IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131127

Docket: M143309

Registry:
New Westminster

Between:

Lillian Jean
Woodford

Plaintiff

And

Gary Owen

Defendant

Before:
Registrar Sainty

Oral Reasons for Decision

[1]            
THE
REGISTRAR: This is an assessment of costs.  I will deal first
with the tariff costs.  The plaintiff was injured in a motor vehicle accident
on December 27, 2010.  The action was set for trial for three days commencing
August 21, 2013.  The action settled on July 31, 2013.

[2]            
This case was subject to the provisions of Rule 15-1 [of the Supreme
Court Civil Rules (the “Rules”)]: the “fast-track” rules.  Per Rule
15-1 and the decision of Mr. Justice Pitfield in Bowen v. Martinec [2008
BCSC 104], the plaintiff’s costs are capped and the plaintiff is only entitled
to claim up to $6,500 in costs in respect of the matters undertaken by the
plaintiff prior to the time settlement was accepted.

[3]            
Mr. Woods [who appeared at the assessment on behalf of counsel for the
plaintiff] submits that Ms. Dasanjh [plaintiff’s counsel], in her affidavit in
support of the costs, has confirmed that most of the preparation required for
trial had been undertaken when this matter settled.  Settlement was achieved
approximately three weeks before the trial was set to commence and, at
paragraph 10 of Ms. Dasanjh’s affidavit, she notes that, at the time of
settlement, a significant amount of preparation for trial had already been
completed, including [as read]:

(a)           
drafting and serving pleadings, including personal service of the
defendant;

(b)           
ordering and reviewing of clinical records from the plaintiff’s numerous
caregivers;

(c)           
exchanging of documents;

(d)           
arranging two MRI scans;

(e)           
requesting medical reports from the plaintiff’s general practitioner;

(f)             
arranging for an independent medical examination of the plaintiff;

(g)           
arranging for a functional capacity evaluation of plaintiff;

(h)           
examination for discovery of the plaintiff;

(i)             
service of experts’ reports on the defendant;

(j)             
attending a trial management conference;

(k)           
preparation of a comprehensive settlement proposal;

(l)             
preliminary interviews of lay witnesses; and

(m)         
settlement negotiations.

[4]            
At paragraph 11, counsel says [as read]:

At the time of settlement, all
that was left to be completed on the file was further witness interviews and final
preparation necessary for the plaintiff and lay witnesses to give their
evidence at trial.

[5]            
Mr. Woods argues that, in this case, because the preparation was
substantial, the plaintiff ought to be entitled to the full amount of the cap. 
In making his submission, he relies on a number of recent cases, the first
being Ostadsaraie v. Shokri [2013 BCSC 5], a decision of Registrar
Cameron, where Registrar Cameron confirmed, at paragraph 8, that a substantial
amount of preparation had been undertaken and a settlement offer made which
resulted in settlement of the case some 55 days before trial.  In that
instance, Registrar Cameron awarded the plaintiff the full amount of the cap. 
Clearly there is a typo in the case because it says the plaintiff will be awarded
$650.  It should be $6,500; there is no doubt of that.

[6]            
There is a further decision of Registrar Cameron, Berekoff v. McMath
[2013 BCSC 2032], wherein His Honour makes a very similar determination and
says, at paragraph 7:

In
this case, I am satisfied on the evidence that very significant preparation had been done by Mr. Caissie on behalf of the Plaintiff.

[7]            
And in that case, Registrar Cameron would have awarded the plaintiff the
entire cap amount of $6,500 but, because of counsel’s agreement to reduce it to
a lower amount, he awarded only $5,850.

[8]            
Finally, in Christen v. McKenzie [2013 BCSC 1317], a decision of
Madam Justice Arnold-Bailey, Her Ladyship said, in dealing with a similar
matter, at paragraph 35:

To
my mind significant preparation for trial ought to be sufficient to entitle the
successful party to
costs for pre-trial preparation to the full amount of the cap, presently $6,500 pursuant to Rule 15-1(15). Pre-trial
preparation may take various forms given the demands of the particular action.
Whether the parties engage in extensive negotiations or mediation and thus
achieve a settlement months or days before trial, the preparation by counsel
may easily approach that required to actually conduct the trial. The focus
ought to be on the amount of useful preparatory work done and not where in the
pre-trial timeline the resolution was reached. Indeed, the focus of Rule 15-1
and the Civil Rules generally
is to encourage early and fulsome preparation to resolve cases earlier as
opposed to later if possible; and also to limit the scope of the proposed trial
to what is truly at issue, thus reducing the time and costs associated with
resolving the dispute.

[9]            
Ms. Taliunas, who is counsel for the defendant, submits: “I am not
really arguing against the amount of preparation.”  What she instead argues is
that the plaintiff ought to have accepted an offer to settle made five months
prior to the actual settlement of the matter (in July of 2013) in the amount of
$25,000 and therefore it is not appropriate to award the plaintiff $6,500 [the
full amount of the cap] when the case should have (and could have) been settled
in July when substantially less preparation had been done.

[10]        
What Ms. Taliunas is saying is that the plaintiff should have either
settled for that amount or commenced further negotiations to try and up that
amount on receipt of the offer and, because she did not, the plaintiff ought
not to be compensated by receiving the full amount of the cap.  Essentially she
submits that, because the plaintiff waited until shortly before trial to settle,
the $1,250 difference she received in settlement monies is not a sufficient
amount to allow her to get more of the cap than she would be entitled to had
she accepted the earlier $25,000 offer as, certainly, far less preparation had
been undertaken at the time that offer was made.

[11]        
I disagree with Ms. Taliunas.  I think there is any number of reasons
why a plaintiff might settle; what phase in the litigation they might settle at;
and for what amount they might settle.  There is case law [Wong-Lai v. Ong,
2012 BCSC 1569; Dodge v. Shaw Cablesystems, 2009 BCSC 1765; and Arnold
v. Cartwright Estate, 2008 BCSC 1575] that clearly notes that parties ought
to be given sufficient time to consider settlement and that there may be reasons
why, five months before trial, a settlement is rejected but a similar offer
then accepted closer to the trial.  Perhaps some new evidence that might
adversely affect the plaintiff’s case came to light?  Perhaps she became more
leery of the risks associated with trial?  Perhaps she had a pressing need for
some immediate cash?  We do not know.

[12]        
The case law says [Bowen v. Martinec, supra; Cathcart v. Olson,
2009 BCSC 618] that the test I have to apply is: What was the amount of
preparation?”  I am bound by the decision of Madam Justice Arnold-Bailey [Christen
v. McKenzie, supra] which confirms that one should make a decision
on the amount of the cap to award based on the amount of preparation, not on
when, or even if, the plaintiff ought to have accepted an offer to settle.

[13]        
If I were to accede to Ms. Taliunas’s submission, I believe I would be
opening further floodgates than have already been opened by this cap [see Amiri
v. Truong, 2014 BCSC 81] by having people come and, for example, ask a
plaintiff to testify with respect to why she did not accept an offer and then
later accepted something slightly different.  Or, what were the differences
between one offer and another in the plaintiff’s view?  Or arguing: should it
have been accepted? Should it not have been accepted?  And what were the
reasons behind accepting it, or not, as the case may be?

[14]        
It was also open to the defendants to decide not to increase their
offer; to say: “We made a good offer and we are willing to go to trial for
that.”  Here it seems they decided it was not worth it to go to trial over
$1,250.

[15]        
So, for the reasons given, I am going to award the plaintiff the full
amount of the cap for $6,500, plus tax on that amount.

[16]        
I am going to make one final note. Ms. Taliunas suggested there was
a decision of a judge of this Court that might have led me to do something
differently than I did.  That case was not before me.  And, in fact, if I look
at the provisions of the Rules that relate to offers to settle [Rule
9-1(4)], only the Court may rule on whether an offer to settle ought to have
been accepted and deny a plaintiff her rights to certain of her costs.  Therefore,
if Ms. Taliunas wished to make such an argument, it may be that she should have
made it before a judge of this court and gotten a ruling from that judge as to what
cost consequences might have flowed from the plaintiff’s failure to accept the
offer to settle and wait to settle until just before trial for a substantially
similar amount.  But I do not believe it is within the jurisdiction of a
registrar to make that determination.

[SUBMISSIONS BY COUNSEL]

[17]        
Having determined the matter of the plaintiff’s “tariff” costs, I now
turn to the disbursements.  The first issue is the necessity and propriety of
the retention of an expert to perform a functional capacity evaluation of the
plaintiff some 17 months or so post-accident.

[18]        
In her affidavit, counsel for the plaintiff [Ms. Dasanjh] notes
that she gave instructions to set up a functional capacity evaluation on or
about May 31, 2012.  She deposes at paragraph 42 [as read]:

Prior to setting up the FCE with
Louise Craig, I had received a referral note dated December 21, 2011, from Ms.
Woodford’s general practitioner, Dr. Johannes Boshoff, advising that Ms.
Woodford would not be able to do the same physical work she was capable of
doing before the accident due to injuries sustained from the MVA.

[19]        
She also notes at paragraph 43:

Prior to setting up the FCE with
Ms. Craig, I also had the opportunity to review a medical/legal report dated
April 25, 2012, from Dr. Boshoff.

[20]        
Both the referral note and the report are attached to Ms. Dasanjh’s
affidavit.

[21]        
In his report, Dr. Boshoff specifically notes several points: (1) that
the plaintiff, following the accident, was totally disabled from being able to
work at her previous employment; (2) that she would require assistance with
regular household or yard work; and (3) that she would require assistance with
heavy seasonal housework and/or yard work from the date of the accident to
present.  He also notes that she cannot now do any cooking as her back goes
into spasm and she has to stop.  He says [as read]:

It is my opinion that the
patient requires assistance with respect to heavier/seasonal housework and/or
yard work in the future for approximately another six months.

[22]        
Following receipt of that report, Ms. Dasanjh commissioned the
functional capacity evaluation.

[23]        
Mr. Woods says it was necessary and proper, based on the information provided
by Dr. Boshoff, for a functional capacity evaluation to be commissioned, especially
since the G.P. was not in a position to confirm all the details of the
plaintiff’s disability, and that, in fact, even more than her claim for loss of
future income or working capacity, the plaintiff sought damages for loss of
domestic capacity, and that claim is hard to prove.  Therefore, it was
necessary and proper to obtain an opinion from someone who was able to specifically
opine as to the degree of the plaintiff’s disability with respect to her
household activities.

[24]        
Ms. Taliunas, on the other hand, says that the functional capacity
evaluation was commissioned out of an abundance of caution or zeal.  Specifically
she submits, relying on the decision of Master Bouck in Cooknell v. Quinn
[2013 BCSC 1653], for example, that one should be cautious and avoid a
cookie-cutter approach in commissioning experts’ reports without regard to the
particular circumstances of a particular plaintiff.

[25]        
In making this submission, Ms. Taliunas pointed out that the
plaintiff left her employment for other reasons – not because of the pain she
was experiencing following the accident – and she took me to parts of the
examination of her discovery wherein the plaintiff admitted that.  Mr. Woods,
of course, in response then showed me other parts of that examination for
discovery where the plaintiff suggested that she continued to attempt to work
as a cleaner but had been unsuccessful because of issues she continued to
suffer arising from the accident.

[26]        
I am of the opinion that it was overly cautious and excessive [Van
Daele v. Van Daele (1983), 56 B.C.L.R. 178 (C.A.)] to obtain a functional
capacity evaluation in these particular circumstances.  Specifically, when I
look at what Dr. Boshoff said, it was his opinion that the plaintiff might need
assistance, for example, for approximately another six months.  He talks about her
total disability with respect to employment but, given the plaintiff’s age at
the time of the accident, I think, at the time the settlement was reached, it
was really unlikely, even though she had done some small bits of work, that the
plaintiff would be returning to work in any real capacity in the future.

[27]        
With respect to the loss of domestic capacity, the doctor’s opinion is
that the plaintiff might be able to take on some types of things in
approximately six months.  He also states, in his letter [as read]:

She does not require any ongoing
assistance with activities of daily living, and it is my opinion that the
plaintiff requires assistance with respect to regular household or yard work,
but again, she does not require assistance with respect to regular…

[28]        
It is funny, because he gives two different opinions.  In paragraph 10,
he says:

It is my opinion that the
plaintiff requires assistance with respect to regular household or yard work.

[29]        
And then later in his report he says:

It is my opinion that the
plaintiff does not require assistance with respect to regular housework/yard
work, but she is limited in what she can do.

[30]        
So it seems there was an issue with that.  Certainly plaintiff’s counsel
ought to have spent some time, before ordering a functional capacity
evaluation, reviewing with Dr. Boshoff what, in fact, his opinion was and,
further, what it was that Dr. Boshoff might have suggested would be
different in six months (especially given this discrepancy in his report).

[31]        
The trial was set for quite a bit further out – at least a year from the
date the functional capacity evaluation was commissioned.  In my experience, for
the most part, functional capacity evaluations are commissioned closer to trial
and it is often a good idea to wait until fairly close to trial before ordering
a functional capacity evaluation.  These are not experts whom it takes months
and months to get in to see.  Functional capacity evaluations can often be done
within less than a month.  Because Dr. Boshoff’s prognosis for the future
was optimistic, counsel should have waited to see what improvements the
plaintiff would make in the close to a year before trial before ordering a
functional capacity evaluation.

[32]        
Accordingly, I am going to disallow the costs of this report.

[SUBMISSIONS BY COUNSEL]

[33]        
With respect to the report of Dr. Frobb, Dr. Frobb provided a
medical/legal report.  He has been in active clinical practice for 35 years and
has been extensively involved in the treatment and management of chronic back
pain and acceleration/deceleration of spinal injury, commonly known as
“whiplash associated disorder”.  He is a regular presenter at various continuing
medical education conferences within his area of expertise, and he has been
providing medical/legal reports for some 30 years in this Province.

[34]        
Dr. Frobb has deposed in an affidavit that his hourly rate is $475
per hour; that rate is what he would earn in his clinical practice, so he
charges the same as he would earn in his clinical practice for preparing IME
reports.

[35]        
Ms. Taliunas had a preliminary objection to this report.  She says
it was not served in accordance with the Rules, and in keeping with my
decision in Dhillon v. Bowering [2013 BCSC 1178 at paras. 44-46], I
ought to disallow the report in its entirety.

[36]        
I think I can distinguish Dhillon v. Bowering on the basis that,
in that particular case, the report itself was ordered after the expert’s deadline
had passed whereas here I have Mr. Woods who says that the report was
ordered in advance of the deadline but not received in time to meet the
deadline for service in the Rules [Rule 11-6(3)].

[37]        
I do not know what might or might not have happened to the faxed copy of
the report or why it was apparently not received by defence counsel, however, I
do not think I need to embark on some type of factual investigation as to what
happened here.  This is a case where, certainly, the report was ordered before
the deadline.  There was some kind of glitch in delivering it.  I do not think
I am in the same position here as I was in Dhillon v. Bowering where I
was being asked to decide whether the late-ordered report would have been
admitted at trial.  Here there was clearly a mix-up in delivery and I expect
that it is far, far more likely for it to have been admitted in this case than
not.

[38]        
The question then is: what is the reasonable amount for the report?  I
think, when I look at the actual report itself, I do have to take into
consideration some degree of proportionality in terms of the actual report
itself and what is being opined in the report.  The report itself is very, very
thorough.  But I would also say there was a degree of overkill associated with
the report for a matter that was clearly – I mean, I do know that there were
some issues with respect to thoughts of permanent disability, but I think that
this is out of proportion – the report itself – to what was at stake in this
particular litigation.

[39]        
It was Registrar Bouck, I think it was, in Hamo [Hamo v. Khan,
2010 BCSC 205] – actually it was Registrar Blok – at paragraph 43
Registrar Blok (as he then was) says:

…I
do wish to emphasize those comments quoted above that make it clear that
medical-legal reports containing excessive detail are neither desirable nor
necessary…

[40]        
Based on my review of Dr. Frobb’s report, clearly it contains a great
deal of recitation of the clinical records which I think was somewhat excessive. 
That being said, I do not think that this is a case where I should reduce the
amount significantly in terms of – I have an affidavit from the doctor, where
he swears to the amount of time that was put in, don’t I?

[41]        
Where is his affidavit?

[42]        
MR. WOODS:  It is at Tab 4 of the hearing record, Your Honour.  I
believe he spent just over 11 hours on the report.

[43]        
THE REGISTRAR:  The time that was spent in preparation of the report was
5.5 hours, which I think is high for this report.  I am not normally of a view that
one should deduct hours rather than simply determine a reasonable number to
arrive at the proper cost of a report, but I think it is simpler to do that in
this particular case than to use a more global approach.  I think the report
itself should have taken closer to three hours than 5.5 hours, and so 5.5 times
$475 is $2,612.15 and that is the number I am going to reduce.  So what have I
got?  Three hours times $475 would be $1,425.  I am going to reduce the costs
of the report by $1,187.50 – the difference between 5.5 and three hours.  So
what was the amount he charged?

[44]        
MR. WOODS:  Your Honour, it was $5,181.25.

[45]        
THE REGISTRAR:  So $5,181.25 minus $1,187.50 is $3,993.75 plus HST of
$479.25.  I will allow the plaintiff that amount [$3,993.75] for this report.

[SUBMISSIONS BY COUNSEL]

[The matter did not conclude on
November 27, 2013 and was adjourned generally to be completed at a later date.]

“Registrar
Sainty”