IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140314

Docket: 11-3770

Registry:
Victoria

Between:

Brittany Dawn Harvey

Plaintiff

And:

Stella Shauna Tooshley,
Carmel Custom Contracting Ltd.,
David Anthony Joe and
David Dennis Paulin

Defendants

Before:
Master Bouck

(Sitting
as Registrar)

Reasons for Decision

Introduction

[1]            
These reasons address the assessment of costs in two personal injury
actions governed by Rule 15-1 of the Supreme Court Civil Rules (“SCCR”).
The style of cause in the second action is Harvey v. Phillips, Victoria
Registry No. 11-4905 (the “Phillips action”). Brittany Harvey is the
sole plaintiff in both actions. By order of the court, the trials in these
actions were to be heard at the same time. The two actions were settled for a
global figure about four days before the commencement of trial.

[2]            
The plaintiff now presents an appointment in each action but only one
bill of costs. The plaintiff claims fees of $6,500 for each of the actions and
one set of disbursements. The total amount of costs and disbursements claimed
is $57,809.23.

[3]            
The defendants take issue with the two sets of fees as well as various
disbursements, primarily expert’s charges. The defendants say that the costs
are disproportionate to the nature of the plaintiff’s claim and the amount
involved.

[4]            
For convenience, these reasons will address the costs claimed in both
actions even though separate certificates of costs ought to be issued. A separate
written decision will be issued in the Phillips action but merely to reference
the findings made here.

Background

[5]            
Ms. Harvey is a young woman with a grade 9 education and an admittedly “spotty”
work history.

[6]            
The plaintiff experienced difficulties in her childhood, the particulars
of which need not be described in this decision. As well, the expert reports
disclose that Ms. Harvey has an ongoing substance abuse problem.

[7]            
In the past five years, Ms. Harvey has been involved in as many motor
vehicle accidents. An accident which occurred on December 14, 2009 is the
subject matter of this action. The Phillips action concerns injuries and
losses resulting from an accident on July 11, 2011. Liability is admitted by
the defendant drivers in both of those actions. In addition, Ms. Harvey was
involved in accidents occurring on September 12, 2011, March 31, 2013 and
April 19, 2013. No actions were commenced with respect to these three
accidents.

[8]            
The plaintiff is alleged to have suffered physical and cognitive impairments
as a result of the accidents. Although the pleadings were not before me, the
expert reports disclose complaints of low back, knee and hip pain; depression;
noise and light sensitivity; hot flashes; word finding problems and poor
concentration. The plaintiff’s trial brief mentions loss of bladder control,
loss of consciousness and headaches.

[9]            
Most of Ms. Harvey’s working life has been in either the service
industry or as an office clerk at minimum wage levels. Between 2004 and 2012,
Ms. Harvey’s annual employment earnings averaged just under $11,000.

[10]        
At the time of the first accident, Ms. Harvey was working part-time as a
caterer’s helper. Two weeks after the accident, Ms. Harvey attempted a return
to that work but the effort was unsuccessful. She did not work for the balance
of the year. For 2009, Ms. Harvey’s employment earnings amounted to $2,880.

[11]        
The plaintiff did not work at all in 2010. In February 2011, Ms. Harvey
secured employment as an office administrator for a construction company. The
work was mentally challenging for the plaintiff; she was concerned that the
employer might find cause to terminate the employment. The accident-related
injuries were seen by the plaintiff as the cause of these challenges. Nevertheless,
Ms. Harvey was able to continue in this employment following the July 2011
accident without any threat of termination.

[12]        
The plaintiff’s persistent complaint was that of chronic pain with
associated cognitive deficits.

[13]        
Six months following the second accident, and with the support of her
family doctor, the plaintiff left her employment. Ms. Harvey relied on medical
employment insurance benefits for some time but never returned to the workforce.
According to the expert reports, the plaintiff was to commence classes in
July 2013 with the goal of becoming an Addiction and Community support
worker. Ms. Harvey’s long term goal is to up-grade her education and even
pursue post-secondary education.

[14]        
Ms. Harvey initially represented herself with respect to the December 2009
and July 2011 accident claims. The two actions were commenced after
counsel was retained. The plaintiff chose to include the fast track endorsement
on each notice of civil claim.

[15]        
In November 2011, Dr. Killian (a physiatrist) diagnosed a variety of
injuries allegedly resulting from the motor vehicle accidents. The diagnosis
included a history of mild traumatic brain injury, post -traumatic stress and
history of anxiety and panic disorder. Dr. Killian opined that the first
accident “was a significant factor which has resulted in significant
psychological impact and affecting [the plaintiff’s] ability to cope”.
Psychological/psychiatric evaluation and care was recommended.

[16]        
In June 2012, Dr. Stanwood, the plaintiff’s family physician, reported
that the plaintiff was suffering from a number of emotional issues as a result
of the two accidents and that:

…These include both cognitive
and emotional abnormalities … characterized by lack of concentration, short
term memory difficulties, lack of motivation and interest, as a well as
emotional liability to name a few

[17]        
In August 2012, orders were made (by consent) to have the trials in the
two actions heard at the same time. The trials were set to be heard over the course
of eight days commencing October 8, 2013.

[18]        
The plaintiff attended one examination for discovery, held in
September 2012. The examination was intended to address the claims brought
in both actions. This examination consumed nearly the entire day.

[19]        
One list of documents and one notice to admit was delivered by the
plaintiff.

[20]        
Between November 2011 and July 2013, the plaintiff retained the services
of a physiatrist, occupational therapist, neurologist, neuropsychologist, rheumatologist,
occupational consultant/work capacity evaluator, psychiatrist, vocational
rehabilitation consultant, otologist and economist. All of these individuals
prepared reports for use at trial.

[21]        
At the defendants’ request, the plaintiff attended one independent
medical examination with a neurologist.

[22]        
As part of a rehabilitation effort, the plaintiff received treatment
from physiotherapists, counsellors and massage therapists. Ms. Harvey also
pursued an exercise program. The plaintiff chose to discontinue most of these
treatments.

[23]        
The parties attended a trial management conference on
September 25, 2013 with respect to both actions. The plaintiff filed
identical trial briefs in each action.

[24]        
At trial, the plaintiff intended to prove that the accident-related
injuries had led to a permanent disability. Evidence was gathered to show that the
plaintiff’s employment opportunities were significantly reduced as a result of
the accident-related injuries and symptoms. The plaintiff also asserted claims
for past income loss, future care costs, special damages and non-pecuniary
damages.

[25]        
Ms. Harvey’s claims were settled on terms set out in a “with prejudice” letter
from defence counsel. The defendants in both actions agreed to pay the
plaintiff $100,000 “new money”. Ms. Harvey had already received about $19,000
from the defendants’ insurer, mostly representing wage replacement benefits.

[26]        
In addition to these monies, the defendants agreed to pay the plaintiff’s
“reasonable costs and necessary disbursements [in the actions], which
assessment of costs and disbursements is subject to the comment below”. There
is no further reference to the issue of costs or disbursements in the letter,
except to put the plaintiff on notice that the offer would be presented to the
trial judge for consideration in relation to costs after judgment was
pronounced.

[27]        
In accepting this offer, the plaintiff waived any future claims related
to the three accidents which were not the subject matter of litigation.

[28]        
The plaintiff then presented her bills of costs. It soon became clear
that an assessment would be required. Regrettably, the defendants decided to
withhold settlement funds pending the resolution of the costs claim. That impasse
has been remedied but necessitated the plaintiff preparing a notice of
application and supporting affidavit material seeking an order for payment of
the settlement proceeds. The defendants have agreed to pay the plaintiff’s
costs associated with those steps.

Discussion

A. The
Fees

[29]        
The defendants submit that there ought to be a reduction in the fees claimed
in each action to reflect the savings and efficiencies achieved by having these
matters joined for the purposes of trial.

[30]        
It is now well established that the registrar has some discretion to
reduce the lump sum fee portion of costs allowed under Rule 15-1 if the action
is settled before trial. That discretion is said to be a “rough and ready”
exercise and allows the registrar to consider the steps been taken to the date
of settlement. Nevertheless, the registrar is not expected to parse out those
steps as if the tariff to Appendix B applies.

[31]        
The approach by assessing officers has been to make some reduction for
the costs that might be attributed to attendance at trial and allow the balance
as so-called preparation costs. Assessing officers have allowed $6,500 for
these preparation costs, whether the matter settled three months before or on
the eve of trial. The court has endorsed this approach: Christen v. McKenzie,
2013 BCSC 1317.

[32]        
Moreover, this approach is consistent with the purpose of Rule 15-1
which is to provide a simplified and streamlined litigation process, including
the costs assessment process.

[33]        
The plaintiff is entitled to two sets of costs, regardless of the
efficiencies accomplished by joining these actions for trial: Peacock v.
Battel, 2013 BCSC 1902.

[34]        
I allow the sum of $6,500 in fees for each action.

B. Disbursements

[35]        
The plaintiff has not attempted to attribute a specific disbursement to
a particular action. In the context of these actions, such attribution might be
practically difficult and somewhat artificial.

[36]        
The plaintiff’s claimed disbursements amount to $43,249.23 inclusive of
taxes. The defendants do not take issue with all of the disbursements claimed. However,
these defendants say that the plaintiff ought to have limited the number of
experts retained for litigation purposes, considering not only the amount involved
but also the fact that the actions were litigated under Rule 15-1.

[37]        
Experts’ charges may be reduced or disallowed for a variety of reasons. Those
reasons, first articulated in Bell v. Fantini (1981), 32 B.C.L.R.
322 (S.C.) at paras. 32 and 34, and later paraphrased by the court in Leverman
v. Prince George (City), 2000 BCSC 697, include:

– when the work duplicates the work
already done by two similar experts;

– when the cost is unreasonable,
compared to evidence of the cost of other similar experts;

– when a report includes,
improperly, extensive narrative;

– when the suggested damages reported by the expert are
"preposterous" in the view of the court.

[38]        
Some of these reasons might have application on this assessment. However,
before engaging in that analysis, I believe it necessary to make some general
observations on the nature of some of the defendants’ objections.

[39]        
First, Rule 15-1 places no restriction on a party’s use or choice of experts.
Nor was such a restriction in place under the Rule’s predecessor (Rule 66 of
the Rules of Court). It is appreciated that fast track actions are
intended to be a speedier and less expensive process. However, it is noteworthy
that the decisions addressing costs in fast track proceedings focus on the fees
to be allowed under Rule 15-1 (15) and place no limits on the
disbursements a party might be entitled to claim: Majewska v. Partyka,
2010 BCCA 236. Thus, the approach by the registrar in determining the
necessity, propriety or reasonableness of disbursements ought to be the same
whether or not an action is litigated in fast track.

[40]        
Second, the amount of settlement or judgment should not play any part in
the costs assessment process. To the extent that any decisions rendered by me unintentionally
suggest otherwise, I stand corrected. Proportionality is a broad concept and
includes a consideration of the importance of the matter and the amount
involved in a proceeding. The most that an assessing officer could consider is
whether the cost of the disbursement, when incurred, was proportionate
to the reasonably anticipated loss or damages. The concept of proportionality
as it relates to the amount involved should not be applied retrospectively once
judgment is rendered or settlement accomplished.

[41]        
Third, as has been oft-stated, the assessing officer must be careful not
to step into the shoes of the trier of fact and decide the utility or
evidentiary weight to be given particular expert reports. The content of these
reports might be reviewed to determine whether there is unnecessary narrative
or duplication or the opinion offered is preposterous. However, factual errors,
oversights and omissions identified in the reports are not relevant to
determining the necessity or propriety of commissioning the report in the first
place.

[42]        
Lastly, there is a suggestion that defendants in a law suit should be
given some advance notice of the plaintiff’s expenditures on disbursements.
Leaving aside the issue of litigation privilege (see Galvon v. Hopkins,
2011 BCSC 1835), there is no legal basis to support any such
consultation. It may be a sensible practice in some circumstances (for example,
when the plaintiff seeks reimbursement in advance of trial) but ultimately the
plaintiff bears the onus of proving the claim and the risk of a disbursement
being disallowed in whole or in part. It is not for the defendants to dictate
or even influence how the plaintiff chooses to litigate her claims. If
dissatisfied, the defendants are given the opportunity to challenge the
plaintiff’s disbursement choices both at trial and at this assessment.

[43]        
On the other hand, while counsel should examine all sources of
information and possible evidence which might be of advantage to the client, a
party does not have free license to canvass every conceivable contingency or
issue, no matter how remote, and expect indemnification for the costs of those
efforts: Bell v. Fantini, supra; Dineley v. Mollison, [1999]
B.C.J. No. 1353 (S.C.).

[44]        
One of the defendants’ main objections to the experts’ charges is that
there is duplication and overlap in terms of expertise and issues addressed in
the reports. The impugned expert charges are, therefore, addressed under the
categories below.

I. Functional and
Vocational Capacity Reports

Back
in Motion Report – Functional/Work Capacity Evaluation Report dated June 4, 2013
– $6,355 (excluding taxes)

[45]        
Michael Smith, an occupational therapist and the principal of Back in
Motion, was retained to evaluate the plaintiff’s ability to work in both her
pre-accident vocation as caterer-server and the post-accident(s) vocation as
office manager/administrator. Mr. Smith has deposed to an affidavit
setting out his qualifications, the purpose of his evaluation and a detailed
description of the services provided.

[46]        
The evaluation took place on May 1 and 2, 2013 with a 56-page report
issued on June 4, 2013.

[47]        
The defendants submit that the charges ought to be reduced to $4,000.
The basis for this reduction is that the report itself:

·      
is a “Cadillac” report for a small income issue;

·      
is lengthy and overly detailed;

·      
fails to attribute some of the plaintiff’s impairments to the MVA;

·      
fails to address other possible causes of the plaintiff’s
impairments.

Mair Edwards-Occupational Therapist
– report dated June 5, 2012 – $795

[48]        
Ms. Edwards was retained by the plaintiff in May 2012. Her
subsequent report describes:

…an initial occupational therapy
assessment of Ms. Brittany Harvey’s level of function in her daily life and how
her physical, cognitive, emotional and behavioural status affects her
functional status in her home environment. It [the written report] also
provides recommendations for medical equipment, assistive devices and services
required for her current care and rehabilitative needs … It does not include recommendations
for future care.

[49]        
Ms. Edwards visited the plaintiff twice at home, and performed a full
physical and functional assessment. Ms. Harvey was off work but awaiting
funding approval for the recommended rehabilitation program.

[50]        
The report describes the results of a physical examination as well as
the plaintiff’s subjective limitations. A number of aids or assistive devices
are recommended to address the plaintiff’s subjective limitations and
complaints of pain. In addition, Ms. Edwards recommends physiotherapy,
counselling, occupational therapy, case management and home support. Although
Ms. Edwards states that she is not making future care assessment, some of the
recommendations are clearly in this category. Finally, Ms. Edwards recommends
an assessment by a pain specialist.

[51]        
The defendants submit that retaining the services of Ms. Edwards
was neither necessary nor proper given that the opinion duplicates that of
another occupational therapist, Michael Smith. As well, the defendants say that
the cost of this report (either alone or taken together with the reports of the
vocational consultant and Mr. Smith) is disproportionate to the amount involved
in these actions.

Trainor
Vocational Consultant Corp. – Vocational Rehabilitation Assessment Report -dated
July 12, 2013 – $3,830

[52]        
Mr. Trainor was retained to offer opinion evidence in the area of
vocational rehabilitation and employability as it relates to education, skills,
perceptual abilities, labour market and the plaintiff’s ability to develop job
leads and promote herself to a potential employer. In his report, Mr. Trainor
answered specific questions put to him by plaintiff’s counsel and makes
recommendations on both the plaintiff’s ability to return to the workforce as
well as future educational possibilities.

[53]        
Mr. Trainor reviewed all of the medical information provided by the
plaintiff’s counsel, tested and interviewed the plaintiff (in Vancouver) and
prepared a 39-page report. A flat fee of $3,600 (plus taxes) was charged for
the assessment and report. As well, there is an additional charge of $230 for
“miscellaneous hourly charge: documents took longer than normal to review”.

[54]        
The vocational opinion itself is contained in five pages of the report.
The remaining 34 pages is made up of such things as the plaintiff’s
detailed medical history (excerpts and summaries of other experts’ reports);
Ms. Harvey’s self-reported work history, vocational interests and job search
skills; and what might be described as “boiler plate content” (references,
certificate of duty, letter of instruction and curriculum vitae).

[55]        
The defendants say that Mr. Trainor’s charges ought to be disallowed as
the report does not address non-accident related factors that may, be the cause
of the plaintiff’s restricted employability. Again, the defence says that the
cost of the report is disproportionate to the amount involved in the
proceeding.

Analysis

[56]        
Many of the defence objection’s go to the content of these reports
rather than the necessity or propriety of retaining each expert. I am satisfied
that while perhaps not strictly necessary, it was proper for the plaintiff to
retain each of these experts as there is really no overlap in the actual
purpose of the reports or assessments.

[57]        
Ms. Edwards was retained to address the plaintiff’s functionality in the
home and determine whether aids were needed as part of a physical
rehabilitative process and thus eventual return to the workforce. At the time
of Ms. Edwards’ assessment, the plaintiff had complaints of chronic pain that
interfered with daily living activities. It was proper for counsel to
investigate measures to assist in the plaintiff’s rehabilitation. Indeed, it
might be argued that the plaintiff had failed to mitigate her damages had she
not attempted to put a rehabilitation plan in place.

[58]        
Although also an occupational therapist, Mr. Smith was retained for a
different purpose: to provide measurements of ability, strength and tolerance
in relation to specific job demands.

[59]        
Similarly, Mr. Trainor’s expertise is distinct in that his report
addresses not only the plaintiff’s subjective characteristics regarding
employability, but how those characteristics might impact Ms. Harvey’s ability
to work presently and into the future. At the time of this retainer, Ms. Harvey
remained out of the workforce and was pursuing a capital loss or reduced
earning capacity claim.

[60]        
As a basis for pursuing these investigations, the plaintiff had the
opinions of Drs. Killian and Stanwood. Both of these physicians attributed
the plaintiff’s complaints of chronic pain and cognitive impairment to the
accidents.

[61]        
Whether or not the plaintiff’s subjective limitations could or should be
attributed to the motor vehicle accidents would be decided by the trier of
fact.

[62]        
Ms. Harvey’s circumstances differ from those considered in Godwin v. Ofstie,
2009 BCSC 137. Ms. Godwin had returned to full capacity employment after
relatively brief periods off work following each of two accidents. Furthermore,
Ms. Godwin planned to remain in that employment position until retirement
which was still several years down the road. Plaintiff’s counsel admitted that
a functional capacity evaluation was pursued despite a lack of any objective
medical evidence supporting the need for such an assessment. Nevertheless, I
found that the commissioning of the report was proper to address some future
care costs.

[63]        
As with the impugned charges in Godwin v. Ofstie, it is really
the reasonableness of these three experts’ charges that warrants scrutiny. Proportionality
is a factor to be considered on this question but does not “overwhelm the
analysis”: Kasim v. Spittel, 2013 BCSC 2422 at para. 24. As the
court observes in Fairchild v. British Columbia (Vancouver Coastal Health
Authority), 2012 BCSC 1207, “… the notion of reasonableness has always
encapsulated a sense of proportion.” (Para. 17.)

[64]        
The defendants say that they should not be required to pay more than
$16,000 in experts’ charges intended to address an income loss claim of de
minimus value. The defendants point to the plaintiff’s sporadic pre-2009
work history and very low historical levels of employment earnings.

[65]        
I am unable to find that the cumulative cost of these reports is out of
proportion to the plaintiff’s potential claim. The plaintiff’s employment
history and earnings would be a consideration in the assessment of the impaired
earning capacity claim. However, Ms. Harvey is a young woman. The damages that
might be awarded based on a lifetime of reduced or impaired earning capacity could
be more than de minimus.

[66]        
In the case of Mair Edwards’ charges, the defence has not offered any evidence
of a more appropriate charge for the services provided; the submission is that
the charges should be disallowed entirely. Based on my experience as an
assessing officer, I find that the charges are reasonable. Furthermore,
Ms. Edwards was retained one year before Mr. Smith and thus there can
be no argument of duplication on her part.

[67]        
I also find that Mr. Trainor’s charges are in the realm of
reasonableness, with one exception. The extra charge for document review ($230)
is not justified and is disallowed.

[68]        
As for Michael Smith’s charges, the sum of $6,355 is within the range of
charges allowed for this type of report: Franzman v. Munro, 2013 BCSC
1758. Nonetheless, I find that the length and breadth of the report is disproportionate
to the importance of the issue being investigated and, indeed, the parameters of
the investigation for which Mr. Smith was retained. There was also some
unnecessary duplication of investigations into Ms. Harvey’s cognitive
issues.

[69]        
The retainer letter from plaintiff’s counsel requests a functional
capacity evaluation “regarding Ms. Harvey’s ability to perform, on an
unrestricted basis, her pre-MVA occupation as caterer or clerical work”.
However, the letter goes on to request comment on the plaintiff’s fitness to
work, her prognosis for returning to her pre-MVA occupation, any challenges to
her activities of daily living and occupational rehabilitation measures that
may be possible. Enclosed in that instructing letter are two medical legal
reports from Dr. Killian and one medical letter from Dr. Stanwood. The
letter poses several questions to be answered by Mr. Smith, including whether
the FCE identifies restrictions that might negatively impact the plaintiff’s
ability to work in other occupations.

[70]        
Mr. Smith spent 17 hours performing the functional capacity assessment
and 21 hours providing analysis, consultation and report writing. In
addition to a battery of written tests, Mr. Smith assessed the plaintiff’s
ability to carry out home based activities and what might be described as
multi-tasking (“Modified Multiple Errands Test”) in a shopping mall setting.
Mr. Smith has charged for both planning these assessments (i.e. a walk around
the mall himself) and doing the actual observation. In my view, neither of
these assessments was necessary to conduct the investigation requested in the
retainer letter. The charges of this expert ought to be correspondingly
reduced.

[71]        
As well, Mr. Smith spent too much time assessing the plaintiff’s
cognitive functioning. Some of the testing was intended to reveal any cognitive
deficits which might impact the plaintiff’s ability to perform clerical work.
However, the focus of the investigation (at least according to the retainer letter)
ought to have been on Ms. Harvey’s physical abilities and
limitations. Indeed, plaintiff’s counsel deposes that Mr. Smith’s report could
not provide the evidence necessary to address the plaintiff’s cognitive
abilities.

[72]        
I agree with the defendants’ contention that the report is a Cadillac
when a Buick would have served the desired purpose. It might also be observed
that the charges for obtaining Mr. Smith’s report are more than seven times the
cost of Ms. Edwards’ services, nearly twice the cost of Mr. Trainor’s
reasonable charges and, by Mr. Smith’s own admission, more than what would
typically be charged for this type of evaluation or assessment.

[73]        
Considering all of the above, I find that a charge of $4,000 is
reasonable for the necessary and proper work to be performed by this expert.

II. Cognitive Reports

Dr Shane – IMA Solutions –
Psychiatrist – $6,000

[74]        
In May 2013, a psychiatric opinion was sought to address the plaintiff’s
ability to work in the future as well as identify any pre-2009 psychiatric
issues. Given the plaintiff’s medical and social history, the nature of the plaintiff’s
health complaints following the accidents and the opinions of Drs. Killian
and Stanwood, this was a prudent course of action.

[75]        
The defendants’ objections to Dr. Shane’s charges mirror those already described
above. The defence submits that the cost of a psychiatric opinion addressing
employability was out of proportion to the amount involved. As well, it is
submitted that pursuing a psychiatric opinion was extravagant given that the
plaintiff had reports from various experts addressing the plaintiff’s
employability, including. physicians specializing “in mental capacities” (a
neurologist and neuropsychologist — the latter also deemed excessive by the
defence). Nevertheless, the defence suggests that the cost of Dr. Shane’s
services be reduced by only 1/6^th and allowed at $5,000.

Dr. I. Friesen
(Neuropsychologist) – $3,750

[76]        
Dr. Friesen was retained by the plaintiff in early June 2013 for the
purpose of assessing Ms. Harvey’s then neuropsychological status and determining
whether there had been a change in cognitive abilities after the 2009 accident.
Specifically, Dr. Friesen was asked to objectively assess the validity of
the plaintiff’s reported and long lasting cognitive deficiencies.

[77]        
The defendants submit that Dr. Friesen’s charges ought to be disallowed
entirely as the services provided duplicate those of a psychiatrist (Dr. Shane)
and neurologist (Dr. Cameron — Dr. Moll is also mentioned in submissions
but he is the defence’s expert).

[78]        
The defendants also criticize Dr. Friesen’s report arguing that the
“reasoning of the doctor is highly dubious”. Without accepting the validity of
that remark, this kind of objection goes to the weight of the report, not
whether Dr. Friesen’s charges were necessarily or properly incurred or the
reasonableness of the charges.

Analysis

[79]        
Although no evidence was led on this point, I do not accept that a
psychiatrist, neurologist and neuropsychologist would conduct the same
assessments or opine on the same issues.

[80]        
The defendants rely on Franzman v. Munro, 2013 BCSC 1758.
In that case, Master McDiarmid found that some of a neuropsychologist’s
reported conclusions overlapped with the conclusions of other experts. He also
found that retaining this type of expert was proper despite an existing
neurological opinion. Nowhere does Master McDiarmid suggest that
neurological and neuropsychological opinions are one and the same. In the end,
Master McDiarmid reduced the charges of the neuropsychologist based on an assessment
of the reasonableness of that individual’s charges.

[81]        
I find that the charges for Dr. Friesen’s services are reasonable and will
be allowed as presented.

[82]        
I have already found that the plaintiff was justified in incurring the
cost for a psychiatric opinion. Having now read Dr. Shane’s report, I see no
basis for reducing his charges. Dr. Shane’s charges are also allowed as
presented.

III. Other Impugned
Disbursements

Discovery Economics
Consulting – 2 Reports ($585 and $365)

[83]        
Dr. Young, an economist, was retained to provide the following three
reports(with the associated charges noted):

·      
Present Value Discount Factors ($625);

·      
Average Earnings ($585);

·      
Sample Calculations ($365).

[84]        
These services were deemed necessary by plaintiff’s counsel to “assist
the court in estimating the earning capacity of individuals based on their age,
sex, occupation, level of education and past earnings including impact of work
limitations and normal employment contingencies with discounted present values
of future income loss”. In her affidavit of justification, plaintiff’s counsel
describes in detail the purpose of each report for use at trial.

[85]        
The defendants do not take issue with the cost of the first report, acknowledging
that some expertise is required to assist the trier of fact in determining a
future income loss claim. However, the defendants submit that the other two
reports were neither necessary nor proper as they merely “added two items of
public information, and one easy piece of arithmetic”. The public information
is said to be data from Statistics Canada, while the arithmetic ought to have
been easily performed by plaintiff’s counsel in argument.

[86]        
The necessity, propriety and reasonableness of these types of charges is
addressed in a number of cases, including Fairchild v. British
Columbia (Vancouver Coast Health Authority) at paras. 40-46, and Franzman
v. Munro at paras. 80-87. In Fairchild, the economist’s
services were found to be proper but the charges reduced from $11,000 to
$3,000. In Franzman, the $6,595.00 charged by an economist for three
reports was found to be reasonable.

[87]        
In terms of the necessity and propriety of economists’ reports, it is
observed in Franzman that while “some of the calculations performed [by
the economist] are arithmetic calculations and only the basis for them might be
needed … some judges prefer to have the calculations provided in an economist’s
report.”: para. 85. A similar sentiment is echoed by the court in Kasim
v. Spittel, 2013 BCSC 2422 at para. 33.

[88]        
Given these pronouncements and considering the relatively modest cost of
the reports, the Discovery Economics Consulting charges are allowed in full.

[89]        
There might also be an issue with respect to Dr. Young’s charges for
trial preparation. Such preparation is certainly necessary and the associated
charge reasonable. This is not a cancellation charge. This disbursement of
$120.75 (including taxes) is also allowed.

Dr. Murray Stanwood –
$399.50

[90]        
In January 2010, Dr. Stanwood prepared a CL-19 report at the request of
the defence insurer. In lieu of a separate medical legal letter or report
addressing the content of that report, Dr. Stanwood was asked by plaintiff’s
counsel to “adopt” the content of the CL-19 by signing a letter to that effect and
attaching the report. Plaintiff’s counsel intended to rely on that “opinion” as
expert evidence at trial. Dr. Stanwood charged the plaintiff $399.50 for
this particular service.

[91]        
The defence objects to the allowance of this disbursement on several
grounds. First, the content of the document is not in compliance with Rule 11-6
of the SCCR and would not be admissible as expert evidence. At best, the
report could be considered a medical record which might have been obtained at a
cost of $50. Second, there is no opinion evidence contained in the document.
Third, the report is not authored by Dr. Stanwood, but rather is a “fill in the
blanks” type of document created by the defendants’ insurer.

[92]        
I am mindful that a charge ought not to be disallowed simply because the
document associated with the charge would be inadmissible at trial. In this
case, it is a stretch to suggest that the letter and attachment could be
considered admissible opinion evidence. However, and perhaps more to the point,
the plaintiff has not proven that obtaining these documents were either
necessary or proper to the prosecution of her claim.

[93]        
This charge is disallowed entirely.

ViPi Investigations Inc. –
$870.10

[94]        
This expense relates to a third party’s efforts to locate Stephen Frost,
the principal of Loaf & Ladel catering and the plaintiff’s employer at the
time of the first accident.

[95]        
Ms. Harvey did not retain any pay stubs for her earnings prior to the
first accident and the catering company did not issue a T4 for the 2009
calendar year. However, when the plaintiff was self-represented, Mr. Frost
completed a statement of earnings at the request of the defendants’ insurer.
The statement apparently supported a past loss of income claim of $1,200.

[96]        
Plaintiff’s counsel attempted to have the statement of earnings admitted
into evidence by way of a notice to admit. The defendants refused to admit the
truth of the document’s contents and thus a search for Mr. Frost began. Unable
to locate Mr. Frost with the usual methods, plaintiff’s counsel retained
ViPi Investigations.

[97]        
In the opinion of counsel, Mr. Frost’s evidence was necessary to support
the plaintiff’s income loss claim. ViPi was instructed to serve Mr. Frost with
a subpoena to ensure his attendance at trial.

[98]        
ViPi Investigations was not able to locate Mr. Frost despite
investigations carried out in June and July 2013.

[99]        
The defence says that Mr. Frost’s evidence was not necessary as the CL-15
information could have been provided by the plaintiff in her evidence at trial.

[100]     While not
strictly necessary, the charges incurred in attempting to locate Mr. Frost
were proper in the circumstances of this case. The defence refused to admit the
truth of the CL-15 contents. The plaintiff would be expected to provide
evidence of the work performed for the company, hours of work and rate of pay.
However, by this time, the expert evidence had identified various problems with
Ms. Harvey’s cognitive functioning, including memory. It was reasonable
and proper to have what might be described as a corroborative or a “back up”
witness in the person of Mr. Frost. This charge is allowed.

Jason Craig
(Physiotherapist) – $262.50

[101]     In a July
10, 2013 invoice to plaintiff’s counsel, Mr. Craig charges 1.75 hours of his
time for a “physiotherapy consultation to review records”. Plaintiff’s counsel
met with Mr. Craig on that day to review the physiotherapist’s records in an
effort to understand that progression of the plaintiff’s symptoms. Plaintiff’s
counsel also describes the meeting as related to trial preparation, although
that event was still three months away.

[102]     The
defence submits that the review was unnecessary. All that needed to be done was
to introduce the records into evidence at trial.

[103]     I find
that the meeting was at least proper, if not strictly necessary, for reasons
described by plaintiff’s counsel. This charge is allowed.

Summary

[104]     The
plaintiff is entitled to a fee of $6,500 for each of her actions.

[105]     The
impugned disbursements are allowed as presented, with the following exceptions:

 a. The Back in Motion charge is allowed at $4,000
(plus taxes);

 b. Dr. Stanwood’s charge of $399.50 is disallowed
entirely;

 c. Mr. Trainor’s charges are reduced by $230.

[106]     I will
leave it to the parties to perform the necessary arithmetic, with leave to
apply.

[107]    
If a certificate of costs is required, that document should show that
fees are allowed at $6,500 for this action. Whether the disbursements ought to
be apportioned between the actions or allowed in one action is also left up to
the parties, with leave to apply.

                      “C.P.
Bouck”                    

Master C.P.Bouck