IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160115

Docket: 10-2113

Registry:
Victoria

Between:

Brendan Keith McAdam

Plaintiff

And:

Grant Dale Rosling

Defendant

Before:
Master Bouck

Reasons for Decision

Introduction

[1]            
This is an assessment of the plaintiff’s bill of costs following a
mediated settlement of the personal injury action. That settlement was reached two
business days before the commencement of a nine-day trial and included an
agreement that the defendant pay the plaintiff’s reasonable costs. The parties
have been able to agree on the majority of tariff items and disbursements
claimed in the bill. Remaining at issue are the number of units to be allowed
for tariff items 1, 2, 6, 10, 11, 14, 17, 32 and 46 and charges for the
following disbursements: the functional capacity report and cost of future care
report of Back in Motion Functional Assessments Inc., the witness cancellation
fee issued by Back in Motion when the action settled shortly before trial, and
the vocational report of Trainor Vocational Consulting Corp.

Background Facts

[2]            
This action results from the plaintiff’s involvement in a high-speed
single vehicle accident which occurred on June 23, 2009. Mr. McAdam was a
passenger in a vehicle driven by the defendant. An ambulance attended the scene
and both parties were transported to Victoria General Hospital. The emergency
admission notes record the plaintiff’s complaints of headache and amnesia. The
plaintiff was not admitted for treatment. At the time of the accident, Mr.
McAdam was six months short of this nineteenth birthday, had completed a term
in the business administration program at Camosun College and was working as
both a flagger and landscaper. The plaintiff continued with the summer jobs
post-accident and resumed his studies in September 2009. The defendant
acknowledges that the plaintiff suffered some physical injury in the accident but
suggests that such injuries quickly resolved. The defendant denies that the
accident resulted in any cognitive injury to the plaintiff.

[3]            
About three months following the accident, the plaintiff’s parents
consulted Mr. Cameron concerning their son’s situation. By that time, the
plaintiff was complaining of cognitive and physical difficulties that appeared
to impair his ability to concentrate at school. During this consultation, Mr.
Cameron was told that the plaintiff had suffered a head injury at age 8 or 9
(the evidence differs on this point) resulting in a craniotomy and bolts being
attached to brain tissue. Mr. Cameron was retained by the plaintiff’s parents,
who happen to be a medical doctor and nurse, respectively. Based on the
information provided, Mr. Cameron began investigating possible medical
referrals together with the plaintiff’s pre-accident medical history. In
addition, Mr. Cameron investigated the possibility of the defendant denying any
liability for the injuries suffered by the plaintiff on the basis of ex
terpa causa and volenti non fit injuria.

[4]            
Mr. McAdam discontinued his studies at Camosun College at the end of
December 2009. In 2010, Mr. McAdam qualified for the Paralympic Canadian
National Soccer team. That same year, the plaintiff suffered his first
post-traumatic epileptic brain seizure. By then, Mr. McAdam was no longer an
infant and thus able to instruct counsel. Various medical investigations were
pursued including psychiatric opinions. This action was commenced on May 13,
2010.

[5]            
In September 2010, Mr. McAdam returned to Camosun College and
successfully completed a diploma in Sports Management. The plaintiff did not
put the diploma to use. In July 2013, Mr. McAdam once again returned to the
College and completed the first term of the electrical trade program. The
apprenticeship that followed proved too challenging and Mr. McAdam abandoned the
electrician program. The plaintiff alleges that the ability to succeed in his
post-accident schooling was due to extraordinary support received from friends,
family and instructors.

[6]            
By the latter part of 2014, Mr. McAdam was working part-time as a gas
station attendant and living at his parents’ home. He quit this job about one
week before the mediation for reasons seemingly unrelated to the accident. As
trial approached, Mr. McAdam had no clear career goals or objectives.

[7]            
Meanwhile, this lawsuit had progressed in the usual manner. Plaintiff’s
counsel describes the investigations of the plaintiff’s circumstances as
complex and necessarily wide-ranging. In more colloquial terms, the task is
described as the equivalent of pealing back layers of an onion to determine the
cause of the plaintiff’s apparent difficulties in academic and vocational pursuits,
ongoing physical and cognitive complaints and the eventually diagnosed seizure
disorder.

[8]            
In contrast, the defence relied on the results of an independent medical
examination conducted in 2012 in which the examiner found the plaintiff to be
“functioning well socially, academically and athletically” with no signs of
brain injury. The defence took the position that the plaintiff’s seizure
disorder was in no way connected to the injuries suffered in the motor vehicle
accident but rather caused by the childhood incident and prescribed medication.

[9]            
As the deadline for service of expert reports approached, Mr. Cameron
assessed the case to be proven as:

a)              
Proving that the plaintiff had previous vulnerability due to the
1999 head trauma;

b)              
Proving that he continued to suffer from psychological and
cognitive difficulties due to the concussion superimposed on a vulnerable
brain;

c)              
Proving that the accident was causative of the post-traumatic
epilepsy;

d)              
Proving that the plaintiff had ongoing symptoms and impairments
that were adversely limiting his vocational, scholastic, physical and persona!
functioning; and

e)              
Proving that his efforts to mitigate and continue with school and
obtain good marks were reflections of his desire to return to his pre-collision
potential and that his difficulties in completing these educational and
vocational goals were in fact the best proof of his limitations.

f)                
Developing a fact based, ethical and provable evidentiary basis
for valuing the plaintiff’s significant claims for future loss of earning
capacity and future cost of care.

[10]        
Mr. Cameron intended to call some 35 fact witnesses and present seven
expert opinions. In addition to the two experts whose charges are challenged,
the plaintiff obtained opinion evidence from Dr. G.S. Cameron (neurologist),
Dr. C. Toth (neurologist), Dr. I.C. Friesen (neuropsychologist),
Dr. A. O’Breasil (psychiatrist) and Dr. Geoffrey Young (economist).

[11]        
Dr. Friesen opined in 2011 that Mr. McAdam probably sustained a traumatic
head injury in the motor vehicle accident and recommended, among other things,
the involvement of an “occupational therapist to devise compensatory strategies
for the neurological deficits”. In March 2014, Dr. Toth opined that the
plaintiff’s seizure disorder was certainly connected to the accident.
Furthermore, Dr. Toth suggests that the plaintiff has ongoing cognitive
impairment that is linked to poor concentration and short term memory and
recall issues. At about the same time that the Trainor and Smith reports were
being prepared, Dr. Cameron diagnosed a condition of permanent post-traumatic
epilepsy attributable at least in part to the motor vehicle accident and
requiring a lifetime of medication.

[12]        
At this assessment, the defence maintained its position that the
plaintiff’s claim was relatively straightforward. As set out in the defence
submissions, the plaintiff could also be described in the post-accident period
as an elite athlete, who chose to work in flexible occupations to allow for his
elite soccer pursuits, and also achieved excellent results in post-secondary
pursuits with the cost of that education partially subsidized by Sports Canada.
At trial, the defence intended to rely on the opinions of two neurologists
(Drs. Devonshire and Wong), neither of whom found any causal link between the
accident and the seizure disorder and both of whom found the plaintiff to be
functioning well and capable of performing all activities of daily living.

[13]        
The action was settled for a not insignificant sum of money that must
have necessarily included a component of future loss of income or impairment of
earning capacity.

Discussion

a. Tariff items

[14]        
The general principles which govern the assessment of tariff items was
recently summarized by Registrar Neilsen in Carreiro v. Smith, 2015
BCSC 2379:

[12]  Pursuant to Supreme Court Civil Rule 14-1(2), the
Registrar is to allow tariff fees with respect to work that was proper or
reasonably necessary to the proceeding and must consider Supreme Court Civil
Rule 1-3, the object of the Rules.

[13]  Whether work for which fees are claimed should be
allowed must be determined objectively. A step was necessary if it was
indispensable to the conduct of the proceeding. A step was proper if it was not
necessary, but was nevertheless reasonably taken or incurred for the purpose of
the proceeding. In fixing the number of units for items where a minimum and a
maximum number of units is allowed, the Registrar is to allow the minimum
amount of units for matters upon which little time should ordinarily have been
spent; and the maximum amount of units for matters upon which a great deal of
time should ordinarily have been spent.

[14]  The assessment of discretionary tariff items is an
objective exercise. In determining the proper number of units to award in
respect of each item, the Registrar is to compare the case that is before him
or her with all other cases that come before the court, and decide where it
fits within the spectrum. Certain objective factors are to be considered, such
as whether the litigation was simple or straightforward, if the litigation
involved numerous parties, extensive legal issues, numerous experts, large sums
of money, or any other factors which may have impacted upon the case’s
difficulty.

[15]  Registrars are to have
regard to the particular circumstances of the proceeding in which costs are
claimed when deciding how many units within the prescribed range should be
allowed.

Item 1 – Correspondence,
conference, instructions before the proceeding begins

[15]        
The plaintiff has claimed 7 units for this item, while the defence says
that 6 units is more appropriately awarded. Mr. Cameron’s investigation of both
the plaintiff’s medical circumstances as well as those of the accident itself
began in earnest in October 2009. The notice of civil claim was issued some
seven months later on May 13, 2010.The evidence suggests that the
investigations in the pre-litigation stage related mostly to the circumstances
of the accident. There were few disbursements incurred during this period.
Considering the work that would be reasonably expected for these initial
investigations, I allow 6 units.

Item 2 –
Correspondence, conferences, instructions from after the proceeding commenced

[16]        
Considerably more work on these particular steps was performed by
counsel from May 2010 to settlement of the claim in January 2015. The work
included obtaining and reviewing historical and current clinical records of
treating physicians and conferencing with the client on his circumstances as
the claim progressed to trial. I allow the claimed 19 units for this item.

Item 6 – Process
for commencing and prosecuting the proceeding

[17]        
This item relates to the drafting, filing or service of the writ and
statement of claim and any subsequent amendments to that document: s.1,
Appendix B to the Supreme Court Civil Rules. These two documents contain
the typical pleas found in personal injury actions. The statement of claim was
never amended nor converted to a notice of civil claim. I allow 3 units for
this item.

Item 10 – Process for
obtaining discovery of documents

[18]        
The units awarded for this item should reflect the time reasonably
required to review the defendant’s list of documents. The award will reflect
not only the number of documents but also the type or volume of a particular
document. Here, the plaintiff reviewed three lists consisting of 90 items,
including three YouTube videos of undisclosed length. The defendant’s actual
list was not before me, so I am unable to discern the nature of the paper
documents. Given that the maximum allowable 10 units under the item should be
reserved for the review of 999 documents, I allow 3 units.

Item 11 – Process for
giving discovery of documents

[19]        
The plaintiff prepared two lists containing 76 documents in total. I
allow 3 units for the tariff item.

Item 14 – Process for
serving notices to admit

[20]        
The plaintiff delivered one notice to admit, seeking admission of 18
facts and the authenticity of 22 documents. The notice to admit goes beyond a pro
forma document often seen in assessments and required some thoughtful work
on the part of counsel. I allow 3 units for this item

Item 17 –
All process and correspondence associated with retaining and consulting all
experts for the purposes of obtaining opinions for the use in the proceeding

[21]        
I accept the evidence of plaintiff’s counsel that the complicating
factors of a childhood head injury, a seemingly full recovery from that injury,
the post-accident onset of the seizure disorder and the interplay of health
issues with the plaintiff’s academic and vocational successes and failures
required some careful and detailed instructions to chosen experts. Nonetheless,
I conclude that the 6 units suggested by the defence is an appropriate award
for this item.

Item 32 – Attendance
at a case planning conference or trial management conference

[22]        
The plaintiff scheduled a case planning conference for June 6, 2012, but
the hearing did not proceed. The defendant accepts the plaintiff’s claim
related to preparation for the conference. A trial management conference was
held before me on January 16, 2015. The issues discussed at the conference
included the delivery of will-say statements, the extension of the trial length
and the defendant’s proposed use of consult reports as evidence at trial. As
noted, the plaintiff intended to call more than 30 fact-based witnesses. The
nature of some of those individuals’ evidence was discussed at the conference.
While I presided at that conference, I have no specific recollection or note of
the time involved. Neither party suggests that the conference occupied more
than 30 minutes. The court’s internal records are not informative on this
point. On a scale of 1 to 5, I find that an award of 3 units reflects the time
that was reasonably spent attending the conference.

Item 46 – Preparation for
a mediation

[23]        
The defence acknowledges that the mediation consumed a full day and has
agreed that the full per diem units ought to be allowed for such attendance. However,
defence counsel submits that because the parties expected to attend mediation
for only one-half of a day, preparation units ought to be allowed at 1.5 units.
The units allowed for preparation for the mediation should be consistent with
the time actually spent at the mediation. I allow 3 units as claimed for this
item.

b. Disbursements

[24]        
The parties each cite various authorities in support of their position
on the disputed disbursements. None of the authorities are inconsistent with
the summary of law found in Turner v. Whittaker, 2013 BCSC 712 at
para. 5:

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).

[25]        
In terms of the two reports in issue, I find that it was at least proper
and probably necessary for the plaintiff to obtain opinion evidence from a
vocational consultant and occupational therapist. Despite the settlement of the
action, the parties continue to maintain very different views on causation for
the plaintiff’s physical symptoms and alleged struggles with educational and
vocational pursuits. It is not for the registrar to weigh the evidence and
decide which of these views is correct. Rather, the registrar must determine
whether there was some proper basis for the commissioning of these opinions.
The plaintiff’s ongoing subjective symptoms and objectively verified medical conditions
together with an arguably chequered educational and work history provide that
basis. As stated by the court in Fairchild v. British Columbia (Vancouver
Coastal Health Authority), 2012 BCSC 1207:

[34]  I do not
think the foundation for a vocational report requires a medical prognostication
about future non-medical, economic or social events. I do not think that that
is a matter of particular expertise among members of the medical profession,
and future possibilities are certainly among the tasks ordinarily left to the
trier of fact. The nexus between the doctors’ assessment of “a permanent
functional impairment” and the vocational assessor is the question, in that
person’s circumstances, “what potential range of employment opportunities might
be negatively affected by that impairment?” It is for the trier of fact to
assess the medical findings and the vocational assessor’s suggestions in the
context of the particular individual’s experience and potential in order to
decide if the “real and substantial possibility” test has been met. The
suggestion of a “permanent disability” of more than a trivial nature, would
generally warrant some form of vocational assessment, if only to eliminate a
concern about overlooking whether such damages ought to be claimed.

[26]        
Neither counsel nor any of the medical professionals would be in the
position to ascribe tests to the plaintiff to assess such things as physical
functioning (unless possibly a physiatrist opinion existed, which it did not in
this case), vocational aptitudes and limitations, and what aids or treatment
might be needed to address the plaintiff’s deficiencies. These two opinions are
not, in my view, duplicative of any medical opinions. Dr. Toth opined in March
2014 that the plaintiff’s chronic pain and mood disorder would cause
limitations in the performance of cognitive and physical tasks but no
vocational or functional assessment is described in that report – or any other medical opinions
obtained by the plaintiff. Dr. Toth recommends for and against certain
treatment modalities but does not provide an opinion akin to that of Mr. Smith
on types of functioning aids or their associated costs. Dr. Cameron,
another neurologist, rules out the plaintiff’s ability to enter certain
professions or work due to the seizure disorder but does not purport to offer a
vocational opinion.

Trainor Vocational Report
– $3,930

[27]        
Mr. Trainor was retained by counsel to prepare a report on the
plaintiff’s pre and post-accident vocational potential and reduced earning
capacity. A letter dated June 4, 2015 is provided by Mr. Trainor in
justification of the charges for his services. Defence counsel took no issue
with the registrar accepting the letter in lieu of sworn evidence.

[28]        
Mr. Trainor assessed the plaintiff in September 2014 and issued his
report on November 3, 2014. At this time, Mr. McAdam was working as a gas
station attendant. The report describes the plaintiff’s self-report of
vocational and educational goals and experience together with the physical and
cognitive symptoms experienced since the accident. Mr. Trainor describes the
plaintiff as presenting with chronic pain, functional limitations and cognitive
impairments. Aptitude and reasoning tests were performed by the plaintiff
during the course of the assessment. In adherence to the instructing letter
from counsel, the report also describes the assumptions upon which Mr. Trainor
bases his opinion and includes excerpts from various medical reports and
records.

[29]        
According to the June 4^th letter, Mr. Trainor spent 17 hours
conducting his assessment of the plaintiff and spent more than a day writing
the report. Mr. Trainor acknowledges that his charges are slightly above
the norm for this type of report and attributes that fact to the plaintiff’s
complex medical history, poor recall and the necessity to fact-check
self-reports with the medical information.

[30]        
Having considered the report, I can find no justification for reducing the
Trainor Consulting charges. The report does not, in my view, contain excessive
narrative. It is necessary to cite at least portions of the medical evidence
relied on by Mr. Trainor in forming his opinion. The charges are also
within the range of those allowed in other assessments: Hazbawi v. Lucier,
2001 BCSC 844.

[31]        
The charges of Trainor Vocational Consulting are allowed as presented.

Back in Motion Report –
$11,593.75

[32]        
Mr. Smith was retained by counsel to provide opinion evidence on two
matters: the functional impact of Mr. McAdam’s medical impairment, and an
occupational therapy assessment with respect to future care costs. Plaintiff’s
counsel describes Mr. Smith as one of the leading experts in assessing the
functional impact of medical impairment.

[33]        
The report prepared by Mr. Smith on both subject matters is nearly 80
pages in length. Plaintiff’s counsel submits that the charges are fair and
reasonable, particularly when considering opinions on two separate issues are
contained in the report. The defence says that the charges for the report are
outside of the norm and again reflect time spent on unnecessary evaluations and
verbose narrative.

[34]        
The functional capacity and costs of future care evaluation of Mr. McAdam
was performed over the course of three days. The report includes Mr. Smith’s
observations of the plaintiff performing yard work such as raking leaves and
planting trees. Mr. Smith also interviewed the plaintiff’s mother and reports on
her observations of the plaintiff’s functional capacity and limitations.
Neither of these tasks required a great deal of Mr. Smith’s time. The
majority of the charges reflect the time spent by Mr. Smith in interviewing the
plaintiff, assessing cognitive and physical limitations in an office setting
and preparing the written opinions. The total time spent by Mr. Smith in
formulating his opinions is just over 66.5 hours.

[35]        
The defence submits that Mr. Smith’s report is at least partially
duplicative of the work performed by the vocational consultant. Mr. Smith was
retained at or about the same time as Mr. Trainor; the timing is not clear as
the latter’s instructing letter is not in evidence. Mr. Smith states in his
report that he is aware of a vocational assessment being performed but had seen
no opinion in that regard. A vocational assessment is recommended in the Smith
report.

[36]        
I see no duplication in the content or scope of the Trainor and Smith
reports that ought to result in a reduction of charges. The Smith report does
not purport to opine on the plaintiff’s vocational aptitudes or abilities. The
subject matters of the Smith report are entirely distinct from a vocational
assessment, although the two reports would together assist in supporting the
plaintiff’s claim for future losses.

[37]        
At first blush, the charges of Mr. Smith appear excessive. However, a
review of the authorities discloses that the charges are in line with the
amounts that have been allowed on assessments if Mr. Smith’s opinions on
functional capacity and future cost of care had been reported separately: Turner
v. Whittaker, 2013 BCSC 712. Nevertheless, I have been
persuaded that a modest reduction is appropriate both with respect to time
spent observing the plaintiff performing tasks at home, including yard work,
and also for the interview of the plaintiff’s mother: Goodwin v. Ofstie,
2009 BCSC 137. I find that these steps reflect excessive zeal. A
description of the plaintiff’s abilities in and around his home as well as his
mother’s observations on functioning should instead come from these individuals’
direct evidence at trial.

[38]        
In the result, Mr. Smith’s charges for his report are reduced by
$1,137.50 and allowed at $10,456.25 plus applicable taxes.

[39]        
I disallow the cancellation fee of $400. Mr. Smith states in his letter
that he was unable to re-book or re-schedule clients on the day that he was
expected to testify at trial. However, Mr. Smith does not say that he was unable
to perform other remunerative work on that day such as writing reports. In the
absence of such evidence, I am unable to say that Mr. Smith had no ability to
mitigate the loss which led to charging the cancellation fee: Summers v.
McGinnis, 2005 BCSC 523 at para. 29.

Summary

[40]        
I understand that the parties agreed to most of the tariff items prior
to the assessment. Given the outcomes described in these reasons, I calculate
the fees and taxes allowed to be $9,979.20. I am less certain about the total
disbursements to be allowed as some charges were compromised or abandoned
before the assessment hearing. As a result, I will leave it to the parties to
perform the necessary calculations of the total costs, disbursements and taxes
allowed, with liberty to apply. If necessary, a certificate of costs may be
submitted for my endorsement.

                   “C.P.
Bouck”                

Master
C.P. Bouck