IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Pagal v. Lennox, |
| 2015 BCSC 152 |
Date: 20150204
Docket: M126359
Registry:
Vancouver
Between:
Mitchell De Vera
Pagal
Plaintiff
And
Maria Francesca Lennox
Defendant
Before:
District Registrar Nielsen
Reasons for Decision
Counsel for the Plaintiff: | J. Logan |
Counsel for the Defendant: | A. Leoni |
Place and Date of Hearing: | Vancouver, B.C. January 16, 2015 |
Place and Date of Decision: | Vancouver, B.C. February 4, 2015 |
introduction
[1]
This is an assessment of a bill of costs arising from a motor vehicle
accident which occurred on October 25, 2010. Both liability and quantum were at
issue.
[2]
At the time of the collision, the plaintiff was 21 years of age and
enrolled in a program at Vancouver Career College (VCC) to become a licensed
practical nurse (LPN).
[3]
The Notice of Civil Claim was filed on October 22, 2012 and the Response
to Civil Claim was filed on March 6, 2013. A trial date was scheduled for
January 12, 2015. Examinations for discovery of both the plaintiff and
defendant were completed. The matter settled on May 16, 2014, for $135,000 plus
taxable costs and disbursements.
[4]
The matters in issue concern tariff items 1, 2, 10(a) and 34. All other
tariff items are agreed.
[5]
Also in issue are the following disbursements: the cost of three MRIs
and associated costs; the cost of two medical-legal reports from Dr. McKenzie,
an orthopedic surgeon; and finally, the cost of an economic report from PETA
Consultants.
tariff items
[6]
Section 3(3) of Appendix B provides:
(3) If the Tariff indicates a range of
units for a Tariff Item, the registrar must have regard to the following
principles:
(a) one unit is for matters on which
little time should ordinarily have been spent;
(b) the maximum number of units is for
matters on which a great deal of time should ordinarily have been spent.
[7]
In Fairchild v. Vancouver Coastal Health Authority, 2011 BCSC
616, at para. 24, the assessment of discretionary tariff items was defined
as an objective exercise. The Court stated:
[24]
in deciding the
proper number of units to award in respect of each tariff item, I must compare
this case with all of the other cases that come before the court and decide
where it fits in the spectrum of them. Was it a simple, straightforward (i.e.
run of the mill) case; or was it litigation involving numerous parties,
extensive legal issues, numerous experts and involving large sums of money?
[8]
In making an assessment, the Registrar must have regard to the
particular circumstances of the proceeding in which the costs are claimed when
deciding how many units within the prescribed range should be allowed. These
are matters that cannot be decided in an evidentiary vacuum (see Gichuru v.
Smith, 2014 BCCA 414 at para. 162).
[9]
I pause to note that there was considerable evidence led with respect to
the disbursements in issue, but very little in terms of the tariff items
claimed. Where tariff items are in dispute, proper evidence ought to be adduced
to support the amount of units claimed.
Tariff Item 1
[10]
The plaintiff claims 6 units for tariff item 1 and the defendant submits
5 units is an appropriate award. There was more done in this action than is ordinarily
done before the commencement of proceedings, which involved attempting to
organize efforts to assist the plaintiff in meeting the requirements of his LPN
program so as to ensure all mitigation efforts were made and his LPN program
salvaged. Six units are awarded for tariff item 1.
Tariff Item 2
[11]
The plaintiff claims 13 units and the defendant submits 10 are
appropriate. There is very little evidence in this regard. Considering the
submissions of both the plaintiff and defendant, 10 units are awarded.
Tariff Item 10(a)
[12]
The plaintiff claims 3 units and the defendant submitted that 2 units
were appropriate. Again, there is very little evidence in this regard beyond
the submissions of defence counsel. Plaintiffs counsel could not recall the
amount of documents involved. Two units are awarded.
Tariff Item 34
[13]
Section 4(4) of Appendix B provides:
(4) If, in
the Tariff, units may be allowed for preparation for an activity, the registrar
may allow units for preparation for an activity that does not take place or is
adjourned up to the maximum allowable for one day.
[14]
The plaintiff argues that 5 units ought to be awarded and defence
counsel submits 0 units are justified. Plaintiffs counsel submits the matter
was ready for trial at the point it settled, with the exception of preparing
the witnesses and legal arguments. Plaintiffs counsel acknowledges that a
further updated medical-legal report would likely have been required from Dr. Regan.
[15]
Defence counsel submits that preparing witnesses for trial and arguments
are precisely what tariff item 34 contemplates, and that other forms of
pre-trial procedures and preparation are reflected in the various other tariff
items.
[16]
This case settled on May 16, 2014, eight months before trial. Absent
evidence of specific steps taken to prepare for trial, beyond those already
contemplated in Appendix B, I am not prepared to award units under tariff item
34. No units are awarded for tariff item 34.
Disbursements
[17]
Supreme Court Civil Rule 14-1(5) provides:
(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.
[18]
There are a number of principles to be considered on an assessment for
disbursements. Those applicable principles were summarized 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)
[19]
In the context of this case, I would add that for a disbursement to be
recoverable, it must arise directly from the exigencies of the proceeding and
relate directly to the management and proof of allegations, facts and issues in
the litigation, and not from other sources. This is what is captured by the
phrase the conduct of the proceeding as per MacKenzie v. Rogalasky,
2014 BCCA 446 at para. 80.
MRIs and Reports of Dr. McKenzie
[20]
The defendant takes issue with the costs of three MRIs, two of the
plaintiffs left shoulder and one of his lower back. The defendant also takes
issue with the cost of two medical-legal reports prepared by Dr. McKenzie.
[21]
Plaintiffs counsel was contacted by a person within the administration
of VCC who was known to him, and was concerned for the plaintiff.
[22]
Plaintiffs counsel met with the plaintiff on January 28, 2011. At that
point, it was clear to plaintiffs counsel that the most significant injury to
the plaintiff was his left shoulder and his lower back. Of particular concern
was the fact that the plaintiff was left-hand dominant.
[23]
Due to the heavy lifting involved, the plaintiff was concerned that he
may not be able to complete his practicum, which was a requirement of his LPN
program.
[24]
The plaintiffs family doctor was not prepared to sign documentation
authorizing the plaintiff to participate in the practicum portion of his LPN
program because of its physical demands. The family doctor recommended an MRI
of the plaintiffs left shoulder. Assuming the plaintiff passed his exams, his
practicum was to commence on February 28, 2011.
[25]
Plaintiffs counsel was of the view that it was urgent to attend to a
diagnosis and treatment plan so that the plaintiffs educational and employment
plans were not jeopardized further. Plaintiffs counsel submits that a duty to
mitigate existed and that any delay in the plaintiffs entrance into the
workforce would be a claimed loss in the litigation. The cost of the tuition
alone at VCC exceeded $20,000.
[26]
On the basis of past experience, both plaintiffs counsel and defence
counsel were in agreement that obtaining an MRI within the private system would
likely take at least six months.
[27]
In preparation for this assessment, counsel for the plaintiff spoke to Dr. Bin
K. Lim, a physician who has a medical office in Vancouver, British Columbia,
who advised that he has been a family physician in Vancouver for 35 years and
an emergency physician in the emergency department at St. Pauls Hospital
for 35 years. Dr. Lim stated that, as at the end of 2010 and the early
part of 2011, the wait time for an MRI of a body part such as the shoulder
(except for cases such as an acute rupture of the supraspinatus where there
would be a tendon retraction), would be six months to a year, easy, and that
the wait time had not changed much over the last ten years.
[28]
Counsel for the plaintiff also spoke to Kelly Morton, a medical
assistant in the offices of Dr. Jeff Plant and Dr. Don MacDonald,
family physicians in Langley, B.C., who advised him that during the 2010-2011
period the wait time for an MRI in their area in the public system was roughly
six months.
[29]
Plaintiffs counsel was also of the view that a consultation with an
orthopedic specialist would be necessary in order to review the MRIs and
diagnose and treat the plaintiffs injuries. In plaintiffs counsels
experience, the waiting list to see an orthopedic surgeon can be many months to
a year.
[30]
Plaintiffs counsel was able to arrange for the plaintiff to have the
MRI of his left shoulder on February 8, 2011, as requested by the plaintiffs
family doctor, and for the plaintiff to be seen by Dr. McKenzie,
orthopedic surgeon, on March 1, 2011.
[31]
Dr. McKenzie saw the plaintiff on March 1, 2011, as scheduled and
produced his medical-legal report on March 2, 2011. On page 9 of the
medical-legal report, Dr. McKenzie recommended a further MRI with
arthrogram (an MRI with a gadolinium contrast) of the plaintiffs left
shoulder. Unfortunately, the MRI previously requested by the plaintiffs GP was
without the gadolinium contrast. Dr. McKenzie also recommended an MRI of
the plaintiffs lower back.
[32]
The MRI with arthrogram of the plaintiffs left shoulder and the MRI of
his lower back took place on June 27, 2011.
[33]
Upon receipt of the MRIs, Dr. McKenzie saw the plaintiff again on
July 28, 2011, and provided a second medical-legal report dated August 1, 2011.
In the August 1, 2011 report, Dr. McKenzie remained uncertain of the exact
diagnosis of the shoulder, however, he recommended at page 6 of his report that
the plaintiff see a sub-specialty shoulder surgeon with a view to potential
treatment.
[34]
Counsel for the plaintiff was also advised that Dr. McKenzie had
retired from performing arthroscopic surgery.
[35]
As a result, plaintiffs counsel arranged for the plaintiff to see Dr. W.D.
(Bill) Regan, who had the required sub-specialty recommended by Dr. McKenzie.
Fortunately for the plaintiff, he was able to see Dr. Regan on September
2, 2011, due to a cancellation.
[36]
Dr. Regan produced two medical-legal reports dated September 2,
2011, and May 29, 2013, neither of which is at issue on this assessment.
[37]
The plaintiff ultimately failed his year of studies for his LPN program
at VCC. The plaintiff attributes his failure to his injuries. The defendant
takes issue with this assertion. Regardless, the plaintiff forfeited his
tuition and lost an academic year. He was also out a further $15,000 in tuition
required by an alternate accredited institution which he subsequently attended.
[38]
The defendant takes issue with the cost associated with the three MRIs,
on the basis that they were properly a special damage for treatment, not a
disbursement incurred in the conduct of a proceeding for the purposes of
Supreme Court Civil Rule 14-1(5); and further, that the MRIs should have taken
place in the public health care system, at no cost to the defendant, as there
was no urgency and therefore no necessity for the MRIs to occur outside the
public health care system.
[39]
In support of their position, the defendant cites the cases of: Bodeux
v. Tom, 2013 BCSC 2327; Jalili v. Ma, 2013 BCSC 1420; and Repnicki
v. 616696 B.C. Ltd., 2013 BCSC 1421.
[40]
The defendant takes issue with the medical-legal reports of Dr. McKenzie
on the basis they are duplicative and overlap the latter reports of Dr. Regan.
[41]
Essentially, the defendant says that the plaintiff is entitled to one
set of orthopedic reports, but not both.
[42]
I am of the view that the MRIs were both necessary and properly incurred
in the conduct of the proceeding.
[43]
There was an element of urgency to the situation when plaintiffs
counsel was contacted. The plaintiff was enrolled in an LPN program. He had invested
$20,000 in tuition fees. The plaintiff was experiencing left shoulder pain (he
is left-handed) and low back problems, both of which allegedly affected his
ability to enter into the practicum aspect of his LPN program.
[44]
Counsel for the plaintiff was further advised by the plaintiffs GP that
he had doubts whether the plaintiff could perform the duties required on the
practicum, given his condition and symptoms.
[45]
I agree with the submissions of counsel for the plaintiff that the duty
to mitigate does not commence on the date the Notice of Civil Claim is filed.
Further, at stake was the $20,000 investment by the plaintiff in his tuition
and the potential future losses caused by any delay in his entry into the
labour force, both of which could be claimed as losses in the proceeding.
[46]
A diagnosis and treatment program was a matter of urgency. In the
circumstances, it was appropriate to arrange for private MRIs in order to
facilitate this process. It was undisputed that the public system would take at
least six months before an MRI could be arranged. This time estimate was confirmed
by two doctors whom plaintiffs counsel spoke to. In the circumstances facing
the plaintiff, a six-month delay was simply too long.
[47]
Ultimately, the plaintiffs diagnosis was not exact and the treatment
was unsuccessful insofar as his success in the LPN program at VCC was
concerned. However, the time for assessing whether a disbursement was properly
incurred is when the disbursement was incurred, not with the benefit of
hindsight, as per Van Daele, supra.
[48]
The costs of the three MRIs in the amount of $995 each are allowed, as
are the associated costs of the gandolinium in the amount of $300, and the cost
of the CD images totalling $75.
[49]
In assessing whether the costs of Dr. McKenzies two reports were
necessarily or properly incurred, I am also of the view that they were. Again,
for reasons already discussed, there was a sense of urgency requiring the
retaining of an expert in short order to ensure the plaintiffs LPN program had
as much chance of success as possible. Dr. McKenzie was available on
relatively short notice and his letter head identified himself as an expert in sports
medicine, arthroscopic surgery of shoulder and knee.
[50]
It caught counsel for the plaintiff by surprise that Dr. McKenzie
had retired from arthroscopic surgery and would ultimately recommend another
orthopedic surgeon with a shoulder sub-specialty.
[51]
Given the plaintiffs circumstances and medical condition, once Dr. McKenzie
recommended another orthopedic specialist with a sub-specialty in shoulders,
counsel for the plaintiff was left with no choice but to retain Dr. Regan.
[52]
When Dr. McKenzie was retained, plaintiffs counsel had every
reason to expect he was qualified to provide expert opinions concerning the
plaintiffs shoulder and to perform any arthroscopic surgery required.
[53]
I agree with Defence counsels submission that Dr. McKenzies
reports are, in part, a duplication of Dr. Regans. Expenses for experts
may be disallowed where there is duplication of experts in the same specialty
if no satisfactory explanation for the duplication is provided (see Bell v.
Fantini (1981), 32 B.C.L.R. 322).
[54]
There are also circumstances where the cost of an expert report if not
disallowed entirely, can be properly reduced for unnecessary duplication or
overlap. I do not believe this is a case which warrants disallowance or a
reduction. Any duplication was not foreseeable or expected. It was necessitated
by a combination of Dr. McKenzies unexpected/unknown retirement from
performing arthroscopic surgery and his recommendation of another sub-specialist.
This is not a case of the plaintiff doubling up, or being unsatisfied with the
first opinion and seeking another more favourable opinion. The costs of both Dr. McKenzies
reports are allowed in full.
The Economic Report
[55]
Mr. Darren Benning of PETA Consultants was retained by the
plaintiff to calculate past and future losses of the plaintiff based on his
sustaining a 16-month delay in embarking on a career as an LPN.
[56]
The defendant takes issue with the economic report of Mr. Benning
on the basis that it was not used to formulate the settlement proposal which
ultimately led to the resolution of the case, or in any other apparent way. The
defendant submits that the calculations in the settlement letter do not
correspond with the calculations in Mr. Bennings report. The defendant further
submits that the report was not served on the defendant, although the defendant
concedes that this alone is not a basis to disallow the disbursement. The
defendant submits that when viewed together, the disbursement ought to be
disallowed.
[57]
Plaintiffs counsel submits the report was of assistance and argues it
was referred to in the settlement proposal of November 8, 2013. He agrees the
report was not served on the defence but states this was a matter of
inadvertence, not an intended strategy.
[58]
The Court of Appeal in Fan v. Chana, 2011 BCCA 516 at para. 51 stated
that the question to be asked is whether the disbursement was necessary or
properly incurred at the time it was incurred, not after judgment has been
rendered and it has been determined whether or not the expert report was
helpful in the end result.
[59]
The question as per both Van Daele, supra and Fan,
supra, is not whether, with the benefit of hindsight, the report should
have been requested, or whether it was ultimately useful. The question is
whether it was necessarily or properly incurred at the time it was incurred. A
necessary disbursement is one which is essential to the conduct of the
litigation; and a proper one is which is not necessary, but is reasonably
incurred for the purposes of the proceeding (see McKenzie v. Darke, 2003
BCSC 138 at paras. 17-18).
[60]
The plaintiffs allegation was that the injury arising from the motor
vehicle accident delayed his entry into the workforce as an LPN. This
allegation, whether ultimately proven or not, required the plaintiff to adduce
expert evidence of his alleged future losses. In the circumstances, the
disbursement involved in obtaining Mr. Bennings expert report was
necessary and properly incurred. The disbursement is allowed in full.
[61]
If a certificate of costs is required, one can be submitted through the
Registry for signature.
District
Registrar Nielsen