IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131101

Docket: M110124

Registry:
Vancouver

Between:

Mahzabeen Kasim

Plaintiff

And

Kenneth
Spittel, Devin Spittel, and Rufinita Spittel

Defendants

Before:
The Honourable Mr. Justice Voith

On
appeal from: Kasim v. Spittel (June 11, 2013), Vancouver  M110124
(B.C.S.C.)

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The plaintiff applies, under Rule 14‑1(29), for
a review of the assessment of the plaintiff’s bill of costs that was made by a Master
on June 11, 2013. The facts which underlie this application are straightforward
and not in dispute.

[2]            
In this action the plaintiff had claimed for losses and damage arising
from a personal injury sustained in a motor vehicle collision that occurred on
September 1, 2009. The action settled for $160,000, plus costs, about a month
before trial.

[3]            
It is common ground that the plaintiff’s personal, medical, and
employment/self‑employment circumstances were relatively complex.

[4]            
The defendants disputed five disbursements before the Master. That
hearing took a half day. Only two of those disbursements are at issue on this
application: (a) the disbursement for the opinion of Dr. A. Gandhi, a
psychiatrist; and (b) the disbursement for the report prepared by H. Teasley,
an economist.

[5]            
Rule 14‑1(5) is relevant and provides:

(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.

[6]            
The general legal principles which govern whether or when a registrar’s
assessment of costs should be set aside are also well established.

[7]            
In Fairchild v. British Columbia (Vancouver Coastal Health Authority),
2012 BCSC 1207, Justice McEwan said:

[6]        A court ordered award of costs can be set aside if
it is based on an error in principle or is plainly wrong (see Hamilton v.
Open Window Bakery Ltd., [2004] 1 S.C.R. 303, 2004 SCC 9,at para. 27
(cited with approval in Little Sisters Book and Art Emporium v. Canada
(Commissioner of Customs and Revenue), [2007] 1 S.C.R. 38, 2007 SCC 2. In Little
Sisters, the Supreme Court went on to observe, at para. 49, that
"in exercising their discretion regarding costs, trial judge must … be
careful to stay within recognized boundaries."

[7]        Counsel for both
parties appear to accept that the test is similar for the exercise of the
Registrar’s function in assessing costs and that the Registrar must be clearly
or plainly wrong or have erred in principle before the court should interfere
with a Registrar’s exercise of discretion.

[8]            
In McKenzie v. Darke, 2003 BCSC 138, Master Horn explained the
distinction between "necessary" and "proper" disbursements
and said, at para. 18:

There is a difference between a
disbursement which is necessary and a disbursement which is proper. A "Necessary"
disbursement is one which is essential to conduct the litigation. A "proper"
disbursement is one which is not "necessary" but is reasonably
incurred for the purposes of the proceeding. (For these propositions, see Fraser
& Horn, Conduct of Civil Litigation in British Columbia ss.28.28 and
28.30).

See also Zaenker v. Kirk, 2008 BCSC 1460, at para. 24.

[9]            
The reasons of the Master in this case suggest that he engaged each of
the concepts of "necessary" and "proper" in his analysis of
the disbursements in question, though he did not use those particular words.

a)       The Report of Dr. Ghandi

[10]        
Dr. Ghandi was the plaintiff’s treating psychiatrist. There is no
question that it was appropriate for the plaintiff to see a psychiatrist. She
was, in fact, referred to a psychiatrist by another physician.

[11]        
For various reasons, her referral to Dr. Ghandi was somewhat
delayed. It was these delays which caused counsel to set up an independent
medical examination of the plaintiff with Dr. Janke, another psychiatrist.
Dr. Janke saw the plaintiff, based on his reports, on June 13 and 27,
2012. Importantly, the plaintiff then saw Dr. Ghandi on a roughly monthly
basis from July to November 2012.

[12]        
The Master addressed the expenses associated with Dr. Ghandi’s
report in the following terms:

[7]        On the Janke and Gandhi report, for different
reasons I also agree that there should be a reduction. It is more the case —
addressed by Bell v. Fantini — of duplication. Recognizing that Bell
v. Fantini as I understand it says do not go out and get two forensic
reports. I do not think it means to address two physicians, one a treating and
one a forensic or a litigation-related specialist consultant.

[8]        There is duplication
here. Dr. Janke even had Dr. Gandhi’s information, a consult report,
possibly the clinicals. So I think there really is a belt and suspenders
approach there that requires that I reduce by the value of Dr. Gandhi’s
report, which was $1,602.

[13]        
The learned Master correctly identified that the role of Dr. Janke,
as a forensic expert, and that of Dr. Ghandi, as a treating psychiatrist,
were different. His analysis, however, contains two related errors or sources
of confusion.

[14]        
First, the two reports cover two different periods in time. Dr. Janke’s
evaluation or assessment was based on his meetings with the plaintiff in June
2012. It is clear from his report, however, that Dr. Janke appreciated that
the plaintiff began seeing Dr. Ghandi following his meetings with the
plaintiff. He observes, for example, that he “has no knowledge with respect to
the effect of current psychiatric medication on Ms. Kasim".

[15]        
Dr. Ghandi’s interaction with Ms. Kasim spanned the following
five months, from July to November 2012. Neither the nature of the interaction
of the two psychiatrists with the plaintiff nor the period of time that each
saw her was duplicative. Dr. Ghandi, for example, in his conclusions
addresses the fact "that there is relative reduction in the symptoms of
depression and anxiety with treatment".

[16]        
The second source of confusion is that the Master seemed to consider
that Dr. Janke was in possession of the "consult report" or
possibly even the clinical records of Dr. Ghandi. A careful review of
Dr. Janke’s report does not support this. Dr. Janke recognized, at
page 4 of his report, that the plaintiff had seen Dr. Ghandi in July 2012,
and he does refer to a consult report. Further, in the appendix to his report,
he again refers to an August 27, 2012 consult report that Dr. Ghandi had
sent to the plaintiff’s physician. However, the index attached to Dr. Janke’s
report does not make reference to his having received any clinical records from
Dr. Ghandi. There is then no apparent basis to have concluded that Dr. Janke
had available to him the records or reports of Dr. Ghandi which covered
the entire period of time that the plaintiff saw Dr. Ghandi. Indeed, Dr. Janke
recognized that he did not have such information.

[17]        
A further factor is relevant. Counsel for the plaintiff deposed in the
affidavit that was filed for the hearing before the Master that he considered
it prudent or appropriate to obtain the report of Dr. Ghandi because he
was concerned that, absent doing so, the defendant would ask the court to draw
an adverse inference from that failure. Before me, the defendant argued that
that prospect was remote because the defendant had been provided with Dr. Ghandi’s
clinical records. Such assertions are easy to make after the fact and they
engage two further principles: first, the time for assessing whether or not a
disbursement is necessary or properly incurred is when the disbursement is
incurred and not with the benefit of hindsight; second, the role of an
assessing officer is not to second guess competent counsel doing a competent
job, even though other counsel may have handled the matter differently; Luo
v. De Chavez, 2013 BCSC 1635, at para. 2, citing Turner v. Whittaker,
2013 BCSC 712.

[18]        
The learned Master appears to have misapprehended what materials were
available to Dr. Janke, and to have attached little significance to the
fact that the respective roles of Dr. Janke and Dr. Ghandi were engaged at
different points in time. This was a case of some substance. Competent counsel
exercised his judgment about the need to secure an opinion from Dr. Ghandi.
That judgment was reasonable, as were the disbursements charged by Dr. Ghandi.

[19]        
I consider that the plaintiff should recover the whole of the expense
associated with Dr. Ghandi’s report or a sum of $1,602.

b)       The Teasley Report

[20]        
Mr. Teasley is an economist. He prepared a report that addresses
the plaintiff’s past and future wage losses, as well as the costs of her future
care. The Master, when addressing the account for Mr. Teasley’s expert
report, said:

[9]        Finally Mr. Teasley, the consultant. You
know, when it comes to alchemy or something, the mysteries of numbers, the
economist seemed to go there and seemed to hold that authority over us. If I
understand it, Ms. Kasim worked in a call centre. That is not challenging
work. I mean, it has its own issues obviously. I do not purport to be a
specialist or an expert in that, but I do not think I have ever met anyone
working in a call centre who was paid any august sums. I know the damages in
the ultimate settlement was significant, some $160,000. That was not broken
down to explain to me how much is future wage loss, et cetera, but I am
inclined to accept Mr. Duplessis’s submission that past wage loss at the
very least was an arithmetic exercise that should not have been difficult and
usually is not.

[10]      Secondly, that the OT had offered various costs of
future care aspects. Yes, Mr. Teasley then reformatted and reprocessed
that. I do not mean that in a cavalier or trivial way. He considered those
numbers and put them into his “Table C", he calls it, and did some economic
analysis on that, but one has to maintain some proportion in these cases. The
rules require that, the new rules in particular.

[11]      So I think a reduction
in Mr. Teasley’s accounts is justified. I am allowing $500 for that
expense, which is a reduction of $1,018.

[21]        
Mr. Teasley prepared a written description of the work he did. He
explained that it took him 11 ½ hours to prepare his report and that he charged
$132 per hour. He explained that it took him approximately an hour and a half
to format his report, approximately four hours to generate his past and future
wage loss calculations, and approximately six hours to address the cost of
future care figures contained in the report.

[22]        
I start with the observation that the $500 figure that the Master ascribed
to this disbursement works out to less than four hours of Mr. Teasley’s
time. In effect, apart from the hour and a half spent setting up his report to
format his standard spreadsheets for the plaintiff’s age, gender, and other
circumstances, the conclusions of the Master would fix the "proper"
value of Mr. Teasley’s work, or the time it should reasonably have taken
him to complete the remainder of his report, at slightly less than an
additional two and a half hours.

[23]        
The Master appears to have arrived at his conclusions on the twin basis that
aspects of Mr. Teasley’s work were straightforward and that the object of
proportionality somehow warranted a reduction in the disbursement.

[24]        
The object of proportionality, though certainly relevant under Rule
14-1(2)(b) of the Supreme Court Civil Rules, does not, however,
overwhelm the analysis of what would otherwise be a "proper" expense.
Thus, Harvey J. in Gill v. Widjaja, 2011 BCSC 1822, at para. 29, said:

While I agree Rule 14-1(2)(b)
states that on an assessment of party and party costs the registrar must
consider the Rule 1-3. I am in agreement with plaintiff’s counsel that the
objects of Rule 1-3 cannot supersede the clear wording of Rule 14-1.

[25]        
In Fairchild, McEwan J. further explained the relevance of
"proportionality" in assessing the reasonableness of disbursements:

[16]      Counsel for the defendants before this Court have
urged that another factor, proportionality, may be in play since the
introduction of the 2010 Rules. A representative iteration of this principle
is, they submit, found in Stapleton v. Charambidis, 2010 BCSC 1642, at para. 32,
per Master Baker:

[32]   But fourthly and significantly, there are the new
Rules of Court and their emphasis on proportionality. Much of the thrust of the
quest for proportionality is, of course, directed to steps and processes in the
litigation itself as in, for example, the discovery of documents, limitations
on examinations for discovery and, indeed, the necessity at an early stage for
an overall litigation plan. But surely this proportionality must, in
appropriate circumstances, extend to disbursements expended by the parties.

[17]      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.

[26]        
The principles that a registrar must apply in determining whether a
disbursement is "proper" are found in Van Daele v. Van Daele
(1983), 56 B.C.L.R. 178 (C.A.) at 180:

… 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.

See also Fairchild at para. 11 and Gill at
para. 30.

[27]        
The assertion that aspects of Mr. Teasley’s work may have been
straightforward does not adequately test or explain whether the disbursement
was "proper".

[28]        
Mr. Teasley’s written explanation clarifies what specific work he
did in each major section of the report. Thus, the calculation of the
plaintiff’s past wage loss was not simply a product of "an arithmetic
exercise". Instead, Mr. Teasley explained:

Her income analysis took in
excess of the four hours I charged. It presented the issue of identifying the
measure of her actual income, rather than assuming the average earnings of
similarly-educated immigrant women her age. It also required noting and setting
aside the income from her delivery truck. I chose her actual $15,821 average
annual income for 2006 and 2007. That included employer-paid CPP and the
explanation that this was valuable to her even though she matched the
contribution because without the employer paying its share, she would have had
to pay it besides her own share to attain the eventual benefit. The analysis
required the explanation that at this low expected income, her favourable
opportunities offset the usual negative labour-market contingencies. Her tax
situation affected the past earnings loss as well; this required identifying
the earned-income tax credit that would have obviated her income taxes.

[29]        
The same is true of Mr. Teasley’s analysis and calculation of the
plaintiff’s cost of future care expenses. In relation to this segment of his
report he said:

As the OT report influenced the
assumed facts, both as to her history and as to the accident effects on her
ability to work, I’ve assigned half its cost to this and half to the
cost-of-care below. The income-loss Table D and capacity-loss Table E followed
straightforwardly from the foregoing assumed facts, but they could not have
been produced without them. Developing the assumed facts took far more of this
time than did applying them in loss estimation.

[30]        
Mr. Teasley’s report generated both "lower case" and
"higher case" calculations for more than 25 categories or
subcategories of care expenses that were derived from the report of another
expert. It is a given that Mr. Teasley would have had to, as he says he
did, read that other expert report and extract what was relevant for the
purposes of his own report.

[31]        
I understood counsel for the defendant to suggest that there was no need
for Mr. Teasley to have formatted the portion of his report that addressed
future care expenses in the way that he did, as there would have been simpler
ways to generate a table from which the same information might have been
gleaned.

[32]        
These submissions either understate or misapprehend aspects of what is
expected from an expert. Mr. Teasley was tendered and accepted as an
expert. Inherent in that status are a number of responsibilities that go beyond
the need to act impartially. Experts are persons with specific expertise who
normally enjoy some standing in their chosen field. They are persons who are
concerned with their professional reputations. Still further, the courts are
intended to have confidence in their opinions. These realities mean, at a
minimum, that an expert has to be both thorough and careful. Though
thoroughness and care take time, they are central to the work of an expert; they
do not reflect either "excessive zeal or caution".

[33]        
In addition, an expert, whose core function is to assist the trier of
fact, will appreciate that presenting information in a comprehensible and user-friendly
format is important. Mr. Teasley’s report does that. It allows the trier
of fact, with relative ease, to determine the present values for specific care
items, depending on what underlying assumptions or evidence the trier of fact
ultimately accepted. What is "proper" is not co-extensive with what
is essential. The question is not what would have been enough. The question is
what is proper and/or reasonable.

[34]        
In this case, Mr. Teasley’s report was necessary. His hourly rate
is reasonable. The work he undertook and the time he spent doing that work was
proper. The plaintiff is to recover the full amount of the disbursement for Mr. Teasley’s
report or an amount of $1,518.

[35]        
Anything else, gentlemen?

[36]        
MR. COHEN:  My Lord, about the matter of costs. Two aspects of it:
one, the plaintiff has succeeded and seeks an order for costs; and secondly,
seeks to have them assessed today. If I may say, I think everybody would like
this case to be done and a summary assessment today would be of assistance. I
have a page with a very short breakdown in that regard, but —

[37]        
THE COURT:  Has your friend seen that?

[38]        
MR. COHEN:  I am afraid not. Thank you. My Lord, the only matter to
explore is the number of units or the value shown for units on that page is for
a full day. I prepared that before we started the other day. We did have a full
half‑day the other day, we are back this morning, making some sense of
that is in My Lord’s hands.

[39]        
MR. DUPLESSIS:  Yes, I have no issue with anything in there, except
I would just submit on that issue, a half‑day would be appropriate, My
Lord.

[40]        
THE COURT:  Yes, I agree with that. We will fix costs in the manner
calculated by Mr. Cohen at a half-day. Thank you.

“Voith
J.”