IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Ueda v. Rose, |
| 2014 BCSC 2312 |
Date: 20141208
Docket: M100406
Registry:
Vancouver
Between:
Ritsuko Ueda
Plaintiff
And
Donna Mae Rose
Defendant
Before:
District Registrar Nielsen
Reasons for Decision
Counsel for the Plaintiff: | P. Granger |
Counsel for the Defendant: | D. Weinrath |
Place and Date of Hearing: | Vancouver, B.C. October 3 & |
Place and Date of Decision: | Vancouver, B.C. December 8, 2014 |
introduction
[1]
This is an assessment of a bill of costs arising from a motor vehicle
accident which occurred on September 16, 2009.
[2]
There is no dispute with regard to any of the tariff items claimed by
the plaintiff. The plaintiff sought 70 units at $110 per unit, for a total of
$8,624, inclusive of tax, and the defendant agrees to this amount.
[3]
The matters remaining in issue concern various disbursements, including:
the fee to expedite the medical-legal report of Dr. Hinchliffe; the cost
of the medical-legal report of Dr. Parhar dated August 18, 2013; the cost
of the medical-legal reports of Dr. Van Rijn dated April 8, 2010 and
February 17, 2011; the cost of the medical-legal reports of Dr. Fuller
dated December 29, 2011 and August 1, 2013; the cost of the expert reports of Mr. Benning
dated June 10, 2013 and August 27, 2013; the fees of the Renaissance Group for
an income summary dated June 24, 2013 and an update of November 7, 2013; the
cost of two MRI reports by Canadian Magnetic Imaging to the cervical spine and
the left shoulder; courier charges; and finally, an account for copying clinical
records of Dr. Hinchliffe and Wall Centre Chiropractic.
background
[4]
On September 16, 2009, the plaintiff was involved in a motor vehicle
accident on Boundary Road at the intersection of East 25th Avenue in
Vancouver, British Columbia. The plaintiffs vehicle was struck on the drivers
door by the defendants left-turning vehicle. On impact, the plaintiff hit her
head on the window and the left side of her body on the drivers door. Both the
plaintiffs and the defendants vehicles were written off. The plaintiff was
taken by ambulance to the hospital. The plaintiff underwent a CT scan the next
day, which indicated normal results.
[5]
A Notice of Civil Claim was filed on January 28, 2010. Liability and
quantum were in dispute until shortly before a mediation which took place on
October 30, 2013. The trial of the action was scheduled for seven days, commencing
November 25, 2013.
[6]
The mediation was not successful in resolving the legal action but
subsequent negotiations between the ICBC adjuster and counsel for the plaintiff
resulted in a settlement for the sum of $123,000, plus taxable costs and
disbursements.
[7]
The plaintiff is a highly-trained pianist with a Bachelors degree in
fine arts and a Masters degree. She described herself as composer, pianist,
piano instructor and theory instructor.
[8]
In the defendants mediation summary dated October 30, 2013, the
defendant states:
The defendants accept that the
plaintiff sustained a mild concussion and soft tissue injuries to her neck and
back, as well as an injury to her right shoulder, arm and hand. Fortunately,
the concussion symptoms have resolved, as have the back symptoms. She is left
with some residual symptoms in her neck and, more importantly, some ongoing
numbness, pain and weakness in the right arm and hand that inhibits her ability
to play the piano. Dr. Finlayson feels that this may improve with
appropriate treatment, so it is premature to say this is permanent.
[9]
In addressing the plaintiffs wage loss, the defendant states:
The defendants do not see
evidence of any past income loss other than a modest loss in the immediate
aftermath of the accident, during which time some appointments were cancelled.
[10]
Finally, in addressing the loss of capacity to earn income, the
defendant states:
We anticipate that the plaintiff
will allege a loss of capacity to earn income. With respect, the defendant says
that no loss is established on the evidence. While we accept that the plaintiff
has lost something in terms of her manual dexterity and her abilities as a
pianist, we do not see a translation to a pecuniary loss.
[11]
Counsel for the plaintiff submits that from the fall of 2013 forward,
the case became all about income loss. This is echoed in the defendants
mediation summary, where the defendant states:
The plaintiff sustained an
injury to her left arm and hand in the accident and it is common ground that
has affected her ability to play piano. Her claim for loss of income is the
main issue in this matter.
[12]
The plaintiff described numbness in her left forearm and parts of her
left hand, which seriously compromised her ability to play the piano and thus
earn a livelihood.
[13]
The fact that the plaintiff was experiencing symptoms to her right
shoulder, arm, and hand, were of considerable concern to plaintiffs counsel,
given the plaintiffs profession, where precision and dexterity of movement are
the tools of her trade. A loss of sensation and numbness could have a significant
impact upon the plaintiffs career and damages within the action.
[14]
Plaintiffs counsel emphasizes that these concerns were forefront in his
choice of experts, and the need for a multi-disciplinary inquiry, involving
sub-specialties amongst experts.
disbursements
[15]
The applicable legal principles which govern the assessment of the
disbursements are stated by Master MacNaughton in Turner v. Whittaker,
2013 BCSC 712 at para. 5, wherein Master MacNaughton stated:
[5] Counsel were also able to agree on the following
legal principles which are applicable on an assessment of disbursements:
1 Rule
14-1(5) requires an assessing officer to determine which disbursements were
necessarily or properly incurred in the conduct of a proceeding and to allow a
reasonable amount for those disbursements.
2. The
consideration of whether a disbursement was necessarily or properly incurred is
case-and circumstance-specific and must take into account proportionality under
Rule 1-3. (Fairchild v. British Columbia (Vancouver Coastal Health
Authority), 2012 BCSC 1207).
3. The
time for assessing whether a disbursement was necessarily or properly incurred
is when the disbursement was incurred not with the benefit of hindsight. (Van
Daele v. Van Daele, 56 B.C.L.R. 176 (SC) revd 56 B.C.L.R. 178 at para. 4
(CA))
4. A
necessary disbursement is one which is essential to conduct litigation; a
proper one is one which is not necessary but is reasonably incurred for the
purposes of the proceeding. (McKenzie v. Darke, 2003 BCSC 138, para. 17-18)
5. The role of an assessing
officer is not to second guess a competent counsel doing a competent job solely
because other counsel might have handled the matter differently. (McKenzie
v. Darke, 2003 BCSC 138, para. 21).
[16]
In Bell v. Fantini (1981), 32 BCLR 322 (S.C.) at para. 23,
the court stated:
[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.
[17]
These factors will be applied to the disbursements which remain in
dispute.
Dr. Hinchliffe
[18]
The plaintiff had been seeing Dr. Hinchliffe as her family
physician prior to the accident. Following the accident, on February 14, 2012,
the plaintiff commenced seeing Dr. Parhar as her family physician,
although the plaintiff continued to see Dr. Hinchliffe concerning matters unrelated
to the accident.
[19]
Plaintiffs counsel requested a medical-legal report from Dr. Hinchliffe,
as he believed she was in the best position to opine on the plaintiffs
pre-accident medical condition.
[20]
The defendant does not take issue with the cost of the medical-legal
report, but takes issue with the additional charge of $250 referred to on Dr. Hinchliffes
bill as an expediting fee. The defendant submits that there is no evidence of
any reason why the defendant should be responsible for the cost of expediting
the medical-legal report.
[21]
Plaintiffs counsel concedes there was no need to expedite the report,
nor was there a specific request to do so. Plaintiffs counsel had concerns
that Dr. Hinchliffe wouldnt provide a report as she was no longer the
plaintiffs family physician. The expediting fee was an incentive for Dr. Hinchliffe
to provide the requested report.
[22]
There is no evidence that Dr. Hinchliffe wouldnt have provided the
report as requested without an expediting fee. In the circumstances, the $250
expediting fee was not necessary or properly incurred and is therefore
disallowed.
Dr. Parhar
[23]
Dr. Parhar billed $2,300 for his medical-legal report of August 18,
2013.
[24]
Following the accident the plaintiff began seeing Dr. Parhar as her
family physician because of his expertise in the area of occupational medicine.
Dr. Parhars CV is illustrative of his extensive background and expertise
in this regard.
[25]
The defendant takes issue with the cost of Dr. Parhars
medical-legal report and submits it is well beyond the current Guideline amount
of $1,659 set by the BC Medical Association. The defendant also objects to the
fact that Dr. Parhars fee is not broken down. The defendant further
submits that the report was unnecessary, as the plaintiff continued to see her
former family doctor, Dr. Hinchliffe, through 2012 and 2013, who also
produced a medical-legal report.
[26]
The defendant further submits that the plaintiffs work capacity could
have been evaluated by Dr. Hinchliffe or by Dr. Finlayson, a physiatrist,
who prepared two reports concerning the plaintiff dated May 21, 2013 and August
8, 2013.
[27]
The plaintiff asserts that once Dr. Parhar had been retained as the
plaintiffs family doctor, a report was necessary as the defendant could
request an adverse inference if the report was not produced. Further, the
plaintiff submits that Dr. Parhar was most familiar with the plaintiffs
condition and treatment, given the fact that he had been providing ongoing treatment
as her primary caregiver relating to the injuries sustained in the accident.
[28]
I am satisfied that the medical-legal report of Dr. Parhar was
necessary and properly incurred. With respect to the BC Medical Association Fee
Guide, the amount is only a guide and a higher amount may be allowed in the
circumstances of the particular case. Dr. Parhars CV illustrates his
greater than average expertise, particularly with respect to occupational
medicine. The cost of the report is not unreasonable or excessive. The
disbursement in the amount of $2,300 for Dr. Parhars report of August 18,
2013 is allowed.
Dr. Van Rijn
[29]
Dr. Van Rijn is a physiatrist. He billed for two medical-legal
reports dated April 8, 2010 and February 17, 2011, at $3,000 for each report,
for a total of $6,000.
[30]
Given the symptoms experienced by the plaintiff, counsel felt that it
was essential to have her assessed by a physiatrist in order to determine
causation. Plaintiffs counsel was concerned that an argument could be made by
the defendant that the static posturing involved in playing the piano, combined
with the excessive use of the arms, may be the cause of her symptoms, rather
than the accident. Plaintiffs counsel was of the opinion that this was better
done seven months after the accident, rather than at a later date, as this
would enable the expert to delineate the causal relationship between the
accident and the plaintiffs neck, back and left arm symptoms.
[31]
Dr. Van Rijn was retained for this purpose and the medical-legal
report of April 8, 2010 was produced as a result. The report opined that the
plaintiffs neck and back injuries were caused by the accident but the left arm
complaints were less clear, and potentially related to nerve root irritation.
Dr. Van Rijn opined the plaintiffs symptoms should lessen over time, and
therefore, plaintiffs counsel was of the opinion that a follow-up report would
eventually be necessary to determine whether the plaintiffs condition
improved, stayed static, or worsened.
[32]
In the summer of 2010, plaintiffs counsel learned that Dr. Van
Rijn was retiring on February 28, 2010, so he arranged for a follow-up report
to take place on February 17, 2011.
[33]
The defendant objects to the disbursement for both of Dr. Van
Rijns reports. The Defendant alleges the reports were stale-dated by the time
they were served and were superseded by the later reports of the subsequent
physiatrist, Dr. Finlayson. There is no objection to Dr. Finlaysons
reports.
[34]
The defendant also argues that the reports of Dr. Van Rijn were of
no assistance in negotiating the settlement of the action. Finally, the
defendant takes issue with Dr. Van Rijns fee of $3,000 per report, which
exceeds the $1,659 currently recommended by the BC Medical Association, and was
not particularized in terms of the work done and the hours spent.
[35]
The time for assessing whether a disbursement was necessary or properly
incurred is when the disbursement was incurred, not with the benefit of
hindsight, as per Van Daele v. Van Daele, supra. I find that both
reports of Dr. Van Rijn were properly incurred in the conduct of the
proceeding. Establishing a causal link between the plaintiffs symptoms and the
accident early in the proceeding was particularly important, given the
occupation of the plaintiff.
[36]
Plaintiffs counsel anticipated possible defences and took steps he felt
were reasonable to ensure he could prove his case.
[37]
Dr. Van Rijns upcoming retirement was not known when he was first
retained. This caught plaintiffs counsel by surprise and ultimately
necessitated Dr. Finlayson being retained. It was proper and reasonable to
ensure a follow-up report was obtained prior to Dr. Van Rijns retirement
date.
[38]
While the amount charged by Dr. Van Rijn exceeds the BC Medical
Guideline, it is only a guideline, and a higher amount may be allowed in a
given case.
[39]
I agree that it is preferable for the expert to provide reasonable
particulars for the amount charged. Obtaining further particulars in this case
is no longer possible, as Dr. Van Rijn passed away on August 26, 2014.
[40]
Having reviewed the reports, and taking into account bills from like
specialists, the $3,000 charged would not qualify as plainly unreasonable or a
clear overcharge. In Dosanjh v. Martin, 2001 BCSC 1759, the court stated
at para. 50:
[50] In my opinion, a
registrar should not, without good reason, interfere with the amounts charged
by experts. The plaintiff hired the experts in good faith to assist with the
plaintiff’s case. Those experts charge what they charge. In my view, the
defendant should not be rewarded (and the plaintiff penalised) by a registrar
reducing expert fees except in cases where there is clearly an overcharge or it
is determined that the fees were unreasonable. (See Reap v. Insurance
Corporation of British Columbia, [2000] B.C.J. No. 2258 (Registrar). I cannot
say that there was a clear overcharge or that the disbursements were
unreasonable for any of the medical legal reports provided by Drs. Yasin and
Khan. I will therefore allow the disbursements for the medical legal reports
prepared by each of Drs. Khan and Yasin.
[41]
This passage was quoted with approval by the court in Chow v. Nguyen,
2012 BCSC 1432 at paragraph [12], and in Turner v. Whittaker, supra,
at paragraph [50].
[42]
The disbursements for Dr. Van Rijns reports, totalling $6,000 are
allowed in full.
Dr. Fuller
[43]
Dr. Fuller is an orthopaedic specialist with 30 years of
experience. He provided two medical-legal reports dated December 29, 2011, and
August 1, 2013, at a cost of $2,900 each.
[44]
Dr. Fuller performed a physical examination prior to the
preparation of each report.
[45]
In his December 29, 2011 report, Dr. Fuller made findings relating
to the plaintiffs injuries, specific to his speciality and attributed those
injuries to the accident. He also identified age-related degenerative changes
unrelated to the accident. Dr. Fuller opined there was the possibility of
improvement with time, but the likelihood was poor. Finally, Dr. Fuller
recommended further investigation necessitating a neurologists credentials.
[46]
In Dr. Fullers August 1, 2013 report, he opined there would be no
further improvement in the plaintiffs neck and that this impacted her ability
to perform as a professional pianist and composer.
[47]
Given the circumstances of the case, I find that the reports were necessarily
and properly obtained within the proceeding. The disbursements for both of Dr. Fullers
reports are allowed in full.
Mr. Benning
[48]
The plaintiff claims for three reports of Mr. Benning, an
economist, who provided two expert reports with actuarial multipliers for
future care and income loss calculations, at a cost of $294; and, a report
which set out information regarding the average income of a Canadian composer,
at a cost of $1,320.60.
[49]
The defendant objects to these disbursements on the basis that this
case did not involve the type of injuries, loss, or future care needs that are
amenable to an actuarial income loss calculation. The defendant further argues
that the report of Mr. Benning on the earnings of a Canadian composer was
not properly expert opinion and the information contained therein could have
been obtained from research on the internet and introduced by way of a Notice
to Admit.
[50]
The expert medical opinion was that the plaintiffs ability to work in
the future was compromised. In these circumstances, it was reasonable and
proper to obtain evidence which could be used to craft and support a future
income and care cost claim. Whether that evidence would have ultimately been
used for that purpose is unknown. This case does strike me as one where a
global approach to future income loss was more probable, rather than a
mathematical approach. However, I note the defendant obtained a forensic
accountants report dated August 30, 2013, which is mathematical in nature and purported
to refute the plaintiffs past and future income loss. The defendants report
followed on the heels of the plaintiffs multiplier reports dated June 10,
2013. Further, the final settlement of the action in the amount of $123,000 did
comprise of a component for future income loss and future care costs. In my
view, at the time the multiplier reports were obtained, they were reasonable
and proper within the proceeding.
[51]
Similarly, given the plaintiffs vocation and her prior intention to
pursue a career that included composing music, seeking evidence of average
earnings in this regard was reasonable and proper. This is particularly so when
the plaintiff had no prior track record in this regard. Whether or not the
report was proper opinion evidence, it was evidence which the plaintiff needed
to prove her alleged loss. The evidence would have to be accurate, and withstand
a level of scrutiny that would not be met by a lawyer randomly searching the
internet and attaching what he found to a Notice to Admit.
[52]
The disbursements of Mr. Benning in the amount of $294 and
$1,320.60 are allowed in full.
Renaissance Group
[53]
The plaintiff is self-employed. She prepared her own income tax returns
without professional assistance. Her financial records were stored in a
haphazard manner in various boxes. The plaintiff retained Ms. Guthrie, a
charter accountant, for the purpose of organizing the plaintiffs income into a
presentable and readable format to illustrate her income over the years 2004 to
2013. This involved placing the income figures on a spreadsheet.
[54]
The plaintiff was billed $1,340 to organize her business income and
expenses for the years 2004 to 2012 and an additional $245 for the summary
covering 2013.
[55]
The defendant objects to these disbursements arguing it was simply the
cost of organizing the plaintiffs income onto a spreadsheet. The defendant
further argues it was a business expense, not a true litigation expense.
[56]
There are circumstances where visual aids and other demonstrative
evidence will be allowable disbursements where they are necessary or proper,
and not an extravagance. See Kay v. Pettigrew, 2006 BCSC 232 and Noon-Ward v.
Carlson, 2006 BCSC 922.
[57]
I agree with the defendant that the disbursement in this regard wasnt
necessary or properly incurred. If the plaintiff was capable of organizing her
financial information and filing her income tax returns, she was likewise
capable of organizing her financial records once again for the purpose of explaining
her income and the method used to calculate it, to the Court. In the
circumstances, the spreadsheet was an extravagance, the cost of which ought not
to be borne by the defendant.
[58]
The disbursements of $1,340 and $245 are disallowed.
Canadian Magnetic Imaging
[59]
The plaintiff claims for the cost of an MRI to the cervical spine and
the left shoulder. The defendant objects to these disbursements on the basis
that they were medical, not litigation expenses; and, that the MRIs should have
been pursued through the public health care system. The Defendant relies on Phelan
v. Newcombe, 2007 BCSC 714, at paragraphs [11] and [15]; and, Cooknell
v. Quinn, 2013 BCSC 1653 at paragraph [39] in this regard.
[60]
In May 2013, Dr. Dost, the defendants neurologist retained for the
purposes of providing an independent medical examination/opinion, recommended
to the plaintiff that she have an MRI of her neck to find out why she was
having symptoms in her arms and hands. Dr. Dost did not provide a written
opinion.
[61]
Dr. Finlayson, the plaintiffs physiatrist, recommended an MRI to
the plaintiffs left shoulder to assess her changes of tendinopathy and
impingement syndrome, and to rule out other abnormalities. This was stated in Dr. Finlaysons
medical-legal report of May 21, 2013.
[62]
Dr. Parhar, the plaintiffs post-accident family doctor also
recommended an MRI of the plaintiffs neck to rule out a disc herniation.
[63]
Three medical experts retained in relation to the litigation to provide
expert opinion evidence, including the defence expert, had medical concerns
with respect to the plaintiffs injuries and symptoms, and recommended further
investigation by MRI. Dr. Finlayson, in her medical legal report of August
8, 2013, specifically addresses both MRIs in relation to the plaintiff and
states that the MRI of the left shoulder
provides further support for my
previously stated opinion regarding her left shoulder pain due to impingement
syndrome and rotator cuff tendinopathy.
[64]
Given the opinions of the three experts, and the findings confirming the
opinion of Dr. Finlayson, the cost of obtaining the MRIs was necessary and
properly incurred in the conduct of the proceeding. This is a situation unlike
that in Phelan v. Newcombe, supra.
[65]
Although there is no evidence specifically stating that a
publicly-funded MRI could not be scheduled in time for trial, counsel for the
plaintiff advised during the hearing that the first time he became aware an MRI
was recommended was in May of 2013. It was his view that he had no option to do
the MRI publicly, as there simply wasnt time. This is further reflected in the
affidavit of Pierre Bisbicis wherein Mr. Granger further informs me that
it was appropriate to have these investigations done privately in order that
the medical experts, and ultimately the trial judge, would have the benefit of
these investigations before the trial of this action which was unlikely to be
accomplished through the public health system because of the delays in that
system. Although unlikely is far from certain, not utilizing the private
system would have put the Plaintiffs case at risk.
[66]
Dr. Parhar attested that he forwarded a requisition for an MRI on
June 17, 2013. It took until July 13, 2013 to obtain the appointment for the
private MRI of the neck and until July 20, 2013 for the private MRI of the left
shoulder. The MRI reports then had to be sent to the plaintiffs doctors to be
reviewed in preparation of their reports, which had to be served 85 days before
the trial was scheduled to commence on November 25, 2013.
[67]
In my view, there is a sufficient factual foundation to establish that
the public system was not a viable option in the circumstances. A similar
approach was taken in Gray v. Kohnert, 2014 BCSC 888 at paragraphs [8]
and [9].
[68]
The disbursement in the amount of $1,990 for the two MRIs is allowed
Courier Charges
[69]
The plaintiff claims $674.90 for courier charges. In support of the
claim for this disbursement, the plaintiff has filed an affidavit, attaching
the various letters and the billing report of the courier service.
[70]
Defence counsel objects to the use of couriers with respect to those
deliveries to their offices, when both plaintiffs counsel and defence counsel
occupied the same office building. The Defendant further objects to the
numerous courier charges being paid as hot or rush designations without an
explanation or obvious need.
[71]
Counsel for the plaintiff could not explain all the courier charges or
why a hot and rush designation was required in each case where it was
charged.
[72]
Counsel for the plaintiff advised there was a need to both ensure and
prove delivery, which was facilitated through the use of couriers. The majority
of the correspondence and documents sent by courier involved the delivery of
confidential medical and financial records where there is a need to protect
privacy. In these circumstances, it was proper and reasonable to use couriers.
[73]
I am satisfied that the bulk of the courier charges were either
necessary or proper. I intend to apply a rough and ready approach and allow $550.00
for courier-related charges.
Clinical Records
[72] The defendant objects to two disbursements for the
copying of Dr. Hinchliffes clinical records, in the amount of $97.00, and
the clinical records of Wall Center Chiropractic, in the amount of $150.00, on
the basis that there is no proof provided that the disbursements were incurred.
[73] Absent proof the disbursements were incurred, and
given the defendants prior objection, in writing, both disbursements are
disallowed.
Conclusion
[74] Where taxes are applicable to the disbursements
allowed, they are awarded.
[75] If the parties require a
certificate, they may submit one through the Registry with the endorsement of
counsel confirming the amount.
District
Registrar Nielsen