IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Patterson v. McDaniel, |
| 2015 BCSC 1693 |
Date: 20150921
Docket: 48209
Registry:
Kamloops
Between:
Stephen
Mark Patterson
Plaintiff
And
Allison
Leigh McDaniel
Defendant
Before:
Master R.W. McDiarmid
Reasons for Judgment
Counsel for the Plaintiff: | F.S. Scordo |
Counsel for the Defendant: | T.J. Decker |
Place and Date of Hearing: | Kamloops, B.C. May 27, 2015 |
Place and Date of Judgment: | Kamloops, B.C. September 21, 2015 |
Contents
Long Distance Telephone Charges
Paid to Sunlife for Subrogated Claim
Welcome Back Clinic MRI Charge
Occupational Therapists Accounts
BACKGROUND
[1]
The background to this costs assessment commences when the plaintiff was
involved in a motor vehicle accident on April 8, 2011.
[2]
The plaintiff was riding a motorcycle which was involved in a collision
with the defendant’s motor vehicle. Liability was denied. Contributory
negligence on the part of the plaintiff was also alleged.
[3]
Plaintiffs counsel, in his submissions, sets out the background facts
as follows:
3. The Plaintiff was
riding a motorcycle when the Defendant entered the intersection contrary to a
stop sign. There was a collision between Plaintiffs motorcycle and Defendants
motor vehicle. The Plaintiff separated from his motor cycle, some suggestion
that his head bounced against the pavement. There was damage to his helmet.
[4]
As set out in the affidavit of Tara Decker, at paragraph 7, the trial of
the matter before a judge and jury was set initially for seven days but
anticipated to last ten days was scheduled to commence on January 12, 2015. It
settled on January 8, 2015, following a formal offer to settle made by the
defendant by letter dated January 5, 2015.
[5]
The settlement was for payment by the defendant to the plaintiff of
$790,000 new money (after taking into account Part 7 benefits paid or payable
and including court order interest and advances). It was a term of the
settlement that:
1. the plaintiff is
entitled to his costs of the action at Scale B and necessary and reasonable
disbursements to the date of delivery of this offer assessed in accordance with
Rule 14-1 of the Supreme Court Civil Rules...
[6]
During submissions it was clarified that necessary" should be
interpreted as "necessary and/or proper and that a reasonable amount
should be allowed for necessary and/or proper disbursements.
[7]
The plaintiff was born on April 11, 1970. He was a heavy duty mechanic
employed by Highland Valley Copper (Highland Valley). He had been employed
approximately ten years at the time of the accident in a special department
involving explosives for mine purposes, according to the plaintiff submissions.
He continued to work at Highland Valley until settlement of this claim.
[8]
The plaintiffs past medical history is outlined in a report from Dr. Richard
Brownlee, a neurosurgeon, filed as exhibit B to the affidavit of Jessica
Vliegenthart sworn May 7, 2015. Under the heading PAST MEDICAL HISTORY, Dr.
Brownlee cites that while the plaintiff has no major medical conditions, he has
a history of chronic pain related to previous accidents and injuries. Dr.
Brownlee also states that notes of the plaintiff’s family physician, Dr. Du
Preez, suggests that the plaintiff suffered from a seizure disorder and a
history of chronic headaches. Under the heading PAST INJURIES OR ACCIDENTS"
15 incidents are noted, including a partial amputation of his right little
finger, a right ankle fracture, a puncture wound to his left thumb, a previous
motor vehicle accident resulting in a severe laceration to his left cheek and
ear, a closed head injury, mood changes, memory loss and persistent headaches
for years following a July 3, 2003 motor vehicle accident, a fall resulting in
an injury to his left shoulder and lower back, a fall off of a snowmobile while
doing 45 miles per hour, a crush injury to his right ring finger, an injury to
his right elbow, a groin strain, a fall while snowboarding resulting in a chest
wall injury, inhalation of fire extinguisher material, dislocation of his right
elbow while climbing onto a truck, an L1 burst fracture treated by surgical
stabilization (by Dr. Brownlee) with rods and screws resulting from a September
25, 2008 motor vehicle accident, and a motor vehicle accident in January 12,
2009, in which the plaintiff hit a cow moose with his vehicle; no significant
injuries were reported by the plaintiff.
[9]
Under the heading PAST SURGICAL HISTORY Dr. Brownlee refers to repair
of partial amputation of the right little finger, plastic surgery repair
relating to the July 3, 2003 motor vehicle accident, the lumbar instrumented
fusion performed by Dr. Brownlee, relating to the September 25, 2008 motor
vehicle accident, as well as a hernia repair done in 1997.
[10]
The same report at page 14 under the heading CLINICAL IMPRESSIONS",
Dr. Brownlee writes as follows:
The most recent motor vehicle accident occurred on April 8,
2011. He was riding his motorcycle when he hit a car that ran through an
intersection. He was thrown from the bike and reportedly suffered a number of
symptoms or injuries including neck pain, headaches, bilateral for pain, right
hip pain, right ankle pain, right thumb pain, right hand pain, lower and mid
back pain.
Mr. Patterson reported that he
had been thrown through the air and landed on his buttock and then hit the back
of his head on the pavement hard enough to break his helmet.
[11]
The injuries and symptoms complained of were set out by Dr. Brownlee as
follows:
·
Neck pain
·
Occipital headaches; worsening of migraine headaches;
·
Interscapular upper back pain
·
Lower back pain
·
Bilateral shoulder pain – left worse than right
·
Right foot and ankle injuries
·
Right hip pain
·
Abrasions to the right lower leg with sensory changes
·
Right knee injury
·
Right thumb and index finger injuries
·
Cognitive impairment – short term memory problems, personality
changes, emotional lability
[12]
Placed as exhibits before me were the reports from Dr. Miranda Du Preez,
the plaintiff’s family physician, Dr. Brownlee, Dr. Edit Pusztai, a
psychiatrist, Dr. Jeffrey Oyler, an urologist, Dr. Peter Gropper, an orthopedic
surgeon, as well as clinical records of Dr. Prathap Raghavan, a treating
physiatrist. I have also I reviewed clinical records of Dr. Michael Koehn, a
treating counsellor, and reports from Allison Henry, an occupational therapist
and Christiane Clark, an economist.
[13]
The defendant provided three reports, from a neuropsychologist Dr. Harry
Miller, an orthopedic surgeon, Dr. Thomas Goetz, and a psychiatrist, Dr. Lee Rasmusen.
[14]
At the hearing, I was referred to affidavits from Carol Clifton, a legal
assistant with Fulton and Company, lawyers for the plaintiff, an affidavit from
Mr. Scordo, an affidavit from the plaintiff, an affidavit from Nicole
Patterson, the plaintiff’s wife, as well as the affidavit of Jessica Vliegenthart.
I also reviewed an affidavit of Tara Decker.
[15]
The significant initial issues faced by plaintiffs counsel were the
potential for a mild traumatic brain injury, the result of this on an already
complex previous history and the effect of this accident on a plaintiff with a
complex medical history.
[16]
In his submissions, Mr. Scordo highlighted this further.
[17]
Under CLINICAL IMPRESSIONS, Dr. Brownlee comments on the plaintiffs
involvement in four motor vehicle accidents. Dr. Brownlees impression was that
the plaintiffs pain was probably multifactorial. Dr. Brownlee comments on
the plaintiff having headaches, significant cognitive difficulty and
features of Post Traumatic Stress Disorder.
[18]
At page 35 of his report, Dr. Brownlee comments on the preliminary and
long term and whether there is any effect of injuries on ability to work now,
or in the future.
[19]
Dr. Brownlee opines that at the time of the initial report, December 17,
2012, it was not possible to determine the long-term prognosis. Dr. Brownlee recommends
a reassessment in six to twelve months, after completion of a rehabilitation
program. Dr. Brownlee comments that the plaintiff had taken very little time
off work, but had to modify his work because of ongoing symptoms. He comments:
At the moment Mr. Patterson is
being accommodated by his employer (Highland Valley Copper). It is possible
that his job will not be accommodated in the future or he could lose his job in
which case his injuries and ongoing symptoms would be a significant factor in determining
what type of employment he would be able to perform. I defer the prognosis of
the hand and thumb injuries to Dr. Zezick. I would recommend that Mr. Patterson
undergo a Functional Capacity Examination by an occupational therapist
[20]
In his summary, Dr. Brownlee writes that the plaintiff has a complex
medical condition due to the number of injuries in accidents that pre-dated the
motor vehicle accident in this action. He comments on pain which occurred
following the accident, new occipital headaches, an exacerbation of
pre-existing migraine headaches, and an increase in cognitive and psychological
symptoms as a result of the accident. He concludes that the plaintiffs
symptoms could improve with a rehabilitation program, including physical and
psychological components with a re-evaluation after six to twelve months after
completing the rehabilitation program in combination with a Functional Capacity
Evaluation by an Occupational Therapist.
[21]
Mr. Scordo submits that because of the issues of causation of injuries
in this action, Dr. Brownlees significant involvement was essential.
[22]
In his submissions, Mr. Scordo also referred me to the reports by the
plaintiffs family doctor, Dr. du Preez. Her reports confirm that she was the
plaintiffs family doctor since 2001, several years before the motor vehicle
accident at issue in this action. Dr. du Preez comments on the plaintiffs
severe post-concussion syndrome, his attendance for kinesiology and at a hand
clinic.
[23]
In her February 27, 2012 report, referring to severe post-concussion
syndrome aggravated by the motor vehicle accident:
This is a permanent disability and is definitely worsened by
the repeat moderate concussion sustained by this MVA. His helmet was dented,
which speaks towards severe trauma, resulting in a repeat head injury and
concussion. The effect of concussion gets worse there is a new concussion and
the compounding effect results in an escalation of symptoms, which become
permanent.
The headaches are severely debilitating. Mr. Pattersons
short term memory is so severely affected, that he has to write everything
down, in order not to forget
His lack of concentration is potentially
dangerous to himself and others, especially at work, where he is working with
heavy machinery and hazardous equipment.
The emotional ability is
unsettling and embarrassing.
He is perceived as being strange by the public.
This is clearly a severe injury and the prognosis is therefore poor.
[24]
The defendant had the plaintiff assessed by Dr. Miller, a
neuropsychologist. He was asked to provide an opinion on whether the plaintiff
sustained a concussion in the motor vehicle accident, whether the plaintiff has
any ongoing cognitive deficits arising from any such concussion, and what
impact, if any, the plaintiffs deficits may have on his ability to function
his day-to-day life, both recreationally and vocationally. Dr. Miller concludes
that the plaintiff suffered a very mild traumatic brain injury, then goes on in
pages 8-9 of his report to give his opinion on causation. I will not reproduce
the passages I was referred to in his opinion, although I have read them, Dr.
Millers opinion confirms plaintiffs counsels submission that sorting out the
effect of this accident from other issues and previous injuries suffered by the
plaintiff, especially with respect to the head injury, was a complicated task.
[25]
The plaintiff was assessed by Dr. Pusztai, a psychiatrist, following an
urgent request from Dr. du Preez in December of 2013. At page 7 of her report
dated April 28, 2014, Dr. Pusztai writes:
Mr. Patterson should not be at
work. His cognitive issues indicate that he cannot safely work in an
environment with multiple dangers. His wife has indicated on the last
appointment that the person who was actually doing the work for him has now
been removed and he is likely to lose his job.
In the future, unless he is
treated he will become completely incapable of working and will remain on
disability for the rest of his life suffering severe pain and emotional
distress.
[26]
In her conclusions, Dr. Pusztai writes:
Mr. Patterson would be well
advised to follow medical recommendations and be compliant with treatment as
recommended by myself and his family doctor. This would mean regular
appointments and working at least weekly with a CBT therapist doing PSTD work
as well as exercise and self-care.
[27]
Mr. Scordo explained that CBT was cognitive behavioural therapy. One
of the disbursements in issue was the cancellation fee by Michael Cohen who was
requested to attend at trial to give evidence as to the plaintiffs mental
health status, psychotherapy and cognitive treatment plan in relation to future
care costs.
[28]
The plaintiff, through his counsel, retained Dr. Kim MacGuire, PhD, to
give an opinion from the plaintiffs perspective by a neuropsychologist. Mr.
Scordo submitted that he thought it was best to obtain a response report. He
submits that Dr. MacGuires report is much more comprehensive than that of Dr.
Miller. He comments on the particular interest Dr. MacGuire has in vocational
supports, which Mr. Scordo submits was not present in Dr. Millers report.
[29]
I have reviewed both reports. I note that both neuropsychologists did
extensive testing. Some of those tests are the same. Some appear similar or
overlap. Dr. MacGuire responded to eight specific questions. Those responses
do, at times, overlap the responses that were provided by Dr. Miller to the
three questions asked of him.
[30]
Dr. Miller performed his neuropsychological evaluation on November 7 and
8, 2013. Dr. MacGuire performed her evaluation on May 7 and 8, 2014, almost
exactly six months later.
[31]
In concluding his general submissions, Mr. Scordo pointed out that the
evidence showed that the present value of wage loss to normal retirement age
was approximately $2.1 million, that there was significant cost of future care
claimed and that the case settled for $790,000.00 largely because of the
complicated factual background which resulted, in Mr. Scordos view and
accepted by his client, that the motor vehicle accident accelerated impairment
that would already have happened. He specifically referred the thumb injury and
to an opinion that there would have needed to be a change in occupation anyway
in the next three to five years.
[32]
At the pre-hearing conference, I gave both parties lawyers liberty to
file their own affidavits and speak to their own affidavits pursuant to the Law
Society of British Columbia, Code of Professional Conduct for B.C., c.
5, s. 5.2-1(a).
[33]
Exhibit A to Mr. Scordos affidavit is a letter from Ms. Decker to Mr. Scordo
setting out the issues the defendant takes with plaintiff’s bill of costs.
Disputed
Tariff Items
Item 1
[34]
Tariff item 1 is for:
Correspondences, conferences, instructions, investigations or
negotiations by a party until the start of the proceeding, for which
provision is not made elsewhere in this tariff.
[Emphasis added]
[35]
The range is from a minimum of one unit to a maximum of 10 units. In his
affidavit at paragraph 4(a), Mr. Scordo submits that the duration of the file,
which included an adjourned trial date and the necessity of acquiring updated
reports from experts, justifies additional units under tariff item 1.
[36]
The phrase for which provision is not made elsewhere in this
tariff" appears in the description for items 1, 2, 3, 6, 7 and 8. Item 1
deals with matters leading up to the start of the proceeding. The notice of
civil claim was filed January 4, 2013. That is four days short of 21 months
following the accident. From exhibit B to the affidavit of Carol Clifton, it
would appear that the earliest disbursement recorded by Fulton and Company on
this file was on April 28, 2011, shortly after the accident. Attached to Dr.
Brownlee’s neurosurgery medical legal report dated December 17, 2012 is an
instruction letter from Mr. Scordo to Dr. Brownlee dated October 3, 2012. Item
1, as noted, only applies up to the time of issuance of the notice of civil
claim. It would appear that Fulton and Company was retained for approximately
20 months before issuing the notice of civil claim. The first process and
correspondence associated with retaining and consulting an expert for the
purpose of obtaining opinions appears to have been in October 2012. In the
interval, it is apparent from the October 3, 2012 letter that substantial
investigations were done and those were not solely for the purpose of retaining
and consulting experts. The investigations would also have been for the purpose
of properly drafting a notice of civil claim and properly preparing the case
for litigation.
[37]
I am mindful that the defendant has not taking issue with 8 units
claimed under item 17. Eight units might be justified had there been
substantial pre-writ (to use an antiquated term) negotiations. The evidence
before me, though, supports allowing 6 units for tariff item 1.
Tariff Item 21
[38]
The plaintiff is claiming 6 units for preparation for three unopposed
applications. Item 21 permits 2 units for each day; these applications required
less than a half a day each, and accordingly the 3 units submitted by the
defendant are appropriate.
Tariff Items 31 and 32
[39]
The plaintiff is claiming 3 units for preparation and 6 units for
attendance at each of two trial management conferences. The plaintiff prepared
a six-page trial brief. It was filed July 8, 2014. It details documentation
but, except in a very general way, does not summarize issues and positions. The
trial brief filed on October 29, 2014 is almost identical, except that the
initial trial brief erroneously stated that the action was to be heard without
a jury, whereas the October 29, 2014 trial brief stated that it was to be heard
with a jury. I allow 2 units for preparation for attendance at the trial
management conference and a total of 3 units for attendance at the two trial
management conferences, 2 units for attendance at the first one and 1 unit for
attendance at the second.
[40]
The 95 units claimed are thus reduced by 9 units; 86 units @ $110 per
unit are allowed. That amounts to $9,460, plus taxes (7% PST, plus 5% GST) of
$1,135.20 for a total for tariff items of $10,595.20.
Disputed
Disbursements
Process Servers
[41]
In her letter providing details with regards to issue the defendant
takes with the plaintiffs bill of costs, counsel writes, under the heading
Process Serving Fees:
Further particulars in this
regard are required as the amount seems excessive.
[42]
The evidence before me confirms that the process server was paid the
claimed amounts by the plaintiffs law firm. Three of the invoices are for
services performed at 12:38 p.m. in Logan Lake; 6:44 p.m. in Ashcroft; and 8:13
p.m. in Merritt, all on Tuesday, December 9, 2014. All appear to have been
performed by the same process server as there is reference to Gary G. on all
three invoices. The process server commenced his travel in Kamloops. It would
appear that each of the services were performed by going from Kamloops to Logan
Lake and back, then from Kamloops to Ashcroft and back, then from Kamloops to
Merritt and back. For communities, it would be most efficiently visited by
driving directly from Kamloops to Merritt, then to Logan Lake, then to Ashcroft,
and returning to Kamloops, or the reverse route. There is no explanation for a
locate fee on one of the services, especially since the location notes a
meeting place. There are two additional invoices, one on December 10, where
there is an explanation for a locate fee and one where a member of the RCMP was
served by watch commander.
[43]
It was necessary to ensure the attendance of witnesses by serving
subpoenas. The totality of the process serving fees is $1,476.30. I allow a
reasonable amount, which I determine to be $1,000.00.
Private Investigator Fees
[44]
The plaintiff claims private investigator fees to interview witnesses.
Mr. Scordo submits that the witnesses were co-workers, supervisors, and two
adult children. He submits this was a complex case and that having accurate
interviews was a crucial part of the case. Mr. Scordo candidly admits that this
is somewhat unusual and that the regular way would be to utilize the services
of internal office paralegals, junior lawyers etc., but stresses that because
of the difficulty here in needing to determine the specific effects of this
accident on an already complex background, retention of a private investigator
to do these witness interviews was, Mr. Scordo submits, if not necessary, then
proper.
[45]
Counsel for the defendant succinctly states in her letter:
Interviewing of witnesses is
counsel work and therefore the defendant is not prepared to consider anything
in this regard.
[46]
Item 18 on the bill of costs is for all process and correspondence
associated with contacting, interviewing and issuing subpoenas to all
witnesses. It does not include the disbursements for effecting service, but it
does specifically refer to interviewing. It permits a maximum of 10 units;
the plaintiff has claimed 8 units and the defendant has not taken issue with
that claim.
[47]
I agree with the submission of defendants counsel. Private investigator
fees are not something the defendant should have to pay. The claim for private
investigator fees is a convenience, but it is neither necessary nor proper when
considered in addition to the tariff item which allows compensation for that
work.
[48]
The private investigators fees are denied.
Long Distance Telephone Charges
[49]
Long distance telephone charges included a mark-up of 1.7%. When that is
backed-out, they are allowed at $251.05.
Photocopy Charges
[50]
Photocopy charges are claimed for 14,680 copies. Plaintiffs legal
assistant, Carol Clifton, has sworn an affidavit setting out that the
accounting software accurately records disbursements incurred. She deposes that
the claim contains seven, three-inch binders of documents most of which were
obtained and produced at the request of defence counsel. I am mindful that
this was a jury trial and that, had it proceeded, substantial additional bulk
photocopying would have been required to ensure an adequate number of copies of
all of the documents for the judge and the jury. Those do not appear to have
been incurred as there are no bulk photocopying records. The first affidavit of
Jessica Vliegenthart which contains the medical reports has 648 exhibit pages.
At times, photocopying of extensive clinical records is required to properly
instruct experts.
[51]
Registrars typically apply rough justice to assessing photocopying.
This is because some copying/printing charges are overhead, and some are
assessable disbursements. I allow photocopy charges at $2,500.00.
Faxes
[52]
These were charged at $1.00 per page for 281 pages. Administrative
Notice 5 directs allowing faxes at $.35 per page. I allow $98.35 for fax charges.
Computer Research
[53]
Defence counsel submits that this is an overhead item and not properly a
disbursement. Previous decisions of registrars and masters sitting as
registrars have characterized computer research as counsel work subsumed within
the tariff items. The claim for computer research is not allowed.
Colour Photocopies
[54]
There were 452 colour photocopies attached on the disbursement record as
an exhibit to Carol Cliftons affidavit. These are allowed at $.50 per copy or
$226.00.
Paid to Sunlife for Subrogated Claim
[55]
Counsel have agreed that this was erroneously placed on the bill of
costs and is not allowed.
Witness Fees
[56]
Eight witnesses were provided with $20.00 fees. Defendants counsel
submits that the fees paid to the plaintiffs spouse and adult children should
have been returned. They did not attend at the trial.
[57]
I agree. Witness fees are allowed at $100.00.
Fees Paid to Michael Koehn
[58]
Michael Koehn was requested by the plaintiff to attend trial to give
evidence as to the plaintiffs mental health status, treatment he provided to
the plaintiff, psychotherapy and cognitive treatment plan and in relation to the
plaintiffs future care costs and needs.
[59]
As set out earlier in this decision at para. 12, Mr. Koehn is a registered
clinical counsellor. He was not called upon to give opinion evidence.
[60]
Mr. Koehn provided a justification letter; it is attached to Mr. Scordos
affidavit as exhibit I.
[61]
Mr. Koehn billed $1,500.00 for a court appearance fee and rendered two
other invoices, one of them for 2.5 hours at $150.00 per hour, plus GST, and
one for .5 hours at $150.00 per hour, plus GST.
[62]
With respect to the $1,500.00 account, Mr. Koehn writes the following:
Line 1: Court Appearance Fee. The
BC Association of Clinical Counsellors recommended fee schedule indicates a fee
of $1650.00 for failure of notification of court adjournment or out of court
settlement. (This fee item applies when the client or legal counsel fails to
provide written notice with three full working days notice of cancellation of
court or other legal appearance). This fee of $1500.00 was calculated within
the guideline set out by the BCACC. Mr. Koehn was unable to rebook the time
allocated to Mr. Pattersons court proceedings with other work as his clients
were already rescheduled around the date and no waitlisted clients can be added
to a single day of availability.
Time: entire day @ $1500.00 plus GST
[63]
The issue before me is whether or not witness fees, for persons who might
qualify as experts but are not called to give opinion evidence, can be claimed
by a successful litigant against an unsuccessful litigant as a disbursement.
[64]
I requested additional submissions on this point.
[65]
In his written submissions, plaintiffs counsel writes:
Traditionally, experts and professional witnesses, whether
they have attended to testify or had their appearance cancelled, have received
reasonable fees for preparation, attendance and/or cancellation of their
appearance.
For the sake of disbursements, case law has regularly treated
professionals who are testifying in their professional capacity as experts or
professional witnesses, even where they are not giving opinion evidence.
Indeed, the terms experts or professional witnesses are often used
interchangeably (see Loramee v. Olson, [1992] BCJ No. 2919).
Furthermore, the British
Columbia Supreme Court Civil Rules do not define expert. Rule 11-7
outlines processes and duties for opinion evidence of an expert. The Rules
do not say a witness is not considered an expert unless they give opinion
evidence. Rather they say that certain procedures must be followed where an
expert is giving opinion evidence. It seems arbitrary that the same health care
professional, once called to give opinion evidence, and once called to give
factual evidence of treatment, would be entitled to a full cancellation fee in
the former scenario, and a $20 fee in the latter. The purpose of the expert
opinion evidence rule is to foster fairness to the opposing side, ensuring they
are aware of the contents of the experts opinion testimony, and that the
expert is not an advocate.
[66]
Plaintiffs counsel directed me to Rule 14-1(5), which allows a
registrar to determine whether disbursements are necessarily or properly
incurred and then allow a reasonable amount. I have also considered Appendix C,
Schedule 3, which sets a daily witness fee of $20.00.
[67]
In his conclusion, prior to referring me to specific case law,
plaintiffs counsel writes:
4. In
conclusion, the standard practice in British Columbia is that treating Health
Care Providers can be called to testify as to the treatment provided to their
client without having to be tendered as expert witnesses under the Supreme
Court Civil Rules.
5. Practically
speaking, there is a cost savings to both parties as a result. The treating
Health Care Provider does not charge for the expense of producing an expert
report, yet is available to testify as to the treatment provided and response
of the client to the treatment.
6. As such, it is respectfully
submitted that a treating Health Care Providers preparation and/or
cancellation fee is a reasonable disbursement as per Rule 14-1(5).
[68]
The defendants submissions commence with quoting Mr. Scordos affidavit
where Mr. Koehn was called to give evidence as to the plaintiffs mental
health status, psychotherapy and cognitive plan in relation to future care
costs. Defence counsel refers to Summers v. McGinnis, 2005 BCSC 523, a
decision of District Registrar Bouck, as she then was. She concluded in paras.
35-37:
[35] While Dr. Payne may be an expert in the sense of
his ability to read chiropractic terminology, he was not called to give opinion
evidence. Accordingly, in my view, Dr. Payne was an ordinary witness and his
fee is governed by Appendix C, Schedule 3, Item 4 of the Rules of Court. That
is, he is entitled to a daily witness fee of $20 and a reasonable sum
for the time employed and expenses incurred in preparing to give evidence, when
that preparation is necessary (my emphasis).
[36] The registrar has the discretion to decide what
might constitute a reasonable sum for preparation. The ordinary earnings of a
witness have little relation to the sum that will be allowed: Northland
Properties Ltd. v. Equitable Trust Co. (1992), 71 B.C.L.R. (2d) 124 @ p. 128 to
130. See also Brown v. Lowe, [2001] B.C.J. No. 127, 2001 BCSC 105 @ paras. 41
to 43 and Easton v. Easton, [2002] B.C.J. No. 1668, 2002 BCSC 1031 @ paras. 154
to 158.
[37] Schedule 3 does not
authorize compensation for cancellation of a trial.
[69]
I was also referred to Van de Mortel v. Flagg, 2006 BCSC 689,
another decision of District Registrar Bouck, as she then was. At para. 21, she
writes:
[21] Where a professional is
called upon to testify as to observations only, he or she may be allowed
remuneration for preparation yet restricted to the $20 witness fee for
attending trial to testify: United Contractors Ltd. v. the Queen (14
January 1994) New Westminster Registry, C891753 (B.C.S.C.). Such a witness is
treated differently than experts whose attendance at trial is specifically
governed by Rule 40A of the Rules of Court.
[70]
In dealing with a medical doctor, at para. 30, she writes:
[30] Dr. McKean has charged
$2,040 for her attendance at trial. This may be the going rate under the BCMA
Guidelines, but I see no basis for deviating from the same rate allowed to the
other professional persons. Dr. McKean’s attendance at trial is allowed at $20.
[71]
Counsel for the defendant submits that there is no provision in Schedule
3 for any cancellation charges to be paid to a non-expert witness.
[72]
In commenting on Summers, counsel for the plaintiff submits that
the registrar noted that the treating chiropractor did not provide evidence of
the hourly rate typically charged of his billing regime. He submits that this
implies that the registrar may have considered allowing a charge based on the
chiropractors hourly rate if evidence had been provided.
[73]
I was referred by counsel for the plaintiff to Charlebois v. Vandas,
2003 BCSC 888, a decision of Master Hyslop, as she then was, sitting as
registrar.
[74]
Charlebois was a case where the plaintiff was awarded costs after
being awarded damages for a motor vehicle accident. The case was tried before a
jury.
[75]
Master Hyslop writes the following at paras. 9-11:
[9] Luz Meyer’s account reflects preparation of
$140.00, which the defendant does not dispute, loss of income of $400.00, two
appointment rescheduling of $100.00 each, and an additional $70.00 of
preparation time, the latter of which the defendant says is part of the
$140.00.
[10] The defendant is not suggesting that these
witnesses be limited to the $20.00 as set out in Appendix C, Schedule 3 of the
Rules of Court. That proposition is supported by the case of Laramee v.
Olson, [1992] B.C.J. No. 2919. Plaintiff’s counsel referred me to Laramee
and Easton v. Easton, [2002] B.C.J. No. 1668. Defendant’s counsel
referred me to Hall v. Coad, [2002] B.C.J. No. 1387. Master Patterson said in
Laramee at [paragraph] 7:
The British Columbia Court of
Appeal in Van Daele v. [Van] Daele (1983), 56 B.C.L.R. 178 sets out the
test on the question of disbursements as follows at page 180:
" The proper test, it seems to
me, from a number of authorities referred to us this morning is 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."
[11] In Hall at pages 2 and 3 summarizes the law
when exercising discretion set out in Rule 57(4):
3. The onus of proof rests on the
party submitting the bill for assessment to establish affirmatively the
necessity or reasonableness of the charges claimed as disbursements. When
strict proof is demanded, there is no alternative to providing it: Holzapfel v.
Matheusik, [1987] B.C.J. No. 1227.
5. If the expert’s bill contains
less than a reasonably detailed outline of the work he performed and the hours
he devoted to his retainer, then an affidavit sworn by the expert may also be
required: Holzapfel (supra)
8. The party claiming to be
indemnified against the charges made by a medical doctor who renders an account
for work he says he lost as a result of not booking patients for the day fixed
for a trial which did not proceed must prove the doctor was not able to
mitigate his loss. Also, the assessing officer must satisfy herself that there
was in fact a loss. Such a loss is less likely to be suffered by a general
practitioner than a specialist: Mohr v. Dent, [1983] B.C.J. No. 323.
9. Where a professional person
testifies, but not in his or her professional capacity as an expert, the
witness fee allowed should not be set at a professional hourly rate: Fraser v.
Fraser, 45 B.C.L.R. 21.
Luz Meyer
Discussion time with Mr. Carroll (2 hours) $140.00 – allowed
Patient appointment rescheduling – April 7 & 8 Disallowed
Preparation time – April 8 | $70 – disallowed |
Lost income for court date | $400.00 – disallowed |
Attendance at court | $200.00 – allowed |
TOTAL AMOUNT ALLOWED: | $340.00 |
[76]
In Fraser v. Fraser (1983), 45 B.C.L.R. 21, Cowan L.J.S.C. was
dealing with an application for an order that the costs of the proceedings be
taxed on a solicitor and client basis, which was the terminology in effect in
the Supreme Court Rules at the time. Justice Cowan did not allow costs
on a solicitor/client basis. He ordered that they be taxed on a party and party
basis. He also commented as to the fee payable to a solicitor who testified.
Justice Cowan wrote at para. 5
I am of the opinion that his
evidence was essential to the proper resolution of the issues between the
parties. He is entitled to receive his usual hourly rate — to be established
to the satisfaction of the registrar — for time spent in preparation and in
testifying at trial.
[77]
The plaintiff referred me to a number of other cases, fairly pointing
out cases which were at odds with plaintiffs counsel submission.
[78]
In Northland Properties Ltd. v. Equitable Trust Co. (1992), 71
B.C.L.R. (2d) 124, Master Donaldson granted an application by counsel being
examined for discovery on behalf of a former client that the counsel be paid
his hourly rate of $300.00 while being examined, instead of the $20.00 daily
witness fee. Master Donaldson ordered that the solicitor was entitled to fees
in the amount of $2,000.00 for each day scheduled for him to attend at an
examination, as well as 1.5 days of preparation based upon the same fee of
$2,000.00 per day. On appeal, Mr. Justice Fraser confirmed the preparation fee
at $300.00 per hour for 10 hours, but reduced the witness fee to the $20.00
daily witness fee while the witness was being examined.
[79]
Fraser J. reviewed the history of the Rules then in effect, which
for all practical purposes are the same as the present Supreme Court Civil
Rules, B.C. Reg. 168/2009. He allowed the preparation fees, but disallowed
the attendance fees. The relevant portions of his judgment are as follows:
The involuntary participation of non-involved persons in
litigation is a longstanding tradition of the legal system. The rationale
underlying the fact that persons can be compelled to be witnesses (and jurors)
without being fully compensated for their loss of time is that the right of
litigants to have justice done requires sacrifices on the part of others who
have no interest in the outcome.
Two statements of this principle
will suffice:
"If the state were to
compensate each juror for lost salary it could be a very expensive and
administratively complex exercise. Furthermore, compensating each juror for
lost salary would highlight the socio-economic differences among jurors and
detract from the sense of civic obligation inherent in individual jury
service." [Law Reform Commission of Canada, Working Paper 27, The Jury in
Criminal Trials (1980), p. 68.]
"This cost [of operating the
courts] is both direct, to the litigant, who must pay his lawyer and suffer the
loss of his own time whether he wins or loses, and, indirect, to the citizenry
at large, who must, through their taxes, pay for the judicial establishment,
and, through their time, as jurors and witnesses." [Hugessen, A.C.J.S.C.Q.
in "Are the Courts Cost-Effective?", in Cost of Justice, Canadian
Institute for the Administration of Justice, Toronto: Carswell (1980), p. 51.]
The arbitrary character of the $20.00 witness fee provides an
important clue to the proper interpretation of this issue. The sum of $20.00
has no relation to the service rendered by a witness. A person on a fixed
income, whether high or low, will suffer no financial loss as a result of
testifying. Other witnesses may. The witness fee may represent a small profit
for someone whose employer pays him or her full wages during the attendance
days. If the meaning of Schedule 3 is that a witness who will suffer financial
loss as a result of attending to testify is entitled to compensation for that
loss, why is the figure of $20.00 mentioned at all? It would have been simpler
(although administratively not simpler) to provide that a witness shall be
compensated in full for lost income. The $20.00 witness fee is simply a
continuation of the long tradition.
The words "unless otherwise ordered" mean that a
litigant, on proper grounds, may compel the attendance of a witness without
tendering witness fees in advance. An example in which the discretion conferred
might be exercised is where a litigant cannot afford to tender fees in advance
but has a reasonable prospect of being able to pay them at some later time,
perhaps as a result of success at trial. Another example might be where it is
too difficult to calculate in advance what proper fees for preparation should
be.
I hold that there is no discretion to alter the daily witness
fee of $20.00. That is the sum to which Mr. McRae is entitled for each day’s
attendance at examination for discovery.
SUMMARY
1. Mr. McRae is entitled to a
preparation fee representing up to 10 hours preparation for each day of
examination for discovery.
2. The defendants will tender $3,000.00,
in advance, for those hours of preparation.
3. The daily attendance fee the
defendants are required to pay for examining Mr. McRae is $20.00.
[80]
In Laramee v. Olson, [1992] B.C.J. No. 2919, the witness, a
physician, was considered a professional witness and was entitled to an
attendance fee. In paras. 8-13 of his decision, Master Patterson writes:
[8] To put the question of attendance fees in
perspective, Dr. Hershler, a specialist in physical medicine, has charged
$1,199 to give evidence at trial. This is the amount suggested in the B.C.
Medical Association Fee Guide dated April 1, 1991 for each day of expert
testimony at trial. While the B.C.M.A. Fee Guide is not binding on the
registrar, it has been used for some time as a handy guide to what is reasonable,
necessary and proper for fees charged by physicians. If the argument of the
defendant were accepted, even if the attendance fee was found to be reasonable,
necessary and proper, the only amount the plaintiffs could recover from the
defendants for Dr. Hershler’s attendance would be $20, leaving the plaintiff to
bear the remaining $1,179.
[9] The preamble to Schedule 3 contains, in addition
to the requirement that the witness fees "shall be payable", the
additional requirement "and shall be tendered in advance by the party
requiring the attendance of the witness". In my view, the principal object
of this schedule is to enable a party to easily determine the amount to be
tendered to a witness with a subpoena to compel the witness’s attendance at
examination or trial. Schedule 3 does not preclude the party from paying
additional amounts to the witness if it becomes necessary for the witness to
incur additional accommodation expenses, for example.
[10] Nowhere is it stated in Schedule 3 that only the
amount which is payable and tendered in advance can be recovered as
disbursements on an assessment. It would be ridiculous if that were so, as it
would eliminate any flexibility in dealing with additional costs incurred after
the initial tender. It is worth noting also that nowhere in Schedule 3 is Rule
57 mentioned.
[11] Because the Northland case did not deal with an
assessment of costs after the fact, Fraser J., quite properly, did not have to
consider either Rules 57(4) or 57(8). Nor was it necessary for him to consider
the Van Daele decision or any of those decisions of the courts subsequent to
that which have adopted that rule. It is my view that Northland decided only
one point and that was the amount which had to be tendered in advance to secure
the attendance of a witness at examination for discovery.
[12] Rules 57(4) and 57(8) give to the registrar the
discretion to allow reasonable, necessary and proper expenses and disbursements
to the successful litigant. Northland does not change that. The purpose of
Rules 57(4) and 57(8) is to provide the successful litigant with a method of
collecting from the unsuccessful litigant all reasonable, necessary and proper
disbursements, and not just those fees which might have to be tendered in
advance to secure the attendance of a witness, either at examination for
discovery or at trial. If it were otherwise, it would mean that litigants would
be placed in the invidious position of having to expend their own funds to
pursue a legitimate claim without hope of reimbursement.
[13] In my view, Appendix
"C", Schedule 3 does not fetter the discretion of the registrar to
allow more than $20 as a witness fee payable to an expert witness for
attendance at trial.
[81]
Plaintiffs counsel cites Easton v. Easton, 2002 BCSC 1031, a
decision of District Registrar Bouck, as she then was. The deputy registrar
confirmed that Schedule 3 does not determine the amount that may be allowed for
preparation; a reasonable amount may be allowed.
[82]
In Summers v. McGinnis, 2005 BCSC 523, District Registrar Bouck,
as she then was, assessed the plaintiffs bill of costs following settlement,
as she puts it, on the proverbial courthouse steps.
[83]
It would appear from reading para. 2 of her reason: that, although
settlement occurred before the trial commenced, the trial judge ordered that
"the Defendants pay to the Plaintiff the costs of this
action at Scale 3 pursuant to Rule 37(22) and (37), including costs for
one-half day for preparation for trial and one-half day for trial."
[84]
In paras. 35-38 of Summers, District Registrar Bouck writes:
[35] While Dr. Payne may be an expert in the sense of
his ability to read chiropractic terminology, he was not called to give opinion
evidence. Accordingly, in my view, Dr. Payne was an ordinary witness and his
fee is governed by Appendix C, Schedule 3, Item 4 of the Rules of Court. That
is, he is entitled to a daily witness fee of $20 and a reasonable sum
for the time employed and expenses incurred in preparing to give evidence, when
that preparation is necessary (my emphasis).
[36] The registrar has the discretion to decide what
might constitute a reasonable sum for preparation. The ordinary earnings of a
witness have little relation to the sum that will be allowed: Northland
Properties Ltd. v. Equitable Trust Co. (1992), 71 B.C.L.R. (2d) 124 @ p.
128 to 130. See also Brown v. Lowe, [2001] B.C.J. No. 127, 2001 BCSC 105
@ paras. 41 to 43 and Easton v. Easton, [2002] B.C.J. No. 1668, 2002
BCSC 1031 @ paras. 154 to 158.
[37] Schedule 3 does not authorize compensation for
cancellation of a trial.
[38] The court in Northland
Properties Ltd. v. Equitable Trust, supra, sets out factors to consider in
determining the reasonableness of a preparation fee. Those factors include
whether the witness has already been paid for the services which are the
subject matter of his testimony. It is safe to presume that Dr. Payne had been
paid for treating the plaintiff and maintaining the relevant notes. It is
difficult to imagine what preparation might be necessary for Dr. Payne to
simply read in those notes. It is reasonable that he review the notes to
refresh his memory and ensure handwriting is legible.
[85]
In Turner v. Whittaker, 2013 BCSC 712, Master MacNaughton,
sitting as registrar, assessed bills of costs resulting from settlement, a week
before trial, of a trial scheduled for 12 days before a jury.
[86]
At para. 5, under the heading The Applicable Legal Principles, Master MacNaughton
writes:
[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)
[87]
In her reasons dealing with the issue of disbursements for expert
reports, it is apparent that she was treating these disbursements as being
incurred by experts as opposed to lay witnesses. In that analysis, she
discusses treating professionals, which included the plaintiffs treating
family doctor and treating kinesiologist. In para. 55, she writes:
[55] While I agree that
proportionality is a relevant consideration, it is a concept that cuts both
ways. Mr. Gibson advised that his initial assessment of Ms. Turner’s damages
was about $500,000. The actions eventually settled for $250,000 plus costs but
only on the eve of trial. That is a significant settlement which was, I am
certain, achieved in part because Ms. Turner’s injuries and losses were so well
documented and supported by the medical evidence. I therefore conclude that the
number of medical experts retained was not disproportional to the significance
of this case.
[88]
In para. 59, she writes:
[59] I do not agree that it
is clear that a court will never be asked to draw an adverse inference when a
treating professional is not called. Certainly there is no such assurance
where, as here, the trial was to be by jury.
[89]
However, as noted, all of the fees in dispute were rendered by
experts. In para. 52, she writes the medical experts relied on by Mr. Gibson
included two treating professionals and a number of independent specialists.
In that case, it would appear that the treating professionals were also
experts who had provided reports pursuant to what is now Rule 11-2.
[90]
Finally, the plaintiff relies on Ward v. British Columbia Ferry Corp.,
[1998] B.C.J. 1451, a decision of Mr. Justice Cowan on appeal from a
registrars disallowance of disbursements paid to a witness who came to attend
the trial from Norway. In allowing the appeal from the registrars
disallowance, Cowan J. writes at paras. 16-17:
[16] Also, in this case it was necessary as Mr. Hanssen
was outside the jurisdiction that counsel had to negotiate the fees which Mr.
Hanssen insisted upon before he would be prepared to attend at the trial.
[17] In the result I would
allow the appeal except that I consider that the fee paid to Mr. Hanssen of
$13,246.60, which was based according to his invoice, on seven days (April 15
to 21) at $1,892.37 per day in Canadian funds, should be reduced to cover only
the four days that he was in necessary attendance or to the sum of $7,569.48.
[91]
Hall v. Coad, 2002 BCSC 720, was an assessment of costs following
trial heard by a judge and jury. There were at least three adjournments of the
trial; two of those were due to lack of availability of a judge, and the third
was following the defendants application for an adjournment based on counsels
tragic family circumstances.
[92]
At trial, the plaintiff called six expert witnesses and in addition his
treating physiotherapist and kinesiologist, although neither gave opinion
evidence. District Registrar Bouck summarized the law in para. 13 of her
decision:
[13] In making my determination, I am guided by the
following authorities:
1. Rule
57(4)states:
"In addition to the fees
allowed on an assessment under subrule (1) or (3), the registrar shall allow a
reasonable amount for expenses and disbursements that were necessarily or
properly incurred in the conduct of the proceeding."
2. If the assessing officer
determines that the disbursement was "necessarily or properly
incurred", she is to allow a "reasonable amount" in respect of
that disbursement: Cloutier v. Wong1
3. The onus of proof rests on the
party submitting the bill for assessment to establish affirmatively the necessity
or reasonableness of the charges claimed as disbursements. When strict proof is
demanded, there is no alternative to providing it: Holzapfel v. Matheusik2
4. An affidavit is an
indispensable requirement in support of a claim for disbursements paid to an
expert for his assistance in the preparation and presentation of a case. The
affidavit should be the affidavit of the solicitor responsible for the
preparation of the case and it should contain his evidence about the nature and
extent of the work done. In it he should verify that the work was necessary for
the full and proper presentation of the case and that fees charged for the work
were reasonable in the circumstances: Holzapfel (supra)
5. If the expert’s bill contains
less than a reasonably detailed outline of the work he performed and the hours
he devoted to his retainer, then an affidavit sworn by the expert may also be
required: Holzapfel (supra)
6. Whether disbursements will be
allowed must be judged by the situation at the time the expense was incurred:
Van Daele v. Van Daele;
7. Expenses may be disallowed:
a) where the work to which they
relate duplicates other services already performed; and/or
b) for more than two experts in
the same speciality if no satisfactory explanation for employment of the extra
expert(s) is given: Bell v. Fantini4
8. The party claiming to be
indemnified against the charges made by a medical doctor who renders an account
for work he says he lost as a result of not booking patients for the day fixed
for a trial which did not proceed must prove the doctor was not able to
mitigate his loss. Also, the assessing officer must satisfy herself that there
was in fact a loss. Such a loss is less likely to be suffered by a general
practitioner than a specialist: Mohr v. Dent
9. Where a professional person
testifies, but not in his or her professional capacity as an expert, the
witness fee allowed should not be set at a professional hourly rate: Fraser v.
Fraser
10. Although Schedule 3 of Appendix
C sets out fees and disbursements which must be advanced by a party to a
witness, that schedule does not necessarily determine the amount that may be
allowed under Rule 57(4) on an assessment of costs payable by a party.
11. In determining appropriate fees
for medical experts, the BCMA tariff may be used as a guideline, but the
Registrar is not bound by the tariff.
[93]
At para. 29, Registrar Bouck comments on the absence of an explanation
from an expert and writes I am not satisfied that Dr. Hartzell could not have
used the time suddenly available to pursue other remunerative work,
She
then goes on to conclude:
[30] While Mohr v. Dent
suggest that the cancellation fee should be disallowed entirely, I find it
reasonable that some remunerative time was lost due to the late cancellation.
[94]
A review of the decision shows that no cancellation fees were allowed
for non-experts; cancellation fees were allowed for experts, but were
substantially reduced on the basis that, generally, no or insufficient evidence
was provided to show that the expert was unable to mitigate his alleged losses.
Preparation time was permitted.
[95]
From these cases, it appears to be settled that non-expert witnesses who
are professionals and who are required to prepare for court because the
testimony they will be giving results from their involvement in the case as
professionals, are entitled to reasonable fees for preparation.
[96]
Experts are entitled to cancellation fees provided that there is
sufficient evidence to enable the registrar to assess both the reasonableness
of the cancellation fee and whether or not the expert was able to utilize the
time made available as a consequence of the cancellation. Fees paid in advance
to ensure attendance at trial can, based on appropriate evidence, be determined
to be either necessary or proper; the quantum of those fees must then be
assessed for reasonableness.
[97]
The rationale for the $20.00 per day witness fee is:
The involuntary participation of
non-involved persons in litigation is a longstanding tradition of the legal
system. The rationale underlying the fact that persons can be compelled to be
witnesses (and jurors) without being fully compensated for their loss of time
is that the right of litigants to have justice done requires sacrifices on the
part of others who have no interest in the outcome.
[98]
The difficulty from the plaintiffs perspective, of course, is that Mr.
Koehn was a person to whom the plaintiff was referred for counselling services.
Failure to call parties who treat the plaintiff can result in adverse
inferences being drawn. A jury might draw such an inference even if defence
counsel did not suggest it.
[99]
A plaintiff who requires the attendance of non-expert treating
professionals usually agrees to compensate those treating professionals for
time lost as a consequence of testifying, or, alternatively, having their
attendance cancelled and being unable to fill the time with remunerative work
due to the courthouse steps settlement.
[100] However,
no decisions were provided to me allowing such cancellation fees as party-party
costs for non-experts, except in situations where there was a specific order by
a judge. Failure to allow reasonable cancellation fees, where the evidence
warrants it, may restrict the ability of tortuously injured persons to access
appropriate care. However, sitting as a registrar I am bound by consistent
previous decisions. I am satisfied on the evidence that Mr. Koehn was unable to
re-book and, according to the guidelines of his professional organization, is
probably entitled to bill the plaintiff for what he has charged. However, I
conclude that his cancellation fee is not recoverable from the defendant.
[101] At
paragraph 10 of his affidavit, Mr. Scordo deposes to Mr. Koehns invoicing of
$450.00 for telephone conferences and/or case consult fees. I conclude from
reading paragraph 10 of Mr. Scordos affidavit, exhibit D, pages 24-27, that
the preparation work was done, that the amount billed was reasonable, and that
in the circumstances, $450.00 for preparation was necessary and the amount
claimed is reasonable and is allowed as claimed at $450.00.
Dr. Raghavan
[102] Dr. Raghavan
was the plaintiffs treating physiatrist. He was consulted by plaintiffs
counsel in preparation for trial in late November 2014, just over a month
before the trial was scheduled to commence. Dr. Raghavan billed his time in
accordance with the BCMA tariff. The preparation done by plaintiffs counsel
was proper. The amount billed and claimed is reasonable. Dr. Raghavans fee is
allowed as claimed at $485.77, plus GST.
Welcome Back Clinic MRI Charge
[103]
At paragraph 13 of his affidavit, Mr. Scordo deposes:
(a) A MRI
of The Plaintiffs C-spine was recommended by the Plaintiffs neurosurgeon on
October 4, 2012. It is my understanding that the wait times for non-urgent MRIs
through the public health system at Royal Inland Hospital at that date were one
year or longer.
(b) For
the purposes of diagnosis and treatment of the Plaintiffs injuries, and in
order to determine the extent of the Plaintiffs injuries as related to this
motor vehicle accident, the cost of a C-spine MRI of $995.00 was paid to
Welcome Back Clinic for this imaging done on December 4, 2013.
(c) I am of opinion that this
expense was a reasonable and necessary disbursement incurred with respect to
this matter, and in order to prepare for and quantify the Plaintiffs claim
prior to the trial, which was originally scheduled to proceed on September 15,
2014.
[104] In his
initial medical-legal report dated December 17, 2012, Dr. Brownlee writes:
Mr. Patterson has not had any
imaging on his Cervical spine since the motor vehicle accident on April 8,
2011, which is surprising given the mechanism of his injury
I recommended that
he have an MRI of his Cervical spine to rule out any instability and to
identify any injuries that may have resulted from the accident.
[105] In his
expert report dated August 18, 2014, Dr. Brownlee refers to the April 12, 2013
MRI on page 5 (exhibit p. 72). The report itself is exhibited as exhibit E to
the Jessica Vliegenthart affidavit. It identifies several findings and then
gives the radiologists impressions which I have reviewed and which appear to
me to be helpful in determining issues relating to the accident and issues
unrelated to the accident.
[106] The
obtaining of an MRI scan was necessary to properly diagnose and opine on
treatment of the plaintiffs injuries.
[107] In the
circumstances of this case, had the plaintiff gotten on the waitlist for an MRI
he would have probably been able to access one at no cost through the public
health system by the end of December 2013. In order to comply with the
requirements for delivery of expert reports dated 84 days before the
commencement of trial, expert reports would have needed to be delivered in
early June of 2014.
[108] Making a
decision to book an MRI should have been, at the latest, in early 2013. There
would have been little risk, had that been done, that an MRI would not have
been available to be reviewed by Dr. Brownlee in time to do an updated expert
report in preparation for the initial trial date. What is claimed would fit
into the category of luxury or convenience to the plaintiff. I do not allow
this charge or $995.00.
Dr. Brownlees Charges
[109] Dr.
Brownlee had been the plaintiffs treating surgeon in 2006 to 2007.
[110]
His initial invoice relates to a neurosurgical assessment on October 4,
2012; the invoice is dated the same date and is for $1,200.00.
[111]
In dealing with the reasonableness of amounts claimed for expert
disbursements I am mindful of the principles summarized by Registrar Sainty as
reproduced in a previous decision of mine Bodeux v. Tom, 2013 BSCS 2327:
[21] In a decision of mine, Chow v. Nguyen, 2012
BCSC 729, provided by defendants counsel, I referred to principles summarized
by Registrar Sainty as set out in para. 15 of Chow as follows:
[15] In dealing with
the reasonableness of the amounts claimed for disbursements, I am guided by the
principles summarized by Registrar Sainty in Fairchild v. Vancouver Coastal
Health Authority, 2011 BCSC 616, and in particular her comments in para. 23
as follows:
[23] In Wheeldon v. Magee,
2010 BCSC 491, Master Bouck (sitting as a registrar) confirmed the principles
to be applied on an assessment of costs. As I cannot express these principles
better myself, I simply reproduce paragraphs 20 – 29 of Her Honour’s decision
here:
[20] The assessment of
party/party costs is an objective exercise.
…
[23] The assessment of
disbursements is governed by Rule 57(4) [now 14-1(5) which although worded
slightly differently has not changed in principle in my opinion]:
(4) In addition to
determining the fees that are to be allowed on an assessment under subrule (1)
or (3), the registrar must
(a) determine which expenses
and disbursements have been necessarily or properly incurred in the conduct of
the proceeding, and
(b) allow a reasonable
amount for those expenses and disbursements.
[24] It is trite law that
where a disbursement is in issue, an affidavit of justification is an
indispensable requirement.
[25] With respect to fees
charged by experts, the assessing officer may rely on experience in determining
whether the charges of those experts are reasonable in the circumstances: Hamo
v. Khan, 2010 BCSC 205. However, the best evidence to present to the
assessing officer will include detailed invoices showing the hours spent by the
expert and that individual’s hourly rate. This evidence should come directly
from the expert who may then be subject to cross-examination on the affidavit’s
contents. It is often helpful to have evidence of comparable charges applied in
the expert’s area of expertise.
[26] Experts’ charges may be disallowed
or reduced for a variety of reasons, including when:
* the cost is unreasonable,
compared to the evidence of other similar experts;
* the expert’s report includes,
improperly, extensive narrative; and
* when the suggested damages
reported by the expert are "preposterous" in the view of the court.
[Emphasis added.]
Bell v. Fantini (No. 2)
(1981), 32 B.C.L.R. 322 (S.C.) (see also Leverman v. Prince George (City),
2000 BCSC 697 for a synopsis of this decision)
[27] With respect to the
necessity and propriety of a report, the assessing officer is not to "step
into the shoes of the trier of fact" but rather must focus "on
whether in the circumstances, it was a proper expenditure to fully and properly
prepare the case for trial": Freake v. Wilson, 2000 BCSC 695; Morrissette
v. Smith (1990), 39 C.P.C. (2d) 30. I observe that in this case, the trial
judge has already rejected the suggestion that the impugned charges of the
experts be disallowed in their entirety based on the jury’s verdict.
[28] Nonetheless, an expert’s
charges will be significantly discounted if not disallowed in their entirety if
their evidence is "nothing more than counsel could have done in
argument": Moore v. Dhillon, [1992] B.C.J. No. 3055.
[29] One further principle is
applicable to the issues in this assessment:
In the law of costs, convenience —
that which is beyond necessity and propriety — is luxury. And luxury must be
paid for from the pocket of the indulging party: Hall (Guardian ad litem of)
v. Strocel, [1983] B.C.J. No. 506.
[22] I have also gained guidance from the extract
reproduced in Chow, at para. 144 of Registrar Saintys 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.
[112] In Bodeux
at paras. 50 and 52 is the following:
[50] In Chow v. Nguyen, 2012 BCSC 729, I adopted
the reasoning of Registrar Sainty in Fairchild v. Vancouver Coastal Health
Authority, 2011 BCSC 616 at para. 20:
[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
plaintiffs 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.
[52] The plaintiff set out
and restricted what Dr. Woolfenden was retained to do, and Dr. Woolfenden then
did what he felt was appropriate to address what he was asked specifically to
address. While some of his report overlaps with the physiatrists report, that
does not mean the cost of his report is extravagant, negligent, mistaken or a
result of excessive caution or excessive zeal. Rather, it is the cost of Dr.
Woolfenden doing what he was asked to do.
[113] In Bodeux,
I allowed a report from Dr. Woolfenden in excess of $7,000.00.
Dr. Woolfenden is a neurologist who is also an associate professor at the
University of British Columbia Medical School. I allowed an account of Dr.
Nasedkin at $5,600.00. He is a consultant in prosthetic dentistry.
[114] The
December 17, 2012 report was attached to the Vliegenthart affidavit as exhibit
B. I have reviewed it. I have cited passages from it in paras. 8-11 and 17-20
of this decision.
[115] The
plaintiff had a complex medical condition which needed detailed analysis. I
find that the obtaining of this report was necessary to properly present the
plaintiffs case.
[116] This case
had unusual aspects to it. Those unusual aspects required a much more thorough
initial investigation than would be the norm in many personal injury actions.
[117]
The detailed description of the work performed by Dr. Brownlee shows
that he performed 15 hours of documentation review, telephone conferences with
lawyers and report preparation and then charged $2,500.00 additional for the
medical-legal report. His hourly rate as a neurosurgeon of $500.00 is in line
with other neurosurgeons hourly rates.
[118]
In defendant counsels letter to plaintiffs counsel dated February 24,
2015 she writes:
the initial IME charge of
$10,000.00 seems far in excess of what is reasonable for a matter such as this,
subsequent report charges and assessment fees leave the defendant to question
whether the charges are appropriately disbursements or are special damages.
[119] Defence
counsel points out that prior to October of 2012, the plaintiffs treating
physician, Dr. du Preez, provided what she refers to as a referral letter
dated February 27, 2012. It is apparent from the format of this letter that it
was written in anticipation of being an expert report, as it recites in its
second paragraph the language set out in Rule 11-2.
[120] Defence
counsel points out that in Dr. du Preezs report she discusses post-concussion
syndrome, injury to the left shoulder, injury to the right thumb and index
finger, and a disabling injury to the right ankle and foot, and submits that
none of those are within Dr. Brownlees areas of expertise. Dr. du Preez then
comments on moderate whiplash-type injuries to the neck and moderate
whiplash-type injuries to the lower back, which are within Dr. Brownlees area
of expertise. Defence counsel points out that nowhere does Dr. du Preez suggest
that a referral to a neurologist is warranted. Defence counsel submits that Dr.
du Preezs letter sets out what counsel refers to as the state of affairs one
year post-accident.
[121] Dr. du
Preezs report does highlight what she categorizes as moderate whiplash-type
injuries to the neck and moderate whiplash-type injuries to the lower back.
[122] While it
was proper to retain Dr. Brownlee to provide a neurosurgical assessment, the
initial assessment is noted on the invoice as expedited. No explanation is
given as to why there was the need for this October 2012 report, when a full
report was prepared, based on the same examination, on December 17, 2012.
[123] The
report, which is eight pages long, plus a two-page appendix setting out some
future treatment costs, is a recitation of historical facts on the first four
pages. Dr. Brownlees observations and opinions commence with the heading
Physical Examination on page 5 of his report and encompass approximately
three full pages of the eight-page report.
[124] Much of
what is set out in the October 4, 2012 report is repeated, almost verbatim,
in the much lengthier December 17, 2012 report.
[125]
For example, on page 7 of the initial report, Dr. Brownlee writes:
Mr. Pattersons pain is probably
multi-factorial. The pain in his neck, shoulders and associated headaches is
probably partly muscular in origin.
[126]
On page 14 of the December 17, 2012 report, Dr. Brownlee writes:
·
My impression following his examination on October 4, 2012 was
that Mr. Pattersons pain was probably multifactorial.
·
The pain in his neck, shoulders and associated headaches was
probably soft tissue in origin.
[127] Defendants
counsel submits that the opinions in the two reports are largely similar; the
second more detailed report contains much more detail with respect to past
history.
[128]
Defence counsel directed me to the decision of Mr. Justice Abrioux in Maras
v. Seemore Entertainment Ltd., 2014 BCSC 1109, and in particular paras. 21,
22 and 26, where Mr. Justice Abrioux comments on reports in some instances:
[21]
they also contain
voluminous summaries of or comments on the documents and reports which the
expert has reviewed. With respect to these latter reports, it will be
difficult, and at times impossible, for the trier of fact to differentiate
between the assumed facts and the expert’s opinion. The process is further
complicated when the report contains argument under the guise of opinion, or
opinion beyond the expertise of the expert.
[129] The issue
in Maras was admissibility of expert reports, which defence counsel
acknowledges. She submits that I can also consider the reasonableness of the
fee charged if it appears that a substantial portion of the time expended by
the expert (and thus the fee charged by him) is for performance of tasks which
are beyond his expertise, or, in this case, unreasonable in the sense of
leading to an unreasonably large account.
[130]
Defence counsel submits that the 15 hours charged by Dr. Brownlee, to
echo the words used by Master Bouck in Wheeldon,
includes, improperly,
extensive narrative for which the losing party should not have to pay.
[131]
Dr. Brownlee recommended that the plaintiff be evaluated by an occupational
therapist. In April of 2014, counsel for the plaintiff requested Dr. Brownlee
review the occupational therapists reports, including a physical capacity
evaluation report and a cost of future care analysis.
[132]
Dr. Brownlee is a neurosurgeon. Some of what is recommended by the
occupational therapist related to issues involving Dr. Brownlees area of
expertise. Arguably that would include, in part, chronic pain, but would not
include, for example, the psychological counselling or other psychiatric injuries.
Dr. Brownlee properly comments that he would defer to Dr. Pusztai, the
plaintiffs psychiatrist, with respect to type, dose and direction of
medication. Much of what Dr. Brownlee writes in his April 30, 2004 document
review letter is in the nature of argument. This is not intended to be critical
of Dr. Brownlee; he was asked to comment on two reports. The problem is that
much of what he was asked to comment on has little to do with Dr. Brownlees
areas of expertise.
[133]
In commenting on Dr. Brownlees report of August 18, 2014, which is a
further neurosurgical assessment done to update the plaintiffs situation
pre-trial, defence counsel points out that much of what is set out is repeated
from previous reports. The updating was probably beneficial to both plaintiff
and defendant in that it did provide the current complaints in a detailed way.
Examination dealing with range of motion, tenderness, motor power, sensation,
gait/coordination, was of use and would be of use to a trier of fact. There was
commenting, as noted, on the MRI performed April 12, 2013.
[134]
Defence counsel submits, correctly, in my view, that the global
expenditure of $14,200.00 for Dr. Brownlees reports was unreasonable. Counsel
does not question the necessity of having the plaintiff assessed by a
neurosurgeon, given the past complicated medical history combined with the
multifactorial problems resulting from the accident. Defence counsel submits,
however, that the repetitiveness and commentaries of the reports, the fact that
two of them were noted as being expedited, without an apparent explanation, and
comment beyond the area of expertise of the author, make the fees charged
unreasonable.
[135]
The obtaining of the expedited neurosurgical assessment in October of
2012, less than two and one-half months prior to the comprehensive report, is
what I would characterize as a luxury. I allow nothing for that report.
[136]
As noted, I have no difficulty with the hourly rate charged by Dr.
Brownlee, nor with the fact that he expended the time for which he has billed.
[137]
Some of what was reported on in considering the reports of the
occupational therapist was proper. Obtaining an updated report before trial was
proper but, as noted, there is significant overlap in these reports.
[138]
I allow a total of $10,000.00 for the fees charged by Dr. Brownlee on
the invoice dated December 21, 2012, the invoice dated April 30, 2014 and the
invoice dated August 20, 2014, a reduction of $3,200.00.
[139]
It is not clear what the $90.00 sales tax was for; it looks like an
error. That is also not allowed.
Occupational Therapists Accounts
[140] OT
Consulting/Treatment Services Ltd. rendered two accounts; a functional capacity
evaluation in the amount of $4,569.95 and the second for a cost of future care
assessment in the amount of $3,646.41, plus a charge of $391.50 for an addendum
report with respect to additional cost of future care items.
[141]
Paragraph 14(b) of Mr. Scordos affidavit is as follows:
(b) The occupational therapist
assessment was material and relevant to assessing the Plaintiffs physical and
functional ability to perform tasks, both at home and in the workplace. It was
also necessary for the occupational therapist to travel to the Plaintiffs home
in order to assess his home environment and quantify the Plaintiffs claim for
cost of future care needs.
[142] The
occupational therapist provided a detailed breakdown of costs; this was
appended to Mr. Scordos affidavit as exhibit G. Occupational therapy costs
were billed at $165.00 per hour with travel time billed at half that rate.
[143] I find
those rates to be reasonable.
[144] The
physical capacity evaluation sets out facts and assumptions. Transport is
required to do that. Those are summarized concisely in two pages. Defence
counsel submits that the bulk of the physical capacity evaluation is narrative.
The issue, though, is whether or not the report includes, improperly, extensive
narrative. I have reviewed the report. I do not find that the inclusion of the
narrative is improper; rather it is required in order for the report to be of
significant use to the trier of fact. The narrative sets out many of the
problems the plaintiff was experiencing. That is exactly what the report is
supposed to do. On page 12 of the report (exhibit page 99), the author
summarizes physical activity factor limitations which have been detailed in the
report. On page 13, the last page of the report prior to the appendices, the
author finds that the plaintiff has physical limits affecting his ability to
work as a mechanic, particularly as a heavy duty mechanic, but also in the less
physically demanding job he is working at present.
[145] The cost
of that report is allowed in full as invoiced at $4,798.45.
[146] With
respect to the cost of future care report, defence counsel focusses on appendix
C, which is a summary of costs. Apart from a pain management program with a
present day cost of $11,300.00 to $16,200.00, most of the costs are modest.
Prescription medication is costed annually at $3,217.82. There are also annual
costs for home and vehicle maintenance, yard maintenance and firewood, which
total at a maximum of $4,100.00 annually. There is a recommendation for a
mechanical hoist at a cost of $3,000.00.
[147] Defence
counsel submits that much of what is costed (?) is something which had been
previously ordered by other experts and/or treating professionals. Defence
counsel submits that the cost of the report is unreasonable given the result.
[148] The
difficulty with that approach, of course, is that plaintiffs counsel, at the
time the report was commissioned, felt that such a report was necessary. No
disagreement has been taken with that approach. The relatively modest costings
are of assistance to both parties.
[149] I have
reviewed the time involved. Although there was some repetitiveness between the
cost of future care analysis and the physical capacity evaluation report, I
find it was minimal and required in order to give context to the report.
[150]
However, the addendum should have been included. The addendum itself
states:
Since completing that report
[referring to the April 14, 2014 report] it has come to my attention that I
failed to include two items that I had intended to recommend for Mr. Patterson.
[151] It is
unreasonable for the defendant to bear the cost of that addendum.
[152] Accordingly,
I allow invoice #15226 in its entirety at $3,646.41, inclusive of GST, but
disallow invoice #15319 in the amount of $391.50, plus GST.
Dr. McGuires Accounts
[153] Kim McGuire,
PHd, is a neuropsychologist. She prepared a neuropsychological report which is
exhibit J to Ms. Vliegentharts affidavit. In her invoice dated June 12, 2014,
she charges $8,140.00, plus GST, based on 18.5 hours billed at $440.00 per
hour. The invoice breaks down the time to document review and note taking – 3.5
hours; interview and test interpretation – 6 hours; and report writing and
finalization – 9 hours.
[154] In her
report, she sets out that the plaintiff was seen for approximately eight hours
of interview and assessment on May 7 and 8, 2014. She administered 22 tests,
according to page 10 of 24 of her report.
[155]
In his affidavit, at paragraphs 15(a) and (b), Mr. Scordo deposes as
follows:
(a) A main
issue in this case was the Plaintiffs mild traumatic brain injury (MTBI), as
well as his severe post traumatic stress disorder. A neuropsychological
assessment is a standard assessment in MTBI/psychological injury cases and
required to determine the degree of impairment.
(b) The Defendant scheduled and the
Plaintiff attended at an independent neuropsychological assessment with Dr.
Harry Miller on November 7 and 8, 2013, which produced a report, dated December
8, 2013, and was served on the Plaintiff under cover of defence counsel, Tara
Deckers letter, dated March 25, 2014.
[156] Dealing
firstly with whether retaining Dr. McGuire was necessary and/or proper, it is
important to keep in mind that the test is whether such retention was necessary
and/or proper at the time the expert was retained. Given that a main issue in
this case was the plaintiffs mild, traumatic brain injury and his severe
post-traumatic stress disorder, I conclude that the retention of Dr. McGuire to
tender an experts report at trial to respond to a defence expert witness was
probably necessary and certainly proper.
[157] Defence
counsel filed an affidavit in which she set out the costs paid to Dr. Miller.
Dr. Miller charged $3,140.00, based on 10 hours at $200.00 an hour, and testing
and scoring charged for 12 hours, for a total of $1,140.00, which is $95.00 per
hour. Ms. Decker also attached a professional fee schedule for another
neuropsychologist, Dr. Grace Hopp. She charged $225.00 per hour, along with some
other fees. The assessment charged for technicians was $105.00 per hour. Ms.
Decker also attached a fee schedule by an entity called NYRC. That identified
an independent medical examination fee for neuropsychology for $3,950.00, a
$350.00 hourly rate for records review and trial preparation. The IME fee was
noted as including a medical records review for an hour, a patient history exam
for an hour, report preparation/editing for two hours, a teleconference with
the evaluator on the day of examination with subsequent reviews,
teleconferences, or additional time billed at the hourly rate. Neuropsychology
fees are noted as including the first eight hours of testing.
[158] Plaintiffs
counsel submits that Dr. McGuires report was significantly more detailed and
comprehensive than the report of Dr. Miller. In addition, it does critique some
of Dr. Millers opinions. It was not, however, what I would characterize as a
rebuttal report.
[159] The hourly
rate charged of $440.00 I find to be excessive, given the comparable rates
charged as set out in the exhibits to Tara Deckers affidavit. It also appears
that other neuropsychologists utilize technicians for some of the tasks.
[160] I allow
the report at half of what is presented, $4,070.00.
Expert Cancellation Fees
[161]
Dr. Pusztai charged $2,616.90, broken down as follows: court preparation
– 1.5 hours – $591.00; advice discussion by telephone on January 1, 2015 –
$50.90; out of court settlement without five working days notice – $1,990.00.
[162]
All of these charges are in accordance with the BCMA fee code.
[163]
In a letter dated April 27, 2015, appended to Mr. Scordos affidavit,
Dr. Pusztai writes the following:
This is to confirm that we
received confirmation that the trial had settled out of court at the end of day
on Thursday January 8th, 2015. We do not work on Fridays and I, Dr. Pusztai,
was scheduled to attend in court on Monday January 12th, 2015. Due
to such short notice of settlement we were unable to fill Monday January 12th,
with patients. Due to not having 5 working days notice of the out of court
settlement we have implemented the BCMA Fee code A00092 of $1990.00.
[164] The offer
to settle letter was dated January 5, 2015, and the case settled on January 8,
2015. Given the complexity of this case, it is reasonable for the plaintiff and
his counsel to take approximately three days to consider the offer and decide
whether or not to accept it.
[165] The offer
to settle includes necessary and reasonable disbursements to the date of
delivery of this offer assessed in accordance with Rule 14-1 of the Supreme
Court Civil Rules.
[166] The
obligation to incur the disbursement arose when the defendant required the
attendance of certain experts for cross-examination and those experts were so
advised and booked off to attend trial. It is apparent from the evidence before
me that the plan was to have Dr. Pusztai attend the first day of trial, because
that was when she was scheduled to attend court.
[167] The
obligation which led to the disbursement was incurred prior to the date of
delivery of the offer. The fees charged for preparation are in accordance with
the BCMA Fee Guide and are reasonable, as is the cancellation fee, given the
evidence before me. Dr. Pusztais charges of $2,616.90 are allowed as claimed.
[168] Dr. Oyler
charged for court testimony for one half day or less. He did not testify. There
is no evidence that he was unable to book on whatever date he was scheduled to
testify. It was not clear when he was scheduled. Although Mr. Scordo attaches
the account and an extract from the BCMA Fee Guide, there is no evidence that
Dr. Oyler was in any way disadvantaged. His cancellation fee is unsupported by
the evidence and is not allowed.
[169] Dr. Gropper
charged $2,000.00, plus GST, as a trial cancellation fee. On January 15, 2015,
the Specialist Referral Clinic which rendered Dr. Groppers account, sent a
letter to Mr. Scordos law firm setting out in some detail what Dr. Groppers
work requires, which includes six full business days to request and receive
relevant documents prior to conducting a patient consultation and at least 10
to 14 full business days to make the necessary arrangements prior to scheduling
a therapeutic injection. According to the material, Dr. Gropper was unable to
fill half a day of work.
[170]
In the materials is an email from the Specialist Referral Clinic which
states:
Dr. Gropper trial cancellations
are typically based on the BCMA fee A00092 Failure of notification of court
adjournment or out-of-court settlement
..$2030.00.
[171] Dr.
Gropper was a key witness. He has provided evidence of his inability to fill
half a day of work and has charged $2,000.00 for that. I find that account to
be reasonable in the circumstances. His cancellation fee is allowed as claimed.
[172]
That deals with the contested issues. Plaintiffs counsel should prepare
a revised bill of costs incorporating this decision, with applicable taxes, and
a certificate. Defence counsel should approve both to form. If there are
further issues, counsel can attend before me or provide additional submissions
by letter.
Master
R.W. McDiarmid
MASTER R.W. McDIARMID