IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160401

Docket: M114738

Registry:
Vancouver

Between:

Rizwan Ali

Plaintiff

And

Shirley Esther Fineblit

Defendant

Before:
District Registrar Nielsen

Reasons for Decision

introduction

[1]            
This is an assessment of the plaintiff’s costs pursuant to the order of
Madam Justice Gerow, pronounced August 25, 2015. The reasons for judgment are
found at Ali v. Fineblit, 2015 BCSC 1494.

[2]            
All issues surrounding the plaintiff’s bill of costs have been resolved
except for five disbursements and the costs of this assessment.

[3]            
The five disbursements at issue are:

(i)             
The accounts of Mr. Jeff Matthews, accountant;

(ii)            
The accounts of Mr. Darren Benning, economist;

(iii)           
The accounts of Dr. Robinson, neurologist;

(iv)          
The costs of an MRI; and

(v)           
Photocopying, scanning, and fax costs.

background

[4]            
The plaintiff was injured in a motor vehicle accident on October 3,
2009, while he was driving a motorcycle. The plaintiff alleged he sustained
injuries to his left knee, neck, and back. The plaintiff also suffered from
severe headaches. The plaintiff had a pre-existing history of migraine-type
headaches.

[5]            
The trial of the action took 11 days. At issue were both liability and
quantum. The plaintiff was successful at trial and was awarded $168,135 in
damages and costs at Scale B.

DISBURSEMENTS

(i)     The
accounts of Jeff Matthews, accountant, and Darren Benning, economist

[6]            
The plaintiff was a self-employed computer software designer/engineer.
The majority of his clients were situated on the eastern seaboard of the United
States of America. The plaintiff, who lives in the lower mainland, would
commute weekly by aircraft to the east coast for the purpose of his employment.

[7]            
Plaintiff’s counsel submits that calculating the plaintiff’s income for
the purpose of advancing the past and future wage loss claim required the
assistance of an accountant, as the calculation was complex. The complexity
arose from the fact that the plaintiff was not a salaried employee; he was paid
in US funds; and, there was a need for an expert to wade through his billings
and expenses to make sense of his earnings. A further complicating factor was
the fact that in the year after the motor vehicle accident, the plaintiff’s
wife’s earnings as a museum curator were intermixed with the plaintiff’s income
to offset income allegedly lost as a result of the motor vehicle accident.

[8]            
Plaintiff’s counsel waited until approximately one year prior to trial before
he retained an accounting expert, as he had hoped the matter might settle. He
stresses that the expert was only retained when it became necessary.

[9]            
Plaintiff’s counsel submits that the necessity and propriety of
retaining an expert is illustrated by the actions taken by defence counsel.
Coincidentally, defence counsel had subsequently approached the plaintiff’s
accounting expert, Mr. Matthews, with a view to hiring him for the same
purpose as the plaintiff. At the time defence counsel approached Mr. Mathews,
he was unaware that plaintiff’s counsel had already hired him, as his report
had not yet been served.

[10]        
Defence counsel ultimately retained a different forensic accounting
expert to review the financial records of the plaintiff.

[11]        
The defendant argues that the invoices of Mr. Matthews ought to be
disallowed in their entirety as it was not reasonable or necessary to retain an
accounting expert. The essence of the defendant’s submission is that as the
Court did not award more than $25,000 in lost wages, representing six weeks of
past wage loss, the claim advanced by the plaintiff was therefore extravagant,
as the amount ultimately awarded equaled the cost of hiring the accountant.

[12]        
The defendant further asserts this submission is reinforced by the fact
that the wage loss claim was, for the most part, unsuccessful, given that the total
wage loss claim exceeded $169,000, but only $25,000 was awarded.

[13]        
The defendant further submits that the plaintiff’s wage loss claim was
premised upon evidence that could not be proved and was hopeless from the
outset.

[14]        
Finally, the defendant submits the accountant’s bill is vague, does not
break down the amount of time spent on the various tasks undertaken, and the
affidavit in support of his accounts is self-serving. The defendant specifically
takes issue with the accountant’s statement that the 91 hours he spent on the
matter was appropriate and reasonable.

[15]        
The accountant was not requested for cross-examination on his affidavit.

[16]        
The defendant also takes issue with the reports of Mr. Darren
Benning, economist, concerning the costs of airfare and future income loss
multipliers, alleging that they were unnecessary and improperly incurred for
much the same reasons as the accounting evidence.

[17]        
The defendant relies upon the legal principles summarized by Master Bouck
in Cooknell v. Quinn, 2013 BCSC 1653 at para. 33, wherein the Court
states:

[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.).

[18]        
The plaintiff had advanced a claim for future income loss on the basis that
he could not travel by air as frequently as he had done in the past. The
plaintiff also advanced a claim based upon the differences in cost between
economy and business class air travel, the allegation being the plaintiff’s need
for more leg room to accommodate his knee injury.

[19]        
Ultimately, the Court did not find in favour of the plaintiff on this
issue. The Court stated at paras. 115 and 116:

[115]    As noted, there is no expert evidence that
Mr. Ali’ injuries restrict his air travel, or that recommend he restrict
his air travel. In fact, the evidence is to the contrary. Dr. Fuller does
not have an explanation for Mr. Ali’s problem with air travel. Mr. Gander’s
opinion is that even in economy with a non-optimum seat Mr. Ali has the
sitting capacity for airplane travel. Mr. Ali travelled frequently in the
year following the accident with no effect on his billable hours. Accordingly,
I have concluded the evidence does not support a finding that the injuries
Mr. Ali sustained in the accident have caused a loss of past income
earning beyond the first few weeks following the accident. I have taken into
consideration that air travel may cause Mr. Ali to experience pain in his
knee in the award for non-pecuniary damages.

[116]    Mr. Ali’s evidence is that he could not travel
until four to six weeks after the accident. At the time of the accident,
Mr. Ali was working on a project earning US$95 per hour for IBM. In my
view, having considered the evidence, an award of $25,000 is appropriate, based
on a 40 hour week for six weeks.

[Emphasis added]

[20]        
The fact that the plaintiff did not succeed in clearing the hurdle
necessary to successfully advance the claim sought does not necessarily equate
with the disbursement being unnecessary or improperly incurred. It is however a
factor to be considered.

[21]        
The Court did accept the plaintiff may have suffered pain in his knee in
the award for non-pecuniary damages, as stated in para. 115 of the reasons
for judgment.

[22]        
This is not a case of the claim having been utterly hopeless or
fanciful, making the disbursement unjustified, extravagant, or incurred with
excessive zeal.

[23]        
Supreme Court Civil Rule 14-1(5) requires that the Registrar determine
which disbursements were necessary or properly incurred in the conduct of the
proceeding and to allow a reasonable amount for those disbursements. Whether a
disbursement was necessary or properly incurred is a case and
circumstance-specific inquiry.

[24]        
The time for assessing whether a disbursement was necessary or properly
incurred is when it was incurred, not with the benefit of hindsight. This point
is made in Van Daele v. Van Daele (1983) 56 B.C.L.R. 178 (C.A.), at paras. 9
through11 where the Court stated:

9          The substance of the matter and second aspect of
the matter presented to this Court by counsel for the appellant is that in
making the direction he did Mr. Justice Meredith proceeded on a wrong principle
and a misunderstanding of the intent and effect of the Rule which I have read.
In dealing with that aspect of the matter Mr. Justice Meredith said this in his
reasons:

"It seems to me that the word ‘necessary’ …"

10        He is referring to the word as it appears in R.
57(4).

"It seems to me that the word ‘necessary’ means
necessary to the Judgment finally rendered. It may be that Mrs. Van Daele was
well advised to obtain the appraisal reports in the hope that a Judgment might
be based upon them. But it was not. I think that this interpretation of the word
‘necessary’ is consistent with the rule and the philosophy that costs should
follow the event. The Defendant here should not be charged for something which
may have seemed prudent to the Plaintiff but turned out to have been irrelevant
to the case in the final analysis."

11        There, in my opinion,
lies the error of principle into which Mr. Justice Meredith fell. 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.

[25]        
The fact that an expert report was ultimately found at trial to be
irrelevant, does not mean the disbursement was unnecessary or improper at the
time the expense was incurred.

[26]        
A necessary disbursement is one which is essential to the conduct of the
litigation; a proper one is one which is not necessary, but is reasonably
incurred for the purpose of the proceeding. See McKenzie v. Darke, 2003
BCSC 138 at paras. 17-18.

[27]        
The choice made by competent counsel in prosecuting a case ought not to
be second-guessed by an assessing officer solely because another counsel may
have handled the matter differently.

[28]        
These legal principles were summarized by Master MacNaughton in Turner
v. Whittaker, 2013 BCSC 712 at para. 5 and I find that they are
applicable to the circumstances of this case.

[29]        
Plaintiff’s counsel was of the view that a forensic accountant was
necessary to make sense of the plaintiff’s earnings. If actions speak louder
than words, defence counsel was of a like mind, and indeed, initially attempted
to retain the very same accountant as the plaintiff. I am satisfied the
assistance of an accountant was both necessary and proper in the circumstances
of this case.

[30]        
I am of the view that the reports of Mr. Darren Benning, economist,
were similarly necessary and proper. To assess the range of possible outcomes
at trial and to consider the reasonableness of settlement offers, plaintiff’s
counsel needed to be in a position to determine, and ultimately prove, the full
extent of the plaintiff’s past and future wage loss claims and expenses. The
wage loss claim advanced in the case at bar, to the extent that it was linked
to air travel and the claim for future losses, required comparisons between
economy and business class travel costs, and future wage loss multipliers.

[31]        
In terms of the reasonableness of the accounts, both the plaintiff and
defendant retained forensic accountants. The plaintiffs have the burden of
proving both the necessity and propriety of the reports and the reasonableness
of the experts’ accounts. Accordingly, the bills of the plaintiff’s accountant
have been disclosed, reviewed, and scrutinized by the defendant.

[32]        
Although the defendant similarly retained a forensic accountant, who
produced a report dated March 12, 2015, which was served upon the plaintiff, the
defendant has not advised of the hourly rate charged by their expert, nor the
amount of hours billed for reviewing the same records. In my view, that
evidence would have been helpful to compare and contrast fees, with a view to
what was “reasonable” in the circumstances.

[33]        
While not determinative, what another like expert charged in the
identical circumstances, involving the identical records, would be a highly
relevant consideration. That highly relevant information was lacking here.

[34]        
The plaintiff’s accountant did swear an affidavit of justification which
advised what was done and the amount of time taken to complete the various
tasks. Although the affidavit was somewhat vague and less than perfect, I am
satisfied that it accounts for the work that was done and the time invested.
Further, absent the relevant evidence that was available but not produced by
the defendant, I am not prepared to infer that the amount charged, or the time
taken by the plaintiff’s expert was unreasonable.

[35]        
The accounts of Mr. Jeff Matthews, accountant, and Mr. Darren
Benning, economist, are allowed in full.

(ii)   The
accounts of Dr. Robinson, neurologist

[36]        
The plaintiff had suffered migraine-type headaches prior to the motor
vehicle accident. The plaintiff’s position at trial was that prior to the motor
vehicle accident, his headaches were not a problem, however, subsequent to the
motor vehicle accident, those headaches became a major problem which were
alleged to have impacted his earnings. The plaintiff’s general practitioner
opined that the plaintiff’s headaches were “much less in the pre-accident
history”.

[37]        
Given the general practitioner’s opinion concerning the increased
severity of the plaintiff’s headaches and the plaintiff’s position that this
impacted his past and future earnings, plaintiff’s counsel was of the view that
the matter needed to be investigated by a neurologist, and he therefore
retained Dr. Robinson.

[38]        
Prior to Dr. Robinson producing a medical-legal report, and prior
to defence counsel’s knowledge that the plaintiff had been seen by a neurologist,
plaintiff’s counsel received a letter from defence counsel requesting that the
plaintiff attend the offices of Dr. Dost, neurologist, on February 16,
2015, for the purposes of an independent medical examination. The appointment
was subsequently cancelled; however, after the plaintiff served the report of Dr. Robinson
on the defendant, the defendant commissioned a response report from Dr. Dost
by way of a medical file review.

[39]        
Plaintiff’s counsel submits that it was both necessary and proper to
seek the opinion of a neurologist, given the general practitioner’s opinion
that the plaintiff’s symptoms had increased following the motor vehicle
accident.

[40]        
The defendant submits the report of Dr. Robinson was unnecessary,
as the plaintiff already had a report from a physiatrist, who was unable to
attribute the plaintiff’s increased headaches to the motor vehicle accident.
The defendant submits that given the pre-existing opinion of the physiatrist,
the plaintiff was “doctor shopping” when he sought the opinion of Dr. Robinson.

[41]        
The defendant further submits that the opinion of Dr. Robinson was
ultimately rejected in favour of that of the plaintiff’s physiatrist and the
defendant’s neurological expert, Dr. Dost. The defendant submits that the
trial judge rejected the report of Dr. Robinson, as the plaintiff had
requested that Dr. Robinson assume facts which could not be proved,
namely, that the plaintiff’s headaches stemmed from a neck injury sustained in
the motor vehicle accident.

[42]        
In Ali, supra, at para. 73, the Court stated:

[73]      I agree with
Dr. Stewart and Dr. Dost that there is no evidence to support a
conclusion that the exacerbation to Mr. Ali’s headaches was caused by the
accident. Dr. Robinson’s opinion that the change to Mr. Ali’s
headaches was probably caused by the accident is based on his understanding
that Mr. Ali suffered a neck injury in the accident. Given the lack of any
contemporaneous report of neck injury or neck pain and the description of the
accident, there is in my view, insufficient evidence to conclude that
Mr. Ali suffered an injury to his neck in the accident which has
exacerbated his headaches.

[43]        
It seems the reference to “no evidence” is tempered somewhat by the
Court’s reference to a “lack of any contemporaneous report of a neck injury or
neck pain”, leading to the Court’s view that there was “insufficient evidence”
to conclude the plaintiff injured his neck, thereby exacerbating the
plaintiff’s headaches.

[44]        
The defendant was unquestionably successful in rebutting the evidence of
Dr. Robinson. That success, however, was in part due to the opinion of
their neurologist, Dr. Dost, and a finding of “insufficient evidence”.

[45]        
In my view, given the plaintiff’s severe and increasing headaches, as
documented by his general practitioner, and the allegation that this impacted
the plaintiff’s earnings and earning capacity, it was proper for plaintiff’s
counsel to seek the opinion of a neurologist on causation. Indeed, the
defendant initially took the same course of action and scheduled an examination
of the plaintiff prior to becoming aware that the plaintiff was scheduled to
see a neurologist.

[46]        
The reasonableness and propriety of the disbursement is not to be
assessed with the benefit of hindsight, as per Van Daele, supra.
Further, it is not for the assessing officer to second-guess the opinions of
competent counsel, solely because, with the benefit of hindsight, the matter
might have been handled differently, as per MacKenzie, supra.
Here, both counsel for the plaintiff and defendant sought the opinion of a
neurologist. I find in the circumstances that this was both a necessary and
proper disbursement.

[47]        
The accounts of Dr. Robinson, including the cost of attending trial
for cross-examination, are allowed in full.

(iii) The MRI

[48]        
Plaintiff’s counsel obtained an MRI of the plaintiff’s lumbar spine in
order to rule out disk pathology. This was done on the advice of the
plaintiff’s physiatrist in May 2014, roughly a year prior to trial and nine months
prior to when the medical-legal report would have to be served in compliance
with the Supreme Court Civil Rules.

[49]        
Plaintiff’s counsel attests that, in his experience, “it can take up to
a year or longer” to arrange for an MRI in the public system.

[50]        
There is no evidence that any attempt was made to have the plaintiff
examined in the public system, or evidence of an actual wait time in the
circumstances.

[51]        
The defendant submits that implicit in the assertion of counsel for the
plaintiff that it can take up to a year to obtain an MRI, is the possibility
that it can take less time.

[52]        
I agree with the submission of defence counsel that the assertion of
plaintiff’s counsel in the circumstances of this case falls short of the
evidentiary burden required. A lot can happen in a year. There needs to be more
evidence concerning the need to seek an MRI privately before that cost can be
passed on to an unsuccessful party. This point is made by Registrar Cameron in Kumanan
v Achim 2013 BCSC 1867 at paras. 11 and 12.

[53]        
Further, the opinion of the physiatrist makes reference to the plaintiff
having had an MRI of his knee, which was done in the public system. No evidence
was provided concerning the wait time in that regard.

[54]        
Absent more cogent evidence, I am not satisfied that it was necessary or
proper to incur this expense at the time it was incurred. The cost associated
with the MRI is disallowed.

(iv) Photocopying,
scanning, and fax

[55]        
The plaintiff has claimed a total of $2,549.24 in photocopying,
scanning, and fax charges. The account is divided between $699.24 in external
costs, for which there is a receipt, and $1,850 of internal costs, for which
there is no receipt, particulars, or hard evidence.

[56]        
The defendant takes issue with the internal costs, given that the
plaintiff has not particularized the claim, advised how it was calculated, or
advanced any evidence in support of the claim.

[57]        
In Gill v. Widjaja, 2011 BCSC 1822, the Court addressed the issue
of less than perfect evidence in regard to photocopy costs. At paras. 32-36,
the Court stated:

[32]      The matter of photocopying, I adopt the words in Sovani
v. Jin, 2006 BCSC 855, where Registrar Block noted, at para. 4:

The assessment of photocopying costs is typically a
rough-and-ready exercise, which is very much in accordance with the comments of
the English Court of Appeal in a case called Re Eastwood…where the
Court said that assessment of costs was a matter of rough justice insofar as it
admitted of much sensible approximation, or words to that effect.  That is
exactly what registrars must apply when assessing photocopying expenses or
considering the volume of photocopying claimed in a case.  Thus it is not
an exercise of arithmetic or math or the examining of photocopying machinery
expenses or matters of that sort, but is often looking at an array of binders,
a collection of banker’s boxes, assessing what were needed for experts, what
document discovery was involved, whether there was a jury such that they
required individual copies, and all those sorts of matters, and applying
experience gained from numerous other cases, to arrive at a sensible
approximation of the volume of necessary copy work.

[33]      Nothing is served by requiring counsel to
voluminously set forth in affidavit material the claimed use to which
photocopies were put.

[34]      Nonetheless, having said that, there is an
obligation on counsel to clearly put before the registrar an evidentiary basis
for concluding that the claimed amount was correct.  Here, other than a
bare assertion that 3,579 copies were made, there is no indication before
Master Baker that this was a proper amount such as to allow the claimed
disbursement of just under $900.

[35]      Nonetheless, I am of the view that it was an error
in principle to take Mr. Cope’s unsworn assertion that his office was “a
paperless office”, and extrapolate that into a denial of all photocopying
expense.  Indeed, this is contradicted by the master’s statement that he
suspected photocopies were used for the exchange of medical experts. 
Obviously, copies were made for briefs, pleadings, settlement conference
briefs, trial management conference briefs, etc.

[36]      In the circumstances,
some rough and ready allowance for photocopying ought to have been made as
contemplated in Sovani.  Absent the details, which lend itself to
an amount closer to that which was claimed by the plaintiff, I am of the view
that the appropriate allowance for photocopies would be 600 photocopies at
$0.25 per page, or $150.

[58]        
The best evidence is always to be preferred. Where a claim for
photocopying can be particularized, it ought to be. Details concerning what
documents were copied, why they were copied, and why the copying was necessary
or proper in the circumstances, are best provided where they can be. Otherwise,
the result will be a rough and ready calculation. On the other hand, in a
paper-intensive case where voluminous amounts of copying take place, this level
of detail will be impractical or impossible.

[59]        
In the present case, the evidence of particulars surrounding the
internal costs for photocopying, scans, and faxes, is lacking. However, I have
the plaintiff’s affidavit of justification containing the various expert
reports, references to the accounting records involved in the case, the reasons
for judgment which shed light on what was done in the conduct of the
litigation, and the evidence produced at trial which spanned 11 days. Finally,
I can draw on my experience in these matters.

[60]        
The amount claimed by the plaintiff is not atypical of what is seen in
personal injury cases which proceeded to trial for 11 days, involving the
issues of both liability and quantum, and multiple medical and accounting experts.
The issues arising on this assessment of costs involved only five disbursements,
however, the photocopying required exceeded 900 pages.

[61]        
Taking all these factors into account, I find the claim regarding
photocopying, scans and faxes to be reasonable within the context of the case
and these costs are allowed in full.

Costs

[62]        
The plaintiff will have the costs of this assessment consisting of a
total of 6 units; 2 units for tariff item 29; and 4 units for tariff item 30.
The plaintiff is also awarded his disbursements associated with this assessment,
totalling $1,081.71, for which receipts were provided.

[63]        
If a certificate is required, one can be submitted through the Registry
for signature.

“District
Registrar Nielsen”