you recommend are related to Ms. Trotter’s motor vehicle
accident of September 15, 2009

3.     Whether
the treatments you recommend are medically necessary for Ms. Trotter’s
rehabilitation

4.     The
number of treatments recommended by you

5.     The
frequency of the treatments you recommend

6.     The
duration of treatments recommended by you prior to re-evaluation or completion

7.    
The cost of each treatment

[7]            
I have reviewed the report and conclude that at the time the report was
commissioned, it appeared necessary and reasonable. For the cost of $475, the
psychologist met and assessed the plaintiff, gave a clear opinion on causation,
and set out a treatment plan for the plaintiff’s ongoing care. After conducting
several sessions with the claimant, Dr. Woodworth prepared a further medical/legal
report and charged $1,137.50 for it. The defendant does not oppose that
disbursement.

Dr. Zettl – Report (February 1, 2011) ($900)

[8]            
The defendant objects to the charges for both of Dr. Zettl’s reports,
trial preparation and cancellation fee because counsel submits that it was
unnecessary to hire Dr. Zettl given that the plaintiff had already been
assessed by Dr. Wallace, as well as Dr. Woodworth who is also a psychologist.

[9]            
After Dr. Woodworth provided counselling services and the two reports
referred to above, he then went on a sabbatical out of the country. Although he
offered to continue to provide counselling services via Skype, the claimant
found this option unacceptable. I cannot say that I blame her. This meant that
there was going to be a gap in her counselling treatment before trial. Dr.
Woodworth was available to be cross-examined at the trial but would not have
had any current information on the claimant’s progress. For this reason, her
counsel retained a new psychologist to provide counselling to the claimant from
January 2013 to the date of trial. Dr. Zettl prepared a report quickly but it
was still served out of time.

[10]        
The defendant says that it should not have to pay for a report that is
knowingly inadmissible. Given that a trial judge has discretion to admit
reports that are served late, I do not think it is as clearly inadmissible as
defence counsel suggests. The plaintiff decided that it was better to fill this
treatment gap before trial and attempted to admit the report rather than to
proceed to trial with a six-month gap in the claimant’s counselling. I find
that this was a reasonable choice, given that there was a good possibility that
the report would be admitted or at a minimum be of assistance in settlement
negotiations. When the first report was commissioned, I find that it was
necessary and proper, and is a disbursement for which the defendant should be
required to reimburse the claimant.

[11]        
Dr. Zettl diagnosed the claimant as having posttraumatic stress disorder,
which was apparently not pleaded. That is not a reason to disallow the
disbursement but may be a reason to amend the pleadings.

Dr. Zettl – Trial preparation and cancellation
($2,362.50)

[12]        
Dr. Zettl was required for cross-examination, and she did bill a cancellation
fee that I find to be reasonable. A second report was prepared, though not
requested and not served. I think it was prepared in the mistaken belief that a
further written report would be required before oral testimony would be given.
It was reasonable for Dr. Zettl to charge for her sessions and for 2.5
hours of trial preparation and for file review. I will allow the March 3, 2013
account at $1,912.50 and disallow $450 for the preparation of a second report,
which was not requested or necessary.

Marie Clarke – Cancellation Fee for Examination for
Discovery
(April 30, 2012) ($400)

[13]        
Counsel for the plaintiff had to cancel this examination due to his own
personal health issue. He did not do so in time to avoid the cancellation fee. Defence
counsel agreed to the adjournment but certainly did not agree to pay the cancellation
fee. That disbursement should be paid for by counsel for the plaintiff and not
the defendant. I disallow the cancellation charge of $400.

Photocopies ($2,873.20)

[14]        
The defendant objects to the number of pages and the rate charged. They
say that the plaintiff should not charge the defendant for printing charges and
that the plaintiff could have saved some photocopying charges by delivering the
documents electronically. However, I wonder would that not attract a scanning
fee of equal amount?

[15]        
The plaintiff charged 35 cents per page. The rate I will allow is 25 cents
per page. That would reduce the charge to $2,052. My rough and ready assessment
is that this is not an unreasonable amount to charge for copies given the
number of reports being relied on. In addition, large volumes of clinical
records were collected and exchanged.

Viewpoint – Cancel Dr. Killian at trial ($2,850)

[16]        
Dr. Killian was required for cross-examination. He had a cancellation
policy that he had to receive notice 48 hours in advance or the fee would be
charged. The case did not settle until Saturday morning which was less than 48
hours’ notice. Negotiations had taken place on the Friday but did not result in
a settlement. The plaintiff was distraught. She left her lawyer’s office with
instructions to return the following morning for trial preparation. Plaintiff’s
counsel received a further offer from Mr. Goldstone after 3 p.m. and could not
make contact with his client. When he did, it took quite some time for her to
process the information and instruct her lawyer to accept this offer. Counsel
for the defendant blames the plaintiff and her counsel for the late acceptance
of this offer thereby triggering a cancellation fee.

[17]        
I view the world differently. Counsel for the defendant did not make the
offer until late in the day on Friday. This was a significant claim for the
claimant to settle, and she suffered from anxiety, among other conditions. It
is unrealistic to expect the plaintiff to receive an offer at 3:30 or 4 p.m.
Friday afternoon and accept the offer before Dr. Killian’s office closed at the
end of the day on Friday. She needed time to process the offer, consider it, and
perhaps consult with family or her lawyer before she could accept it. If the
defendant wished to avoid cancellation fees, then it should have made its offer
much earlier.

[18]        
The cancellation fee is allowed in full.

Conclusion

[19]        
The plaintiff claims 107 units. The defendant offered to pay for 80
units, and I allowed the tariff items at 81 units at $110 per unit, which
is $9,979.20 including HST. I have disallowed disbursements of $1,670.80,
plus any taxes owed on them.

[20]        
Although there was some reduction in what the plaintiff had claimed, I
did allow $6,137.50 of disbursements that were disputed by the defendant. I
therefore find that the plaintiff was substantially successful in this
assessment as the disputed disbursements were the most contentious issue before
me. I have allowed four units to the plaintiff for preparation and attendance
before me to assess costs.

“B.M.
Young”

Master
B.M. Young