IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Sandhu v. Wilk, |
| 2014 BCSC 1128 |
Date: 20140620
Docket: 45207
Registry:
Kamloops
Between:
Sukhdeep
Singh Sandhu
Plaintiff
And
Kristopher
Ryan Wilk and Chrysler Financial Services Inc./
Services Financiers Chrysler Canada Inc.
Defendants
Before:
Master R.W. McDiarmid
Reasons for Judgment
Counsel for the Plaintiff: | H.S. Chahal |
Counsel for the Defendants: | T. Decker |
Place and Date of Hearing: | Kamloops, B.C. March 26 & April |
Place and Date of Judgment: | Kamloops, B.C. June 20, 2014 |
Table of Contents
Tariff Items #17 and 18 – Expert
Evidence and Witnesses. 8
Tariff Items #21 and 22 –
Applications, Hearings and Conferences. 9
Tariff Items #34 – Trial and
Miscellaneous. 9
[1]
This is an assessment of costs following settlement of a claim by the
plaintiff arising out of injuries he sustained in a motor vehicle accident on
February 10, 2009.
[2]
The plaintiffs counsel, Mr. Chahal, was retained on March 30, 2009. A
notice of civil claim was filed January 26, 2011. At the appointment, I was
provided with a pleadings binder which included copies of the notice of civil
claim, a response to civil claim filed March 15, 2011 denying liability, a
notice to admit filed June 28, 2011, a letter responding to that notice to
admit admitting liability, a notice of trial which initially set the matter for
trial June 3, 2014, a jury notice, a copy of an appointment to examine the
plaintiff for discovery on January 10, 2012 for a half day and then a
subsequent appointment returnable April 8, 2013 for a half day, a requisition
to schedule a judicial settlement conference by consent, a trial management
conference order, a notice to mediate, an order granted October 28, 2013,
adjourning the subsequent trial which was set for January 20, 2014, a copy of
the appointment and bill of costs, and a copy of a letter dated February 20,
2014, wherein counsel for the defendants set out their suggested units for
tariff items in dispute and challenged the necessity and reasonableness of ten
disbursement items. The letter also challenged the plaintiffs claim for
disbursement loan interest and his claim for a trial brief disbursement.
[3]
At the hearing of the appointment, I granted permission pursuant to the Law
Society of British Columbia Code of Professional Conduct, Chapter 5,
Article 5.2-1, permitting Mr. Chahal to appear as an advocate, to testify and
submit his own affidavit evidence before me. Mr. Chahals second affidavit made
and filed March 19, 2014 was admitted into evidence. As well, the affidavit of
Julie Harron, Mr. Chahals legal assistant, sworn and filed March 19, 2014 was
admitted into evidence.
BACKGROUND
[4]
In paragraphs 2 through 17 of his affidavit, Mr. Chahal sets out the
history of the litigation. A judicial settlement conference was scheduled for
the week commencing June 3, 2013, but did not take place because no judges were
available. Mediation was held on November 29, 2013. On January 15, 2014, the
matter was settled for the sum of $185,550.00, together with taxable costs and
disbursements.
[5]
Complicating factors in assessing damages are set out in paragraphs 19
and 20 of Mr. Chahals affidavit as follows:
19. Prior
to the Accident, Mr. Sandhu was injured in 2001 while working at Stereo
Warehouse as an installer (the Workplace Accident). He suffered an injury to
his lower back and was unable to work. He initiated a claim with Worksafe BC
(WCB) in 2001. WCB initially denied his claim, but after a number of appeals,
in 2003 his claim was accepted. Ultimately, WCB determined that Mr. Sandhu had
suffered a permanent functional impairment equivalent to 11.8% and as such was
entitled to a monthly disability benefit of approximately $200.00 per month. As
the Workplace Accident would affect Mr. Sandhus current claim for damages as a
result of the Accident, we obtained a copy of his file relating to same. The
WCB records obtained equalled 620 pages.
20. In connection with the Workplace
Accident, Mr. Sandhu also made an application to the Canadian Pension Plan
(CPP) for disability benefits in May of 2004. His claim was ultimately denied
in January of 2005. As the information provided in his CPP Application file was
relevant to his claim for damages as a result of the Accident, we were required
to obtain a copy of his file relating to same. The CPP Application records were
comprised of 208 pages.
[6]
In paragraph 22 of his affidavit, Mr. Chahal sets out the various
medical doctors and other experts seen by the plaintiff. Following the
accident, he was treated at Royal Inland Hospital and returned to the hospital
for various visits. Dr. Stefanyk was the plaintiffs family doctor. Dr.
Jelfimow is an ophthalmologist who saw the plaintiff with respect to vision
loss. Dr. Mosewich is a neurologist who saw Mr. Sandhu with respect to pain.
Dr. Anderson is a neuro-ophthalmologist who saw Mr. Sandhu as a result of a
referral from Dr. Jelfimow. Dr. Barton is also a neuro-ophthalmologist who saw
the plaintiff with respect to functional visual loss in the plaintiffs left
eye. Dr. Cleland is an otorhinolarynologist who saw the plaintiff with respect
to complaints of hearing loss. Dr. Nwachukwu is a psychiatrist who saw the
plaintiff with respect to various psychiatric complaints which the plaintiff
related to the accident. Mr. Brechin is a physiotherapist who provided
treatments to the plaintiff.
[7]
Health Quest Wellness & Vitality Centre is a chiropractic clinic which
provided treatments to the plaintiff. Twin Valley Wellness Centre is a massage
therapy clinic which provided treatments to the plaintiff. Synergy Counselling
Associates is a group of counsellors from whom the plaintiff sought counselling
to deal with depression, a condition the plaintiff says he suffered as a result
of the accident.
[8]
In addition to the medical advisors and treatment providers, the
plaintiff saw various other experts for the purpose of obtaining opinion
reports.
[9]
He attended on Dr. McCann, a physiatrist. He attended on Dr. Ancill, a
psychiatrist. He attended on Dr. Hunt, a neurosurgeon. He attended on Dr.
Pirolli, a neuropsychologist. He attended on Paul Pakulak, an occupational
therapist, specializing in functional capacity evaluations and cost of care
evaluations. He attended on Dr. Powers, a psychologist.
[10]
The plaintiff worked as a janitor for Matrix Contracting (Matrix), a
proprietorship owned by the plaintiffs wife. According to the affidavit of Mr.
Chahal, at paragraph 28, Matrix was a franchise of Jani-King and was
responsible for providing janitorial services to a number of businesses in the
Kamloops area.
[11]
In addition to working for Matrix, from which entity he received a
monthly salary and share of profits, the plaintiff also conducted janitorial
work through his own proprietorship which had one janitorial contract,
allegedly lost as a consequence of the injuries suffered by the plaintiff in
the accident.
TARIFF ITEMS
Tariff Item #1
[12]
The plaintiff claims 10 units which is the maximum. The defendants
suggest 5 units.
[13]
In paragraph 137 of his affidavit, Mr. Chahal deposes:
137. In this particular case, there was
a significant amount of work that was conducted prior to the commencement of
the action.
[14]
That statement is correct.
[15]
Mr. Chahal deposes to the need to investigate the workplace accident
which preceded the motor vehicle accident, as well as reviewing the plaintiffs
application for Canada Pension Plan (CPP) disability benefits. He deposes to
investigating and compiling evidence regarding liability, including searching
for and interviewing witnesses disclosed in the RCMP records. Mr. Chahal
attaches a list of documents which sets out several documents, including, in
particular, doctors, specialists and treatment providers seen by the plaintiff
prior to the commencement of the action.
[16]
In paragraph 142, Mr. Chahal deposes to other difficulties which
increased the time spent between the time the plaintiff retained counsel and
the time the proceedings were commenced.
[17]
Counsel for the defendants points out firstly that the maximum units are
reserved for the most complicated and detailed sorts of cases. In addition, she
reminded the court of the wording of item #1 which includes the words, for
which provision is not made elsewhere in this tariff.
[18]
That wording appears as well in tariff items #2, 3, 6, 7, and 8.
[19]
Of particular relevance to the plaintiffs claim for the significant
number of units under this item are items #10 and 11, where units are claimed
for obtaining and giving discovery and inspection of documents, and items #17
and 18 dealing with all process and correspondence associated with retaining
and consulting experts and all process and correspondence associated with
contacting, interviewing and issuing subpoenas to all witnesses.
[20]
Keeping in mind that some of what was done prior to the commencement of
the proceeding is provided for elsewhere, I allow 7 units under item #1.
Tariff Item #2
[21]
The plaintiff claims 15 units, the mid-point with respect to item #2.
The defendants do not dispute that claim and I allow item #2 at 15 units.
Tariff Item #6
[22]
Item #6 is primarily for the process for drafting, issuing and serving
the notice of civil claim. The plaintiff claims 10 units, the maximum
claimable.
[23]
In his affidavit, Mr. Chahal deposes in paragraphs 144 through 147, to
the evidence I should consider. This claim is somewhat more complex in its
pleading requirements than a typical personal injury claim arising from a motor
vehicle accident.
[24]
Most of what is deposed to in paragraphs 144, 145 and 146 relate to
matters for which provision is made elsewhere in the tariff.
[25]
The defendants have suggested 4 units. Based on the evidence set out in
Mr. Chahals paragraph 147, and on my review of the notice of civil claim, I
allow 5 units under item #6.
Tariff Item #10(a)
[26]
The plaintiff initially claimed 5 units; the defendants suggest 3 units.
There were 140 documents obtained by discovery of documents. The defendants
number of suggested units is appropriate. Mr. Sandhu is agreeable to accepting
3 units. That number of units is appropriate and I allow 3 units under this
item.
Tariff item #11(a)
[27]
As deposed to by Mr. Chahal in paragraphs 149 through 152 of his
affidavit, the plaintiffs initial list and additional list had approximately
160 documents. One of the documents disclosed was the Workers Compensation
Board records which total 620 pages. Although many of those records (which I
have not reviewed) are likely irrelevant to the issues in the litigation, Mr.
Chahal deposes that the records include clinical records and reports from
various medical advisors and treatment providers.
[28]
He deposes that the CPP application records total 208 pages.
[29]
He deposes that the Jani-King records totalled 576 pages showing monthly
and yearly billing summaries for Matrix.
[30]
Had each page of all of these documents been listed as a separate
document, as is occasionally done, the process for giving discovery and
inspection of documents would be under item #11(b). However, the way the
documents were listed is the most appropriate way of listing the documents. In
addition, large portions of these records were undoubtedly of limited or no relevance.
They did, however, need to be inspected by plaintiffs counsel. That puts the
allowable number of units in the upper range of item #11(a). I allow 8 units.
Tariff Item #14
[31]
The plaintiff claims 1 unit for delivering a notice to admit, which is
not disputed by the defendants and I allow 1 unit under item #14.
Tariff Items #17 and 18 – Expert Evidence and
Witnesses
[32]
Paragraph 154 of Mr. Chahals affidavit documents ten experts who were
retained. A process associated with consulting these experts was made more
difficult, according to what is deposed in paragraph 156 of Mr. Chahals
affidavit, as a consequence of Mr. Sandhu needing more assistance than would be
normal in remembering his appointments, being motivated to get to his
appointments, arranging for his travel to and from the appointments and meeting
with the plaintiff to review the reports which were provided.
[33]
Keeping in mind that in the most complex cases retaining and consulting
experts for complicated technical opinions will result in 10 units. I agree
with counsel for the defendants that 8 units are appropriate. I allow 8 units
for item #17.
[34]
The work done, including process and correspondence associated with
contact and interviewing all witnesses (no subpoenas were issued), is set out
in paragraphs 157 through 162 of Mr. Chahals affidavit. The plaintiff is
claiming 7 units. The defendants suggest that 4 units are appropriate. This was
a ten-day trial. Mr. Chahal deposes to dealings with ten witnesses, confirming
his intention to call seven of those at trial.
[35]
This is a case where it is appropriate that 5 units be allowed under
this item.
Tariff Items #19 and 20
[36]
The plaintiff claims 3 units under item #19 and 5 units under item #20;
those claims are appropriate and not disputed by the defendants.
Tariff Items #21 and 22 – Applications, Hearings
and Conferences
[37]
The plaintiff claims 3 units for preparation of an opposed application
pursuant to item #21(b) and 5 units for attendance at that opposed application
under item #22(b). During submissions, it became apparent that the application
was a half day and, accordingly, I allow 1 ½ units under item #21(b) and 2 ½
units under item #22(b).
Tariff Items #29 and 30
[38]
The assessment of costs required two half days; 2 units under item #29
and 4 units under item #30 are claimed and are allowed.
Tariff Items #31 and 32
[39]
The plaintiff is claiming 2 units for preparation for attendance at a
trial management conference and 3 units for attendance at the trial management
conference; the defendants suggest that 1 unit for each of those items is
appropriate.
[40]
During submissions, it became apparent that in addition to a trial
management conference, there was a settlement conference. I allow a total of 3
units under item #31, 1 unit for preparation for the trial management
conference, and 2 units for preparation for the settlement conference.
[41]
The settlement conference did not take place. I allow 1 unit for
attendance at the trial management conference.
Tariff Items #34 – Trial and Miscellaneous
[42]
The plaintiff claims 5 units for preparation for trial under item #34;
the defendants do not contest this and I allow 5 units.
Tariff Item #44
[43]
The plaintiff claims 5 units for negotiations, including mediation and
process for settlement under item #44. This is not contested and I allow 5
units under item #44.
[44]
The plaintiff claims 5 units for attendance at a one-day mediation and 3
units under item #46 for preparation for that mediation. Those are not
contested and I allow 5 units and 3 units respectively for those two items.
[45]
That totals 92 units, which, when multiplied by the unit value is
$10,120.00, to which is added 5% GST, totalling $506.00 and 7% PST, totalling
$708.40 for a total of tariff items, including taxes, of $11,334.40.
DISBURSEMENTS
[46]
When assessing disbursements, I am governed by Rule 14-1(5) of the Supreme
Court Civil Rules [Civil Rules]. The assessment is a two-stage process:
a) I must determine
which disbursements have been necessarily or properly incurred; and
b)
Allow a reasonable amount for those disbursements which have been
necessarily or properly incurred.
[47]
The distinction between necessary disbursements and proper disbursements
is summarized by Mr. Justice McEwan in Fairchild v. Vancouver Coastal Health
Authority, 2012 BCSC 1207 at para. 9, citing Zaenker v. Kirk, 2008
BCSC 1460 at para. 24:
"Necessary" disbursements
are outlays that could not be avoided in the conduct of the proceeding, while
"proper" disbursements are those that are reasonably incurred,
although, strictly speaking, avoidable.
[48]
Although that definition sounds like there is a bright line distinguishing
between the two, it is my view that an outlay for basic medical opinions in a
case where personal injuries are claimed have probably become necessary.
However, from a practical perspective, so long as a disbursement is either
necessary or proper, it is claimable, subject always to the argument that the
amount allowed must be reasonable.
[49]
In Fairchild, McEwan J. went on at para. 11 to set out the
specific principle I must apply respecting proper disbursements, as follows:
… 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 of the time when the disbursement or expense was incurred.
[50]
Defendants counsel submits that the disbursements claimed for monies
paid to Dr. McCann and to Dr. Pirolli are improper, and thus should be
disallowed in full.
[51]
The other disbursements placed in issue by the defendants are submitted
to be unreasonable as to amount, although proper.
[52]
Dr. McCann is a specialist certified to practice medicine and
rehabilitation, commonly referred to as a physiatrist. He prepared three
reports, one on July 13, 2009, one on February 20, 2013 and one on April 12,
2013.
[53]
Dr. McCann rendered three invoices, one for each report. On August 5,
2009, he rendered an account for $2,161.00, which was particularized in
reference to three fees, all of which were cross-referenced to the B.C. Medical
Association fee guide.
INTEREST
[54]
The plaintiff claims disbursement loan interest of $6,122.75.
[55]
In his affidavit, at paragraphs 119 through to 135, Mr. Chahal deposes
that it is his law firms practice to establish separate loan accounts in the
form of lines of credit to assist in funding disbursements for personal injury
matters. He deposes that in 2009, Coast Capital Savings Credit Union (Coast
Capital) agreed at a rate of interest of 8.25 percent compounded monthly,
limited to an amount of $20,000.00 in principal. He deposes that when he
started practicing in his own law corporation, the law firm had limited
borrowing power which accounted for the 8.25 percent rate. He deposes that the
loan accounts were only drawn on when funds were required to pay for
significant disbursements. He attaches as an exhibit to his affidavit a
document which shows that to January 29, 2013, $4,749.52 accrued interest was
charged on the loan account.
[56]
He then deposes that in January of 2013 he established a relationship
with Valley First Credit Union (Valley First) and negotiated an agreement
that Valley First would charge an interest rate of 6 percent compounded monthly
on outstanding amounts, together with a $100.00 administration fee to set up
the account. Valley First then paid out the Coast Capital loan on January 28,
2013, and from that date until February 3, 2014 interest in the amount of
$1,545.68, together with the administration fee of $100.00 was charged so that
the total amount owed on the Valley First loan, as of February 3, 2014, was
$26,395.15, with interest continuing to accrue at the rate of $4.3589 per day.
[57]
Paragraph 125 of Mr. Chahals affidavit is as follows:
125. We established this loan for Mr.
Sandhus matter as it was clear, given his inability to work, and the
continuing costs he was responsible for in relation to his treatment and
medication, that he would not be able to carry the costs of the significant
disbursements that would likely be incurred on this matter. It is clear, from
my perspective, that the costs for disbursements on this matter were
significant.
[58]
As is apparent from the bill of costs, the total disbursements claimed
exceed $40,000.00. In submissions, Mr. Chahal advised that the interest was
only being claimed on the $20,000.00 disbursement loan, with the law firm
bearing the balance of the cost of carrying disbursements.
[59]
As set out in paragraph 18 of Mr. Chahals affidavit, settlement funds
were provided on February 13, 2014.
[60]
Based on the uncontradicted evidence provided in paragraph 125, that the
plaintiff would not be able to carry the costs of significant disbursements
that would likely be incurred on this matter, considering that the interest
charged is based on actual interest charges made by financial institutions (no
interest being claimed pursuant to the Contingency Fee Agreement which provides
for an interest rate of 12 percent per annum), I find that it was proper for
the plaintiff to have incurred the interest on the disbursement loans and that
in all of the circumstances, the amount claimed is reasonable. I allow disbursement
loan interest as claimed at $6,122.75. I appreciate that the plaintiff is
claiming an additional per diem. I considered whether I ought to allow the
interest to the date that settlement funds were provided, which would have been
an additional 30 days interest, which is a sum of approximately $130.00.
[61]
The plaintiff was unable to pay off the interest loan until he received
settlement funds. Accordingly, I allow an additional $130.00 on disbursement
loan interest so that the total interest allowed is $6,252.75.
[62]
In her submissions, defendants counsel did not question the propriety
of the interest disbursement claimed, but did question whether the criteria for
awarding disbursement interest had been met.
[63]
The rationale for allowing interest charges incurred by the plaintiff
for funding the disbursements properly incurred to conduct his case are
summarized by Mr. Justice Savage in Chandi (Guardian ad litem) v. Atwell,
2013 BCSC 830, where at para. 58 he writes:
[58] It is apparent that the
Court in Milne considered the term "disbursement" to be a
general term of broad signification, as all counsel agreed here. The Supreme
Court Civil Rules require that all such disbursements be directly related
to the litigation, and then only recoverable if necessary or properly incurred.
The registrar may then "allow a reasonable amount for those
disbursements". I see no error in that approach.
[64]
As I wrote in Franzman v. Munro, 2013 BCSC 1758, in commenting on
the propriety of disbursements, at para. 28:
[28] We are constantly
hearing how difficult it is for ordinary people to afford access to our courts.
[65]
The funding of proper disbursements through disbursement loans is
proper, and the amount claimed, together with the per diem up to the date funds
were advanced by the defendants to the plaintiff, is reasonable.
REPORT OF DR. PIROLLI
[66]
Mr. Chahals affidavit, read in its entirety, describes the plaintiffs
medical history, both before and after the motor vehicle accident. Several of
the relevant facts have been set out in paras. 5-11. The history is complex. The
symptoms after the motor vehicle accident being complained of by the plaintiff
were similarly complex. Some of those symptoms are deposed to in paragraph 57,
which concludes with Mr. Chahal deposing that he felt it was necessary to
obtain the medical opinion of a psychiatrist to explain the symptoms the
plaintiff was experiencing. Accordingly, Dr. Ancill was retained following an
instruction letter dated May 27, 2009. Dr. Ancills letterhead states that he
is a Specialist in Psychiatry with a Special Interest in Trauma. He examined
Mr. Sandhu on June 3, 2009 and provided an initial report on August 10, 2009.
At page 15 of his report, he states:
It is also my opinion that Mr. Sandhu suffers from a [severe]
Major illness with post-trauma anxiety
Of particular concern from a
psychiatric perspective is Mr. Sandhus untreated major depressive illness,
especially given its severity and the suicidal ideation, albeit passive. I
would therefore recommend that Mr. Sandhu is referred for psychiatric treatment
and for cognitive-behavioural psychological therapy.
[67]
The plaintiff was also assessed by a neurologist, Dr. Brian Hunt. Dr.
Hunt assessed the plaintiff on September 22, 2009 (his medical legal report
dated October 11, 2009 in one place contains a typographical error stating that
the assessment was on February 10, 2009 – that is obviously an error, as
February 10, 2009 was the date of the motor vehicle accident).
[68]
At page 10 of his report, Dr. Hunt writes:
It is this writers opinion that
Mr. Steve Sandhu needs to be assessed by a clinical neuropsychologist for
in-depth psychometric testing and subsequent clinical psychological counselling
to deal with his mental depression as reported by his wife and by other
investigators.
[69]
Mr. Chahal deposes in paragraphs 66 and 67 that he followed up on some
of Dr. Hunts recommendations.
[70]
Defendants counsel points out that not all of Dr. Hunts
recommendations were followed up. In particular, she points to Dr. Hunt opining
that the plaintiff required an orthopedic assessment of his left hip joint
problem.
[71]
On March 29, 2010, Mr. Chahal wrote to Dr. Pirolli, a neuropsychologist.
Dr. Pirolli saw the plaintiff on April 16, 2010 and again on May 10, 2010. In
her detailed invoice dated May 21, 2010, she sets out the hours she spent on
various aspects of the services she provided. In her March 4, 2014 letter
exhibited to Mr. Chahals affidavit, she justifies the necessity for the time
she spent performing the activities broken down on her invoice.
[72]
One of the submissions the defendants make as to the propriety of Dr.
Pirollis report is that it is based on suggestions for treatment as opposed to
assessment.
[73]
In the Conclusions/Recommendations section of her report, Dr. Pirolli
writes:
Unfortunately, the cognitive
testing performed in this assessment was not considered valid. This was due to
a number of reasons, most significantly Mr. Sandhus severe mood disturbance.
Psychological testing during the current assessment showed him to be in the
extremely severe depressed range. He also showed significant problems with
symptoms associated with Post Traumatic Stress Disorder (PTSD), although it
isnt clear if he meets the full criteria for this diagnosis. Mr. Sandhus
level of emotional distress would impact his ability to concentrate, learn,
remember, make decisions, etc.
[74]
Counsel for the defendants submits that it is common sense that
neuropsychological testing should follow treatment for depression. Given that
the plaintiff was still depressed when Dr. Pirolli was retained, the defendants
submit that the retention of Dr. Pirolli at that time was a waste of money, and
thus the incurring of the disbursement was not proper.
[75]
The plaintiff was treated by a psychiatrist following a referral from
the plaintiffs family doctor, Dr. Stefanyk. Paragraph 22 h. of Mr. Chahals
affidavit sets out that:
Dr. Ike Nwachukwu is a
Psychiatrist based in Kamloops. Dr. Nwachukwu first saw Mr. Sandhu in October
of 2010 as a result of a referral from Dr. Stefanyk. Dr. Nwachukwu saw Mr.
Sandhu to further investigate continuing complaints of depression, social
withdrawal, poor appetite, disturbed sleep, reduced libido, anxiety and
emotional upset. Following the initial visit, Dr. Nwachukwu saw Mr. Sandhu on a
number of occasions as a treating Psychiatrist. Mr. Sandhu advised us that he
saw Dr. Nwachukwu for injuries he sustained as a result of the Accident.
[76]
I have considered carefully the submissions of counsel for the
defendants. Mr. Chahal did not blindly follow up on all of Dr. Hunts
recommendations. Mr. Chahals client suffered a head injury. Several months
elapsed between the time Mr. Chahal received Dr. Hunts report dated October
11, 2009 and the instruction letter to Dr. Pirolli dated March 29, 2010.
[77]
On page 13 of his medical/legal report dated August 10, 2009, Dr. Ancill
writes:
It is my opinion that Mr. Sandhu suffered a mild concussion
in the accident in question – Mr. Sandhu has a gap in his awareness immediately
after hitting the headrest during which he may or may not have been
unconscious.
He continues to report 15/20 post-concussive symptoms 4
months after the accident.
It is premature to conclude that
these symptoms will be persistent as inasmuch as they are due to a concussion,
85% of patients with these symptoms will recover in 12 months. However, Mr.
Sandhus age at the time of the injury (52) is an indicator of a slower or
incomplete recovery.
[78]
Despite the testing performed by Dr. Pirolli being invalid due to the
plaintiffs severe mood disturbance, Dr. Pirolli was able to make some
recommendations. She opines:
It is more likely than not that
Mr. Sandhu suffered a mild traumatic brain injury (MTBI) at the time of his
accident.
[79]
She was unable to clarify whether there were cognitive problems with
respect to this.
[80]
The retention of Dr. Pirolli was made more than twelve months after the
accident. At that time, the plaintiff was continuing to experience symptoms.
The retention of Dr. Pirolli was not done for the purpose of treatment. Dr.
Hunt made a recommendation for assessment by a clinical neuropsychologist with
subsequent counselling. Counselling is treatment. Dr. Pirolli was not retained
for treatment.
[81]
Looking at whether, at the time Dr. Pirolli was retained, her retention
was proper, I find that it was proper.
[82]
While the retention of Dr. Pirolli was proper, much of what she was able
to offer as opinion was negatively impacted by the inability to obtain valid
test results. That is a factor which requires that her account be discounted.
Much of what Dr. Pirolli did and billed for could not assist in the trial.
[83]
The eight hours of testing was billed at $780.00. Some aspects of Dr.
Pirollis report were tied to the invalid testing. I allow Dr. Pirollis report
at $2,000.00, a reduction of $1,022.50.
DR. MCCANN
[84]
The defendants submit that it is excessive zeal to involve both Dr.
McCann, a physiatrist, and Dr. Hunt, a neurologist. Defendants counsel submits
that they were both retained for the same purpose and that the nature of their
reports comments on the same things.
[85]
The plaintiff suffered neurological injuries and he suffered musculoskeletal
injuries.
[86]
Dr. Hunts initial report dated October 11, 2009 does comment on muscle
and ligamentous injuries, but also comments on the previous history, including
both degenerative history and injuries, comments on the mild traumatic brain
injury, and gives guidance for future assessment of the complex medical issues
facing the plaintiff (those are my words, not his, but relate to the interplay
between the pre-existing condition of the plaintiff at the time of the accident
and the effects of the accident on the plaintiff). Subsequent reports are dated
May 31, 2011 (following review of x-rays, CT scans, spec nuclear medicine scan,
and MRI scans), and then a report dated February 25, 2013, following a further
reassessment of the plaintiff during a meeting on February 14, 2013. Dr. Hunts
opinions comment on neurological issues. As an example, on paragraph 5-4 on
page 8 of his February 25, 2013 report, he comments on the likely
responsibility of the accident for the plaintiffs visual problems, which he
opines are directly related to trauma to the cortex of the brain in a
contracoup-type of injury.
[87]
Dr. McCann, on the other hand, focusses on the pain being experienced by
the plaintiff.
[88]
There is overlap in the investigations, findings and opinions of Dr.
McCann and the investigations, findings and opinions of Dr. Hunt. There is
overlap in their conclusions. None of this is unusual.
[89]
As was pointed out previously, the test is whether at the time the
experts were retained such retention was proper.
[90]
The plaintiff had complex neurological issues. He was being treated by a
neurologist, Dr. Mosewich. It was appropriate that Dr. Hunt be retained for a
neurological assessment.
[91]
Similarly, the plaintiff was experiencing pain ultimately diagnosed as
probable chronic pain syndrome. One of the things asked of Dr. McCann was to
give a prognosis with respect to the plaintiffs ability to return to work.
That is the sort of thing a physiatrist would give an opinion about.
[92]
At the time they were retained, the retention of both specialists was
proper.
[93]
The defendants also take issue with the reasonableness of Dr. McCanns
charges, particularly with respect to the charges for his April 12, 2013
report.
[94]
Dr. McCann, unlike many specialists, renders his accounts with specific
reference to the B.C.M.A. Fee Guide. With consent of counsel, I was provided
with a copy of the B.C.M.A. Fee Guide effective April 1, 2014, and have
reviewed it. It assists in determining the reasonableness of fees rendered by
medical doctors. The billing approach taken by Dr. McCann in referencing his
accounts to the B.C.M.A. Fee Guide is helpful.
[95]
I agree with counsel for the defendants that a portion of the account
rendered on April 17, 2013, insofar as it relates to reviewing Dr. Smiths
independent medical report dated November 18, 2012, is a luxury, in the
circumstances where the plaintiff has also retained both a treating
psychiatrist and another psychiatrist to give an independent medical opinion.
Accordingly, I disallow one hour of review. For the plaintiff to request Dr.
McCann to review Dr. Smiths report is a luxury.
[96]
Dr. McCann rendered three accounts. The first account was for an
independent medical examination, plus an exam fee, plus one additional hour of
review billed according to the B.C.M.A. Fee Guide at $356.00. All of those charges
are reasonable. At the request of Mr. Chahal, Dr. McCann then undertook a
second follow up medical examination of the plaintiff approximately three and a
half years after the initial medical examination conducted by Dr. McCann. As is
apparent from reading that report, it required reviewing substantial
documentation referenced under 26 numbered headings in the first three pages of
the report. I find the cost of that report in the amount of $3,160.00 to be
reasonable.
[97]
A further report was requested by Mr. Chahal after he had been served
with three independent medical reports commissioned by the defendants. Dr.
Boyce was an orthopedic specialist retained by the defendants. Dr. Smith is a
psychiatrist, who also appears to have provided independent medical reports.
His area of expertise was not referred to in submissions, but he appears to be
commenting on pre and post-accident x-rays, CT scans and MRI scans.
[98]
Dr. McCann did what he was instructed to do. No criticism is intended to
be directed at him for the report he prepared. However, I find that one third
of his account was incurred as a result of excessive zeal, is a luxury and
thus that account should be reduced from $2,411.28 to $1,608.00.
REPORT OF PAUL PAKULAK
[99]
Paragraphs 81 and 84 of Mr. Chahals affidavit are as follows:
81. Mr.
Pakulak is a registered Occupational Therapist specializing in functional
capacity evaluations, cost of care evaluations, home safety and ADL
assessments, and hospital discharge planning of individuals with various
physical and neurological deficits.
84. At the time that Mr. Pakulak was
retained, Mr. Sandhu advised me that he was still having problems working
because of his continuing condition. He further advised me that there were
things around the house and recreationally that he either could not [do], or
had problems doing. I felt that a functional capacity evaluation would assist
in determining the scope and nature of Mr. Sandhus physical capacity, and to
further determine what impact that would have on his ability to carry out daily
tasks, and employment duties.
[100] Mr. Chahal
deposes that while Mr. Pakulak was retained to conduct a functional capacity
evaluation and a cost of future care assessment, he was unable to proceed with
a functional capacity evaluation and thus only provided a cost of future care
report. The instruction letter invoice and justification letter for the invoice
were all attached to Mr. Chahals affidavit. I have reviewed them.
[101] In his
submissions, Mr. Chahal also pointed out that this matter was set for trial by
judge and jury, and that credible evidence needs to be provided to prove the
plaintiffs claims at all times, but particularly so in a jury trial. The cost
of future care report is 12 pages long. The first page is a title page. The
second page is a table of contents and the last page is a brief paragraph and a
signature. There are two appendices, one setting out medical documentation
reviewed and the second setting out Mr. Pakulaks qualifications.
[102] The report
sets out background information, past medical history, vocational history,
symptomatic reports of pain and difficulty, a discussion by the plaintiff of
his pain pattern and sleep, a report of pain management, household chores the
plaintiff does; all that encompassing approximately three and one-half pages.
The next four pages under the heading Review of Medical Documentation review
what the writer considers to be significant extracts from reports of Dr. Hunt,
Dr. Nwachukwu, Dr. McCann, Dr. Ancill, Dr. Boyce, Dr. Powers, Dr. Pirolli, Dr.
Cleland, Dr. Mosewich, Dr. Anderson, Dr. Raghavan and Dr. Zeznik, as well as
reviewing MRIs. The cost of future care recommendations for rehabilitation and
treatment are set out in five paragraphs in approximately one page. Future
medication is set out in another half page.
[103] Defendants
counsel submits that this is a very skimpy cost of future care report. She
submits that there are very few recommendations and that the fee for the
report, $1,470.00, is too high.
[104]
In his justification letter, Mr. Pakulak confirms that the initial
interview was two hours, the review of medical information and production of a
summary of that medical information, took 3.5 hours, and then an interview
section and a recommendation section of the report were prepared. Mr. Pakulak
also sets out in his letter that:
In addition to the formulation of
recommendations, research was also completed to determine the costs of the
medications
The total time taken to document the interview, research costs
and prepare the recommendations was 2 hours.
[105] In his
justification letter, Mr. Pakulak sets out that in 2011 the medical legal rates
for occupational therapists ranged between $150.00 to $200.00 per hour, updated
in 2013 to between $90.00 and $225.00 per hour. He sets out that he has
communicated with colleagues, to ensure that our billing rates are consistent
with fees being charged by others. His experience is set out.
[106] In
reviewing his account, I also am guided by the proportionality rule, Rule 1-3
of the Civil Rules.
[107] The report
recommended some amounts which could be anticipated to be incurred in the near
future and then gave an opinion as to potential future medication, which
totalled somewhere in excess of $1,300.00 yearly.
[108] I agree
that to some extent the recommendations, especially with respect to
rehabilitation/treatment, are not overly helpful. On the other hand, the
costing of the future medication needs would be of assistance.
[109] It also
must be borne in mind that pointing out that minimal cost of future
rehabilitation and/or treatment can be of considerable assistance to both sides
in settling a case.
[110] I allow
the account of Paul Pakulak in full at $1,312.50, plus HST.
DR. DEAN POWERS
[111]
Dr. Powers is a psychologist. According to his resume he has worked as a
vocational rehabilitation consultant and vocational expert since 1980. His curriculum
vitae was attached to Mr. Chahals affidavit. In paragraph 93 of his affidavit,
Mr. Chahal deposes:
93. At the time I retained Dr.
Powers, Mr. Sandhu was complaining of problems he had in carrying out his
duties as a janitor. He advised me that he had lost the Acres Contract because
of his inability to carry out his duties. He also advised that over the course
of three years, Matrix had lost a number of contracts because of his injuries.
Based on the evidence we had received from Mr. Sandhus medical advisors and
from the experts, I suspected that Mr. Sandhu may not be able to continue
working in the capacity of a janitor for much longer. I felt that [a]
Vocational Assessment was required to assist the trier of fact in determining
Mr. Sandhus employability given his age, his education, his motivations, and
his current condition.
[112]
Paragraphs 27 and 29 of Mr. Chahals affidavit are as follows:
27. Mr.
Sandhu advised me that he was working as a Janitor at the time of the Accident.
He further advised that he was unable to return to work in this capacity for
approximately one year, and thereafter his ability to work as a janitor was
impaired by his continuing condition.
29. At the time of the Accident, and
following his return to work, Mr. Sandhu advised us he received a monthly
salary as an employee of Matrix.
[113] The
vocational testing and assessment report prepared by Dr. Powers is 62 pages in
length. The vocational opinion itself consists of paragraphs 4 through 8, all
of which are on page 5 of the report. Vocational recommendations are contained
in paragraphs 9 and 10 on page 6. Appendix A sets out backgrounds facts and
assumptions. Appendix B, pages 9 through 15, comments on the plaintiffs
pre-injury medical history, and then documents his post-injury medical
condition treatments.
[114] Appendix C
is just over one page of a summary of vocational testing results. Appendix D
from page 18 through to 43 summarizes a number of tests which were performed
and interprets those tests. There is a discussion of occupational scales and
other potential jobs. That appendix also comments on some of the factors which
may affect the plaintiff in the future. Appendix E, from pages 44 to 50, sets
out occupational profiles for various jobs in the janitorial area, as well as
setting out the workforce characteristics, industries where that sort of
employment is available, employment via region, employment regional outlook and
other matters which might affect Mr. Sandhu in the future.
[115] Appendix F
sets out the reports and documents reviewed; 21 headings, some with numerous
sub-headings, under the Medical and one heading with two sub-headings under
the heading Educational.
[116] Appendix G
sets out in one page the qualifications of the author. Appendix I sets out in
two pages disability management information and definitions.
[117] Defendants
counsel argues that while the opinion is contained in six pages it is
essentially contained in two pages, pages 5 and 6, with the balance being
recitation.
[118] That is
not entirely true; there are opinions offered throughout the balance of the
report.
[119] More
importantly, though, this is a report which was billed at just under 25 hours
for Dr. Powers at the rate of $185.00, for a total of $4,600.00 and 7.5 hours
of psychometric costs at $145.00 per hour for a subtotal of $1,087.57. His
total account, exclusive of HST was $5,687.50.
[120] Defendants
counsel points out that this is a report on a 57-year old janitor who had
returned to his job at the time the assessment took place.
[121] In some
circumstances, a report done as thoroughly as the report performed by Dr.
Powers and his staff might be justified. At the time this report was
commissioned (Mr. Chahals letter to Dr. Powers is dated February 6, 2013), the
plaintiff had returned to work. From the evidence, it would appear that the
plaintiff returned to work at some point in 2010, and had thus been back at
work for at least two full years at the time the report was commissioned. In
these circumstances, the amount of the disbursement is unreasonable. It is
unreasonable because while some of what was learned from the report assists in
determining the damages sustained by the plaintiff, the thoroughness and detail
of this report is, to a considerable extent, a luxury for which the defendants
ought not to pay.
[122] I allow
the report at $3,250.00, a reduction of $2,437.50.
PHOTOCOPIES
[123] In his
affidavit, Mr. Chahal sets out the explanation for and rationale for the
photocopies at paragraphs 97 to 110.
[124] He deposes
that there were numerous documents which included medical records, employment
records, ICBC records, tax records, RCMP records, WCB records (620 pages),
Canada Pension Plan application records (208 pages), and records from Jani-King
(576 pages).
[125] Mr. Chahal
deposes that in most instances, experts prefer receiving documents in paper
form. With respect to bulk photocopying, he deposes that the documents were
received intermittently and that the experts were retained at various times,
thus creating the requirement for further documentation intermittently.
[126]
In paragraph 105, he deposes as follows:
105. Following the commencement of an
action, it is our offices practice to create books of documents that
correspond with our lists of documents, for the purposes [of] organizing our
files, and [for] in preparation for examinations for discovery. This requires
photocopies of original documents to be made and placed in the book of
documents. I believe this is a necessary requirement as this greatly assists counsel
with the overall management and organization of litigation files. In this
particular matter, my notes indicate that our books of documents were created
in July of 2011. As we received additional documents, the books of documents
were updated periodically.
[127] This
practice is not one where the entirety of the associated photocopying costs
ought to be borne by the losing party.
[128] He also
deposes to additional photocopying following initial preparations for the trial
which was set for June 3, 2013, but ultimately adjourned, for the judicial
settlement conference, and for an application brought by the plaintiff which
included case authorities.
[129] As has
been set out several times throughout my reasons, this is a case which had
complexities. Some of the complexity resulted from the pre-existing WCB and CPP
issues.
[130] Anyone who
has reviewed documents from those organizations is aware that, while many of
the documents may be relevant or partially relevant, large portions of the
documentary disclosure are often irrelevant, marginally relevant, or only
relevant to certain non-medical aspects of the file.
[131] In
addition to the evidence deposed to by Mr. Chahal, the procedure for
photocopying is set out in his assistants affidavit sworn and filed March 19,
2014, and in particular paragraphs 3 and 8. The plaintiff is claiming 19,159
photocopies at 25¢ per
copy.
[132] Photocopying
the WCB records (620 pages) and photocopying a 10-page medical/legal report
takes approximately the same amount of administrative time and effort, apart
from physically waiting for the 620 pages to be copied. As noted, those 620
pages probably contain substantial amounts of documentation which are
irrelevant or marginally relevant.
[133] Given the
number of experts involved here and the need to have most of them provided with
all relevant documents, it is certainly reasonable to have a significant number
of photocopies for a case of this complexity.
[134] On the
other hand, not all of the costs of photocopying at 25¢ per page ought to be borne by the defendants.
[135] After analyzing the evidence and
appreciating that I am to do the best I can here to achieve rough justice, I
allow photocopying at $3,000.00, a reduction of $1,789.75.
COLOURED PHOTOCOPIES
[136] The
plaintiff claims $72.00 for colour photocopying 38 pictures. There were 17
colour photographs from the RCMP relating to the accident scene sent by CD and
21 colour photographs from ICBC showing particular damage to the plaintiffs
vehicle, also provided by CD. These were printed for the judicial settlement
conference and for mediation, as well as re-printed for some of the experts to
explain the dynamics and severity of the accident, according to paragraphs 111
and 112 of Mr. Chahals affidavit. The Harron affidavit, at paragraph 8,
deposes that 160 colour photocopies were made, but 72 were entered into the
record.
[137] I also the
72 colour photocopies at 50¢
per copy, so the coloured photocopies are allowed at $36.00.
COURIER
[138]
In his affidavit, at paragraph 118, Mr. Chahal deposes:
118. As you can see from the
instruction letters attached, letters with document packages attached, or
containing CDs with documents, were couriered to the experts retained by our
office on this matter. Specifically, correspondence was couriered to Dr. Ancill
three times, Dr. McCann three times, Dr. Hunt twice, Dr. [Pakulak] twice, Dr.
Pirolli once, and Dr. Powers once. We specifically couriered these packages
because of the cost relative to the weight of the documents being sent, the
security of sending documents via courier, the efficiency in delivering these
documents in a timely manner, and the ability to track the document packages to
ensure they are delivered.
[139] The
process for tracking courier charges is set out in the Harron at paragraphs 10
and 11.
[140] The
defendants submit that courier charges of that amount are excessive.
[141] For the
reasons set out in paragraph 118 of Mr. Chahals affidavit, the courier charges
are allowed as claimed.
OTHER DISBURSEMENTS
[142] In a
letter provided to the court dated February 20, 2014, defendants counsel sets
out a challenge to the reasonableness of several disbursement items. In
submissions, she advised that she was not taking issue with the disbursements
claimed for faxes or scanning records.
[143] In that
letter, she takes issue with a disbursement claimed under the heading Non-taxable
disbursements with the description Trial Brief in the amount of $80.00.
[144] Costs for
preparing a trial brief are subsumed in the overhead component of legal fees
and, thus, in the tariff item amounts.
[145] However,
the uncontradicted evidence of both Mr. Chahal in paragraph 136 of his
affidavit and the Harron affidavit in paragraph 12, satisfy me that in fact
this is a filing fee for a notice of application heard October 28, 2013, and
was incorrectly labelled as Trial Brief. Accordingly, it is allowed as
claimed at $80.00.
SUMMARY
1) Tariff items are
allowed at 92 units at $110.00 per unit, for a subtotal of $10,120.00, together
with GST of $506.00, PST of $708.40 for a total of tariff items, including
taxes, of $11,334.40;
2) The Pirolli
account is allowed at 2,000.00, a reduction of $1,022.50;
3) The Powers
account is allowed at $3,250.00, a reduction of $2,437.57;
4) The McCann
account related to the April 17, 2013 report is allowed at $1,608.00, a
reduction of $803.28;
5) Coloured
photocopies are allowed at $36.00, a reduction of $36.00;
6)
Photocopies are allowed at $3,000.00, a reduction of $1,789.75.
[146] There is a
total reduction from taxable disbursements, therefore, of $6,089.03. They are
allowed at $34,630.96, together with tax of $1,731.55, for a total for taxable
disbursements of $36,422.51.
[147] Disbursement
loan interest is allowed as claimed, plus an additional $130.00 as set out, for
a total of $6,252.75. Non-taxable disbursements are, therefore, allowed at
$6,583.75. Total disbursements are, therefore, allowed at $43,006.26, which
when added to the total for tariff items and taxes is a total of $54,340.66.
[148]
I have signed a bill of costs in that amount. The original is available
at the registry.
Master
R.W. McDiarmid
MASTER McDIARMID