IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20130703

Docket: M60296

Registry:
Nanaimo

Between:

Julie Lynn Smith

Plaintiff

And

Behrooz Sani
Moshrefzadeh

Defendant

Before:
The Honourable Madam Justice Dardi

Oral Reasons for Judgment-Costs

INTRODUCTION

[1]            
In reasons indexed at 2012 BCSC 1458, I awarded the plaintiff, Julie
Smith, damages of $184,728.42 for injuries she sustained in a motor vehicle
accident on October 23, 2008 (the “Accident”). I also ordered that she was entitled
to her costs of the action.

[2]            
The parties have agreed that the plaintiff is entitled to double costs
and all of her disbursements save and except the accounts of Dr. Helper, a
physical medicine and rehabilitation specialist. The disputed disbursement comprises
compensation of $3,950 for Dr. Helper’s report dated September 19, 2011,
and $1,900 for his appearance at trial on December 14, 2011.

[3]            
This is an application by the plaintiff seeking a direction that the
cost of retaining Dr. Helper be allowed as a disbursement to be paid by
the defendant. This is the sole issue for determination.

[4]            
I will briefly set out the background facts, the legal test I must apply,
and the position of the parties. I will then address the issue on the merits.

BACKGROUND

[5]            
In the Accident, the plaintiff sustained soft tissue injuries to her
neck and upper back. She now suffers from chronic neck and upper back pain, as
well as constant and daily headaches which vary in intensity. Causation was a
central issue at trial.

[6]            
The trial in this matter was scheduled for December 2011. Plaintiff’s
counsel indicates that the defence sent plaintiff’s counsel draft pleadings in
July 2011, raising causation as an issue.

[7]            
At trial, the plaintiff called Dr. Robinson, a neurologist, and Dr.
Helper and Dr. Craig, both of whom are physiatrists. The defendant called
Dr. Wahl, an orthopaedic surgeon.

[8]            
The plaintiff was first assessed by the defendant’s expert, Dr. Wahl, on
April 13, 2011. She was examined by Dr. Craig on April 19, 2011. Dr. Craig
referred her to Dr. Robinson and Dr. Helper. The plaintiff saw Dr.
Robinson on June 30, 2011 and she saw Dr. Helper on September 15, 2011, some five
months after seeing Dr. Craig.

[9]            
I found that the plaintiff sustained injuries in the Accident and
it is those injuries which have caused her current constellation of neck, upper
back and headache symptoms. I rejected the defendant’s submissions on
causation. In my reasons, I stated as follows:

[62]      I accept the opinions
of Dr. Helper, Dr. Robinson and Dr. Craig and, where they
differed, I prefer their opinions to that of Dr. Wahl. I found
each of Dr. Robinson, Dr. Helper, and Dr. Craig, who are very
well-qualified and experienced practitioners, to be careful and fair-minded in
their testimony. Their opinions, without exception, were not weakened in
cross-examination. Each of the doctors persuasively discounted Dr. Wahl’s
opinion that the degeneration of Ms. Smith’s cervical spine shown on her
x-rays is the cause of her current symptoms.

THE LEGAL FRAMEWORK

[10]        
The jurisdiction of this court to award costs is governed by a wide
measure of discretion. The discretion must be exercised judicially, in a
principled way, consistent with the Supreme Court Civil Rules, and not
arbitrarily or capriciously: Stiles v. B.C. (W.C.B.) (1989), 38 B.C.L.R.
(2d) 307 at 310 (C.A.). See also Fan v. Chana, 2011 BCCA 516 at
paras. 32 and 61.

[11]        
Rule 14-1(7) of the Supreme Court Civil Rules states:

Directions

(7)  If the court has made an order for costs,

(a) any party may, at any time before a registrar issues a
certificate under subrule (27), apply for directions to the judge or master who
made the order for costs,

(b) the judge or master may direct that any item of costs,
including any item of disbursements, be allowed or disallowed, and

(c) the registrar is bound by any direction given by the
judge or master.

[12]        
Rules 14-1(2)(a) and 14-1(5) state:

Assessment
of party and party costs

(2)  On an assessment of party and party costs under
Appendix B, a registrar must

(a) allow those fees under Appendix B that were proper
or reasonably necessary to conduct the proceeding

…

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, and

(b) allow a reasonable amount for those disbursements.

[13]        
Rule 14-1(5) informs the analysis of whether a disbursement should be
allowed either on an initial assessment or on an application for directions before
either a judge or a master. The analysis focuses on the circumstances that
existed when the disbursement was incurred. The authorities establish that
“[t]he question to be asked is whether it was reasonable to incur the
disbursement when it was incurred, not after judgment has been rendered and it
has been determined whether or not the report was helpful”: Fan v. Chana,
2011 BCCA 516 at para. 51.

[14]        
The Court of Appeal articulated the test to be applied when considering
the necessity and propriety of a disbursement in Van Daele v. Van Daele
(1983), 56 B.C.L.R. 178 at 180 (C.A.):

The proper test, it seems to me,
from a number of authorities referred to us this morning is whether at the time
the disbursement or expense was incurred it was a proper disbursement in the
sense of not being extravagant, negligent, mistaken or a result of excessive
caution or excessive zeal, judged by the situation at the time when the
disbursement or expense was incurred. [Emphasis added.]

[15]        
The Court of Appeal in Van Daele at p. 181 cited with approval
the following principle articulated in Bogardus v. Hill (1913), 18
B.C.R. 358 at 358 (S.C.):

… I think the principle to be
acted upon in dealing with allowances to witnesses for equipping themselves is
that all work should be allowed for which a reasonable man, preparing for
trial, would feel bound to undertake in order to prove his case.

[16]        
There is a distinction between a disbursement which is necessary and a
disbursement which is proper. A “necessary” disbursement is one which is
essential to conduct the litigation and could not be avoided in the conduct of
the proceeding. A “proper” disbursement is one which is not “necessary” but is
reasonably incurred for the purposes of the proceedings: Fairchild v.
British Columbia (Vancouver Coastal Health Authority), 2012 BCSC 1207.

[17]        
Generally, disbursements may be unnecessary or improper when they are
duplicative: Bell v. Fantini (1981), 32 B.C.L.R. 322 at 329-30 (S.C.).

[18]        
With respect to the concept of proportionality as it relates to
incurring disbursements, the Court’s observations in Fairchild at para. 17
are instructive:

“Used in the only sense in which
it is pertinent "proportionality" really does not add to the concept
of reasonableness. The concept of proportionality in the new rules is an
attempt to vest in the court a responsibility that has always rested with
counsel, where it best remains, generally speaking. With respect to disbursements,
specifically, the notion of reasonableness has always encapsulated a sense of
proportion.”

THE PARTIES’ POSITIONS

The Plaintiff’s Position

[19]        
The plaintiff’s position is that since Dr. Wahl opined that her symptoms
were caused by her pre-existing degenerative disc disease, she was compelled to
obtain the opinions she did in order to rebut his opinion.

[20]        
The plaintiff points out that Dr. Craig, in his report, raised a
question as to whether the plaintiff’s myofascial pain and headaches were
caused solely by the soft tissue injury or whether her symptoms were emanating
from the spine itself. Dr. Craig therefore referred her to both Dr.
Robinson and Dr. Helper, the latter to have “a closer look at the cervical
facets which are the posterior spinal joints”. According to the plaintiff, their
respective reports demonstrate that Dr. Craig focussed on the soft tissue
component of her symptoms, whereas Dr. Helper was looking at her symptoms from
a mechanical pain perspective.

The Defendant’s Position

[21]        
The defendant contends that the cost of retaining Dr. Helper is neither
necessary nor proper. The overarching submission of the defendant is that
Dr. Helper was retained out of excessive caution or excessive zeal.

[22]        
According to the defendant, Dr. Craig and Dr. Helper conducted
essentially the same physical examinations of the plaintiff. The defendant argues
that the report of Dr. Helper was duplicative because he merely repeated the
opinion of Dr. Craig, namely a differential diagnosis of a facet joint
problem, for which diagnostic testing was premature. Moreover, the defendant
submits that Dr. Craig was fully qualified to rebut Dr. Wahl’s
opinion and indeed he succeeded in doing so. The defendant relies on the case
of Farrokhmanesh v. Sahib, 2010 BCSC 497, aff’d 2010 BCSC 1797, where
the registrar disallowed the cost of a psychologist’s report on the basis that
it was unreasonably duplicative of the report of a psychiatrist.

[23]        
The proceedings took place under Rule 15-1, and at the time Dr. Helper
was retained the plaintiff already had two experts in play. The defendant,
relying on Minhas v. Virk, 2011 BCSC 191 at para. 20, asserts that an
objective of the Rules is to limit experts and expert opinion. He also submits
that incurring the additional disbursement was out of proportion to the
proceeding, thereby violating the objectives of Rule 1-3.

[24]        
Additionally, the defendant takes issue with the fact that the plaintiff
has failed to adduce any affidavit evidence elucidating counsel’s true
rationale for the disbursement. He contends that the lack of any justification evidence
is a fundamental deficiency in this application.

[25]        
In her reply submissions, the plaintiff says that although the procedure
before a registrar may require an affidavit to explain the background and the issues
in the case, an application before the trial judge does not require any such
affidavit material.

DISCUSSION

[26]        
The essential issue on this application is whether the disputed
disbursement was “properly” incurred.

[27]        
The first step in the analysis is to consider the defendant’s position
regarding the absence of affidavit evidence on this application. The crux of
this issue is whether the absence of affidavit evidence regarding the necessity
and/or propriety of the disputed disbursement is fatal to the plaintiff’s claim
for reimbursement.

[28]        
It is uncontroversial that the onus of proof rests on the party
submitting the bill to establish affirmatively the necessity or reasonableness
of any charges he or she claims as disbursements: Hall v. Strocel (1983),
34 C.P.C. 170 at 177 (B.C.S.C.); Holzapfel v. Matheusik (1987), 14
B.C.L.R. (2d) 135 (C.A.).

[29]        
It is also settled law in this province that if the necessity or
propriety of a disbursement is disputed in a registrar’s assessment, an
affidavit of justification is an indispensable requirement: Wheeldon v.
Magee, 2010 BCSC 491 at para. 24. In Bereti v. Schuette (1980), 17
C.P.C. 259 at 262 (B.C.S.C.), in considering the necessity of affidavit
evidence before the assessing officer, the court concluded that:

As to whether it is a requirement
that a claim for disbursements for moneys paid to experts for their assistance
in preparation and presentation of a case be supported by affidavit, I have
concluded that the weight of authority is that such an affidavit is required if
the claim is to be allowed on taxation.

[30]        
Typically the affiant is the plaintiff’s trial lawyer, since he or she
is in the best position to explain why the disbursement was needed to advance
the case. However, I note that in Guelke v. Hallett, [1990] B.C.J. No.
1240 (S.C.), the court concluded that the Master did not err in principle by
disallowing a disbursement, even though there was no affidavit evidence
contradicting or challenging counsel’s opinion that the disputed disbursement
was necessary and reasonable.

[31]        
It is important to appreciate that there is a key difference between an
assessment by a taxing officer under Rule 14-1(5) and a direction by a judge
under Rule 14-1(7). In circumstances where the disputed expert report has been
produced and the author cross-examined at trial, the trial judge may have a
unique and distinct advantage in assessing a disputed disbursement because of
his or her knowledge of the issues and evidence at the trial: New Brunswick
v. Stephen Moffett Ltd., 2008 NBCA 9, at para. 17.

[32]        
In my view, on an application to the trial judge under Rule 14-1(7), the
absence of affidavit evidence is not necessarily fatal. It may be that in some
circumstances, in order to discharge his or her burden, an applicant is
required to file affidavit evidence. However, in other circumstances, given the
judge’s knowledge of the case, an affidavit might simply be unnecessary. This, of
course, does not displace the plaintiff’s burden of establishing, on a balance
of probabilities, the necessity or propriety of the disputed disbursement.

[33]        
I turn to address the merits of this application. In the circumstances
of this case, I am not persuaded that affidavit evidence is required in order
for me to determine whether the disputed disbursement should be allowed. Dr. Helper’s
report was produced and he was cross-examined at trial.

[34]        
As I mentioned, causation was a central issue at trial. Prior to
retaining Dr. Helper, the plaintiff had been put on notice that the
defendant took the position that her symptoms were caused by her pre-existing degenerative
disc condition and not by the Accident.

[35]        
Dr. Craig opined that the plaintiff’s headache, neck and upper back
pain were caused by the injuries she sustained in the Accident. However, the
diagnosis of her injuries was neither straightforward nor definitive. Although Dr.
Craig’s “leading diagnosis” was myofascial pain, his “differential diagnosis
included pain emanating from one or more of the cervical facet joints”. He
therefore recommended “a closer look at the cervical facets which are the
posterior spinal joints”, which can be injured with a whiplash-type injury. In
his report he stated that Dr. Helper would be an appropriate referral.

[36]        
The defendant in his submissions emphasized that Dr. Helper and Dr.
Craig are both physiatrists. However, Dr. Helper’s report states that the
emphasis of his clinical practice involves the assessment and management of
painful spine disorders. His report focused on the mechanical origins of the plaintiff’s
pain and, in my view, was not duplicative of Dr. Craig’s report, who had
primarily focused on the soft tissue component of the plaintiff’s complaints. In
his report, Dr. Helper, who agreed with Dr. Craig’s differential diagnosis, addressed
the possibility that Ms. Smith’s pain stemmed from injury to the cervical
facet joints and recommended further diagnostic testing of her facet joints if
her symptoms did not improve.

[37]        
In the face of a dispute on causation and with Dr. Craig’s
recommendation of Dr. Helper, it is my view that the plaintiff acted reasonably
in retaining Dr. Helper. In the circumstances of this case, I conclude it was
not excessively cautious or overly zealous for the plaintiff to retain Dr.
Helper. I find the disputed disbursement was reasonably and properly incurred. It
is a reasonable and justifiable expense, which should be borne by the
defendant, the unsuccessful litigant in this case.

DISPOSITION

[38]        
There is no challenge raised regarding the reasonableness of the amounts
charged by Dr. Helper. In the result, I direct that the amounts claimed by the
plaintiff for retaining Dr. Helper should be allowed. The plaintiff is
entitled to her costs of this application.

[39]        
Is there anything arising, counsel?

[40]        
MR. DE TURBERVILLE: My Lady, just since we are into double costs, I
would also seek double costs of the application, as well.

[41]        
THE COURT: Mr. Boan.

[42]        
MR. BOAN: I suppose that that follows, My Lady.

[43]        
THE COURT:  All right.

[44]        
MR. BOAN: Well, the double costs related to the proceeding itself. There
were not any offers in relation to the disbursement, per se. So, arguably, it
falls outside the ambit of the formal offer..,

[45]        
MR. DE TURBERVILLE: Well, I believe it is for all matters which occur
after the offer is made and this is a matter of ongoing with the trial.

[46]        
THE COURT: It is definitely part of this proceeding.

[47]        
MR. DE TURBERVILLE: Yes.

[48]        
THE COURT: So ordered. We are adjourned.

“Dardi
J.”