IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150504

Docket: 47093

Registry:
Kamloops

Between:

Colin
Miley

Plaintiff

And

Ashraf
Abulaban and Hisham Al-Ahmad

Defendants

–
and –

Docket: 47333

Registry: Kamloops

Between:

Colin
Miley

Plaintiff

And

Anita
Horkoff

Defendant

Before:
Master R.W. McDiarmid

Reasons for Judgment

These appointments are to
assess the bill of costs of the plaintiff in Kamloops Registry Action No. 47093
and the defendants in Kamloops Registry Action No. 47333.

[1]            
There were ten exhibits entered at the hearing as follows:

[2]            
Both exhibits 7 and 10 contain the following wording “These fees cannot
be correctly interpreted without reference to the preamble s. C(2).” I
requested that counsel obtained that document; it was a 34-page document which
was provided to me by a paralegal at Ms. Harris’ office. Its stated purpose is
to “assist medical practitioners in appropriate billing for insured services.”
It turned out to be irrelevant to the issues in this assessment.

[3]            
Most of the issues and most of the submissions relate to the assessment
of the plaintiff’s bill of costs in Kamloops Registry Action No. 47093. When I
refer to the “defendants”, I am referring to Ashraf Abulaban and Hisham
Al-Ahmad, the defendants in Kamloops Registry Action No. 47093. When I refer to
Anita Horkoff, the defendant in Kamloops Registry Action No. 47333, I will
refer to her as the “defendant, Horkoff”.

[4]            
Pursuant to Chapter 5 of the Law Society of British Columbia Code of
Professional Conduct for BC (the “BC Code”), and in particular s.
5.2-1, I permitted both counsel to appear as advocates and to submit their own
affidavit evidence before me. It is my view that such a procedure is the most
efficient way to conduct these sorts of assessments, provided there are no
credibility issues with the evidence. Granting such permission is consistent
with the object of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Civil
Rules] as set out in Rule 1-3.

BACKGROUND FACTS

[5]            
Joseph A. Zak was retained by Colin Miley in or about October 2010. The
parties signed a retainer agreement on September 15, 2011. This retainer
followed a motor vehicle accident in the circumstances set out in Mr. Zak’s
second affidavit at paragraphs 2-13 as follows:

2.         This action was brought for the recovery of
damages for personal injury and loss suffered by the plaintiff as a result of a
motor vehicle accident that occurred on May 18, 2010 on King George Highway in
Surrey, B.C. At that time, the plaintiff was stopped in a line of traffic when
his vehicle was struck from behind by a van owned by the defendant, Hisham
Al-Ahmad, and operated by the defendant, Ashraf Abulaban. The plaintiff
suffered neck and back injuries as a result of that collision ("the First
Accident").

3. The defendants
admitted "the general issue of liability" but alleged, inter alia,
the following:

(a)           
the plaintiff’s injuries, if any, were as a result of a
pre-existing or intervening cause;

(b)           
the plaintiffs injuries and loss, if any, were too remote at law
to be recoverable;

(c)           
the plaintiff had failed to mitigate his loss by failing to
follow medical advice to lose weight and strengthen his core muscles.

4.         This action was heard over the course of five days
from December 9 to December 13, 2013.

5.         On February 14, 2014, an application was brought
by the plaintiff to adduce fresh evidence and enter into the record that, following
the trial, the plaintiff had been terminated for cause from his employment. The
application was granted with each party bearing their own costs.

6.         On August 5, 2014,
Reasons for Judgment of the Honourable Madam Justice Hyslop were handed down awarding
the following damages:

7.         On October 9, 2014, an application was brought by
the plaintiff to address the issue of costs and to seek instructions from the
court on the following issues:

(a)           
the reasonableness and necessity for the personal attendance at
the trial of the action of Dr. G.M. McKenzie, orthopaedic specialist, and Karen
Winkler, occupation therapist;

(b)           
the reasonableness of ordering partial trial transcripts.

8.         The application was granted with costs to the
plaintiff subject to the registrar’s determination of the following:

(a)           
the reasonableness of the fees for the appearances of Dr.
McKenzie and Karen Winkler;

(b)           
the reasonableness of ordering partial trial transcripts as
opposed to ordering a CD of the evidence through the registry.

Miley v. Horkoff, S.C.B.C., Kamloops Registry No.
47333

9.         The plaintiff aggravated his neck and back
injuries in a second motor vehicle accident that occurred some 10 months later
on March 2, 2011 at or near the intersection of 152nd Street and 88th Avenue in
Surrey, B.C. At that time, the plaintiff was travelling north on 152nd Street
approaching the intersection of 88th Avenue. The defendant, Anita Horkoff, had
been travelling south on 152nd Street and had come to a stop in the
intersection intending to turn left. The collision occurred when the defendant
made her left turn in front of the plaintiffs approaching vehicle ("the
Second Accident").

10.       Liability for the accident was denied. The
defendant alleged that the plaintiff was solely or partially at fault for the
collision in failing to stop at a red light and yield to the defendant who was
in the process of making a left turn.

11.       The defendants challenged the plaintiff regarding
the injuries that he had sustained in this collision claiming that he must have
suffered more than a temporary aggravation of his complaints.

12.       The trial of both actions, that is, Miley v.
Abulaban et al and Miley v. Horkoff, were set to be heard together.

13.       This action, that is, Miley
v. Horkoff, was discontinued by the plaintiff on December 6, 2013.

TARIFF ITEMS

Item 1

[6]            
Mr. Zak submits that there was considerable work done prior to
commencement of the proceedings on April 10, 2012. He submits that the work
included ordering clinical records. He referred to obtaining reports from Dr.
McKenzie, an orthopaedic surgeon, and from Dr. Vincent, a pain management
specialist. Exhibit 8 includes two reports from Dr. McKenzie which predate
April 10, 2012, and one report from Dr. Vincent which predates April 10, 2012.

[7]            
Item 1 specifically references work done until the start of the
proceeding “for which provision is not made elsewhere in this tariff.” Item 17
deals with “all process and correspondence associated with retaining an
consulting all experts for the purposes of obtaining opinions for use in the
proceeding.”

[8]            
In addition, I must be mindful that before Kamloops Registry Action No. 47093
was commenced, the plaintiff was in a second motor vehicle which he
subsequently discontinued. Costs in that action go to the defendant. There is
legal work done by plaintiff’s counsel which overlaps the two actions.

[9]            
The plaintiff claims 6 units; the defendants submit 5 is appropriate,
and I agree. I allow 5 units for item 1.

Item 2

[10]        
Plaintiff’s counsel submits that one of the difficulties in this case
was, as he put it, “teasing out the effect of the second accident”, and proving
that the injuries were not divisible.

[11]        
I am satisfied that the conduct of this action, which included
negotiations directly with the insurance adjuster who was dealing with this
case on behalf of the defendants, made this case somewhat more difficult than
what I will call a “typical motor vehicle accident claim”.

[12]        
Item 2 provides a range of 1 to 30 units; the plaintiff is claiming 20
units, the defendants’ position is that 15 units are appropriate. I allow 17
units.

Item 6

[13]        
I have reviewed the pleadings. While some particularization of injuries
and specifics with respect to the accident are unique to every case, these
pleadings are what I would consider routine pleadings in a motor vehicle
accident claim. The plaintiff is claiming 6 units; the defendants’ position is
that 3 units are appropriate, and I agree. I allow 3 units.

Items 10 and 11

[14]        
As proven by exhibit 2, the plaintiff provided a list of documents, an
amended list of documents, and a second amended list of documents. Many of the
documents listed as clinical notes and/or clinical records exceed ten pages.
Document 1.76, the personnel file, is 74 pages in length.

[15]        
The defendants’ list of documents contains many documents which are on
the plaintiff’s list. The defendants have disclosed relatively few documents
which were not documents already teamed and listed by the plaintiff.

[16]        
Under item 10A, the plaintiff is claiming 6 units and the defendants’
position is that 2 units should be allowed. I agree with the defendants’
position and 2 units is allowed.

[17]        
Under item 11, the plaintiff is claiming 6 units and the defendants’
position is that 3 units should be allowed. The plaintiff’s claim is
substantiated by exhibit 2. I allow 6 units under item 11.

Item 17

[18]        
This item relates to all process and correspondence associated with
retaining and consulting experts. In assessing the appropriate number of units
(the range is 1 to 10) under this item, I need to keep in mind that this does
not include preparation of these witnesses for trial, nor does it include
interviewing these experts in their capacity as witnesses, which is part of
what is to be considered under item 18.

[19]        
In Mr. Zak’s affidavit, he deposes to the reasons he retained several
experts. He had the plaintiff assessed by Dr. McKenzie and by Dr. Vincent. He
obtained a medical report from Dr. Spangehl, the plaintiff’s family doctor. He
obtained a report from Dr. Winkler, an occupational therapist who addressed the
issue of impairment of earning capacity, and to prepare and present future cost
of care recommendations. He retained Richard Carlin, a vocational consultant.
He retained Robert Carson, an economist. He obtained a report from the
plaintiff’s treating physiotherapist, Julie Spoko.

[20]        
The plaintiff claims 6 units under item 17; the defendants’ position is
that I should allow 4 units. The evidence justifies allowing units above the
mid-range. In accordance with the plaintiff’s position, I allow 6 units for
item 17.

Item 18

[21]        
Item 18 is for process and correspondence associated with contacting,
interviewing, and issuing subpoenas to all witnesses; that would include
interviewing the aforementioned expert witnesses. In addition, Mr. Zak advised
he interviewed the plaintiff’s best friend and the plaintiff’s employer. Nine
witnesses were called in total.

[22]        
The plaintiff claims 7 units; the defendants’ position is that 3 units
should be allowed. This was a five-day trial with one additional day of hearing
on February 14, 2014 to deal with admissibility of fresh evidence. The range
for tariff item 18 is 1 to 10 units. Based on the submissions and evidence
before me, this case falls in the middle of the range and in the middle of the
submissions made by the parties. I award 5 units.

Item 19

[23]        
The plaintiff is claiming 1.5 units for preparation for an examination
for discovery of the plaintiff on November 27, 2012. That examination was
cancelled at the request of the defendants as a consequence of the action
successfully being removed from Rule 15-1 the morning before. The circumstances
of the cancellation are set out in the fifth affidavit of Victoria MacIvor.

[24]        
Item 19 refers to “for each day of attendance”. There was no attendance,
and no units are allowed for the cancelled November 27, 2012 examination for
discovery. I will deal with the claim for disbursements for that cancelled
discovery later in these reasons. I am allowing 1.5 units for preparation for
the examination for discovery which took place on September 13, 2013.

Item 36 – Written Argument

[25]        
The plaintiff claims 14 units; the defendants’ position is that 10 units
should be allowed.

[26]        
This tariff item has been changed. Formerly, written argument was only
allowed if requested by the court and, as I recall, the range was 1 to 30
units. Now the range is a maximum of 10 units. The written arguments included
closing submissions of the plaintiff dated January 14, 2014, and a reply dated
March 13, 2014. Both of these written submissions are detailed and
comprehensive. I am aware that both parties appear to have considered that the
old provisions, which allowed up to 30 units, may have applied. Ten units are
obviously for the most detailed written submissions, presumably in cases
significantly more complex than this one. I consider that the written arguments
in this case justify more than the mid-point, and allow 6 units.

[27]        
The balance of the tariff items were agreed upon, apart from ones
relating to this assessment.

DISBURSEMENTS

[28]        
As part of exhibit 1, I received an affidavit of Lola Mondin, a legal
assistant with the law firm of HMZ Law, solicitors for the plaintiff. In her
affidavit, Lola Mondin attaches proof that the disbursements claimed have been
paid or otherwise accounted for (such as being tracked on the law firm’s
photocopy management system). In her affidavit, she corrects some of the
amounts claimed in the amended bill of costs.

[29]        
She deposes that for some items (client travel, as an example) there are
no receipts and sets out in her affidavit the rationale for the amounts
claimed.

[30]        
In paragraph 5 of her affidavit, she sets out how interest on
disbursements is calculated.

[31]        
In paragraph 6 of her affidavit, she sets out the workings of their
office’s photocopy management system and deposes that:

…Most of the photocopies as
claimed were associated with the volume of clinical records received from the
various doctors, other medical professionals, employment records, etc. that had
to be copied and circulated to the various experts and defence counsel.

[32]        
In her affidavit, at paragraph 7, she deposes that on long distance
charges “our office does not gross up or add a premium.”

[33]        
She sets out some particulars with respect to registered mail, express
post charges, coloured copies, and charges for three CD/DVDs.

[34]        
On the bill of costs, 98 disbursement items are set out, numbered from 1
to 98, and then attached to Lola Mondin’s affidavit are 98 tabs referencing
each of those disbursement items. I refer hereafter to these tabs by
referencing “item 11” eg. The word “item” corresponds to the numbered tabs
referencing the disbursement items, and not to Appendix B tariff items.

[35]        
The first step for a party claiming a disbursement is to prove payment,
or alternatively, to prove that the disbursement has been incurred in some
manner. Lola Mondin’s affidavit prima facie satisfies this requirement.

[36]        
During submissions, all of the non-taxable disbursements were ultimately
agreed upon and will not be referenced in these proceedings. I have kept a
record of the agreed upon amounts and if a dispute arises, I will issue a
memorandum.

[37]        
With respect to the claim by the plaintiff for interest on disbursements
in the amount of $5,390.34, the plaintiff has requested that I adjourn this
matter pending the outcome of a potential appeal of MacKenzie v. Rogalasky,
2014 BCCA 446. I was advised that leave to appeal to the Supreme Court of
Canada had been sought; a copy of the leave application, filed January 16, 2015
is attached as exhibit 4 to Mr. Zak’s third affidavit.

[38]        
Counsel for the defendants submits that MacKenzie is binding on
me, and that to accede to the plaintiff’s request would be to delay the
conclusion of this matter for many months, perhaps years. I agree.

[39]        
MacKenzie is a unanimous decision of our Court of Appeal on a
practice point. It is binding on me. The plaintiff’s claim for interest is not
allowed.

TAXABLE DISBURSEMENTS – ITEMS 11 – 23 AND 25 – 26

[40]        
Agreement was reached with respect to telefax charges, charges for
postage and handling, in-house coloured copies, CD/DVDs, the mediation fee for
September 2013, the court reporter fee for November 25, 2013, for process
servers and for the trust administration fee. Plaintiff’s counsel agreed to
make no claim with respect to items 20 and 21.

[41]        
With respect to photocopies, the evidence establishes the number of
photocopies claimed on this file were properly tracked. There is always a
concern that a portion of photocopying is for what would normally be subsumed
in office overhead and, accordingly, registrars employ a “rough justice”
approach. The defendants submitted I should allow $1,500; the plaintiff has
submitted I should allow $2,225. I allow approximately 75%, which is an amount
of $2,120.

[42]        
Long distance telephone charges in the amount of $207.35 were incurred.
In the circumstances of this case, I am satisfied that communication by long
distance was necessary insofar as it involved communication with the client,
and proper insofar as it involved communication with expert witnesses. It has
not been marked up, and I find the amount claimed to be reasonable. It is
allowed as claimed at $207.35.

[43]        
I am satisfied that the courier charges were incurred and that there are
occasions when it is proper to utilize a courier, such as to ensure that the
materials necessary for expert opinions are provided to the expert in a timely
and secure manner. The question then is whether it is appropriate that the
losing litigant should bear the entirety of necessary or proper disbursement
charges. Absent specific evidence about the necessity or propriety of each
courier charge, the cost of providing which would exceed the amount of the
charge, I allow the charges at $350.00, approximately two-thirds of what is
claimed.

[44]        
The postage, handling and registered mail charges have been proven; an
explanation has been given as to why the registered mail was utilized. Those
charges are proper and are allowed as presented at $125.98 and $82.20 respectively.

[45]        
Coloured photocopies are generally allowed at $.50 a page. Some of the
coloured photocopies were obtained from Universal Reproductions. Based on
submissions of plaintiff’s counsel, these were of higher quality. The evidence
shows that 117 copies were obtained from Universal Reproductions, and I allow
those at $.50 per page which is an amount of $58.50. In-house coloured
photocopies are allowed at $6.50.

[46]        
A portion of the claimed disbursement for court reporters at item 23
includes the examination for discovery of the defendant, Horkoff, in an action
which was discontinued against her; that portion of the examination for
discovery is not allowed. The court reporter fees at item 23 are allowed at
$297.25.

[47]        
The plaintiff claims $887.50 for transcripts for the evidence-in-chief
in cross-examination of Karen Winkler and for the cross-examination of Dr.
McKenzie. Plaintiff’s counsel submits that the evidence of these two witnesses
was crucial to the issue of indivisibility of the plaintiff’s injuries, a point
on which the plaintiff was ultimately successful.

[48]        
There was evidence before me of efforts to obtain transcriptions of this
evidence in alternative ways. From my review of this evidence, in particular a
letter dated October 22, 2014, entered as part of exhibit 1, it would appear
that a CD of the evidence can be obtained at a cost of $25 per diskette. It is
producible upon an undertaking of counsel that includes an undertaking not to
use the CD for the preparation of unofficial transcripts and not to allow the
CD to be accessed except by other lawyers, students or staff members of the
lawyer’s law firm who were assisting the lawyer, or an expert witness, or a
lawyer from outside the law firm retained to assist.

[49]        
The purpose in obtaining the transcripts (as opposed to a CD recording
which would only be provided on an undertaking not to produce transcripts) is in
large part to assist the court. The audio CD recording without transcription would
not have been helpful to the court.

[50]        
I have reviewed the reasons for judgment of our Court of Appeal in Carlson
v. Tylon Steepe Development Corp., 2008 BCCA 179. I have also reviewed the
reasons for judgment re costs of Madam Justice Hyslop in Miley v. Abulaban,
2014 BCSC 1905. It is apparent from those reasons that Dr. McKenzie and Ms.
Winkler were the key witnesses in the plaintiff’s case. In para. 18 of her
reasons Hyslop J. writes as follows:

[18]      The plaintiff seeks
reimbursement of portions of trial transcripts of the evidence of Dr. McKenzie
and Ms. Winkler as a disbursement. During submissions, there was discussion as
to whether a CD of the evidence could be obtained from the registry. At that
time it was unknown and I have subsequently learned that a CD can be obtained
upon paying a fee. I will leave that matter to the registrar when considering
this item.

[51]        
There was no evidence of any less expensive way to obtain transcripts,
since the CD would not result in transcription. Similar to the decision of
Madam Justice Boyd, in I.R.C. v. S.C., 2005 BCSC 1640, while the ordering
of real time reporting is a sheer luxury and not to be considered a necessity
in many cases, here, the obtaining of a transcript appears to have been of
particular importance. It is noteworthy that the transcript was only for the
evidence of particular witnesses whose precise evidence required close and
careful comparison with other evidence. The requisite high standard of
necessity and/or propriety appears in this case to have been met. There is no
evidence of any less expensive way to obtain that partial transcription of the
key witnesses, and the claim for transcripts is allowed as claimed at $887.50.

[52]        
The plaintiff claims $129.12 for an expenditure to “Medical Legal Art”,
a company in Kennesaw, Georgia, USA.

[53]        
Paragraph 93 of Mr. Zak’s second affidavit is as follows:

93.       The court found the illustration to be informative.
In her Reasons for Judgment for costs and directions, Madam Justice Hyslop said
the following:

[14]      I agree with the plaintiff that Dr. McKenzie and
Ms. Winkler were the key witnesses in the plaintiff’s case. Dr. McKenzie
diagnosed where the plaintiff’s pain was in his spine. He showed the court on a
coloured picture of a spine where the injury was and from where the pain
emanated. Ms. Winkler’s evidence was important in that as a result of the tests
she performed, her evidence confirmed the area in his back where the plaintiff
had difficulties.

[54]        
As noted above, Dr. McKenzie and Ms. Winkler were the key witnesses in
the plaintiff’s case. However, that is not to say that it is reasonable to obtain
an elaborate colour photograph where other photographs are readily available in
texts. This claim is for a disbursement which is what I would categorize as a
luxury, and I do not allow it.

ACCOUNTS RENDERED BY JULIE SOPKO/TWIN RINKS PHYSIOTHERAPY AND SPORTS INJURY
CLINIC

[55]        
The plaintiff attended Twin Rinks for physiotherapy from Julie Sopko.
The defendants have agreed to pay various charges rendered by Twin Rinks for
provision of their clinical records as set out in the bill of costs under items
29, 43 and 44, totalling $270.50. Twin Rinks also rendered an account for $975
for a medical-legal report and an account for $2,400 as set out in a letter
dated November 11, 2013, appended to the Mondin affidavit at tab 28. In
response to that letter, Mr. Zak wrote and asked whether Julie Sopko was able
to re-book any appointments that were necessarily cancelled due to the
anticipated attendance fee video link. No response was placed into evidence.

[56]        
Julie Sopko was not qualified as an expert. Her report was not admitted.
She was not called to give evidence.

[57]        
Plaintiff’s counsel argues that had she been called, she could have
testified as to the visits made to her by the plaintiff and the physiotherapy
she performed. That would not have been expert witness testimony.

[58]        
I have reviewed Julie Sopko’s “Expert Report” dated July 7, 2013. It
consists mostly of a recitation of the author’s findings. There is a paragraph
dealing with objective assessment findings, which might be considered opinion,
but as a general proposition, the report is not an expert opinion report. As
noted, her report was not admitted.

[59]        
In Salsman v. John Doe, 2014 BCSC 45, Master Bouck at para. 39
writes as follows:

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

[60]        
I have considered the decision of Leggatt L.J.S.C., as he then was, in Morrissette
v. Smith, 1990 B.C.J. No. 193, where he sets out the oft quoted test to be
applied in these circumstances as stated by the Court of Appeal in Van Daele
v. Van Daele, 56 B.C.L.R. 178 at 180:

…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.

(See also Kern Chevrolet v.
C.P. Limited (1986) 7 B.C.L.R. (2d) 170 (B.C.C.A.))

[61]        
The report is not a proper disbursement. It is extravagant. The
defendant has not disputed items 29, 43 and 44, which are disbursements paid to
Twin Rinks Physiotherapy for medical legal clinical records.

[62]        
The $975 account for the medical legal report is disallowed.

[63]        
Appendix C to the Civil Rules sets out fees payable to witnesses
(i.e. non-expert witnesses). That fee schedule is to ensure that witnesses
receive out-of-pocket expenses for travel to court (not an issue here),
together with $30 per day for testimony. There is good reason for this. It is a
civic duty of a witness to testify when required in court proceedings. Those
witnesses are not to charge some notional hourly rate. To permit such charges might
give the perception of buying the witness. None of this, of course, is in any
way intended to reflect on Ms. Sopko, who I assume would have given honest
testimony. However, neither she nor any other non-expert witness is entitled to
charge a fee in excess of what is set out in Appendix C.

[64]        
I am satisfied that plaintiff’s counsel paid Ms. Sopko the $2,400, but
this is not a disbursement which is necessary or proper and it is not allowed.

EVIDENCE OF DR. MCKENZIE

[65]        
As noted, Dr. McKenzie was a key witness for the plaintiff. That is
apparent from reading the reasons for judgment of Hyslop J.

[66]        
The evidence with respect to the necessity and/or propriety of
disbursements paid to Dr. McKenzie is set out in Mr. Zak’s affidavit at
paragraphs 16-20, 29 and 38-44. A brief summary of that evidence is as follows:

a)    Mr. Zak obtained
a medical-legal report from Dr. McKenzie prior to commencing this action;

b)    Dr. McKenzie is
a recognized orthopaedic surgeon with a well-established reputation as a
medical specialist qualified to give expert opinion in this court;

c)     Dr.
McKenzie recommended that the plaintiff undergo an MRI (allowed as an item of
special damages at trial);

d)    Dr. McKenzie
prepared five medical-legal reports and letters; a report dated December 9,
2010; a letter dated January 11, 2011; a letter dated June 21, 2011; a report
dated October 23, 2012; and a report dated September 5, 2013;

e)    The October 23,
2012 report, approximately 20 months after the second accident, was done in
preparation for the trial date then set, but was utilized and relied upon in
satisfying the court that the initial trial date should be adjourned as Dr.
McKenzie was unable to give a final prognosis;

f)     
A final opinion prior to trial required an assessment which needed to
consider treatments performed by Dr. Vincent, updated family physician
information, a physiotherapist treatment review and a physical capacity
evaluation and cost of care report of an occupational therapist.

[67]        
In his first affidavit made August 21, 2014, Mr. Zak deposes at
paragraph 7 through 9 as follows:

7.         In light of the circumstances of the claim, as
counsel for the plaintiff, I considered that it was necessary that Dr. G.M.
McKenzie, orthopaedic specialist, attend the trial in person to explain his
findings and opinion as to why he believed the first accident was responsible
for the plaintiff’s ongoing complaints. I considered Dr. McKenzie to be the
plaintiff’s most important witness. He had assessed the plaintiff on three
occasions, December 9, 2010, October 23, 2010 and again on September 5, 2013.
Other than the family doctor, Dr. McKenzie had more contact with the plaintiff
than any other physician. This gave him continuity with the plaintiff over
important periods of time thus providing him with the ability to fully address
issues relating to causation, prognosis and treatment.

8.         Further, Dr. McKenzie provided an opinion and
supported recommendations for future care. It was necessary for him to explain
why the plaintiff required assistance and why such expenses were medically
justified.

9.         The defendants had
asked that Dr. McKenzie be produced for cross-examination. I wanted Dr.
McKenzie to give evidence in person so that the trial judge could see and hear
him first hand and observe his demeanour in answering questions in both direct
and in cross-examination. I wanted to ensure that Dr. McKenzie would be able to
examine and comment on any documents or reports that counsel for the defendants
may have put to him. Further, in my experience, leading or examining a witness
by video conference is in many ways unnatural. You cannot readily observe the
witness that you’re questioning. On some occasions, the camera shows the face
of the witness, on other occasions, the camera shows the witness seated some
distance away. Either way, it is impossible to make eye contact which is very
important. As a result, I did not want to run the risk of having Dr. McKenzie
appear via video conference when so much turned on his evidence and when he was
readily available to travel to Kamloops and appear before the court.

[68]        
Justification for Dr. McKenzie’s charges is clarified at paragraphs 6 to
8 of the first affidavit of Christine Watson, another legal assistant with the
law firm of HMZ Law. She attaches the invoices relating to his attendance at
trial. These include a fee for booking a trial attendance date of $500, a fee
for preparation for court, 3.5 hours for $2,800, a fee for attendance at court
for a half-day at $3,500, and a fee for travel time from Vancouver, 8 hours,
$3,200, for a total of $10,000 in fees for attendance at trial.

[69]        
The defendants have submitted that $3,500 ought to be allowed.

[70]        
Dr. McKenzie charged $150 for review of records plus some photocopying
on June 5, 2013, $150 for review of records plus some photocopying on September
24, 2013, $400 for a consult report dated October 21, 2013 and $200 for a
consult report dated October 22, 2013. He charged $3,250 for a medical report
dated December 9, 2010, $350 for a consult report dated January 11, 2011, $300
for a consult report dated June 22, 2011, $3,250 for a medical-legal report
dated October 26, 2012 and $3,500 for a medical-legal report dated September
11, 2013.

[71]        
In total, Dr. McKenzie charged $21,250 in fees, which the plaintiff
paid.

[72]        
Exhibit 10 sets out under the heading “Setting of BCMA Fees – General
Considerations” the following:

a.         You
are in no way obligated, ethically or otherwise, to follow these BCMA Fees and
you may charge either a higher or lower fee according to your own judgement.

b.         No
special sanction of any kind is employed nor will be employed by the
Association to enforce these BCMA Fees, and you are free to exercise your
discretion and judgement with respect to any charge made for any service
rendered that is not payable by the MSP, WorkSafeBC or ICBC or otherwise
specified in the Preamble.

c.         If the patient’s financial
circumstances are unusual, and other doctors have been called in attendance, it
is the responsibility of the attending physician to acquaint his/her colleagues
of such circumstances. Each doctor concerned in the care of the patient shall
give or send to the patient or his/her agent a statement showing his/her own
professional services.

[73]        
Page 2-2 and 2-3 of exhibit 10 contain headings “EXAMINATIONS,
LETTERS, REPORTS AND OPINIONS” and “EVIDENCE IN COURT/HEARINGS FOR
CIVIL, CRIMINAL AND ADMINISTRATIVE MATTERS”. Under the first heading
subparagraph b) is as follows:

b)         In
settling on fees in these matters, doctors should consider the time actually
spent in:

i)          Examination
of the patient.

ii)         Examination
of hospital records, ex-rays, etc.

iii)        Preparation, dictation and
revision of report or opinion.

[74]        
In the section dealing with evidence, subparagraph c) is as follows:

c)         Generally when parties request
a physician to give evidence in a civil case, they will offer to pay an
additional fee for time spent preparing to give evidence and for court
attendance. If payment is to be received through or from a lawyer, the
physician should obtain a prior confirmation that the lawyer or law firm will
personally be responsible for the physician’s fee. It would be prudent to also
arrange a fee at the same time for a potential court appearance in relating to
the report or opinion.

[75]        
Under the heading “MEDICAL-LEGAL FEES” are various reference codes.
Exhibit 7 contains language confirming that the fee schedule was revised
September 1, 2014; exhibit 10 contains language that it was revised June 1,
2014. The relevant BCMA fees for services at issue in this litigation have not
changed between the two dates; the numbers on the two exhibits are identical.

[76]        
The recommended fee A00072 for a “Medico-Legal Report” is $992.00.
A00073 is for a “Medico-Legal Opinion” and is $1,659.00.

[77]        
Under the heading “EVIDENCE IN COURT/HEARINGS” in exhibit 10 (the same
entries are in exhibit 7, but in a different format) is A00074 expert testimony
in court, per day – $2,651, A00075 expert testimony in court, per half-day or
less – $1,659.00, A00091 court preparation by expert witness, per hour –
$394.00 and A00092 Failure of notification of court adjournment or out-of-court
settlement – $1,990.00.

[78]        
I am mindful of the oral decision of Master Baker in Kelly v. Kotz,
(15 July 2014), Vernon 48221, Master Baker in paras. 14 and 15 states the
following:

…the proper perspective to be taken is Master Young’s, where
it is almost a plaintive cry — I mean that a small “p” not a capital “P” —
but a plaintive cry from the bench that “Doesn’t the B.C. Medical Association
tariff recommended fees mean anything anymore?”

[15]      And one seriously
wonders — and I am not just venting, because we need guidance. We need some
context in which to make these decisions. Otherwise, if it is not $7,700 why
not $10,000? The only guidance we have really is, either (a) the evidence of
other experts in that area, and as I said during submissions, I have seen that
and I have allowed higher than the tariff, et cetera, but on that basis,
because it is evidence-based ; here, the closest we have, as Ms. Schymon points
out, Master Young’s reference in her case to the tariff which is about $1,634
for a medical-legal report by a specialist, together with the cost of testing,
of course, and together with the cost of the attendance in trial.

[79]        
Master Baker was referring to the decision of Master Young as registrar
in Ross v. Logan, 2014 BCSC 548. In that decision, Master Young
considered the BCMA guidelines in her determination of what is reasonable. She
makes that determination by starting with the legal proposition summarized at
para. 30 of her decision as follows:

[30] In
evaluating the reasonableness of the charge, I am provided a wide measure of
discretion. However, as Madam Justice Dardi wrote in Smith v. Moshrefzadeh, 2013 BCSC 1623, the
discretion must be exercised judicially in a principled way consistent with the
Supreme
Court Rules and not arbitrarily or capriciously. It is fine for
me to say in chambers that a $900-an-hour charge seems high, but in exercising
my discretion, I must set out for the litigants what I am comparing that fee
to.

[80]        
I also agree with the approach taken by Master Young as set out in
paras. 20 – 23 and 44:

[20]      On the issue of proportionality, Master McDiarmid
says:

[19] In dealing with
proportionality, I was referred to the decision of Registrar Sainty in Dhillon
v. Bowering, 2013 BCSC 1178, and in particular para. 23 with respect to
proportionality which reads as follows:

[23] I must also consider
"proportionality" in making my decision. But proportionality is, in
my view, a two-way street. The amount of money at issue in an action (large or
small) may have a bearing on both the necessity and propriety of a disbursement
and whether it is reasonable in the circumstances. Here, the defendants’
initial offer to settle this matter (made August 11, 2009) was the sum of
$22,500 all-inclusive. That initial offer was later increased to $35,000.
Following service of all of the plaintiff’s experts’ reports, the formal offer
increased to $145,000 and, as noted earlier, the actions settled the Friday
before trial for $175,000 plus costs and disbursements. No doubt the experts’
reports played a part in the settlement offer and influenced the outcome. It
was not until the medical reports and the Functional Capacity Evaluation were
provided to the defendants that the amount of the offer increased to an amount
the plaintiff was prepared to accept. In my view (and I agree with Ms. Dewar’s
submissions on this point), proportionality (which I must consider in assessing
costs per Rule 14-1(2)(b)) refers to the significance of the claim; either
small or large.

[21]      At paragraph 22, he quotes again from Registrar
Sainty’s decision in Fairchild
v. Vancouver Coastal Health Authority, 2011 BCSC 616:

[22]      I have also gained guidance from the extract
reproduced in Chow [2012 BCSC 729], at para. 144 of Registrar Sainty’s
decision in Fairchild v. Vancouver Coastal Health Authority, 2011 BCSC
616:

[144] I have previously held (see Dosanjh
v. Martin, 2001 BCSC 1759) that expert’s fees ought only to be reduced
where there is a clear overcharge. Specifically I said:

[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.

[22]      Master McDiarmid assesses the cost of a
neurologist’s report for investigating the plaintiff’s headache symptoms. The
doctor charged $650 an hour, plus $30 an hour for typing a 20-page report. The
charge for the preparation of the report was $7,236.25.

[23]      The learned master says:

[51] Dr. Woolfenden is a neurologist who is also an
Associate Professor at the University of British Columbia. While his hourly
rate is higher than that of other specialists whose accounts are before me, it
is not "clearly an overcharge". Exhibit A to the C. Harkness
affidavit #2 made October 17, 2013 and filed October 18, 2013, by Cynthia
Harkness, legal assistant for Mr. Yawney attaches as exhibit A a breakdown of
Dr. Woolfenden’s accounts setting out a time expended doing certain tasks and
the cost of those tasks. I do not find that the fees he changed were
unreasonable.

[81]        
In Ross, Master Young found it unreasonable to charge $900.00 an
hour to write what she characterized as a “fairly simple medical-legal
opinion”.

[82]        
In Franzman v. Munro, 2013 BCSC 1758, a prior decision of mine, I
found it helpful to review the totality of the disbursements relating to
orthopaedic surgeons. That is the approach I will take here, but will then deal
individually with the various disbursement items claimed.

[83]        
In Ross v. Logan, 2014 BCSC 548, Master Young as registrar at
para. 30 writes as follows:

[30]      In evaluating the
reasonableness of the charge, I am provided a wide measure of discretion.
However, as Madam Justice Dardi wrote in Smith v. Moshrefzadeh, 2013
BCSC 1623, the discretion must be exercised judicially in a principled way
consistent with the Supreme Court Rules and not arbitrarily or
capriciously. It is fine for me to say in chambers that a $900-an-hour charge
seems high, but in exercising my discretion, I must set out for the litigants
what I am comparing that fee to.

[84]        
A plaintiff wants these highly skilled professionals to do a good job. A
plaintiff needs to compensate the professional adequately so that the necessary
time is taken to do that good job. Professionals are entitled to charge
appropriately, especially when they have significant qualifications and where
they do the necessary and required work to allow the plaintiff to advance his
case.

[85]        
That is what has happened here. It is apparent that the work done by Dr.
McKenzie was done well. The time spent was probably necessary and if not necessary,
then definitely proper.

[86]        
However, that does not entitle the plaintiff to get full recovery from
the defendant. The plaintiff is entitled to reasonable recovery.

[87]        
Obtaining the initial report was proper, and the defendant takes no
issue with the propriety, but submits that I should allow $1,659, the BCMA fee
for “medico-legal opinion". Dr. McKenzie charged $3,250.

[88]        
I have reviewed the report. It is apparent from reading it that it is in
some ways a preliminary report; although there is no evidence on this point, it
is reasonable to assume that both plaintiff’s counsel and Dr. McKenzie were
aware that there would be subsequent reports. Much of it recites facts. The
assessment/opinion portion takes up one page, page 8 of the report. A
reasonable amount for this preliminary report is $2,500 and I allow that amount
for this item.

[89]        
January 11, 2011 Dr. McKenzie provided an updated report after reviewing
a copy of the MRI report on the plaintiff. He rendered an account of $350.
Defence counsel submits that $168 is appropriate. I disagree. It is apparent
that there was time spent reviewing the MRI report, time spent reviewing the
previous report, time spent thinking about what the MRI shows and reaching an
opinion, and time spent in preparing the letter which contains opinion
evidence. The amount charged is reasonable and it is allowed as presented at
$350.

[90]        
On June 21, 2011, Dr. McKenzie prepared another report. It is apparent
from reading it that Mr. Zak had sent a letter to Dr. McKenzie enclosing
documents for review as set out in the first paragraph of that letter. It is
apparent that Dr. McKenzie spent time reviewing what he was sent to review,
reviewing his previous reports, correcting a minor typographical error in his
January 11, 2011 report, reviewing images, and thinking about matters and then
coming to the conclusion that what he had reviewed did not change his opinion.
He then spent time setting all of that out in a letter. Dr. McKenzie was
entitled to bill the plaintiff $300. However, it was neither necessary nor
proper for the plaintiff to request this letter, knowing that there would
almost certainly be an updated report, which could have included all of the
materials reviewed by Dr. McKenzie prior to him writing is June 21, 2000
letter. Because it was neither necessary nor proper, the disbursement is
disallowed.

[91]        
On October 26, 2012 Dr. McKenzie provided a further medical legal
report. This report followed an office visit by the plaintiff. It also followed
the second motor vehicle accident which took place in March of 2011.

[92]        
The medical legal report concluded on pages six and seven with an
updated assessment/opinion, contained the following statement:

It is also my opinion that the
accident of March 2011 is unlikely to have significantly aggravated this
problem … it is my opinion that his ongoing problems in his left lower back are
due to the May 18, 2010 accident.

[93]        
Obtaining an updated medical legal report after the second accident was
proper. It is not reasonable though, for the defendant to bear the entire cost
of this report. I allow this disbursement at $2,500.

[94]        
In paragraphs 38 and 39 of his second affidavit, Mr. Zak deposes that he
considered it necessary to have a further assessment of the plaintiff by Dr.
McKenzie. In his affidavit he sets out that the plaintiff had treatments
performed by Dr. Vincent, that there was a medical legal report from Dr. Spangehl,
family physician which had been received, that the physiotherapist’s treatment
of the plaintiff had been documented, and that a physical capacity evaluation
of future cost of care report had been prepared. Mr. Zak deposed that “it was
necessary to determine Dr. McKenzie’s final opinion in light of this additional
information.”

[95]        
The defendant has not disputed that such a report was either necessary
or proper, but again submits that I should allow $1,659 in accordance with the
BCMA guidelines. This report was obviously prepared (like the previous reports
under tabs 51 and 55) after an interview, after an extensive review of
documentation, and after careful consideration of the situation. It was a
report prepared with a view to being utilized as the final report prior to
trial. Dr. McKenzie billed $3,500. Very little of this report is duplicative of
previous reports. Some of it is. Keeping in mind that this was a report prepared
as the last report, I allow it as presented at $3,500.

[96]        
On October 21, 2013 and again on October 22, 2013 Dr. McKenzie rendered
further accounts, one in the amount of $400 for documents review, dictation
correction and addendum report, and then the following day for review of
records and telephone call.

[97]        
There is no evidence of any addendum report.

[98]        
It is obvious from reading the reasons for judgment after trial that the
evidence of Dr. McKenzie (and the evidence of the occupational therapist, Ms.
Winkler) was critical. That was reaffirmed by Hyslop J. in her reasons for
judgment re costs in Miley, where at para. 14 she writes: “I agree with
the plaintiff that Dr. McKenzie and Ms. Winkler were the key witnesses in the
plaintiff’s case." In para. 17 she writes:

I find that it was reasonable to
have Dr. McKenzie and Ms. Winkler appear personally before the court to give
their evidence. I will leave it to the registrar to determine whether their
fees for their appearances are reasonable.

[99]        
It is it is apparent that the accounts rendered under item 71 and 72
under the heading “Consults” on the bill of costs are encompassed in pretrial
preparation. Dr. McKenzie then rendered a further account dated December 10,
2013 for preparation and attendance at trial in the amount of $9,500 plus GST.

[100]     In the
second affidavit of Christine Watson, a justification letter broke that account
down, setting out preparation for court at three and a half hours at $800 per
hour, attendance at court for a half-day at $3,500, and a half- day of travel
time from Vancouver to Kamloops return, four hours at $800 per hour.

[101]     In his
submissions, Mr. Zak conceded that $800 per hour was, as he put it “a high rate”.
I agree. It is a rate which a skilled orthopedic surgeon who is significantly
in demand can command, and a plaintiff such as Mr. Miley, was prepared pay that
rate. However, from the perspective of what is reasonable in the context of
what is reasonable for a losing party to pay to a winning party for a proper
disbursement, it is unreasonably high.

[102]     I consider
items 71, 72, 73 and 76 collectively to be the fees for preparation for and
attendance at trial. The BCMA guidelines for expert testimony in court per day are
$2,651, per half-day or less, $1,659, court preparation at $394 per hour, and
travel time per hour for a specialist at $148.

[103]     In
previous costs judgments I have allowed $650 per hour for highly skilled
specialist physicians.

[104]     I allow a
total of $7,500 for items 71, 72, 73 and 76; that is a reasonable amount for
the defendant to pay to the plaintiff to reimburse the plaintiff for the costs that
the plaintiff incurred in obtaining the evidence of Dr. McKenzie.

DR. VINCENT

[105]    
Dr. Vincent is described in paragraph 22 of Mr. Zak’s second affidavit
as follows:

22.       The plaintiff’s
condition, unfortunately, did not improve and I thus considered it necessary
for him to be reviewed for medical/legal purposes by a pain management
specialist. I chose Dr. Daniel Vincent, anaesthesiologist and interventional
pain management specialist. Dr. Vincent has a well established reputation as an
interventional anaesthesiologist and has been qualified on several occasions to
give expert opinion evidence in the Supreme Court of British Columbia.

[106]     Dr.
Vincent rendered an account for a medical legal report dated March 30, 2012 for
$1,650, which the defendant does not dispute. Dr. Vincent rendered an account
for $326 in accordance with the BCMA tariff for a medical legal letter June 14,
2013. The defendant does not dispute that.

[107]     Dr.
Vincent had also prepared a report dated October 17, 2012 which was utilized by
the plaintiff to obtain an adjournment of the trial date which was at that
point set for February 4, 2013. Dr. Vincent did not charge for that report.

[108]     Justice Hyslop
reviewed both the May 26, 2013 and June 12, 2013 reports. The latter report was
an update to review notes which were available prior to June 12, 2013, but
which were not provided to Dr. Vincent.

[109]     It was
clearly an oversight on the part of the plaintiff to not provide Dr. Vincent
with full information. It is not reasonable for the defendant to pay for the
full cost of both reports. However, it is probable that Dr. Vincent would have
had to refer to additional materials and take more time than was taken for the
additional report. Looking at items 56 and 57 collectively, I allow $160 for
the May 28, 2013 report which is half of what is billed.

VIDEO CONFERENCING

[110]     The
defendants were concerned that there was some duplication here. At tab 82,
invoices 3281, 3282, 3283, 3284, 3285 and 3556 are attached. There is no
duplication; they total $3,115. Item 82 is allowed at that amount.

OT CONSULTING – KAREN WINKLER

[111]     The
defendant disputes a charge of $121.60 (item 63) and takes the position that I
should allow $3,500 for the invoice rendered November 2, 2012 for $4,887.55.

[112]     In
addition, the defendant disputes item 79 which was an invoice of $1,940.55 for
Karen Winkler’s attendance at trial. The defendant submits that I should allow
$1,200.

[113]     OT Consulting
prepared a physical capacity evaluation and cost of future care analysis on
October 15, 2012 and then wrote a 41-page report and also a letter (basically
one page of substance) setting out why this very detailed report should be
considered preliminary.

[114]     The occupational
therapist then reviewed the medical report of Dr. Vincent and finalized her
report. The defendant has taken no issue with the $623 charge for this latter
document.

[115]     The
accounts are exhibited at the tabs appended to Christine Watson’s first affidavit.
Christine Watson at paragraphs 9 – 12 of her first affidavit sets out some
evidence with respect to Karen Winkler’s attendance to give evidence at the trial
of this action. As noted previously, Hyslop J. determined that the registrar
was to determine whether those costs were reasonable, but determined that the
plaintiff was entitled to recover reasonable costs to have Ms. Winkler attend
to give evidence. The $1,940.55 account includes time for court preparation and
time for court appearance, which would have been the same irrespective of
whether she testified in Kamloops or by video. It shows cab fares of $106.30,
presumably from downtown Vancouver to Vancouver airport and then from Kamloops
Airport to the Kamloops courthouse and return. She claims a meals allowance of
$15.50. There is a claim for $581.25 for travel time, billed at half her
regular rate. Those expenses appear to me to have been necessary. The amounts
claimed are reasonable. Item 79 is allowed as claimed.

[116]     The
invoice at item 62 was broken down in a justification letter attached as exhibit
2 to Mr. Zak’s third affidavit.

[117]     Part of
the account ($375) was a $375 rush fee.

[118]     The trial
had initially been set for February 4, 2013.

[119]     An
application to remove the action from Rule 15-1 and adjourn the trial was heard
on November 26, 2012. One of the bases for adjournment was the fact that Ms.
Winkler could not provide a final assessment. In order to comply with the 84-day
requirement for delivery of an expert report, the report would need to have
been served on defence counsel by close of business on Friday, November 9,
2012. That was over two weeks prior to the hearing of the application before
Mr. Justice Dley. There is no explanation as to why in these circumstances,
ordering the report on a rush basis would be justified. In any event, only the
two-page letter setting out the fact that the report would be considered
preliminary would be required. The rush fee is, in the circumstances a luxury.
That portion of the account is disallowed.

[120]     The
justification letter sets out that professional fees for report preparation are
between $145 and $150 per hour, yet the report preparation is then charged at
$163 per hour. There is no explanation for this difference. I reduce the
account claimed under item 62 by 21×13 = $273 plus $375 for a total reduction
of $648 and allow it at $4,239.55.

[121]     The
account claimed at item 63 appears to me to be proper and is for a reasonable
amount. It is allowed as claimed at $121.60.

RICHARD CARLIN – VOCATIONAL CONSULTANT

[122]     Richard
Carlin prepared a report dated September 9, 2013. In the report the author
states “the purpose of this report is to examine the impact of Mr. Miley’s
motor vehicle accidents on his future employability." The statement of
account billed 8.25 hours at $225 per hour for review of documentation, a
telephone interview, an evaluation of the vocational test battery, development
of the opinion, some research and preparation of the report.

[123]     The
defendants required Mr. Carlin to attend for cross-examination, which he did by
video conference. For his attendance he charged $1,470.

[124]     In Sandhu
v. Wilk, 2014 BCSC 1128, I reviewed an account of a psychologist who worked
as a vocational rehabilitation consultant and vocational expert. That expert
had a PhD in psychology. He charged $185 per hour, although his total charges
for a report, excluding costs of psychometric testing, were $4,600. I reduced
his account substantially but allowed it at $3,250. It was more comprehensive
than the report done by Mr. Carlin, but the allowable cost provides some
context.

[125]     The
defendant submits that Mr. Carlin’s report was not useful to the court and was
unnecessary. In submissions, it was argued that one does not need a vocational
expert to assist in presenting a loss of earning capacity claim.

[126]     It is
trite to say that courts need an evidentiary basis upon which to make a loss of
capacity finding.

[127]     The test
for whether or not a disbursement is necessary and/or proper, is the Van Daele
test, namely whether at the time the disbursement was incurred it was proper as
opposed to being extravagant or overzealous.

[128]    
In her reasons for judgment, Miley v. Abulaban, 2014 BCSC 1471,
rendered prior to her final judgment, Madam Justice Hyslop permitted fresh
evidence to be admitted dealing with Mr. Miley’s employment. In para. 14 of
those reasons she writes:

[14]      The evidence is relevant because although Mr. Miley is
without employment, it may affect the issue of earning capacity or it may not,
as at the time of trial Mr. Miley’s responsibilities and remunerations with
Coast Capital were likely based, in part, on his having a degree. However, Mr.
Miley testified that being a professional writer could be attained by education
or by experience. Whether this testimony, given by Mr. Miley, was in
anticipation that his lack of a degree would be revealed, I do not know.

[129]     In her
final reasons for judgment Hyslop J. awarded $52,000 as an assessment of loss
of earning capacity.

[130]     Although
not specifically referred to in her reasons, it is apparent that she considered
the evidence of Dr. Carlin.

[131]     The
retention of Mr. Carlin was proper at the time it was done, his charges for
preparation of the report and for attendance at court are reasonable, and thus
the disbursements at line 65 for $856.25, line 67 for $25 and line 75 for $1,470
are allowed as presented.

R.B. TUFFORD

[132]    
 Paragraph 96 and 97 Mr. Zak’s affidavit are as follows:

96.       In light of the chronicity of the plaintiff’s lower
back complaints, I believe that it was necessary to inquire as to whether the
injuries suffered in the subject accident would interfere with his ability to
hold and obtain life or disability insurance.

97.       I retained R.B.
(“Blake”) Tufford, an expert in life and living benefits underwriting, small
group and creditor underwriting and claims administration. Attached hereto as Exhibit
2 are copies of my letters dated August 12 and August 20, 2013. Attached
hereto as Exhibit 3 is a copy of an email report/memo dated August 30,
2013 from Mr. Tufford stating that the plaintiff’s pre-existing history of drug
and alcohol consumption might result in a decline in disability coverage
regardless of the injuries that were suffered.

[133]     The
account rendered was for 7 hours at $200 per hour, totaling $1,400. There may
be cases where an inability to hold and obtain life or disability insurance might
constitute a claimable head of damage. There is no evidence that this was one
of those cases. In the summer of 2013 Mr. Miley’s situation was known to his
counsel. I determine that the incurring of the Tufford disbursement was a
result of excessive caution. It is accordingly a disallowed.

LAWYER TRAVEL – CLIENT TRAVEL

[134]     The
receipts for the claims made here are set out at items 83 – 98.

[135]     Items 83 –
85 include travel by car from Kamloops to Hope to meet with the client and
attend the accident scene. The defendant takes the position that none of these
disbursements are recoverable.

[136]     Mr. Zak
frames his argument that they are recoverable by pointing out that the client
has the choice of counsel, and chose to hire a lawyer based in Kamloops when
the client was based in the Lower Mainland and the accident took place in the
Lower Mainland.

[137]     A client
must not be restricted in choosing counsel. The choice of counsel may result in
some disbursements being allowed which result from the fact that the lawyer and
the client are located in different places. For example, I allowed all of the
long distance telephone charges.

[138]     Meeting
with the client and attending at the accident scene are probably necessary and
certainly proper. They are proper expenditures as between the lawyer and the
client. However, I do not consider these to be reasonable in the sense that
they ought not to be borne by the unsuccessful litigant. They are in a sense
subsumed within some of the tariff items, as “overhead”. While the terms of the
retainer agreement between the client and the lawyer may permit the lawyer to charge
these to the client, they are not allowable as disbursements as between party
and party. Had the plaintiff chosen to hire a lawyer who practices, for
example, in London Ontario, because that lawyer had a specific expertise in the
particular issues which also are manifest in this litigation, travel
disbursements from London Ontario to British Columbia undoubtedly would have
been necessary to permit the lawyer to properly prosecute the case, but it
would not be reasonable to pass the cost of those disbursements on to the
losing party. The client made a choice. Some of the disbursements resulting
from that choice are not recoverable. I disallow the claims under items 83, 84
and 85.

[139]     With
respect to the examination for discovery of Colin Miley in Surrey on September
13, 2013, the defendant takes the position that the cost of Mr. Zak driving in
a rental car from Kamloops to Surrey should be disallowed in its entirety, with
the other items 87 and 88 (meals, fuel and hotel) split equally between this
case and Miley v. Horkoff.

[140]     Although I
do not have the entirety of the examination for discovery transcript of the
plaintiff in front of me, from the evidence which is before me, including most
particularly the reasons for judgment of Hyslop J., it seems that relatively
little of the examination for discovery would have related solely to Miley
v. Horkoff. Just because the questions on discovery related to “teasing
out" the effect if any of the Horkoff accident on the plaintiff’s injuries
does not mean that the disbursements should be split equally between those two
matters. The disbursements would probably have been incurred in any event.

[141]     My same
comments are applicable to the mediation on September 18, 2013. Just because
that mediation dealt with two files, does not mean that the expenses attendant
upon that mediation ought to be split equally between the two files. The
Horkoff collision was found to have had minimal effect on the plaintiff.

[142]     For all of
these meetings, discovery and mediation, Mr. Zak chose the most economical,
reasonable, method of travel. The car rental charges are substantially less
than airfare from Kamloops to Vancouver. Had air travel been utilized, car
rental would still have been required. By utilizing his own vehicle, with
mileage charged at the $.30 per kilometre each way, travel fees set out in
Schedule 3 of Appendix C would not have been markedly different; a round trip
from Kamloops to Surrey is approximately 600 kilometres which would equate to
$180 per trip.

[143]    
The issue of costs of retaining out of town counsel, and whether those
costs should be borne by the other party has been considered by Master
Chamberlist, as he then was, sitting as registrar in Allen v. Homan, 45 BCLR (3d) 211, where at paras. 31 and 32, Master
Chamberlist writes:

[31] It seems that if there must be special circumstances
demonstrated before the costs of retaining out-of-town counsel will be borne by
the other party then possibly the determination of those special circumstances
should, according to the direction taken by the court in Swyers, supra,
and Moore v. Dhillon, supra, be viewed in the same matter as all other
disbursements as contemplated by the court in Bell v. Fantini (1981)
1981 CanLII 614 (BC SC), 32 B.C.L.R. 322 (B.C.S.C.), where the court, at page
327, said:

I consider that R. 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 extravagances, 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.

[32] I therefore conclude from a review of the case law that
the extravagance of retaining out-of-town counsel when competent local counsel
are available should be viewed as being expenses or costs that should not be
borne by the unsuccessful litigant but there may be circumstances, as the court
found in Moore v. Dhillon, where the retention of out-of-town counsel
should be a cost to which the successful party is appropriately indemnified.

[144]    
Master Chamberlist concludes at para. 41 as follows:

[41]      With these various decisions in mind, I am of the
view that the following principles, inter alia, should be utilized to determine
whether or not costs associated with the retention of out-of-town counsel
should properly be visited upon the unsuccessful party:

1.         The
tariff of party and party costs is predicated on there being a traditional
review of all costs and disbursements claimed by the successful party and the
allowance of those items found to be reasonable and necessary in the particular
circumstances of the case before they are properly visited upon the defendant.

2.         The
particular circumstances of each case will determine if particular cost items
and related disbursements should be borne by the unsuccessful party.

3.         The
assessing officer’s review of Item 36 claims (out-of-town counsel) and related
disbursements should be no different than the assessing officer’s review of any
other item and related disbursement, the sole question being reasonableness and
necessity.

4.         Relative
to Item 36 and related disbursements, there should be no set rule that a
successful party will be denied indemnification relative to these costs unless
exceptional circumstances are shown to exist.

5.         The
reasonableness of the decision to engage out-of-town counsel must be
demonstrated by the party submitting the bill, the onus remaining with him or
her as it is with he or she demonstrating the necessity and reasonableness of
any other disbursement incurred in the prosecution of the case for which
indemnification from the unsuccessful party is claimed.

6.         In determining the
reasonableness of the submitting party’s decision to retain out-of-town
counsel, the assessing officer should objectively attempt to determine whether
or not the decision to retain the out-of-town counsel was reasonable and
necessary in all of the circumstances.

[145]     While
retaining out of town counsel was not, strictly speaking, necessary, the
plaintiff retained counsel who had considerable experience in motor vehicle
litigation and in presenting a difficult damages claim. It was therefore proper
for the plaintiff to retain out of town counsel.

[146]     I allow
the claims for meals and fuel and for hotel under items 87, 88, 90, 91, 93 and
94 in their entirety. I consider it reasonable that the plaintiff be reimbursed
$100 for the car rental under item 86, $100 for the car rental under item 89,
and $150 for the car rental under item 92.

[147]     For the
same reasons that I have denied the claims of the plaintiff under items 83, 84
and 85, I deny the claims of the plaintiff under items 95 and 96.

[148]     As noted,
the expenses associated for the examination for discovery of the plaintiff
would probably have had to have been incurred in any event. I allow the claim
of the plaintiff for travel (the hotel bill at the examination for discovery)
at item 97 in full as claimed.

[149]     I allow
the claim for reimbursement for hotel expenses for attending the trial in
Kamloops. It was a necessary disbursement. However, the entire cost should not
be borne by the defendant; I allow a reasonable amount, approximately one-half,
$250.

MILEY V. HORKOFF – BILL OF COSTS

[150]     The
plaintiff discontinued this action on the eve of trial.

[151]     Most of
the items on the defendant’s bill of costs were resolved by agreement.

[152]     For the
same reason I denied the plaintiff 1.5 units for preparation of the examination
for discovery which was cancelled, November 27, 2012, I deny the defendant
costs for preparation for that discovery. Item 19 refers to “for each day of
attendance". There was no attendance. No units are allowed.

[153]     Under item
10(a) the plaintiff’s submission is that I should allow the defendant 2 units;
the defendant is claiming 3 units. I agree with the position of the plaintiff
and award 2 units to the defendant under item 10(a).

[154]     Under 11(a)
the defendant is claiming 3 units; the plaintiff submits that I should allow 2
units. I allow 3 units as claimed for item 11(a).

[155]     As was
conceded, the plaintiff was awarded costs for the application referred to in
items 21 and 22, and no units are allowed for either of those items.

[156]    
The defendant is allowed 2.5 units for attendance at the
mediation; no GST and PST is payable on that portion of the costs, but the 2.5
units are allowed as claimed.

[157]    
Under item 48,
there were two days of travel relating to the examination for discovery on
September 13, 2013. These were split between the two matters. Accordingly, the
defendant is allowed a total of 2 units.

[158]    
The parties agreed
that photocopies would be allowed at $412.50.

[159]    
The only
significant issue with respect to disbursements has to do with the witness
fees/travel claim for Anita Horkoff. I am satisfied that these witness fees
were incurred in part, in anticipation of Ms. Horkoff potentially testifying in
the Miley v. Abulaban trial and accordingly the witness fees should be
divided between the two files. I allow $167.80.

[160]    
The skip tracer
charge to track down Brandon Yurkin, a key witness to the Horkoff collision, is
a proper expense borne entirely by the plaintiff. I allow that disbursement as
claimed at $472.23.

[161]     No issue
taken with the remainder of the disbursements.

CONCLUSION

[162]    
These reasons have dealt with all of the disputed items on both
bills of costs, save and except for items 29 and 30 on the Miley v. Abulaban
amended bill of costs. On February 11, 2015, the hearing occupied one half-day.
On February 13, 2015, the hearing of Miley v. Abulaban was less than
half a day and the hearing of Miley v. Horkoff was less than half a day.

[163]    
If the parties are
unable to finalize the respective bills of costs following issuance of these
reasons for judgment they have liberty to reset the matter before me.

“Master
R.W. McDiarmid”

MASTER MCDIARMID