IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140915

Docket: 11-0260

Registry:
Victoria

Between:

Eric Salsman

Plaintiff

And:

John Doe, Jane
Doe, David Leslie Planes,
Insurance Corporation of British Columbia
and David Planes Jr.

Defendants

Before:
The Honourable Mr. Justice B. D. MacKenzie

On
appeal from a Supreme Court Master’s decision,
sitting as a Registrar, reasons dated January 14, 2014

Reasons for Judgment

[1]            
This is an appeal by the plaintiff from a Master’s decision, sitting as
a Registrar, involving a costs assessment in a personal injury action.

[2]            
As the Registrar noted, the action was settled about 10 days before the
commencement of the trial, after the plaintiff accepted a defence offer of
approximately $155,265, plus costs and disbursements “to be assessed”. Following
settlement, the plaintiff presented a bill of costs in the sum of $52,674.36.
In due course, the parties reached agreement on “most of the disbursements”
while some were abandoned by the plaintiff.

[3]            
The defendant, however, challenged the necessity or the reasonableness
of several remaining disbursements, the nature of which are outlined at para. 5
of the Registrar’s reasons. They involve reports from various medical or
physiotherapy personnel as well as photocopy expense.

[4]            
Of the 10 discrete items that were in issue at the assessment, the
Registrar allowed two in their entirety, reduced four and disallowed five, one
of which was for $60 for 6 CDs. From the total amount in dispute of
approximately $27,200, the Registrar in her discretion, allowed approximately
$16,200.

[5]            
The plaintiff has now appealed to this court each disbursement that was
either disallowed or was reduced in amount by the Registrar. At the
commencement of the appeal, the plaintiff abandoned the claim of $60 for media
duplication costs.

[6]            
As in all appeals, the appropriate standard of review is of crucial
significance. Both parties acknowledge that the present appeal is not in the nature
of a hearing de novo, and agree the appropriate standard of review
is whether the Registrar was clearly or plainly wrong or her assessment was
based on an error in principle. If the appellant is unable to establish that
the Registrar was clearly wrong or erred in principle, then an appellate court should
not interfere with the proper exercise of the Registrar’s decision: see Fairchild
v. British Columbia (Vancouver Coastal Health Authority), 2012 BCSC 1207 at
paras. 6-7.

[7]            
In addition, as the defendant has pointed out, Rule 14-1 of the Supreme
Court Civil Rules is instructive. Subsection (5) states:

(5)        When
assessing costs under subrule (2) or (3) of this rule, a registrar must

 (a)        determine
which disbursements have been necessarily or properly incurred in the conduct
of the proceeding, and

 (b)        allow a reasonable
amount for those disbursements.

[8]            
Moreover, Rule 1-3(2) is relevant with respect to the discretion to be
judicially exercised by a Registrar when determining what is a reasonable
amount for disbursements in any proceeding. This section states:

(2)        Securing
the just, speedy and inexpensive determination of a proceeding on its merits
includes, so far as is practicable, conducting the proceeding in ways that are
proportionate to

 (a)        the amount involved in the proceeding,

 (b)        the importance of the issues in
dispute, and

 (c)        the
complexity of the proceeding.

[9]            
Both parties provided many authorities dealing with the issue of a
Registrar’s assessment and what is a reasonable cost for a disbursement, having
regard to the particular circumstances of each case. I have considered the
facts and principles in these various cases.

[10]        
The test for determining whether a disbursement is to be allowed was set
out by our Court of Appeal in Van Daele v. Van Daele (1983), 56 B.C.L.R.
178 (C.A.). At 180, the court stated:

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

[11]        
When applying this test, the role of the Registrar was described in Bell
v. Fantini (1981), 32 B.C.L.R. 322 (S.C.). The court had this to say at
para. 23:

[23]      I consider that Rule 57(4)
entitles the Registrar to exercise a wide discretion to disallow disbursements
in whole or in part where the disbursements appear to him to have been incurred
or increased through extravagance, negligence or mistake or by payment of
unjustified charges or expenses. The Registrar must consider all the
circumstances of each case and determine whether the disbursements were
reasonably incurred and were justified. He must be careful to balance his duty
to disallow expenses incurred due to negligence or mistake, or which are
extravagant, with his duty to recognize that a carefully prepared case requires
that counsel use care in the choice of expert witnesses and examine all sources
of information and possible evidence which may be of advantage to his client.

[12]        
Moreover, in Hall v. Strocel (1983), 34 C.P.C. 170 at para. 10 (B.C.S.C.),
the court concluded that when dealing with disbursements for expert reports,
“the unsuccessful party should only be responsible for a reasonable fee,” not
unlimited fees.

[13]        
As the plaintiff has noted, the court in Zaenker v. Kirk, 2008
BCSC 1460, outlined the distinction between necessary disbursements and proper
disbursements. At para. 24, the court stated:

[24]      On the other hand,
"necessary" disbursements are essential disbursements, which means
that they are outlays that could not be avoided in the conduct of the proceeding,
whereas "proper" disbursements are those reasonably incurred in the
conduct of the proceeding but are, strictly speaking, avoidable: McKenzie v.
Darke (2003), 120 A.C.W.S. (3d) 380 (BCSC Registrar) at para. 18.

[14]        
As well, proportionality does not overwhelm the analysis of what would
otherwise be a proper expense. See Gill v. Widjaja, 2011 BCSC 1822, at
para. 29.

[15]        
Finally, in Leverman v. Prince George (City), 2000 BCSC 697, the
court reiterated at para. 26 that “the germane time to consider is the time of
the reports’ preparation and the status of litigation at that time.”

[16]        
With these principles in mind, I turn to the specific disbursements that
are the subject matter of this appeal and in the order the Registrar dealt with
them.

Physiotherapy Reports

[17]        
The plaintiff obtained three physiotherapists’ reports. The first was
Ms. Cuttiford’s report of September 23, 2010, approximately five weeks
after the motor vehicle accident.

[18]        
The second report was a neuro-physiotherapy report prepared on
September 25, 2010, by Ms. Koshman, a vestibular physiotherapist. A third
report was prepared by Ms. Koshman in December 2012, approximately 18 months
after the plaintiff returned to work.

[19]        
After noting the position of both the plaintiff and defendant, the
Registrar observed that plaintiff’s counsel acknowledged the reports of Ms. Koshman
could not be relied on to provide an opinion on causation, prognosis or
treatment, thereby necessitating a report from another expert, a Dr. Longridge.
It is to be noted that the defendant also contested the necessity of Dr.
Longridge’s report. The Registrar, however, agreed with the plaintiff that this
report was necessary and allowed this disbursement in its entirety. On the
other hand, the Registrar concluded the reports of Ms. Koshman were not
necessary. In addition, the Registrar noted the defendant’s argument that as
the plaintiff had returned to work and counsel was aware the plaintiff’s
symptoms had largely resolved by the time the second report was requested, this
report from Ms. Koshman was not necessary or proper. The Registrar agreed with
the defendant on this point and disallowed the cost of Ms. Koshman’s
second report.

[20]        
In addition, as far as all three reports are concerned, the Registrar
stated at para. 39 of her decision that:

[39]      However, in my
respectful view, these reports are an example of the plaintiff purchasing the
Cadillac when the so-called Buick would serve the required purpose. The Buick
in this case is the therapists’ clinical records. It is those documents which
record the contemporaneous symptoms during assessment and provide records of
treatment and outcome. Given that the plaintiff was being followed by a family
doctor, a rehabilitation consultant and eventually various specialists, I see
no need or propriety in commissioning reports from the physiotherapists.
Accordingly, these disbursements are disallowed.

[21]        
As a result, the disbursements for these three reports were disallowed. The
plaintiff says the Registrar erred in principle in so doing. I take it from
plaintiff’s counsel’s oral submissions that the principles to which he is
referring are:

 1.       that
“the Registrar must not second guess competent counsel doing a competent job”;
and

 2.       that
“the Registrar must not focus on the usefulness of the report to a trier of
fact but whether, in the circumstances, it was a proper expenditure to fully
and properly prepare the case for trial.”

On this latter point, the Registrar stated she did not reach
her decision merely on the basis that the trier of fact could not consider the
opinions contained in Ms. Koshman’s report.

[22]        
The plaintiff also says the Registrar erred in principle and was wrong
when she concluded plaintiff’s counsel acknowledged Ms. Koshman’s initial
report was unreliable and unnecessary.

[23]        
In this regard, counsel on appeal submits that trial counsel deposed
that “Ms. Koshman’s report provided an objective measure of the
plaintiff’s vestibular difficulties” and that “evidence of objective injury,
both early and following a course of treatment was very useful in this case,” a
case in which at that time, even liability was not being admitted by the
defendant.

[24]        
Trial counsel also deposed that “the services rendered were in my
judgment as counsel necessary and proper for the conduct of the proceeding.” While
I accept the plaintiff’s submission that counsel did not depose that Ms.
Koshman’s report was unnecessary, the Registrar also concluded that the
therapist’s clinical records were sufficient to record the plaintiff’s “contemporaneous
symptoms during assessment and provide records of treatment and outcome,” and
when coupled with the fact that the plaintiff was seeing his family doctor, a
rehabilitation consultant and eventually various specialists, the Registrar
concluded the reports were unnecessary.

[25]        
In response, the plaintiff submits that clinical records have a limited
use, and it was an error in principle for the Registrar to conclude the
physiotherapist reports were extravagant or overzealous expenses.

[26]        
The main argument the plaintiff makes is that the physiotherapists were
material witnesses that would provide opinion evidence at trial and therefore
Rule 11-6 requires that their opinion be contained in an expert report.
Connected to this is an argument that only limited use can be made of clinical
records because any opinions they contain are not admissible for their truth.

[27]        
The plaintiff also submits that there was a risk that “an adverse
inference could be drawn" in the absence of this evidence. This argument appears
to be at odds with the comments of our Court of Appeal in Buksh v. Miles,
2008 BCCA 318, where it was noted that “in today’s patchwork of medical
services” the fear that an adverse inference will be drawn is inappropriate
because it “raises the likelihood of increased litigation costs attendant upon
more medical reports from physicians or additional attendances of physicians at
court, with little added to the trial process but time and expense, and nothing
added to the knowledge of counsel” (at para. 34).

[28]        
In addition, the defendant also submits that Ms. Cuttiford provided opinions
which exceeded her expertise and that it was the general physician who would
provide the best evidence in this situation.

[29]        
In my view, the Registrar adequately addressed these issues and provided
sufficient reasons when exercising her discretion to disallow these very early
physiotherapy reports. I am unable to say she was clearly wrong or erred in
principle in reaching this decision.

[30]        
Given the relevant circumstances, the second Koshman report of
December 29, 2012 is even more problematic for the plaintiff. In this
report, Ms. Koshman states that she saw the plaintiff for 14 treatment
sessions between September of 2010 and March 24, 2011, before he returned to
work in April of 2011. For the purposes of preparing the December of 2012
report, she reassessed the plaintiff on November 30, 2012, some 20 months after
the plaintiff’s last treatment. Trial counsel deposed as to why these reports
were ordered. However, it is not sufficient for the plaintiff to merely
demonstrate that these reports and expenses were “very useful in this case”. As
such, I do not find that the Registrar was merely second-guessing competent
counsel. Given all of her reasons, I find the Registrar turned her mind to all
the relevant factors and principles in reaching her decision.

[31]        
As a result, I am not satisfied the plaintiff has established that the
Registrar was clearly wrong or erred in principle in concluding that Ms. Koshman’s
second report was unnecessary and extravagant. This aspect of the plaintiff’s
appeal is also dismissed.

Dr. Corney

[32]        
Dr. Corney prepared a neuropsychological report. The Registrar observed
that the defendant acknowledged that such an investigation and report was
necessary and proper. What the defendant did object to was the commission of a
second assessment and report by Dr. Corney, once the plaintiff had largely
recovered from his injuries and had returned to full-time work. The defendant
submitted this second report was also an example of “excessive zeal.”

[33]        
The Registrar disagreed and concluded the second report was justified,
given the plaintiff’s family doctor suggested that the plaintiff had cognitive
problems that “might limit the plaintiff’s aspirations in life,” coupled with
counsel’s view as to the necessity of providing the court with current evidence
concerning the plaintiff’s condition, by way of Dr. Corney’s second report.

[34]        
However, while the Registrar concluded both reports were justified, she
was of the view the “charges” for the reports ought to be reduced.

[35]        
The primary reasons for this conclusion are twofold. First, the charges
included the cost of “propriety tests” which the defendant submitted were
basically an overhead cost and as such should not be borne by the defendant. In
addition, both reports included office “administration” costs associated with
preparing each report.

[36]        
Second, the Registrar was provided with “some evidence” of “the
alternative costs of a neuropsychological assessment and report” and concluded
“it would appear” the cost of these reports exceeded “those typically seen in
the local market.” The “hearsay” evidence introduced by the defendant (to which
no objection was taken by counsel for the plaintiff at the assessment hearing)
suggested a range from $2,500 to $4,000 for an assessment and report of this
nature.

[37]        
While the Registrar briefly referred to “much duplication” in the two
reports and “boilerplate” information, in my view it is clear that the primary
reasons for reducing the costs of these reports were the administrative costs
and the local “market rate” of charges from other similarly qualified medical
personnel.

[38]        
Turning to the issue of what four other local experts might have charged
for similar reports, I am of the view it was reasonable and appropriate for the
Registrar to consider this information as a factor in determining whether the
cost of the reports, beyond the administrative costs Dr. Corney included in his
invoice, was reasonable. On this point, I appreciate counsel for the plaintiff
on the appeal made submissions as to the differences between Dr. Corney’s
practice and the different practices of the other doctors and whether or not some
of these other experts would deal with all of the matters at issue in this
litigation.

[39]        
However, given the totality of the circumstances, I agree with the
defendant that this “evidence” of the “going rate” or “market rate” was an
appropriate factor for the experienced Registrar to consider in assessing the
reasonableness of Dr. Corney’s charges. I am not satisfied this
information overwhelmed her assessment but rather was only one factor the
Registrar considered. In my view, she was entitled to do so.

[40]        
The plaintiff also says the Registrar erred “by allowing proportionality
to again overwhelm the question of whether the costs of the disbursements were
reasonable, when she considered these charges” in proportion to the amount
involved. The Registrar, however, stated she also took into consideration, in
addition to the evidence presented and the other factors I have already noted,
the “complexity and importance of the proceeding.”

[41]        
Finally, I am satisfied the Registrar was justified in reducing the cost
of these two reports by the amount represented as administrative or overhead
costs.

[42]        
As a result, I find the Registrar was justified in exercising her
discretion in reducing the cost of these reports.

Dr. Filbey

[43]        
Dr. Filbey is a physiatrist, retained by the plaintiff. He prepared two
reports, the first in October 2011, and the second in April 2013.

[44]        
The Registrar concluded that the first report in 2011 was justified and
the cost was reasonable but that the second assessment and report from Dr. Filbey
was not “necessary or proper for the conduct of this proceeding.”

[45]        
In her decision, the learned Registrar stated:

[59]  Dr. Filbey’s first report confirms that
balance issues and neurocognitive symptoms had resolved to near “100%” at the
time of the first assessment. The prognosis was very favourable, albeit any
ongoing problems were suggested to be in the cognitive area. The only
recommendation with respect to physical symptoms was access to therapy for
acute on [sic] chronic exacerbations. In particular, there is no recommendation
for a follow up assessment.

[60]      To commission a second
report from this expert reflects excessive zeal or, in the vernacular,
overkill. The plaintiff was justified in obtaining opinions to address
cognitive symptoms from the neuropsychologist, but there was no need for Dr. Filbey
to simply re-visit his earlier recommendations for treatment. Indeed, the
second report is largely duplicative of the first report in content.

[46]        
In submitting the Registrar was wrong or erred in principle in not
allowing the cost of Dr. Filbey’s second report, the plaintiff understandably
referred to the affidavit evidence of experienced trial counsel which
emphasized counsel’s view that an updated report from Dr. Filbey was indeed
necessary and the obtaining of two reports from specialists was his practice
“and the practice of other lawyers in my firm.”

[47]        
As a result, the plaintiff submits the Registrar was merely second-guessing
competent counsel and erred in so doing, especially when at the time of
requesting the second reports, “all aspects of damages were denied by the
defendant and the defendant would not admit that the plaintiff sustained a
brain injury in the accident.”

[48]        
On this point, the defendant recognizes the direction contained in McKenzie
v. Darke, 2003 BCSC 138. At para. 21 the court said:

[21]      Taxing officers ought
not to second guess a competent counsel doing a competent job, solely on the
grounds that other counsel might have been more sanguine or less cautious in
determining how the job should be done.

[49]        
The defendant, however, submits that the Registrar disallowed the cost
of the second report not “solely” because other counsel might have been more
sanguine, but because there was ample other evidence to support the Registrar’s
decision that to commission the second report reflected excessive zeal in
properly preparing for trial.

[50]        
Moreover, the defendant submits the Registrar was at liberty not to
accept trial counsel’s evidence of necessity and refers to the statement of
Legg J. in Bell at para. 24, where he states:

[24]      The Registrar is not
bound to accept an affidavit of counsel that in counsel’s opinion the
employment of the expert or the incurring of the expense was justified or that
it was necessary for the attainment of justice when the Registrar is
considering allowing or disallowing the disbursement under this rule. He should
give careful consideration to any such affidavit and he must weigh what is
deposed to against any affidavit that deposes to the opposite effect. His duty
under the rule is to determine whether the expense is a reasonable and
justifiable expense which should be borne by the unsuccessful litigant.
[emphasis in original]

[51]        
The defendant submits the Registrar “expressly considered the evidence
of trial counsel” as to the necessity of Dr. Filbey’s second report, but
clearly rejected this evidence in favour of other evidence, which she was
entitled to do, as the Registrar “must consider all of the circumstances of
each case and determine whether the disbursements were reasonably incurred and
were justified.” See Bell at para. 23.

[52]        
The defendant says this evidence included both the fact that a
neuropsychological assessment was commissioned in 2013 as well as a report from
the plaintiff’s general physician, thus undermining any reasonable suggestion
that the plaintiff would have proceeded to trial without current reports as to his
condition and symptoms, or lack thereof.

[53]        
In addition, the plaintiff had not received any treatment since Dr. Filbey
first assessed him in October 2011. At the time the second report was commissioned,
the plaintiff was back to work full-time and actively engaged in pre-accident
activities, as confirmed by the plaintiff in his examination for discovery on
January 14, 2013.

[54]        
While there is no question that updated reports have been found proper
in many cases, I am satisfied there was again a sufficient evidentiary
foundation for the Registrar to exercise her discretion and to find it was not
reasonable or proper and reflected excessive zeal, when the plaintiff ordered a
second report from Dr. Filbey.

[55]        
Given all of the circumstances, I am not satisfied the appellant has
established that the Registrar was clearly wrong or erred in principle when she
concluded Dr. Filbey’s second report was not necessary or proper.

Barbara Phillips

[56]        
Ms. Phillips is a rehabilitation consultant who prepared two reports for
the plaintiff. The first report was issued on October 18, 2010, and cost $800;
the second report was issued in May 2013 and referred to the cost of future
care. This report cost $2,480. The defendant accepted the first report was
necessary but submitted to the Registrar that the second report was improper,
unnecessary and the product of overzealous counsel.

[57]        
The Registrar disagreed with the defendant’s submission and found it was
necessary and proper to obtain the 2013 report, given the plaintiff’s family
doctor recommended “some future care” for the plaintiff. She concluded, “I find
that it was proper to commission a report from Ms. Phillips to provide evidence
and an opinion on these potential costs” (at para. 68).

[58]        
However, the Registrar reduced the amount charged for the second report
to $1,200 (inclusive of taxes). As was the case with Dr. Corney’s charges, the
Registrar referred to a charge or fee included by Ms. Phillips of $350 for what
the Registrar deemed “equivalent to office overhead,” an expense she determined
should not be borne by the defendant.

[59]        
The Registrar then stated at para. 71:

[71]      In terms of
proportionality, the actual amount of future care costs which the plaintiff
agreed to accept in settlement is $1,500. That sum is not, of course, the only
measure of what is reasonable for this report on a proportionality basis, but
it is one fact that ought to be considered in assessing reasonableness. In
addition, the actual future care costs are rather simple relative to such costs
in more complex cases.

[60]        
The plaintiff submits that the Registrar fell into error by considering
the settlement of $1,500 agreed to by the plaintiff for “the actual amount of
future care costs” and gave inappropriate weight to this ultimate actual cost
when assessing whether the cost of Ms. Phillips’ second report was reasonable.
On this point, there is no doubt, as I have noted, that second-guessing counsel
solely on the basis of a final actual settlement figure is clearly wrong.
Indeed, it appears the learned Registrar acknowledged this to a certain degree
in Harvey v. Tooshley, 2014 BCSC 433 at para. 40, a taxation assessment
heard after the Salsman taxation assessment, when she stated:

[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. [emphasis in original]

[61]        
Counsel for the defendant acknowledged that the concept of
proportionality was of concern when she submitted in written submissions that
“arguably the future care settlement amount should not have been taken into
account because the relevant time for the analysis is when the expert is retained
to prepare the report.”

[62]        
Nevertheless, the defendant says that proportionality is a relevant
consideration and given Dr. Filbey’s 2011 report and Dr. Grimwood’s report of
April 2013, as well as the plaintiff’s own evidence, at the time Ms. Phillips’
second report was ordered, “it was readily apparent that future care costs
would be modest.”

[63]        
In her reasons in the present case, the Registrar also referred to the
fact that “a fair portion” of the second report is “mere repetition of
information” in the first report and the two cited medical reports. She
considered as well the very modest recommendations for costs of future care.
These factors were all relevant in her assessment as to whether the total cost
of the second report was reasonable. That is, she did not restrict her analysis
to the actual cost of future care in the final settlement. Even though there
was a reference to the actual final settlement for the cost of future care, the
Registrar identified these other factors when concluding what would be a
reasonable charge for Ms. Phillips’ second bill. In my view, it cannot be said
that the Registrar was overwhelmed in her analysis by the final actual cost of
care, nor was it the sole reason she reduced the charge for Ms. Phillips’
second report. As a result, once again her overall analysis should be given
deference.

[64]        
Upon reviewing the Registrar’s decision in its entirety, I am of the
view that the Registrar was applying the relevant principles appropriately throughout
her assessment, as proportionality is a relevant factor when determining
whether a disbursement is reasonable at the time the expense was incurred: see Luo
v. De Chavez, 2013 BCSC 1635 at para. 2; Turner v. Whittaker,
2013 BCSC 712 at para. 5. Moreover, I note the following guidance from Legg J.
in Bell at para. 18:

[18]      I have examined the
Registrar’s decisions on the basis that the Court should rarely interfere with
a taxing officer’s ruling if it appears that he understood the governing
principle in reaching his conclusions. (See Bowers v. White (1977), 2
B.C.L.R. 355, per Craig J. (as he then was); Frost v. Frost [1941) 3
W.W.R. 273 and Bereti v. Schuette et al., Vancouver Registry No. B790519,
July 22, 1980, unreported, per Fulton J.)

[65]        
Given these principles, I am unable to conclude the plaintiff has
established that I should interfere with the exercise of the Registrar’s
discretion when assessing the reasonableness of the charges for Ms. Phillips’
second report.

Photocopying

[66]        
I now turn to the challenging issue of whether the Registrar was clearly
wrong or erred in principle when she reduced the plaintiff’s claim for
photocopying charges from $3,445 to $1,750.

[67]        
When dealing with the question of what are reasonable photocopying costs,
it is instructive to refer to the comments of two experienced Registrars in
past cases.

[68]        
In the decision of Fairchild v. Vancouver Coastal Health Authority,
2011 BCSC 616, Registrar Sainty stated:

[85]      The issue of the appropriate number of photocopies
to allow on assessments of costs has been termed a “perennial, never-ending and vexing question” and a “rough and ready
exercise” (see Sovani v. Jin, 2006 BCSC 855 (Registrar)). In Sovani
v. Jin, Registrar Blok (as he then was) said (at paragraph 4):

 The
assessment of photocopying costs is typically a rough-and-ready exercise, which
is very much in accordance with the comments of the English Court of Appeal in
a case called Re Eastwood, [1974] 3 All E.R. 603 (C.A.), where the Court
said that the assessment of costs was a matter of rough justice insofar as it
admitted of much sensible approximation, or words to that effect. That is
exactly what registrars must apply when assessing photocopying expenses or
considering the volume of photocopying claimed in a case. Thus it is not an
exercise of arithmetic or math or the examining of photocopying machinery
expenses or matters of that sort, but is often looking at an array of binders,
a collection of banker’s boxes, assessing what copies were needed for experts,
what document discovery was involved, whether there was a jury such that they
required individual copies, and all those sorts of matters, and applying
experience gained from numerous other cases, to arrive at a sensible
approximation of the volume of necessary copy work.

[86]      In Ontario, photocopying expenses have been held to
be an item of overhead and thus not compensable on a bill of costs (see Caressant
Care Nursing Home of Canada Ltd. v. London & District Service Workers‘
Union, Local 220, 207 O.A.C. 343).

[87]      The law in Ontario is
not, currently, the law in this Province. Registrars in British Columbia are
guided by an administrative notice issued by (then) Registrar McCallum which
establishes the guideline amount that parties may claim on a bill of costs for
photocopying and fax charges as $0.25 per page and $0.35 per page,
respectively. Although the administrative notice confirms that those amounts
are a guideline only, it seems to me that the fact that there is a guideline at
all confirms that a party may claim an amount on a bill of costs for
photocopying necessarily or properly incurred in the conduct of the proceeding,
and the registrar is to allow a reasonable amount for those copies (see Rule
14-1(5) of the Supreme Court Civil Rules).

[69]        
In Dhillon v. Bowering, 2013 BCSC 1178, Registrar Sainty again
dealt with the reasonableness of charges for photocopying and again stated:

[130]    The issue of photocopies
on assessments of costs has been said to be a “perennial, never-ending and
vexing question” (Registrar Blok, as he then was, in Sovani v. Jin [2006
CarswellBC 1347 (B.C.S.C. [In Chambers])], supra). I cannot agree more.
That is why, as I noted earlier, some “rough and ready” justice must be brought
to bear on this question.

[70]        
In the present case, another experienced Registrar dealt with this
vexing question. In her reasons she had this to say:

Photocopying

[75]      The photocopying charges of the plaintiff reflect
reproduction of between 11,000 and 13,000 pages. In contrast, the
defence records show that about 3,500 documents were reproduced in the conduct
of the proceeding.

[76]      The explanation or justification provided by the
plaintiff is essentially three­fold: the plaintiff was required to copy all
medical records for the use by each of the experts; the “tricky liability”
issue in this case required two defence counsel, each of whom would be copied
various documents and correspondence; and ICBC’s rehabilitation consultant
requested copies of all medical information.

[77]      The plaintiff’s file consisted of eight binders
varying from one to three inches in width and four bucket files.

[78]      The assessment of photocopying charges is not a
matter of page counting or simple reliance on the copying machine’s records.
Rather, the registrar’s approach to this disbursement is a “rough and ready
exercise”: Sovani v. Jin, 2006 BCSC 855; Dhillon v. Bowering,
2013 BCSC 1178 at paras. 130-132.

[79]      Here, I am not persuaded that the volume of copying
presented by the plaintiff was necessary or proper for the conduct of this
proceeding. Nor am I persuaded that all of the necessary or proper copying
ought to have been done “in-house”.

[80]      I allow the sum of
$1,750 for this disbursement, inclusive of taxes.

[71]        
The plaintiff says the Registrar was clearly wrong or erred in principle
when she reduced the photocopying costs. On appeal the plaintiff advanced
several reasons why the Registrar was wrong. They are as follows:

146.     The Plaintiff submits the Defendant’s number of
copies support his claim for photocopies as claimed, rather than a decreased
amount. Using the Defendant’s copies as a measuring stick, the Registrar ought
to have considered there were two defense firms involved and the Plaintiff had
to submit documents to each of them; the Plaintiff provided both defense firms
with documents and they did not have to make their own copies. Thus, this is
already two-thirds of the Plaintiffs claimed photocopies. It also fails to
consider the Plaintiff also had to provide its experts with documents and some
of those expenses were allowed or not challenged. Thus, the Plaintiff had more
experts than the Defendants and also provided records to the Defendants’
occupational therapist.

147.     The Plaintiff submits the copies made were
reasonable. There were 1320 pages of documents in the Plaintiff’s List of
Documents. These included relevant documents that were sent to the Plaintiff’s
experts and copies requested by the Defendants. The Plaintiff obtained the
records from various third parties and provided copies of those documents to ICBC.
In addition, there were two defense firms involved in this matter, plus the
case manager, Carol Talley. The Plaintiff also retained more experts than the
Defendants. Given these facts, the case necessarily involved a large volume of
documents copied by the Plaintiff.

148.     It was reasonable and
proper for the Plaintiff to have the copies done in house. The documents were
his medical and employment records; they contain sensitive information that
ought not be jeopardized by sending them to a third party. In addition to
copying, many documents also required organizing, which is not feasible to expect
from a third party who has no legal skill or training.

[72]        
In my view, the Registrar was clearly alive to these submissions. In her
reasons she referred specifically to the submissions the plaintiff made at the
assessment as to why, in the plaintiff’s view, the total cost was justified.
Also, it is well established that there is no presumption that all photocopies
are for the purpose of litigation and are necessary: Turner v. Whittaker,
2013 BCSC 712 at para. 23; Raju v. Bui, 2008 BCSC 1230 at para. 30.

[73]        
Moreover, I am not satisfied it can be said that the Registrar simply
“accepted the figure the defendant proposed”, as the plaintiff has submitted, as
the award of $1,750 equates to 7,000 pages at $.25 a page.

[74]        
Once again, given the circumstances of this particular case and applying
the proper test for appellate review, I am not persuaded the appellant has
established the Registrar was clearly wrong or erred in principle when she
reduced the cost of photocopying by the amount she did. In my view, this
decision was a proper exercise of her discretion as mandated by the authorities
and the Rules.

Costs

[75]        
The defendant has been successful on this appeal. Unless there is
something I am unaware of, the defendant is entitled to costs on Scale B.

                    “B.
D. MacKenzie, J.”                   

The
Honourable Mr. Justice B. D. MacKenzie