IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141128

Docket: 36481

Registry:
Penticton

Between:

Jennifer
Green

Plaintiff

And

Crystal
Conley and Matthew Stadnyk

Defendants

Before:
Master Young
(as Registrar)

Reasons for Decision

[1]            
This is a cost assessment in a personal injury action. The action was
settled one day before the commencement of the trial. Ms. Green was
initially pursuing a claim between $300,000 and $400,000 which included a claim
for $136,000 for homemaking services. She settled her claim for $75,000 the day
before trial. She swore an affidavit explaining that offer was accepted for
health reasons. The plaintiff suffered from gestational diabetes and chose to
accept the offer rather than go through the stress of trial which might
potentially endanger the health of her unborn child and herself. This evidence
becomes relevant to the issue of proportionality. It is my belief that an
assessing officer should not rely exclusively on the settlement figure in
determining proportionality of costs. Certainly, when most of the disbursements
were incurred, counsel for Ms. Green did not think the case would settle
for $75,000. Given that the case did not proceed to trial, it is not
necessarily true that $75,000 is the true value of Ms. Green’s claim. It
is the value that she was willing to accept for personal reasons.

[2]            
Unfortunately most of the tariff items are at issue in this assessment,
as were disbursements for four of the five expert witnesses. I will assess the
tariff items first and then assess the disbursements.

Background

[3]            
Ms. Green was in a motor vehicle accident on January 10, 2011 and
suffered injury to her neck, right shoulder and low back. She complained of
headache pain, sleep loss and loss of cognitive efficiency, including decreased
memory concentration and learning ability. The trial was scheduled for June of
2014. At the time of the motor vehicle accident, Ms. Green was completing
her last semester of her Bachelor of social work degree. Prior to the motor
vehicle accident, Ms. Green had worked at various jobs, including the
Okanagan Boys and Girls Club in their overnight youth shelter in Kelowna. Her
plans prior to the motor vehicle accident were to obtain employment within the
social work field and her long-term goal was to complete her Masters of social work
degree.

[4]            
Dr. Brooks, who is a family physician with special interest in
sports and musculoskeletal medicine and occupational medicine, provided a
detailed history in his report which I have relied on. He says that Ms. Green’s
injuries were not resolved after two years and he diagnosed her in 2013 as
having chronic myofascial pain syndrome in her low back, neck and trapezius
regions. He also provided an opinion that Ms. Green showed some symptoms
of thoracic outlet syndrome (“TOS”) on the right side and recommended that she
see a specialist if her symptoms did not improve.

[5]            
She was referred to Dr. Salvian, a vascular surgeon, who concluded
that the numbness and tingling which Ms. Green described down the arm and
into the fourth and fifth finger of the hand were due to a combination of post-traumatic
TOS with irritation of the lower nerves of the brachial plexus and some mild irritation
of the ulnar nerve in the level of the elbow.

[6]            
He recommended that she avoid overhead use of her arms, in particular
when the arm is away from the chest and above the chest level, i.e. typing or
driving. She should avoid use of the arms above the head for repetitive
activities, i.e. stocking shelves and putting away clothes. In his opinion, at
home she will need assistance with heavy cleaning, washing windows and heavy
gardening. As for work, he predicted that she would have difficulty with
activities such as making beds, prolonged typing and charting and she may risk
further injury if she has to retrain clients.

[7]            
Ms. Green complained of some disruption to her cognitive
functioning. Dr. Brooks provided an opinion that the chronic sleep
disturbance she was suffering and chronic pain could be contributing to her
cognitive impairment and that it was probable that she would have some
difficulty with her studies, and might take longer than a non-affected
individual to complete her studies due to the pain and sleep factors.

[8]            
As a result of Dr. Salvian and Dr. Brooks’ opinions, Ms. Green
was sent for further assessment by Dr. Gordon Wallace to complete a
residual employability assessment and to Robert Carson, a labour economist, for
a past and future income protection report.

[9]            
I will assess the tariff items first:

Item 1

Correspondence, conferences, instructions, investigations or negotiation by
a party until the start of the proceeding

[10]        
Ms. Green’s counsel claims 10 out of 10 units. He was retained in
March of 2012 and did not commence the action until October 2012. He spent this
time obtaining file material from ICBC, RCMP records, medical records and
having numerous conversations with his client. Plaintiff’s counsel bases his
claim for the maximum number of units on his belief that the tariff should
provide close to 50% indemnity for hours actually worked on the file. The
objective in the 1991 version of the party and party cost tariff was to provide
close to 50% indemnity, but the tariff has fallen well below that objective
since. Practice Before the Registrar (Continuing Legal Education Society
of B.C., p. 2‑24, para. 2.29) sets out what the registrar
considers in assessing units:

…The registrar may allow any number of units within the
range, having regard to the following prescribed principles:

(1)        one
unit is for matters upon which little time should ordinarily have been spent,
and

(2)        the
maximum number of units is for matters upon which a great deal of time should
ordinarily have been spent (Appendix B, s. 3(3)).

The question the registrar must
answer is not “How much time did the lawyer for the claiming party actually
spend?” but “How much time, on a scale of X to Y (where X is the minimum units
the tariff provides and Y is the maximum), should a reasonably competent lawyer
have spent on the work for which the costs are claimed?”

[11]        
The defendants submit that I should award 5 units for this tariff item.

Decision

[12]        
Based on evidence of the length of time between retainer and commencing
the action, the amount of work that was performed during that time and
consideration for the complexity of this proceeding, as compared with other
proceedings from the simplest to the most complex, I award 6 units.

Item 2

Correspondence, conferences, instructions, investigations or negotiations
by a party after the start of the proceeding to the completion of the trial or
hearing

[13]        
Ms. Green’s counsel claims 25 to 30 units under item 2 for
obtaining records from her physicians, chiropractor, school records and
employment records and holding conferences with Ms. Green, conducting
ongoing negotiations with opposing counsel, preparing for trial and preparing
experts for trial. He advises me that he had five expert witnesses, nine reports
and three lay witnesses.

[14]        
Defence counsel submits that I should award 15 units under this item.

Decision

[15]        
Some of what Ms. Green’s counsel is claiming for is provided for in
other areas of the tariff. The obtaining of records from Ms. Green’s
physicians is provided for under tariff item 11. I do agree with Ms. Green’s
counsel that preparing an expert witness for trial is not covered by tariff
item 17, which deals exclusively with retaining and consulting with experts for
the purpose of obtaining opinions. Preparing the witness for giving evidence at
trial is properly included in either item 2 or 34: Wheeldon v Magee, 2010
BCSC 491.

[16]        
It is my view that the 5 units allowed under item 35 do not adequately
compensate this plaintiff for the work done in preparing all experts to testify
at the trial. I am mindful of the fact that this matter was set and ready to go
and settled one day before the trial. For this reason and because of the
inadequate compensation in tariff item 34, I will allow extra units under item
2.

[17]        
I am allowing 17 units under item 2.

Item 6

All process, for which provision is not made elsewhere in this tariff, for
commencing and prosecuting a proceeding

[18]        
Although I have not seen them, I was advised by counsel for Ms. Green
that the pleadings were standard personal injury pleadings. I will allow 3
units.

Item 10

Process for obtaining discovery and inspection of documents

[19]        
Plaintiff counsel’s submissions confused this item with item 11. This is
the tariff item for obtaining documents from the defendants. I am advised that
there were very few new documents in the defendants’ list of documents. Most of
the defendants’ documents were obtained from the plaintiff. Counsel for the
defendants says that the defendants’ list contained nine documents which
originated from the defendants.

[20]        
I will allow 3 units for this item.

Item 11

Process for giving discovery and inspection of documents

[21]        
More work went into obtaining documents for Ms. Green which
included clinical records, medical reports and employment records. Ms. Green’s
list of documents lists 49 documents which is far from extensive. I will allow 6
units for this item.

Item 17

All process and correspondence associated with retaining and consulting
experts for the purposes of obtaining opinions for use in the proceeding

[22]        
The plaintiff claims 10 units, which is the maximum under this tariff
item. The plaintiff did retain five experts and obtained nine reports.

[23]        
Although I believe this did take considerable time to orchestrate, that
is not the criteria that I need to apply in determining where in the range of 1
to 10 Ms. Green should be reimbursed. I have to compare it to a simple
case where only one expert is relied on and the most extreme case, where more
than 10 or 15 reports may have been obtained. Considering the range of cases, I
find this case certainly does not fit in the most extreme category.

[24]        
I will allow 6 units for this item.

Item 18

All process and correspondence associated with contacting, interviewing and
issuing subpoenas to all witnesses

[25]        
Ms. Green’s counsel interviewed 10 witnesses in preparation for the
trial, including attending while defence counsel interviewed some co-workers of
Ms. Green. Ms. Green claims 10 units out of a possible maximum of 10
units. Defence counsel submits that 5 to 7 units should be allowed.

Decision

[26]        
Again, this is not the most complex case which would justify awarding
the maximum tariff units. I will allow 7 units.

Items 19 and 20

Preparation for and attendance on examination of a person for discovery

[27]        
Both the plaintiff and defendants agreed that 4 units should be allowed
for these two items.

Items 29 and 30

Preparation for and attendance before the Registrar to assess costs for
each day

[28]        
These items relate to the pre-hearing conference held in this assessment
and then the assessment itself and so I will render my decision on these items
at the end of these reasons.

Items 31 and 32

Preparation and attendance at a settlement conference, case planning
conference or trial management conference

[29]        
Ms. Green claims 1.5 units for preparation for the conference and
2.5 units for attendance at the conference.

[30]        
There is nothing unusual about the trial management conference. I will
allow 1 unit for preparation and 2 units for attendance.

Item 34

Preparation for trial if proceeding set down for each day of trial

[31]        
Plaintiff and defence counsel agree that only 5 units is allowable under
this item.

Item 44

Negotiations, including mediation and process for settlement

[32]        
Both counsel agree that only 5 units are allowed for this tariff item.

Disbursements

[33]        
The only disbursements at issue are the charges made by the following
experts:

[34]        
The other disbursements have been consented to. There has been a
reduction in the photocopying expense from $437.50 down to $312.50, by consent,
and Ms. Green abandoned her claim for Quicklaw research at $173.

[35]        
In Van Daele v. Van Daele (1983), 56 B.C.L.R. 178 (C.A.), the court
articulated the test for evaluating whether expert report fees should be
approved:

[11]      …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.

[Emphasis added.]

Dr. David Brooks

[36]        
Dr. Brooks prepared two medical legal reports and charged a total
of $4,197.09.

[37]        
He swore an affidavit setting out his qualifications. He is an
experienced physician who has a certificate in sports medicine and has been
accepted in the court in sports and musculoskeletal medicine and occupational
medicine.

[38]        
The first report is charged out at $3,404.09, plus $170.45 GST. He was
booked through a booking agent called Ultima Health Assessment Corp. He
prepared a follow-up report at the request of plaintiff’s counsel, but by
oversight did not invoice for that follow-up report. In addition, he spent two
hours preparing for court at $395 per hour according to the B.C. Medical
Association (“BCMA”) guidelines for a total of $788.

[39]        
Dr. Brooks’ reports are very detailed. He gives the opinion that Ms. Green
has chronic cervical, shoulder and lumbar functional impairment and pain
leading to postural alteration biomechanical imbalances and chronic right arm
pain and neurologic symptoms.

[40]        
He is suspicious that she has a component of TOS and provides an
extensive summary of the literature on this topic and recommends that if she
does not have a full recovery she should be referred to an expert in diagnosing
TOS.

[41]        
He recommends further physiotherapy to improve her postural issues.

[42]        
In his second report, he is asked to elaborate on his observations
regarding Ms. Green’s reduced concentration and cognitive functioning.

[43]        
He gives the opinion that the chronic sleep deprivation, chronic
myofascial pain and headaches are likely the cause of the disruption to her
cognitive functioning.

[44]        
He says Ms. Green had been hoping to continue her studies to a
Master’s level. Due to her ongoing pain and sleep problems, it is possible that
she will have some difficulties with her studies and may take longer than a
non-affected individual to complete her studies due to the pain and sleep
factors.

[45]        
Counsel for the defendants criticizes Dr. Brooks’ report by saying
that he has overstepped his area of expertise. He is not a physiatrist or
neurologist and yet he provides a three and a half page justification for a
diagnosis of TOS. With respect, I disagree. It is possible that the review of
the literature is not of great assistance to the court, but the conclusion that
Dr. Brooks comes to is that he is suspicious that there might be TOS and
if her symptoms continue she should be referred to an expert who can diagnose
this condition. In that regard, I do not find that Dr. Brooks has
overstepped his area of expertise. I do not have the benefit of cross-examination
on his qualifications to fully understand what is involved in the sports medicine
and occupational medicine certificate. I do not believe that one has to be a
physiatrist or neurologist to form the opinion that chronic sleep deprivation
and chronic pain could lead to a disruption of cognitive functioning.

[46]        
When Dr. Brooks says that Ms. Green will have some difficulty
with her studies if her ongoing pain and sleep problems continue, again I do
not believe he has exceeded his area of expertise.

[47]        
The fees charged for the first report are, in my view, reasonable. If
counsel needed to use a booking agent to obtain experts’ opinions in time for
the trial, then the court expects that the hourly rate for producing a report
will be higher than the BCMA guidelines or than a report that was not
commissioned through a booking agent. The court still looks at the overall
charge of the report.

[48]        
I find that the charges for Dr. Brooks’ reports are quite
reasonable given the extensive investigation that he undertook, the detailed
report that he provided and the fact that he was retained through a booking
agent.

[49]        
I will not reduce Dr. Brooks’ fees at all and so this disbursement
is allowed in full at $3,409.09, plus $788 for preparation for court, plus GST.
I understand that Dr. Brooks’ travel expenses are not being challenged.

Dr. Anthony Salvian

[50]        
Dr. Salvian is a vascular surgeon with extensive experience and
expertise. He examined Ms. Green for one and a half hours, reviewed
medical documents for four hours and prepared a report. Dr. Salvian
charged $1,890 for his report which is only marginally higher than the BCMA
guideline. Given his extensive experience and expertise in the field of TOS, I
find that his charge and hourly rate is very reasonable. Dr. Salvian was
asked to review additional material from Hillary Drummond, Dr. Scott
Meckling, Dr. G. Hirsch and a rebuttal report from Dr. G. Hirsch. He
reviewed those additional documents, spent time with Ms. Green’s counsel
and sent additional invoices for this additional work. Dr. Salvian’s total
charge is $5,540, plus GST.

[51]        
Dr. Salvian provided a very thorough review of clinical records and
of his findings on examination of Ms. Green and formed the opinion that
the numbness and tingling which Ms. Green describes down the arm and into
the fourth and fifth finger of the hand is due to a combination of post-traumatic
TOS with irritation of the lower nerves of the brachial plexus and some mild
irritation of the ulnar nerve at the level of the elbow.

[52]        
He reviewed the recommendations of Dr. Brooks and agrees to the
trigger point injections to help with the myofascial pain in the neck and upper
back.

[53]        
Among other things, he recommended that Ms. Green should avoid the
overhead use of her arms, long driving, or typing and recommended at home that
she needed assistance for heavy cleaning, such as wall washing, window washing
and gardening. His prognosis is that her pain condition will always be present
to some degree. He recommends conservative therapy for the TOS. He provided an
opinion as to causation and, in the appendices of his report, he provides
additional reading if the writer requires it, but it does not form the body of
the report.

[54]        
Dr. Salvian’s first account is for $4,235. This is for a
consultation fee of $525. He reviewed medical reports for four hours at an
hourly rate of $430 for a total of some $1,720. He charged $100 for a typist. He
prepared the report for $1,890 and GST is added to that amount.

[55]        
Counsel for the defendants says that it was unnecessary to retain Dr. Salvian.
He submitted that Dr. Salvian relied on the faulty opinion of Dr. Brooks
and incurred extra costs unnecessarily. I disagree. Dr. Brooks said he
thought the symptoms were indicative of TOS and if the condition did not
improve, which it did not, Ms. Green should be referred to a specialist. What
else could plaintiff’s counsel do in those circumstances? He is not going to
discount the opinion of his expert. As it turned out, the referral to Dr. Salvian
was justified. He did in fact find some TOS.

[56]        
I find the report was necessary and the fee is reasonable.

[57]        
It is not my practice to award the payment of secretarial services for
expert reports, given that I have found in the past this is an overhead expense.
I will reduce the first account for $105 which includes the GST. I find Dr. Salvian’s
hourly rate and overall charge for his work to be reasonable, given the
extensiveness of his report and his expertise and experience.

[58]        
The second account is for $1,370 for reviewing medical records for two
hours and for a consultation with counsel prior to trial for one hour for a total
of $1,370.25. This account is approved in full.

Dr. Wallace

[59]        
Dr. Wallace is a very experienced doctor of psychology with
certification as a registered psychologist and who has 33 years’ experience in
the vocational rehabilitation field.

[60]        
Dr. Wallace was asked to comment on Ms. Green’s perception of
cognitive impairment. He was of the opinion that her perception was accurate
and that chronic sleep deprivation and non-restorative sleep contributed to
cognitive impairment. He expressed the opinion that due to her ongoing pain and
sleep problems, it is probable that she will have some difficulties with her
studies and may take longer than a non-affected individual to complete her
studies due to pain and sleep factors.

[61]        
Dr. Wallace noted that Ms. Green had limited tolerance for
sustained sitting/working, intensive sitting, prolonged standing and prolonged
walking. She also had some impairment in her ability to complete other body
positions such as stooping, kneeling, crouching and crawling due to neck, shoulder
and back aggravation. Dr. Wallace concluded that she was capable of
limited physically demanding activities as well as some within the light
strength category.

[62]        
Dr. Wallace reviewed the testing reports and observed that Ms. Green
was able to maintain ongoing competitive employment as a social worker; however,
it was his opinion that her ability to maintain ongoing employment in this
career in the future could be negatively impacted by problems arising from the
motor vehicle accident. At the bottom of page 5 of his report, Dr. Wallace
gives the opinion that Ms. Green’s ability to continue her career as a
social worker is considered guarded because of her ongoing pain, sleep
disruption and altered mood. He anticipates she might be less productive in her
work output, less likely to be promoted and may not likely be valued as an
employee and at higher risk of being let go from employment. In this way, her
ongoing pain, sleep disruption and psychological functioning could negatively
impact her ability to progress in her career.

[63]        
As for Ms. Green’s ability to complete her education in the social
work field, Dr. Wallace asserts the opinion that Ms. Green’s
cognitive inefficiency could have a negative impact on her ability to complete
a graduate degree in social work. It is Dr. Wallace’s opinion from a
rehabilitation psychology perspective that the best case scenario for Ms. Green
would be that she may need to only take a part-time program of studies in order
to compensate for increased pain, disrupted sleep and reduced cognitive
efficiency. It would take her longer than the average student to complete her
Masters of social work degree and re-enter the workforce. He recommends a short
course of counseling to focus on the ongoing challenges she has experienced
subsequent to the motor vehicle accident and on pain management strategies.

[64]        
Counsel for the defendants objected to Dr. Wallace’s report on two
grounds. Firstly, he submitted that the report was unnecessary because it was
based on the faulty opinion of Dr. Brooks. Secondly, he submits that where
an expert opines on matters outside his or her expertise, the charges for the
expert may be reduced.

[65]        
I have found Dr. Wallace did not exceed his expertise in making the
comments he did and I do not find that the opinion of Dr. Wallace was
built on faulty opinion.

[66]        
Defence counsel submitted that Ms. Green complained that her marks
in the second year of the social work program had dropped 7% from the first
semester, but that she did not show Dr. Wallace her first year transcript
which showed that her second semester marks were approximately 7% lower than
her first semester marks. He submitted that Dr. Wallace based his opinion
on faulty evidence or information from Ms. Green. He also commented that Ms. Green
told Dr. Wallace she had to take time off work because of her headaches
and pain, and yet she received a glowing performance review, which does not
mention attendance or performance concerns. These are issues which could have
been put to Ms. Green at trial during cross-examination and findings of
fact that could have been made by the trial judge. Unfortunately, we do not
have the benefit of cross-examination and it is not my position as a registrar
to second-guess what the outcome of a trial might have been on these points.

[67]        
I must assess whether it was reasonable in all circumstances to retain Dr. Wallace
to prepare the assessment when he did, based on the evidence plaintiff’s
counsel had at the time he commissioned the report. I am not going to discount Dr. Wallace’s
fee on the basis of the defence submission that little weight should be given
to the report or would have been given to the report had the matter proceeded
to trial. It is well-known law in British Columbia that even if a trial judge
rejects a report entirely at trial, that does not necessarily mean that a
registrar will not allow the cost of the report as a disbursement because the
relevant time to assess the reasonableness of the disbursement is at the time
the disbursement was incurred not after the outcome of the trial.

[68]        
Dr. Wallace spent 14.75 hours reviewing medical records,
interviewing Ms. Green, interpreting the psychological and vocational
tests and developing pre-injury vocational profile, residual employability
profile, and alternate occupational options and preparation of the report. His
hourly rate was $250. I have read the report and find that the amount of time
spent in its preparation and the hourly rate to be quite reasonable. Dr. Wallace
employs a technician to administer tests and score the tests. She has a Bachelor
of psychology, eight years’ experience and charges $100 an hour. It took this
technician 4.7 hours to do this work, which again I find to be reasonable.
Apparently test material in computerized scoring has to be paid for on a
case-by-case basis and so the disbursement of $75 is allowed, with the GST at
5%. Dr. Wallace’s first account is $4,449.38. Dr. Wallace prepared a
second report in June 2014 for preparation for trial. He spent 2.25 hours at
$300 an hour and again I find this amount to be reasonable.

Robert Carson, labour economist

[69]        
Robert Carson is a very experienced labour economist who has been
qualified as an expert in the British Columbia Supreme Court on numerous
occasions. He was retained by plaintiff’s counsel to review the report of Dr. Wallace
and then to provide the following projections of past and future earnings owing:

1.     Absent the
accident, Ms. Fox (nee Green) would have:

a.       Worked full-time while completing
a Master’s degree in social work;

b.       Completed a graduate degree by trial date.

2.     That with
the accident, Ms. Fox (nee Green):

a.       Will not work while completing a
Master’s degree;

b.       Will commence a graduate degree
by September 1, 2015 and complete a graduate degree in social work by June 30,
2017, or;

c.       Will not attend graduate school
and return to work, after a period of maternity leave, by September 2015.

[70]        
Mr. Carson developed six earning projections based on the 2011
National Household Survey of Employment Earnings Value in the 2006 Census
Labour Force Statistics.

[71]        
In his report, Mr. Carson provided a valuation of loss of earnings
and then provided present value multiplier calculations which had to be revised
for a change of discount rate by the Supreme Court.

[72]        
The second report was prepared providing a calculation of cost of future
care.

[73]        
The charge for the first report calculating the past and future income
projections was quite high at $6,125, plus GST. The second report for cost of
care multipliers was $690, plus GST.

[74]        
A third smaller account was rendered for case review and discussion on
June 5, 2014 in preparation for trial. The third account was for $225, plus GST.

[75]        
Mr. Carson did provide a breakdown of his services in an affidavit
prepared for this registrar’s hearing. He explained that he charges an hourly
rate of $250 and that he retains an economic analyst who has a Master’s degree
in sociology and who bills at $200 an hour. He retains another assistant
analyst who has a Bachelor of business administration and Bachelor of laws
degree with 18 years’ experience. This person’s work is billed at $180 per hour.

[76]        
Some of the accounts included office services which included the “cost
of care model income loss model earning data”, word processing, printing,
faxing and courier charges.

[77]        
Mr. Carson explains that to produce six earning projections using
his company’s automated age earnings model would normally take an hour or two.
Adapting the model to take into account a delayed change in the level of
educational attainment and a specific period of maternity leave, both within
the period of earnings projection, required manual processes which added significant
time to produce tables 3, 4, 5 and 6.

[78]        
Additional time needed to be spent to assess the quality of the new
information that Statistics Canada provided in the follow-up survey to the 2011
census in comparing the new 2011 National Housing survey to the old 2006 census
information for the purpose of this report.

[79]        
The instruction regarding change of timing of completion of the graduate
degree and timing of maternity leave created some complexity to the
calculations.

[80]        
Defence counsel challenges some of the assumptions relied on by Mr. Carson.
For example, he says that Ms. Green did not start her Master’s degree
because she got pregnant, not because she had been injured by the accident.
Again, this is a matter for the trial judge to determine and I am not prepared
to make findings of fact based on counsel’s submissions. The delay in pursuing
graduate studies because of the maternity leave was taken into account in Mr. Carson’s
calculations.

[81]        
Defence counsel says that the defendants should not have to pay Mr. Carson
to learn how to interpret the 2011 census. I do not get the impression that Mr. Carson
charged Ms. Green for his own education time to become familiar with the
statistics, but rather he spent time on this file calculating his assumptions
based on the 2006 statistics and comparing them to the 2011 census and then
made an informed decision as to which census to rely upon. My impression from
his justification letter is that this work was case specific to Ms. Green’s
case.

[82]        
The final objection to this report from defence counsel is that this is
a Cadillac report and that it was not warranted on these facts and, therefore,
the price should be reduced.

[83]        
This is one of the highest bills I have seen from Mr. Carson;
however, I believe he adequately explains that in his justification letter. He
was not just running existing numbers in his computer program, but had to
adjust them to accommodate specific assumptions about delayed entry into the
graduate program and take out any delay caused by the maternity leave which
meant that he could not use the automated model in preparing these
calculations.

[84]        
I accept the time billed as reasonable and I accept the hourly rates as
being reasonable. I am not prepared to allow the charges for office services.
The primary reason is that I do not understand what the charges are for. For
example, “cost of care model and income loss model earnings data” is charged
out to the client. I am not sure if this is for disbursements that Mr. Carson
has to pay to a third-party provider or if he is charging clients for the use
of a model he has developed. If it is the former then it would likely be
allowed as a disbursement. If it is the latter, then it is my view that this
should be incorporated into his $250 hourly rate. I will disallow office
services of $315 on the March 12, 2014 account.

[85]        
It has been my practice to disallow typing charges in medical expert’s
reports and, therefore, will not allow typing charges in economist reports
either. I disallow $90 for word processing, $60 for printing, photocopying and
faxes and $55 for courier and long distance charges on the March 12, 2014
account. If there was a breakdown of the printing, photocopying, fax, courier
and long distance charges, then I might have been willing to consider it, but
there is no explanation for these charges or why a courier might be necessary.
My assumption is that counsel would send a courier to pick up a report.

[86]        
In the second account dated May 9, 2014, I disallow $30 for loss of
income model charges, $45 for word processing, $15 for printing, photocopying
and faxes, and $40 for courier and long distance charges.

[87]        
The total reduction for Mr. Carson’s accounts is $650.

Disbursement Interest

[88]        
After hearing submissions but before releasing this decision, the Court
of Appeal of British Columbia has overturned Justice Savage’s decision in Chandi
v. Atwell, 2013 BCSC 830.

[89]        
In MacKenzie v. Rogalasky, 2014 BCCA 446, Justice Harris, writing
for the panel, concludes at para. 93:

I conclude that an out-of-pocket
interest expense incurred to finance disbursements is not a recoverable
disbursement under Rule 14-1(5).

[90]        
As this is now the state of the law, I cannot allow this disbursement.

Items 29 and 30

Preparation for and attendance before a Registrar to assess costs for each
day

[91]        
These items relate to the pre-hearing conference held in this assessment
and then the assessment itself. I find that Ms. Green has been substantially
successful in this assessment and is entitled to 2 units for preparing and
attending the pre-hearing conference and 3 units for preparing for and
attending this assessment. If not already claimed, Ms. Green is also
entitled to the $80.00 filing fee for the appointment, $40.00 to file the
certificate of costs and an additional $50 for photocopying material for this
assessment. I estimated 200 copies at 25 cents a page.

“Master B.M Young”