IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151030

Docket: 48290

Registry:
Kamloops

Between:

Ashley
Peer

Plaintiff

And

Paul
A. Michaud

Defendant

Before:
Master R.W. McDiarmid

Reasons for Judgment

[1]            
The plaintiff was injured in a motor vehicle accident on March 19, 2011.
She was a seat-belted front passenger in a 2011 Toyota SUV. According to the
plaintiff’s submission, the circumstances of the accident were that the
defendant had suddenly turned left immediately in front of the SUV in which the
plaintiff was riding, causing in excess of $15,000.00 damage to the SUV.

[2]            
In the materials placed before me, the plaintiff, at the time of the
accident, had been working for approximately six months as a junior accountant,
following her graduation in June of 2010 with a Bachelor of Business
Administration and an advanced diploma in accounting. She continued to work as
an accountant at Deloittes, and then took a leave to successfully complete a
Master of Accounting obtaining her Masters from the University of Saskatchewan
in the summer of 2012. She wrote and failed the uniform final evaluation
examination (“U.F.E.”) for her chartered accountant designation in 2013, then
re-wrote that examination in the fall of 2014 and passed the U.F.E. in December
of 2014, and is now a chartered accountant.

[3]            
She had been involved in two previous motor vehicle accidents prior to
the motor vehicle accident leading to this litigation, one in 2000 and one in
2008.

[4]            
Dr. Mark Crossman, a physiatrist, in a September 15, 2014 wrote:

…The patient might have been more
vulnerable to subsequent injuries involving her spinal axis due to her previous
MVA’s.

[5]            
In that same report, Dr. Crossman writes:

The first medical [examination]
after the subject MVA was when she saw her GP, Dr. Scott, on April 1, 2011. The
patient was complaining of mid and lower back pain, but there were no
abnormalities on her exam. Her next visit to this GP was not until about a year
later, on April 19, 2012. When asked about the gaps in her file, the patient
mentioned being busy with work and school, and also simply not liking to go to
doctors’ offices. She said that her symptoms also fluctuated, and at times are
not bothering her very much.

[6]            
On March 21, 2013, the defendant filed a notice of fast track action. In
accordance with Rule 15-1 of the Supreme Court Civil Rules, B.C. Reg.
168/2009, the matter was set for trial for three days. At a trial management
conference where I presided, it was apparent to me that the trial, if it
proceeded, would likely take five days.

[7]            
The trial was initially set to commence March 23, 2015. Compliance was
SCCR 11-6(3) would require service of expert reports before December 29, 2014,
which from a practical perspective means before Christmas 2014.

[8]            
Prior to trial, the matter was settled for $175,000.00 new money, plus
taxable costs and disbursements.

[9]            
I presided at two pre-hearing conferences with respect to this
assessment. Counsel for the plaintiff advised that he wished to argue that
despite the action being subject to Rule 15-1, the settlement amount, being
substantially in excess of the $100,000.00 amount referenced in Rule
15-1(1)(a), ought to entitle the plaintiff to costs to be assessed in accordance
with the Appendix B tariff. I determined that a registrar would not have the
jurisdiction to make such a determination and directed that the assessment
hearing would not deal with that issue.

[10]        
I directed that defendants’ counsel set out her objections/items in
dispute, which she did by way of letter dated May 25, 2015 exhibited to Mr.
Scordo’s affidavit as exhibit B. The objections are as follows:

a.         #2 –
Photocopy Charge (4587 copies x $.25) – $1,146.75, particularly as it applies
to the 3 contested reports;

b.         #32 –
OT Consulting – $5,596.00;

c.         #33 –
Vocational Consulting – $3,660.75; and

d.         #34 – Assoc. Econ. Consultants
– $3,550.00.

[11]        
Pursuant to s. 5.2-1 of the Law Society of British Columbia Code of
Professional Conduct for British Columbia, I permitted both lawyers to
appear as advocates and submit their own affidavit evidence.

[12]        
In his submission made on behalf of the plaintiff, Mr. Scordo summarized
the injuries sustained by the plaintiff and the treatment received as follows:

Immediately after the accident, Ms. Peer began developing
tightness in her back and shoulders. She made an appointment with her doctor
for the next available time.

On April 1, 2011, general physician Dr. Scott diagnosed Ms.
Peer with Lumbago and referred her to physiotherapy and massage therapy. At
that time, Ms. [Peer] also reported significant pain at work, aggravated by her
sitting posture.

On September 15, 2012, Dr. Scott diagnosed Ms. Peer with
Facet Joint Pain and told her to continue with physiotherapy and massage. He ordered
a CT scan which revealed moderate changes in her T6-T7 area. She was seen again
in June 2013, at which time Dr. Scott recommended she start an
anti-inflammatory natural supplement.

On September 6, 2013, Ms. Peer reported continuing pain,
mostly between her shoulder blades. She also reported feeling deconditioned as
she no longer practiced yoga. Dr. Scott again recommended she continue with
physio.

On December 3, 2013 Dr. Scott reported that Ms. Peer was
continuing to have pain and had ceased physiotherapy. She was seen again on
March 1, 2014 and reported chronic pain in her upper thorax. On July 16, 2014
Dr. Scott reported that Ms. Peer was being seen by physiatrist Dr. Underwood
who had diagnosed her with Chronic Back Pain and encouraged her to continue
physiotherapy.

In his report of August 3, 2014, Dr. Scott opined that Ms.
Peer suffers from a significant soft tissue injury to her neck and back which
has “significantly impacted her life”. He states:

With respect to the long term prognosis it is my opinion she
is now susceptible to an ongoing chronic pain syndrome and the development of
arthritis in those joints that have been affected in the accident. It is my
opinion that the functional limitations in the case of Ms. Peer are pain and
discomfort as a result of the injury’s (sic) from this accident.

[13]        
The plaintiff did not suffer any income loss as a consequence of the
accident. The accident did appear to impact her lifestyle, in particular
restricting her ability to participate in what pre-accident was an active
recreational sporting lifestyle.

[14]        
Plaintiff’s counsel arranged for the plaintiff to be assessed by Dr.
Crossman who provided reports dated September 15 and December 21, 2014. Some
extracts from Dr. Crossman’s reports are of assistance in determining the
issues I need to decide.

[15]        
On page 4 of his report, he writes:

The first mention of neck pain
was not until she saw a different GP, Dr. Bhatt, on November 14, 2011. She was
complaining of neck “aches” and interscapular “spasms”. Based on the file alone,
I cannot conclude that the patient’s neck pain is subsequent to the MVA, as it
was not recorded for about eight months after the accident. The patient said
that her pain started the evening of the MVA, but was unable to remember the
location of her pains at that time. I can therefore only assume that her
neck pain is due to the MVA, in the absence of other trauma and due to the fact
that it is adjacent to her involved thoracic spine. The patient’s neck is not
bothersome very frequently though.

[16]        
After reviewing a CT scan performed on January 7, 2013, he writes:

It appears that this patient’s interscapular region has been
the most affected throughout much of her course since the MVA. This was
eventually evaluated by way of the CT scan on January 7, 2013. Described were
mild to moderate degenerative changes at T5/6, but with no canal stenosis, no
neuroforaminal narrowing, and no fractures.

As the CT scan was performed
almost two years after the MVA, it is indeterminate whether the degenerative
changes were still present before the accident. As the patient denied mid back
pain over a long period of time prior to the subject accident, if she did have
degenerative changes in this region of her thoracic spine prior to the MVA,
then they were likely simply asymptomatic. This is a common scenario, that
patients have degenerative changes in the absence of symptoms. Given that Ms.
Peer’s greatest symptoms are presently in the region of the degenerative
changes, it is my opinion the MVA of March 19, 2011 likely rendered the
patient’s degenerative changes symptomatic, assuming they were present prior to
the accident. It is unlikely these degenerative changes will worsen as a result
of the MVA though.

[17]        
Following a further discussion of symptoms, Dr. Crossman writes:

The patient’s shoulder examination was normal, with the
exception of her aforementioned poor posture and myofascial pain involving the
upper trapezius, supraspinatus, and rhomboideus major muscles bilaterally. Some
increased muscle tension in these regions is common in office workers that
spend prolonged periods of time at computers, which is the case with Ms. Peer.
Although some of this muscle tightness might have predated the MVA, the patient
denied symptoms. It likely worsened as a result of the MVA, though.

Since the patient is comfortable
in her technique, she can continue with her exercises on a home program. She
probably only requires a short period with an activity based physiotherapist or
kinesiologist over 4 to 6 weeks maximally.

[18]        
On page 6 of his report, Dr. Crossman opines that the plaintiff might
benefit from trigger point injections for myofascial pain in her shoulder. In
submissions it was pointed out that these would be no cost, covered by Medical
Services Plan coverage.

[19]        
Dr. Crossman sets out some other potential options and then writes:

Finally, it would probably be
beneficial to have an occupational therapist (OT) perform an ergonomic
evaluation at this patient’s work station, as well as to follow her to at least
one client’s office to assess how she works on her laptop. Although the patient
has made some changes to her workstation and she spends much of her time on her
laptop at various clients’ offices, an occupational therapist might be able to
provide further education, as well as additional instruction as to how she
could guard against flare-ups during her work day.

[20]        
Under the heading “PROGNOSIS AND DISABILITY”, Dr. Crossman
comments that it has been three and a half years since the motor vehicle
accident and that the plaintiff has been symptomatic for that time. He opines
that her symptoms will likely remain to some degree for the foreseeable future
with the potential for a modest improvement if the treatments he recommended
are implemented. He noted that the plaintiff was previously symptomatic in some
of the regions now being affected from previous motor vehicle accidents. He
comments that the plaintiff has had three breast surgeries since the motor
vehicle accident. He notes that, in his view, the breast surgeries interfered
with her rehabilitation and aggravated her mid and upper back pain.

[21]        
Dr. Crossman notes that despite her symptoms, the plaintiff has not
missed any work in her job as an accountant and has been able to continue her
studies obtaining her Master’s in accounting. He writes “She denied that her
symptoms had any impact on her ability to attend classes or study”. At the
conclusion of his September 15, 2014 report, he writes:

It is my opinion that Ashley Peer is not likely restricted in
her abilities to participate in the vocational, avocational, and domestic
activities that she performed prior to the MVA. The patient probably will be
able to continue working as an accountant, but should try to take regular
stretching breaks, as already mentioned. She presently finds it difficult when
she is working very long hours during the auditing season.

It is my opinion Ms. Peer’s neck pain will not likely bother
this patient significantly in the future. It is particularly the patient’s
interscapular region that will remain symptomatic while performing various
functions. Although I do not expect the symptoms to be limiting, she will
likely experience pains in the interscapular region with sustained sitting,
particularly in a hunched posture over a laptop, with repetitive pushing and
pulling, with heavy lifting, and with sustained overhead reaching (particularly
with the right arm). A more detailed analysis of her functional tolerances
would require a functional capacity evaluation.

Finally, Ms. Peer is planning to
get married on October 11^th this year. They are planning to start a
family next year. I anticipate some flare-ups in her interscapular pain with
breast feeding, and she will also have to be careful lifting the baby in and
out of the crib and performing other activities such as lifting the car seat in
and out of the vehicle. An occupational therapist can also work with this
patient at that time to provide her with ergonomic education to prevent
flare-ups while performing such duties.

[22]        
Counsel for the plaintiff directed me to extracts from the plaintiff’s
examination for discovery. They confirm that the plaintiff was curtailed in
some of her activities, sometimes gets headaches which appear to occur more
frequently when as she put it “work increases each year”.

[23]        
The plaintiff testified with respect to the anticipated effect of the
accident on her work. She confirmed that salary increases are based partly on
merit and partly “just happen”. Questions and answers 371 to 373 from the
transcript reads as follows:

Q         Okay. So you’re thinking, I’m just trying to
frame your opportunity claim, you’re thinking what, that you might miss time or
that you might not get promoted?

A          I would say that my ability to take on as
many engagements and the hours could be limited by it, and during that process
I might not be able to perform to the expected standard of someone who wants to
actually take on a senior role, like a senior manager type role.

Q         Okay. You don’t think that’s going to be a
problem for this promotion, for the assistant manager?

A          Assistant manager is a fairly — I mean it
used to be a senior 3 role, it’s not — I hope it’s not for this one and I
haven’t taken time off for even my miscarriage, so I don’t expect it to.

Q         Now, to move on from assistant manager to
manager is that a natural transition too or is more required?

A          No, it will be
quite competitive.

[24]        
In a letter dated October 16, 2014, counsel for the plaintiff requested
OT Consulting/Treatment Services Ltd. (“OT Consulting”) conduct a physical
capacity examination and cost of future care analysis on behalf of the
plaintiff. On the same date, October 16, 2014, plaintiff’s counsel requested Derek
Nordin of OT Consulting perform a vocational assessment.

[25]        
On November 24, 2014, plaintiff’s counsel requested Christiane Clark, an
economist with Associated Economic Consultants Ltd. to provide a present value
calculation report on cost of future care. Based on Appendix 1 to that report,
which I have read, a November 20, 2014 report from OT Consulting, authored by
Mary Richardson-Carmen was enclosed.

[26]        
On the same day, November 24, 2014, plaintiff’s counsel wrote to the
same economist, Christiane Clark, requesting estimates of earnings from employment
to assist in the assessment of the plaintiff’s future losses of earnings
resulting from the motor vehicle accident. Prior to preparing that report, it
is apparent that Ms. Clark reviewed a report by Derek Nordin dated December 16,
2014.

[27]        
I have set out these dates because I am determining, pursuant to Rule
14-1(5), whether disbursements have been necessarily or properly incurred in
the conduct of the proceeding and, if a disbursement has been necessarily or
properly incurred, I am to allow a reasonable amount for those disbursements.

[28]        
The law which governs assessment of disbursements is well settled. A
useful summary has been given by Master Bouck, sitting as registrar, in Cooknell
v. Quinn, 2013 BCSC 1653 at para. 33:

[33]      Collectively, the parties rely on more than one
dozen authorities. With respect to the approach to be taken by the registrar on
this particular assessment, the following tests or principles are most
applicable:

1.         A disbursement will be
disallowed if determined to be a result of extravagance, negligence, mistake,
excessive caution or zeal, as judged by the situation at the time when the
disbursement was incurred: Van Daele v. Van Daele (1983), 56 B.C.L.R.
178 (C.A.) at para. 109;

2.         The Supreme Court Civil
Rules (the "SCCR") "have placed new emphasis on the
caution against expenses that are extravagant or the result of excessive
caution or zeal …": Stapleton v. Charambidis, 2010 BCSC 1642. The
concept of proportionality has always been alive in the costs assessment
process: Kern Chevrolet Oldsmobile Ltd. v. Canadian Pacific Ltd. (1986),
7 B.C.L.R. (2d) 170 (C.A.);

3.         In cases where factual
assumptions must be made before costly expert opinions can be obtained, the
disbursement for that opinion must be premised on a thorough and reasonable
attempt to ascertain the assumed facts in order to give efficacy to that
report. This is particularly so if it is sought to charge those costs against
the other party on what really amounts to an almost agency of necessity basis: Fung
v. Berkun (1982), 36 B.C.L.R. 352 (S.C.) at para. 8;

4.         A "necessary"
disbursement is one which is essential to conduct the litigation. A
"proper" disbursement is one which is not necessary but is reasonably
incurred for the purpose of the proceeding: MacKenzie v. Darke, 2003
BCSC 138 at para. 18;

5.         When considering whether a
disbursement is proper, the correct viewpoint to be adopted by a taxing officer
is that of a sensible solicitor sitting in his chair and considering what, in
light of his then knowledge, is reasonable in the interests of his client: Francis
v. Francis and Dickerson, [1955] 3 All E.R. 837 at p. 840. Also, taxing
officers ought not to second guess a competent counsel doing a competent job,
solely on the grounds that other counsel might have been more sanguine or less
cautious in determining how the job ought to be done: MacKenzie v. Darke
at para. 7;

6.         Disbursements incurred based on
reasoning that is equivalent to "just in case" or "you never
know" will not be found to have been reasonably incurred, or to put it
another way, they will be found to be extravagant or the result of excessive
caution or zeal: Phelan v. Newcombe, 2007 BCSC 714; and

7.         A disbursement will be
disallowed when it appears that its only purpose is to shore up an
unsubstantiated claim: Dulay v. Sahl, [1990] B.C.J. No. 76 (S.C.).

[29]        
I reviewed the law in a decision of mine, sitting as registrar, Bodeux
v. Tom, 2013 BCSC 2327, at paras. 21-23, where I cite my colleagues’
decisions as follows:

[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 Sainty’s decision in Fairchild
v. Vancouver Coastal Health Authority, 2011 BCSC 616:

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

[50] In my opinion, a registrar
should not, without good reason, interfere with the amounts charged by experts.
The plaintiff hired the experts in good faith to assist with the plaintiff’s
case. Those experts charge what they charge. In my view, the defendant should
not be rewarded (and the plaintiff penalised) by a registrar reducing expert
fees except in cases where there is clearly an overcharge or it is determined
that the fees were unreasonable. (See Reap v. Insurance Corporation of
British Columbia, [2000] B.C.J. No. 2258 (Registrar). I cannot say that
there was a clear overcharge or that the disbursements were unreasonable for
any of the medical legal reports provided by Drs. Yasin and Khan. I will
therefore allow the disbursements for the medical legal reports prepared by
each of Drs. Khan and Yasin.

[23]      I was referred to the principles to be applied as
set out by Master Bouck in Wheeldon v. Magee, 2010 BCSC 491. Those
principles are set out in paras. 20 through 29 as follows:

[20] The assessment of party/party
costs is an objective exercise.

[21] With respect to the tariff
items, where the minimum number of units are provided for an item, the
assessing officer must consider this question: "How much time, on a scale
of 1 to X (where X is the maximum units the tariff provides) should a
reasonably competent lawyer have spent on the work for which the costs are
claimed?": See Practice Before the Registrar (CLE) at p. 2-22.

[22] Although the assessing officer
must consider the nature of the proceeding, issues such as complexity or
difficulty are matters to be determined by the court in fixing the appropriate scale
of those costs. Furthermore, in most cases, the time records of counsel are of
limited assistance as these provide only a subjective measure of the time
reasonably spent.

[23] The assessment of
disbursements is governed by Rule 57(4):

(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.

[30]        
In dealing with the objections/items in dispute in the plaintiff’s bill
of costs, plaintiff’s counsel related the medical history of the plaintiff.
This is partly set out in a brief expert report dated September 30, 2012 from
Dr. Scott, the plaintiff’s family doctor.

[31]        
It is apparent when reviewing the examination for discovery extracts of
the plaintiff that the history and examination recited by Dr. Scott contains
several errors. Defence counsel, however, relies on the last sentence of that
report:

It is my opinion that the
functional limitations in the case of Ms. Peer are pain and discomfort as a
result of the [injuries] from this accident.

[32]        
Defence counsel summarizes the situation by stating that following the
accident on March 19, 2011, the plaintiff went to the hospital (not in an
ambulance) with no obvious injuries at the time, went to see her general
practitioner three weeks later and had a normal examination, waited nine months
to start physiotherapy, had a normal examination one year later and, based on
the last sentence of Dr. Scott’s report, has functional limitations limited to
pain and discomfort and no functional capacity limitations.

[33]        
The penultimate sentence of Dr. Scott’s letter, immediately preceding
the “just extracted” is as follows:

With respect to the long term
prognosis it is my opinion she is now susceptible to an ongoing chronic pain
syndrome and the development of arthritis in those joints that have been
affected in the accident.

[34]        
The facts available to plaintiff’s counsel when the impugned reports
were ordered are of considerable significance.

[35]        
Defence counsel stresses that Dr. Crossman could not conclude that the
plaintiff’s neck pain was related to the accident, although a full read of his
report confirms that he assumed it was. Defence counsel also comments on the
plaintiff’s poor posture, muscle tension which is common in office workers, the
further cause of the plaintiff’s back pain unrelated to the accident, being the
three breast surgeries, and the fact that the plaintiff did not miss work,
carried on with her schooling and remains employed at Deloittes.

[36]        
As noted in para. 20 above, Dr. Crossman commented that a “more detailed
analysis of [the plaintiff’s] functional tolerances would require a functional
capacity evaluation”. He also made the recommendation that it would probably be
beneficial to have an occupational therapist perform an ergonomic evaluation at
the plaintiff’s workstation and to follow her to assess how she works on her
laptop.

[37]        
The physical capacity evaluation and cost of future care analysis was
performed on November 6 and 7, 2014, following receipt of the instruction
letter from counsel dated October 16, 2014. It is apparent from reviewing the
report that the occupational therapist reviewed what Dr. Crossman wrote
regarding the benefit to have an occupational therapist perform an ergonomic
evaluation. This was commented on in pages 13 and 14 of the report. It was not
performed, although it was costed.

[38]        
In order to establish the evidentiary basis for a loss of capacity
claim, plaintiff’s counsel properly ordered a functional capacity report. The
occupational therapist refers to the report as a “physical capacity report”. For
the purposes of this assessment the terms are interchangeable. She billed at
$163.00 per hour and included in her billing a double rush fee of $675.00, plus
administrative charges.

[39]        
Attached to Mr. Scordo’s affidavit as exhibit K is the justification
letter. It attaches as an appendix a private practice fee survey for
occupational services in British Columbia based on data collected during April
2013. Under the heading, “Medical Legal Services and Court Attendance”
professional time ranges from $90.00 to $225.00 per hour and averages $138.00
per hour. According to the report, “Most therapists charge between $125 and
$150 per hour”. The same section of the document has language dealing with rush
rate fees which I have considered. The physical capacity opinion commences on
page 4 and concludes on page 11. The cost of future care analysis commences on
page 11 and concludes on page 19. The balance of the report consists of
appendices. Pages 20 to 42 describe the assessment findings; Appendix B, page
43 summarizes the present-day costs for future care.

[40]        
Based on the information available to Mr. Scordo at the time the cost of
future care and functional capacity evaluation report was ordered, it was
proper to order such a report. However, I view that the charges of the expert
should be reduced because the hourly rate is unreasonable compared to the
evidence of the hourly rates of similar experts.

[41]        
The double rush fee is charged for expert reports within 10 working days.
The instruction letter was dated October 16, 2014, the evaluation analysis was
performed on November 6 and 7, 2014, and the report was dated November 20,
2014. Twenty working days after the assessment would have had the report
provided by December 8, 2014, substantially in time for delivery. The report
was ordered a month after receipt of Dr. Crossman’s report. The rush fee is a
luxury; it is disallowed. The time spent by the expert is the sort of time
these sorts of experts require. Administration time and disbursements are
allowed as billed. I allow the OT Consulting invoice #15655 presented at
$5,596.00 at $4,265.50, plus GST.

[42]        
At the time the vocational assessment was requested, October 16, 2014,
the plaintiff and her counsel had Dr. Crossman’s report dated September 15,
2014. They had a three-and-one-half year post-accident history, during which
the plaintiff lost no work, completed a Master’s degree, completed
qualifications to become a chartered accountant, and was working as a chartered
accountant. There was a concern at that time of a potential diminishment in
functional capacity in the future, but no evidence that such a diminishment
would affect the plaintiff’s earnings, provided that some steps were taken to
ensure that her workplace was satisfactory and that she managed her work
circumstances appropriately. At that point, the ordering of the Vocational Consulting
Group vocational report was neither necessary nor proper.

[43]        
Had the plaintiff and her counsel had the benefit or reviewing the
functional capacity evaluation and reviewing Dr. Crossman’s comments on it,
which were that “The FCE, in my opinion, does not likely refelct Ms. Peer’s
activity levels on a typical day at work”, it would have been even clearer that
ordering a vocational report was a luxury. It was unnecessary. Accordingly, the
cost of the Vocational Consulting Group report is disallowed in its entirety.

[44]        
Previous registrars’ decisions have commented on the propriety of
obtaining economists’ reports in order to properly present evidence for cost of
future care and for the future income loss potential in a loss of capacity
claim.

[45]        
In the circumstances of this case, it was proper to order an economist’s
report. The review of the Vocational report by the economist is unnecessary. The
facts and assumptions set out in the estimates of earnings report do not
require referencing the Vocational Consulting Group report. Fact and Assumption
(i) is incompletely stated – the evidence in the OT Consulting report and in
the expert report of Dr. Crossman show a more complex factual background, with
other matters contributing to the plaintiff’s physical condition. Fact and
Assumption (j) is the sort of conclusion that a trial judge could make; that
finding would not be dependent upon anything contained in the Vocational
Consulting Group report. It is proper, however, to obtain evidence of scenarios
which a trial judge could utilize in order to determine a loss of capacity
award.

[46]        
The present value calculations of cost of future care are done
appropriately. However, the cost is disproportionate to the amount in issue.
Simple multiplier reports are often provided at substantially less cost than
what appears to be the case here.

[47]        
I allow the Associated Economics Consultants Ltd. invoice at half of
what is claimed – $1,775.00 is allowed, together with applicable GST.

[48]        
With respect to photocopying, the defendants, through counsel, submit
that the photocopying for disallowed reports should not be allowed as a
disbursement. I have only disallowed as a luxury one report, which is 15 pages
long and which was copied to the economists. Photocopying is typically assessed
on a “rough justice” basis because some portion of the photocopying is usually
considered overhead, and subsumed within the overhead component of tariff items
as opposed to being directly linked to the litigation.

[49]        
I have considered the submissions of defence counsel and the evidence
provided. I allow photocopying at $860.00 which is 3,440 copies at $.25 per
page.

[50]        
If there are any costs issues arising from this decision, counsel have
liberty to make further submissions in writing.

“Master
R.W. McDiarmid”

MASTER McDIARMID