IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150310

Docket: M114640

Registry:
Vancouver

Between:

Nicholas Schroeder

Plaintiff

And

Steven
McGivern and Waste Management of Canada Corporation

Defendants

Before:
District Registrar Nielsen

Reasons for Decision

introduction

[1]            
This is an assessment of the plaintiff’s bill of costs following the
settlement of a legal action arising from a motor vehicle accident which
occurred on March 30, 2001. Liability was admitted, however, quantum of damages
was at issue.

background

[2]            
At the time of the motor vehicle accident of March 30, 2001, the
plaintiff was nine years old. Counsel for the plaintiff was first retained
February 21, 2011 when the plaintiff was 18 years old. The Notice of Civil
Claim was filed September 12, 2011, after the plaintiff turned 19 years of age.

[3]            
The legal action was originally a fast track matter pursuant to Supreme
Court Civil Rule 15-1, but was moved out of that process by court order dated
May 28, 2011. A five-day trial was scheduled to commence December 16, 2013. On
December 12, 2013, the plaintiff accepted the defendants’ formal offer to
settle of $85,000 plus taxable costs and disbursements.

issues

[4]            
The parties have resolved the tariff items. All that remains in issue on
this assessment are various disbursements, including:

(1)           
Laser printing;

(2)           
Taxi costs;

(3)           
Courier costs;

(4)           
Costs of an MRI;

(5)           
The accounts of Dr. McKenzie, orthopedic surgeon;

(6)           
The account of Dr. Koo, physiatrist;

(7)           
The accounts of Dr. Singh, neurologist;

(8)           
The accounts of Dr. Pullyblank, psychologist;

(9)           
The accounts of Dr. Matrick, psychiatrist;

(10)       
The accounts of Catherine Douglas, occupational therapist;

(11)       
The accounts of Kevin Turnbull, economist.

[5]            
Counsel for the plaintiff emphasizes that due to the passage of time
before he was retained, considerable obstacles had to be overcome in order to
counter the defendants’ position that the plaintiff’s ongoing problems were not
causally related to the motor vehicle accident.

[6]            
It is the plaintiff’s position that the combination of the position of
the defendants with respect to causation, and the passage of time, necessitated
an approach to quantifying the case that necessarily and properly involved an
array of experts.

[7]            
The defendants submit that the concept of proportionality in Supreme
Court Civil Rule 1-3 weighs heavily in a case of this nature, with a monetary
value that would have otherwise necessitated the fast track process.

[8]            
The defendants submit that the plaintiff’s expert reports resulted in
multiple opinions on the same subject matter, some of which are inconsistent.
Further, the defendants submit that although the plaintiff’s experts are not in
identical specialties, they were asked to assess the same issues, namely the
plaintiff’s alleged neck pain, headaches, and psychiatric/psychological issues,
which was unnecessary, improper, and disproportionate, in light of the minor
nature of the plaintiff’s claim.

[9]            
The defendants submit that all the contested experts were unnecessary and
improper within the context of this case. In the alternative, the defendants
submit that the amounts billed by the individual experts were excessive and
unjustified and therefore ought to be reduced.

[10]        
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.

[11]        
There are a number of principles to be considered on an assessment of disbursements.
Those applicable principles were summarized in Turner v. Whittaker, 2013
BCSC 712 at para. 5, wherein Master McNaughton 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)
rev’d 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).

[12]        
To these principles, I would add those in Holzapfel v. Matheusik (1987),
14 B.C.L.R. (2d) 135, which are summarized in Cloutier v. Wong, [1992]
12 CPC (3d) 169 where the Court stated at para. 5:

5          In Holzapfel v. Matheusik (1987), 14 B.C.L.R. (2d)
135, the Court of Appeal approved the following principles set out in the
authorities:

1. The onus of proof rests on the party submitting the bill
to establish affirmatively the necessity or reasonableness of the charges he
claims as disbursements (Hall v. Strocel (1983), 34 C.P.C. 170 (B.C.S.C.).

2. The solicitor responsible for the preparation of the case
should give evidence, which may be by affidavit, verifying that the work was
necessary for the full and proper presentation of the case and that the fees
charged for the work were reasonable in the circumstances (Berite v. Schuette
(1980), 17 C.P.C. 259 (B.C.S.C.).

3. If the expert’s bill contains less than a reasonably
detailed outline of the work he performed and the hours he devoted to his
retainer, an affidavit sworn by the expert may be required (Berite v. Schuette
(1980), 17 C.P.C. 259 (B.C.S.C.).

4. The affidavit of verification does not bind the
assessment officer but he should consider it carefully and weigh it against the
other evidence (Bell v. Fantini; Fasciana v. C.N.R. (1981), 32 B.C.L.R. 322
(B.C.S.C.)).

[13]        
In Bell v. Fantini (1981), 32 B.C.L.R. 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.

[14]        
These principles will be applied to the disbursements which remain in
dispute.

Disbursements

Laser Printing

[15]        
The plaintiff claims $574.25 for laser printing. This represents 2,297 copies
at 25 cents per page. The plaintiff lawyer’s affidavit of justification attests
that his firm’s printer/ photocopier keeps track of all printing that is done
from their computer on a specific file. Any faxes, correspondence, or documents
printed from the computer would be considered “laser printing”. The laser
printing involves paper and toner and creates a document.

[16]        
The defendants object to this charge, arguing that it is an overhead
cost and not a disbursement, relying upon Dakin v. Roth, 2013 BCSC 1018
at para. 50.

[17]        
In my view, the laser printing described by the plaintiff would be
recoverable as it directly arises from the exigencies of the proceeding and
relates directly to the management and proof of allegations, facts and issues
in the litigation. That is what is captured by the phrase “the conduct of the
proceeding” in Supreme Court Civil
14-1(5) and is therefore a recoverable disbursement as per MacKenzie v
Rogalasky, 2014 BCCA 446 at para. 80. However, the specifics relating to each
and every laser copy, not surprisingly, are lacking. As explained in Sovani
v. Jin, 2006 BCSC 855 and Gill v. Widjaja, 2011 BCSC 1822, the
assessment of the reasonableness of copying charges is not a precise
arithmetical exercise but rather requires a consideration of what is reasonable
in the circumstances of the action. This approach has been referred to as a
“rough and ready calculation”.

[18]        
The cases also make clear that not every copy made in the litigation
will be necessary. The more detailed the evidence concerning copies made, the
more likely that the charges will suffer less of a discount, if at all. The
evidence which exists in this case is limited but not completely lacking. In
the circumstances, I allow $350 for this disbursement.

Taxi Costs

[19]        
Plaintiff’s counsel has incurred taxi costs, which he has passed onto his
client. The defendants object to this disbursement, citing Franzman v. Munro,
2013 BCSC 1758, where the Court stated at para. 34:

[34]      As between the lawyer
and his client, they may not be an extravagance, but they are in the nature of
office overhead, contained within the tariff items and not a proper
disbursement claimable from the unsuccessful litigant.

[20]        
I agree with this approach. The taxi costs are disallowed.

Courier Costs

[21]        
The plaintiff seeks to recover $206.16 in courier charges. The
defendants object to this disbursement, alleging the plaintiff has not provided
any evidence as to why the speed or security of a courier service was necessary.

[22]        
The plaintiff has accounted for each courier charge by providing the
individual invoice and details concerning what was couriered and to whom. With
one exception, the courier was used to pick up and deliver confidential medical
information and reports. Sensitive and confidential medical information
requires a degree of protection, given the privacy issues involved. In my view,
the use of couriers was both necessary and proper in the circumstances. The
courier charges in the amount of $206.16 are allowed in full.

The Expert Reports

[23]        
When the plaintiff was injured in the motor vehicle accident, he was
nine years of age. Plaintiff’s counsel was not retained until the plaintiff was
18 years old. Plaintiff’s counsel sought an opinion from the plaintiff’s family
physician, Dr. Baria. Dr. Baria, who had been treating the plaintiff
since he was 12 years old, reported that the plaintiff had persistent neck pain
and headaches since the motor vehicle accident. He also referenced a learning
disability, severe anxiety, and the curtailment of physical activities.

[24]        
The defendants took the position that the symptoms of the plaintiff were
unrelated to the motor vehicle accident.

[25]        
In order to advise his client with respect to the possible outcomes at
trial and the reasonableness of settlement offers, plaintiff’s counsel
necessarily had to determine the extent of the plaintiff’s injuries and their
cause. This task was complicated in this case by the fact that the injuries
occurred approximately 10 years before plaintiff’s counsel was retained. The
contribution of the passage of time, the defendants’ position on causation, the
ongoing symptoms of the plaintiff, and the relatively recent entry of the
plaintiff into the workforce, necessitated the involvement of an array of experts,
as the onus of proof rested squarely on the plaintiff’s shoulders.

[26]        
Plaintiff counsel’s affidavit of justification sets out in detail the
medical history of the plaintiff and the reasons why he retained each of the
experts.

[27]        
The defendants make submissions specific to the various experts
including: the number of experts in this case was not proportional to the
overall value of the case; the content of the expert reports overlapped; and,
the various medical experts provided contradictory opinions with respect to the
plaintiff’s medical issues. Finally, the defendants object to various charges
of the experts.

[28]        
Proportionality is a relevant consideration pursuant to Supreme Court
Civil Rule 1-3. The defendants cite Kern Chevrolet Oldsmobile Ltd. v.
Canadian Pacific Ltd. (1986), 7 B.C.L.R. (2d) 170, where the Court of
Appeal concluded, in a property damage case, that “the factor of the amount at
stake is relevant” when looking at the overall costs of the experts involved.

[29]        
I agree that the amount at stake is a relevant consideration. However,
in the present case, the defendants initially took the position that the
plaintiff’s injuries were not causally related to the motor vehicle accident.
Subsequently, a formal offer to settle was made in the amount of $25,000.
Eventually, following the exchange of the various expert reports, the case
settled shortly before trial for $85,000 plus taxable costs and disbursements.

[30]        
I do not doubt the settlement was achieved, in part, because the
plaintiff’s injuries and alleged financial losses were documented to a point
which satisfied the defendants that the offer made was appropriate, and they
were otherwise at risk.

[31]        
Also relevant to the proportionality issue is the fact that the
plaintiff was a minor at the time of the injury, had only recently entered the
workforce at the time of trial, had persistent symptoms requiring investigation
and proof of causation which was further complicated by the passage of time.

[32]        
Unlike the property damage in Kern Chevrolet Oldsmobile Ltd., the
plaintiff’s damages could not be quantified from a static position. The
plaintiff’s injuries had to be diagnosed, and the etiology determined, with an
accompanying prognosis over the course of the years.

[33]        
Considering the various factors, I do not consider the array of experts
in the present case to be disproportional. I agree with the defendants that
there is an overlap in the opinions of the various medical experts. However,
each expert was examining the same plaintiff, exhibiting the same symptoms. In these
circumstances, overlap is inevitable.

[34]        
I am satisfied that each of the experts opined within their area of
expertise.

[35]        
The defendants had identified areas in the opinions of the experts where
their opinions diverged, or were inconsistent to some extent. Having reviewed
the expert reports, I conclude that, for the most part, the experts confined
themselves to their specific areas of expertise and what contradictions there
were, did not detract from the fact that the opinions were necessarily and
properly obtained in the conduct of the proceeding.

Objection to Specific Charges of the Experts and the MRI

[36]        
Having decided that each of the plaintiff’s expert reports were
necessarily and properly incurred, the next issue is to consider whether the
costs associated with the reports ought to be reduced.

[37]        
The defendants submit the overall fees charged for the preparation of
the various expert reports are excessive and ought to be reduced.

[38]        
The defendants object to the “single rush fee” of $375 and the
“double-rush fee” of $600 charged by Catherine Douglas, occupational therapist.

[39]        
The affidavit material and facts before me contain no justification for
such fees in the context of the proceeding. There is no basis for these costs
to be passed on to the defendants and they are both disallowed.

[40]        
The defendants object to the cost of trial preparation and cancellation
fees of Dr. McKenzie in the amount of $3,900 and Dr. McKenzie’s
“trial booking fee” in the amount of $500.

[41]        
The trial settled the Thursday before the scheduled Monday commencement.
Dr. McKenzie advised he was unable to re-book the time set aside for
trial. There was no explanation or evidence of what exactly a “trial booking
fee” was, or entailed. In the circumstances, the trial preparation costs and
cancellation fee totalling $3,900 is allowed. However, the “trial booking fee”
in the amount of $500 is disallowed.

[42]        
The defendants object to Dr. Singh’s cancellation fee in the amount
of $1,200 on the basis that there is no evidence indicating that Dr. Singh
was unable to subsequently re-book his time set aside for trial. It is possible
that Dr. Singh did, in fact, re-book his time following the cancellation
of trial. There is no evidence one way or the other. In the absence of any
evidence suggesting that Dr. Singh was unable, or did not re-book his
time, the $1,200 cancellation fee is disallowed.

[43]        
The defendants object to the hourly rate of Dr. Singh, the total of
his addendum report, and his expert file fee. In the absence of evidence to
suggest that Dr. Singh’s fees were excessive or inappropriate, I am not
prepared to accede to these arguments. The cost of $250 to reproduce his file
is not excessive and is allowed.

[44]        
The defendants object to the costs of the economic reports, arguing that
it was obvious there would be no future wage loss. As I have already indicated,
this is an exceptional case. The plaintiff was injured as an infant, had
continued symptoms since the motor vehicle accident, and had a limited earnings
history given his relatively recent entry into the workforce. His is earnings,
although increasing, were “sparse and limited”, as indicated in the plaintiff’s
affidavit. In these circumstances, I am of the view that the financial reports
were properly incurred and they are allowed in full.

[45]        
The defendants object to Dr. Koo’s 50% surcharge on his July 12,
2013 invoice and submit that the surcharge be disallowed as it is excessive and
neither reasonable nor necessary and was not incurred by a fault or omission of
the defendants.

[46]        
Dr. Koo states that he had to work through the Canada Day long
weekend to prepare his report on short notice. The defendants submit this was
neither necessary nor proper, as the 84-day deadline for the service of reports
was in early September 2013, based upon the December 2013 trial date.

[47]        
There is an absence of evidence to explain the urgency, or why Dr. Koo
was required to work through the long weekend. In the circumstances, the 50%
surcharge is disallowed and the amount of Dr. Koo’s invoice is reduced by
$2,661.14.

[48]        
The defendants object to Dr. Pullyblank’s invoice of September 20,
2013, which billed $5,340, as it was based upon 26 hours and 42 minutes, which
they submit was excessive in the circumstances.

[49]        
There is an absence of evidence to suggest this amount of time was
excessive. The defendants’ submission in this regard is limited to “this
invoice should be reduced, as 26 hours and 42 minutes spent on consultation and
the report is excessive”.

[50]        
In the present case, Dr. Pullyblank took on a dual role. He provided
both a psychological assessment and a vocational assessment. Dr. Pullyblank
explained his charges in an affidavit filed in these proceedings. Absent
evidence to suggest the amount charge was excessive, or a compelling argument
to that effect, I am not prepared to reduce Dr. Pullyblank’s account.

[51]        
The defendants submit that Dr. Matrick’s account ought to be
reduced by $900, which was charged due to the plaintiff’s failure to attend a
scheduled appointment for an assessment by Dr. Matrick. The plaintiff
advised Dr. Matrick that he could not attend on the day in question as
“his boss would not give him the day off”. The plaintiff’s failure to attend a
scheduled medical examination is not an appropriate cost to pass onto the
defendants and it is disallowed. Dr. Matrick’s account is accordingly
reduced by $900.

[52]        
Finally, the defendants object to the $995 cost of an MRI which was
recommended by Dr. Koo in his medical-legal report of July 1, 2013, in
order to rule out a surgically amenable lesion, or disc pathology.

[53]        
The recommendation for an MRI was made five months before the trial of
the action. Although there is no evidence that plaintiff’s counsel explored the
possibility of obtaining the MRI within the public system, there is precedent
which suggests that it takes six months to a year within the public system to
obtain an MRI in the Lower Mainland: see Pagal v. Lennox, 2015 BCSC 152
at paras. 26-28.

[54]        
Given Dr. Koo’s recommendation, the plaintiff’s ongoing symptoms, and
the relative urgency due to the December 16, 2013 trial date, I find that
utilizing the private system to obtain an MRI was necessarily and properly
incurred within the proceeding. The $995 cost of the MRI is allowed.

conclusion

[55]        
Where the contested disbursements have been allowed, the applicable
taxes are also allowed. If a certificate is required, one can be submitted
through the Registry for signature.

“District
Registrar Nielsen”