IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20150702

Docket: M113664

Registry:
Vancouver

Between:

Forouzan Mollaei

Plaintiff

And

Yun Que Luo and
Karl Heinz Koehler

Defendants

– and –

Docket: M127039

Registry:
Vancouver

Between:

Forouzan Mollaei

Plaintiff

And

Ronald C. Holloway
and Barry G. Holloway

Defendants

Before:
Master Scarth (as Registrar)

Reasons for Decision

[1]            
This is an assessment of costs of the plaintiff following the settlement
of two personal injury actions.

I.                
BACKGROUND

[2]            
The plaintiff is 50 years old. She was born in Iran and moved to Canada
in 1999 with her husband. She now lives in Coquitlam with her husband and 13-year-old
son.

[3]            
The plaintiff was involved in three car accidents which are the subject
of these two actions:  December 8, 2009 and December 22, 2009 (M113664); and
March 27, 2012 (M127039). Liability for all three accidents was admitted by the
defendants. By way of a consent order filed March 21, 2013, the two actions
were set down to be heard together at trial.

[4]            
The defendants conducted an examination for discovery of the plaintiff
on March 14, 2013. The discovery lasted approximately three hours.

[5]            
A trial of this matter was set to proceed on May 26, 2014 for ten days. The
issues for trial included:

(a)           
non-pecuniary damages;

(b)           
past income loss;

(c)           
loss of future earning capacity;

(d)           
cost of care;

(e)           
special damages;

(f)             
in trust claim; and

(g)           
loss of housekeeping capacity.

[6]            
The parties attended mediation on March 18, 2014 but were unable to
arrive at a settlement. The most contentious area was the plaintiff’s claim for
past income loss and loss of future earning capacity.

[7]            
Discussions continued towards settlement. The plaintiff’s claims were
settled on April 23, 2014 for $130,000 plus costs and disbursements as agreed
or as assessed. The plaintiff filed an appointment for the assessment of her
bill of costs on August 18, 2014.

[8]            
The matters of issue on this assessment are as follows:

(a)           
tariff items 1, 2 and 6; and

(b)           
various disbursements, including fees for 7 of the 12 expert reports.

II.              
TARIFF ITEMS

[9]            
The registrar is to allow tariff fees with respect to work that was
proper or reasonably necessary to the proceeding: Rule 14-1(2). In fixing the
number of units for items where a range is set out in the tariff, the registrar
is to allow:  (a) the minimum units for matters upon which little time should
ordinarily have been spent; and (b) the maximum units for matters upon which a
great deal of time should ordinarily have been spent: Appendix B, s. 3(3).
The onus is on the plaintiff to establish that the units claimed are
appropriate.

[10]        
In relation to all three tariff items in dispute, I have taken into
account the fact that the units claimed are not just for one action, but for
two actions, combined.

1)             
Tariff Item 1

[11]        
The plaintiff seeks 10 units under item 1, on the basis that the
proceeding involved three motor vehicle accidents (3 units for each accident —
which would actually work out to 9 units, not 10 as claimed), and that it was
necessary to meet with the client to take instructions on each of the accidents.

[12]        
The defendants submit that 5 units would be appropriate given that the
evidence of Mr. Kancs suggests an average amount of pre-litigation
activity — two meetings and a telephone discussion prior to commencing the
first action, and one meeting prior to commencing the second action in relation
to the third accident.

[13]        
I allow 7 units, taking into account the need to obtain instructions on
each accident, as the plaintiff submits.

2)             
Tariff Item 2

[14]        
The plaintiff claims 20 units, in a range of 1 to 30; the defendants
submit that 15 units would be appropriate.

[15]        
In the absence of evidence as to the amount of correspondence and
conferences, investigations and negotiations which the actions involved, I
accept the submissions of the defendants and allow 15 units.

3)             
Tariff Item 6

[16]        
The plaintiff claims 8 units; the defendants offer 5 units.

[17]        
I was not directed to anything particularly complex or time-consuming
about the preparation of the pleadings in these actions. I allow 6 units — 3
for each action.

III.            
DISBURSEMENTS

[18]        
The principles to be applied by the registrar when assessing
disbursements were summarized by Master MacNaughton in Turner v. Whittaker, 2013
BCSC 712 at para. 5:

[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
Dael v. Van Dael, 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)

[19]        
I have applied the above principles in arriving at the decisions which
follow.

1)             
Part 7 Filing Fee

[20]        
Relying on the decision of Registrar Sainty in Park v. Koepke,
2013 BCSC 1806, the plaintiff claims the fee for commencing the Part 7 action
on the basis that it is an adjunct to the tort litigation. The defendants submit
that this is not a proper disbursement in a tort action.

[21]        
In Tomas v. Mackie, 2015 BCSC 364, District Registrar Nielsen
concluded, having reviewed recent appellate authority, that the expense for the
Part 7 notice of civil claim was not “incurred in the conduct of the
proceeding”, as it did not relate directly to the direction, management or
control of the litigation used to prove a claim against the defendants in the
tort action. Accordingly he disallowed the filing fee for the Part 7 proceeding

[22]        
In my view, applying the reasoning in Tomas, the Part 7 fee is
not allowable on this assessment.

2)             
Report of Dr. Shuckett dated January 30, 2012

[23]        
This was the second report of Dr. Shuckett, a rheumatologist, the
first report being August 24, 2011. The plaintiff says that the second report
was necessary to update the first and was obtained for the purposes of both the
Part 7 and the tort claim. The defendants take the position that the second
report was not necessary due to the opinions already provided by Dr. Shuckett
in her first report, as well as those of Dr. Paramonoff (December 9, 2011)
and Dr. Riar (January 25, 2012). Dr. Shuckett had already opined on
the plaintiff’s condition and had recommended that she be seen 12 months later.
Instead, the plaintiff was examined again for purposes of a second report
within five months of the first.

[24]        
It appears from the plaintiff’s own submission and the timing of the second
report, that it was obtained to address the question of whether the plaintiff
required physiotherapy treatments, something which had not been specifically
addressed by Dr. Shuckett in her first report. Such an opinion was for the
purposes of Part 7 reimbursement, and the relevance to the tort claim is
tangential. In the circumstances, the plaintiff has not established that this
second report was a proper or necessary disbursement in this proceeding. I
conclude that the fees associated with Dr. Shuckett’s second report should
not be allowed.

3)             
Report of Dr. Paramonoff dated December 9, 2012

[25]        
Dr. Paramonoff is a physiatrist. In August 2011, plaintiff’s
counsel made an appointment for the plaintiff with Dr. Paramonoff. The
appointment was booked for some time in November. In October 2011 the plaintiff
closed her daycare. The plaintiff submits that it was appropriate to maintain
the appointment with Dr. Paramonoff on the basis that she could address
the business closure. The defendants submit that the December report of Dr. Paramonoff
is not necessary given the timing and content of the two reports of Dr. Shuckett.
The plaintiff was seen again by Dr. Paramonoff for purposes of his May 15,
2013 report, the fees for which are conceded by the defendants.

[26]        
To disallow the fees for the first report would, in my view, be to
second guess Mr. Kancs’ decision to obtain an opinion addressing the
closure of the plaintiff’s daycare business, an important element in her tort
claim. Accordingly, the fees associated with Dr. Paramonoff’s December 9,
2011 report are allowed.

4)             
Reports of Dr. Kamyab dated October 11, 2011 and March 7, 2012

[27]        
Dr. Kamyab was the plaintiff’s family doctor until March 2014 when she
closed her practice and moved to Florida. The plaintiff submits that it was
necessary to get a report from Dr. Kamyab in October 2011 in order to
provide information to the adjuster along with a request for funding. The
plaintiff submits that the report, as well as dealing with Part 7 claims,
provides a diagnosis, reviews Dr. Shuckett’s report, and addresses the
issue of mitigation of damages, specifically the plaintiff’s failure to undergo
physical therapy treatments.

[28]        
The defence position is that both this October 11, 2011 report and the
subsequent report of Dr. Kamyab of March 7, 2012 were ordered by the
plaintiff to obtain comments on the reports of the specialists, Dr. Shuckett
and Dr. Paramonoff. The defence submits that in each report, Dr. Kamyab
provides no information or opinion that differs from that of the specialists. The
submission is that Dr. Kamyab could have commented on the specialists’
reports at such time as she authored her full medical/legal report (ultimately
on March 11, 2013). The defence cites the decision of Registrar Sainty in Jaid
v. Chavez, 2013 BCSC 2329, at para. 46, in which the learned registrar
comments on a disbursement for a general practitioner’s fee in preparing a
report commenting on other experts’ reports:

I do not agree with Mr. Kancs’
submissions that these reports were “necessary”. They were ordered to
substantiate the opinions of other experts involved in this matter and to
attempt to bolster the plaintiff’s claims. In my view, it was neither necessary
nor proper to obtain Dr. Parhar’s opinion on the reports of other experts.
While it may have been of some assistance to counsel, each of the other
expert’s reports stands on its own. Having Dr. Parhar opine on them was
overzealous and extravagant. Accordingly I disallow the costs of these
additional reports.

[29]        
For the reasons set out in Jaid, the fees of Dr. Kamyab
associated with her reports of October 2011 and March 7, 2012 are disallowed.

5)             
Report of Dr. Kamyab dated March 11, 2013

[30]        
No issue is taken with the necessity of this report, however, the fee of
$3,034 is at issue.

[31]        
The plaintiff submits that the fee of $1,602 set out in the BCMA tariff
for such a report is only a guide. The submission is that the report is
extensive, and covers improvement over time, medication, and treatment. There
is an extensive review of clinicals from 2009 forward as well as reference to
reports from other doctors. The fee is made up of a charge of $1,602 for the report,
and $1,432 for the time taken to review the file. This is reasonable, the plaintiff
submits, because the doctor’s file was extensive.

[32]        
The defence submits that the charge for four additional hours over and
above the BCMA guideline amount is not reasonable given that the doctor was
only reviewing her own chart.

[33]        
It is fair to conclude from a review of Dr. Kamyab’s March 11, 2013
report that the review and the preparation of the report overlap. The format of
the report is a line-by-line recital of the doctor’s notes. This takes up 27
pages of the 30-page report. The diagnosis and prognosis occupy just over a
page. In my view, in the circumstances, the additional charge of $1,432 has not
been justified. This being the case, I fall back on the BCMA tariff and allow
$1,602 for Dr. Kamyab’s March 11, 2013 report.

6)             
Report of Dr. Riar dated June 17, 2013

[34]        
Dr. Riar is a psychiatrist. This was his second report. The defence
takes no issue with the necessity of the first report dated January 25, 2012. The
fee for the June 2013 report is $4,000. The defendants take issue with the
necessity of this report and with the fee.

[35]        
The plaintiff submits, that while the first report dealt with the first
two car accidents, the second report was obtained to provide an assessment
following the third car accident on March 27, 2012. It is the submission of
plaintiff’s counsel that it would have amounted to “potential negligence” not
to have ordered an updated report from Dr. Riar under the circumstances. In
addition, Dr. Riar was able to provide an update of the plaintiff’s
psychiatric condition between his first assessment on December 14, 2011 and the
assessment on May 8, 2013. The fact that there may be “nothing new” in the
report does not lead to a conclusion that the report was not necessary or
proper.

[36]        
It is the defendants’ submission that the second report provides the
same diagnosis and the same recommendations as the first report. In the 2012
report, based on the December 2011 assessment, Dr. Riar recommends
treatment, but this recommendation was not followed. There is no change in the
diagnosis or the prognosis provided in the second report; it simply reiterates
the previous findings.

[37]        
As to the reasonableness of the fee, the defendants queried why, given
that the opinions were the same in the first report and the second, the second
report is more expensive by $550. The defendants did retain a psychiatrist (Dr. Axler)
but did not order his report, and therefore it is not available as a comparable.
The defence position is that the comparable is available in the form of Dr. Riar’s
first fee.

[38]        
Plaintiff’s counsel, Mr. Kancs, was successful before Registrar
Sainty in Jaid in claiming the cost of a second and third report by Dr. Riar.
The learned registrar stated, at para. 65:

[N]o doubt it was imperative in
establishing the plaintiff’s case to prove what psychological impact the second
and then the third accidents had on his recovery and prognosis. That
information would have been invaluable to the trier of fact had the matter
proceeded to trial and, in addition, to establishing the plaintiff’s
non-pecuniary damages given that many of the plaintiff’s claims rested upon
aggravated symptoms and issues of anxiety and mild depression.

Registrar Sainty also approved the amount of the fees,
but it appears that Dr. Riar charged the same amount for each report
($3,250).

[39]        
In the circumstances here, it was appropriate, as Registrar Sainty held
in Jaid, to obtain a second opinion from Dr. Riar following a
subsequent accident. However, given the lack of explanation for the $4,000 fee
for the second report, it is appropriate to allow $3,450, the same fee as was charged
for the first report.

7)             
Report of Dr. Hamm dated February 18, 2014

[40]        
Plaintiff’s counsel retained Dr. Hamm, an occupational medicine
doctor, to address the issues of past and future loss of earning capacity,
including whether the plaintiff could reopen her daycare business in some
fashion in the future, and, if so, to what extent. Plaintiff’s counsel stated
that he also requested that Dr. Hamm provide an opinion as to whether it
was reasonable for the plaintiff to have closed down her business when she did
(October 2011) and not to have reopened it by the time of trial.

[41]        
The plaintiff submitted that:

Rather than simply obtaining an
FCE report which would only assess Ms. Mollaei’s ability to physically
perform various functions on the day of the assessment, I opted for an
assessment by an occupational medicine doctor (Dr. Hamm) for a much more
qualified assessment of Ms. Mollaei’s abilities, not only to date, but in
the future in terms of potentially reopening a daycare business and her ability
to function as a “hands-on” person who could actually work at the daycare,
rather than act as a “supervisory role”, having others to do the more physical
work for her.

[42]        
The invoice presented on this assessment for Dr. Hamm totals
$5,965.91 and includes a “base” fee of $2,730 for the medical/legal report,
$1,820 for two hours of dictation and two hours of editing the report, and $910
for two hours of reviewing documents.

[43]        
It is the defence submission that Dr. Hamm deals with the issues of
diagnosis and causation which were already addressed by other specialists. The
submission is that only 9 of the 37 questions posed to Dr. Hamm relate to
vocational abilities. The further submission is that given that the plaintiff’s
main issue was psychological, (based on the Dr. Riar opinion), it was
unnecessary to get an opinion on the plaintiff’s physical abilities. Overall,
the defence submission is that the report was more extensive than necessary and
that, if anything is allowed for the report, it should be a reduced fee to
allow only the amount required for a functional assessment. The suggestion is a
reduction of 50%.

[44]        
In circumstances where the plaintiff was claiming that she was unable to
continue with her chosen employment of operating a daycare business as a result
of the motor vehicle accidents, it is fair to conclude that it was necessary or
proper for counsel to retain an occupational medicine specialist. Dr. Hamm’s
assessment appears to have involved a three-hour interview with Ms. Mollaei,
and a review of the reports of the various specialists reports provided to him,
including those of Drs. Riar, Paramonoff and Shuckett. Dr. Hamm
concludes that:

I think that Ms. Mollaei
will be limited with respect to fulfilling job duties associated with daycare
activities in terms of her tolerance for forceful or repetitive bending,
lifting, or reaching and with prolonged postures. Some job duties that will be
adversely affected include her ability to pick up and place children in chairs,
car seats, strollers, tricycles, large toys, etc.

[45]        
Dr. Hamm recommends that Ms. Mollaei attend a
multi-disciplinary pain management program to help her cope with her chronic
pain and give her strategy to deal with it more effectively. Dr. Hamm
defers to his “specialist colleagues” as to whether surgery is a future option
and whether she will be able to completely resume her normal job duties after
convalescence from such surgery.

[46]        
The fee charged by Dr. Hamm includes a 34% fee from Ultima Health
Assessments who provide a booking service, make travel arrangements for the
specialist, provide office space and support staff, provide transcription
services and preparation of the medical/legal report. The defendants do not
take issue with the Ultima portion of the fee. Their submission is that given
the content of the report the fee should be reduced by as much as half. Additionally
they note that Dr. Hamm’s evidence as to time spent on the report results
in an hourly rate of $910 as against the standard of $455 an hour.

[47]        
I accept the submissions of the defence that the breakdown of Dr. Hamm’s
fee suggests an hourly rate of approximately double the $455 an hour referenced
in his invoices, even when the Ultima Health Assessment fee is taken into
account. Some reduction is warranted as a result, and I will allow $4,300
before GST, deducting approximately half of the fee for the base report.

8)             
Report of Mr. Jeff Matthews dated March 3, 2013

[48]        
Mr. Matthews is a chartered accountant who provided an independent
estimate of the past loss of income incurred by Ms. Mollaei as a result of
injuries she sustained in the three motor vehicle accidents. Mr. Matthews
is employed by Blair Mackay Mynett Valuations Inc. and works with Mr. Rob
Mackay. Mr. Matthews met with Ms. Mollaei in an effort to understand
the nature of her business and how she organizes her business affairs. Mr. Matthews
and Mr. Mackay spent 33 hours on the retainer and billed $9,300.

[49]        
The plaintiff submits that it was necessary to retain the services of a
forensic accountant to provide a report on what the plaintiff could have
conceivably earned in continuing to run a daycare business, including certain
assumptions with respect to the expansion of that business as the plaintiff had
planned but for the accidents. Mr. Matthews’ report provided a range for
the plaintiff’s past business loss in the amount of $225,295. At the mediation
the plaintiff’s claim for pass loss of earning capacity/income loss was stated
at $250,000. The loss of future earning capacity claim was stated to be $85,000.
The claim settled for $130,483.35 (as stated above).

[50]        
The plaintiff submits that the amount for which the action settled is
not relevant in the determination of whether disbursements are necessary or
proper and reasonable. A determination cannot be made with “hindsight”.

[51]        
The defence position with respect to Mr. Matthews’ report is that
his opinion is of no utility as he was given no foundation for his findings. Mr. Matthews
arrived at his conclusions on the assumption that by the trial date, the
plaintiff would have had a daycare business with 45 children, an assumption
which is not supported by the evidence. The plaintiff obtained her licence in
2003 and opened her first daycare in January 2010. There is no evidence that
she sought or obtained a certification for a daycare serving 10 children or
more. The overall submission of the defence is that there was no need for a
forensic accountant given the history of earnings in this matter. With respect
to the fee the defence submission is that it was unnecessary for Mr. Matthews
to spend 10 hours reviewing documents, many of which were not relevant to the
issue of income loss. This work should have been done by counsel in advance. The
defence submits that a shorter report would have been more reasonable, and that
a fee of $3,100 would be sufficient.

[52]        
In my view, having reviewed the report of Mr. Matthews, I conclude
that while it may have been necessary for the plaintiff to have an accountant’s
report going to trial, the fee charged of $9,300 is disproportionate to the
relevant work conducted and the conclusions reached. I accept the submissions
of the defence that a fee of $3,100 is appropriate.

9)             
Interpreters

[53]        
The plaintiff’s first language is Farsi. She claims fees associated with
having an interpreter attend the specialist appointments with
Drs. Shuckett, Paramonoff, Riar and Hamm. An interpreter was booked for
the plaintiff’s examination for discovery, but cancelled when the defence
counsel’s office received a mysterious telephone call advising that the
plaintiff did not feel she needed a Farsi interpreter for the discovery. There
is some dispute as to from whom this call originated. An interpreter also
attended the mediation.

[54]        
In his affidavit, Mr. Kancs deposes that:

72.       The second time that I saw my client, her husband,
Masoud, attended as well. My client’s husband appeared to speak and understand
English much better than my client did.

73.       As my paralegal, Ms. Gauer,
and I continued to deal with my client’s claims, it became clear that there was
a bit of a “language barrier” in terms of properly understanding what my client
was telling us. My paralegal advised me on June 28, 2010, that Ms. Mollaei
preferred that I speak with her husband, rather than herself, because of this
“language barrier”.

[55]        
It is plaintiff’s counsel’s submission that the lack of an interpreter
at the examination for discovery caused problems, citing portions of the
discovery transcript demonstrating Ms. Mollaei’s difficulty with the
English language.

[56]        
The defence submission is that the plaintiff’s use of interpreters has
been sporadic. She requested an interpreter for the IME appointment with Dr. Axler.
There was no such request for the IME with Dr. Richardson and the IME
proceeded without one. At the mediation the interpreter did not arrive until
after the parties had completed extensive discussions and the parties had gone
to their separate rooms. The defence submits that the portions of the discovery
transcript relied on by the plaintiff are carefully chosen and do not reflect
the general tenure of the discovery. The defence submits that at no time during
the examination did the plaintiff express any concerns about her ability to
give her evidence in English, nor did her counsel. Perhaps most notably, the
defence submit, the plaintiff’s affidavit in support of this assessment,
wherein she deposes as to her need for an interpreter, was sworn in English
without the assistance of an interpreter.

[57]        
Overall, it is my view that the plaintiff has failed to demonstrate that
an interpreter and the cost thereof should be transferred to the defendants. I
accept the submissions of the defendants that, in the circumstances, an
interpreter was a comfort rather than a necessity. In the circumstances, I
disallow any costs associated with an interpreter.

10)          
Miscellaneous Disbursements

[58]        
The charges for colour reproductions, courier fees, a Freedom of
Information (“FOI”) request, and photocopies were also disputed. Taking those
in the order in which I have stated them, I allow for the cost of the colour
reproductions, disallow the cost of the FOI request which was not necessary in
my view, disallow the courier fees to the extent that they relate to reports
which have been disallowed, and reduce the photocopies to $2,000. The latter
reduction is made using the “rough and ready” approach set out in Sovani v.
Jin, 2006 BCSC 855.

IV.           
COSTS OF THE ASSESSMENT

[59]        
The plaintiff is entitled to her costs of the assessment which I allow
at $2,500 inclusive of taxes and disbursements.

[60]        
If the parties require a certificate, they may submit one with the
endorsement of counsel confirming the amount calculated according to these
reasons.

Master
S. Scarth