IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100217

Docket:
M021566

Registry: Vancouver

Between:

Azez Hamo and Geena Hamo

Plaintiffs

And

Saiyad Khan

Defendant

Before: Registrar Blok

Reasons for Decision

A.       Introduction

[1]            
In this personal injury action a medical expert
charged a total of $69,543.75 for two reports.  At issue on this costs
assessment is the reasonableness of those charges, as well as some additional
charges for a trial preparation meeting.

B.       Facts

[2]            
Dr. Trevor Hurwitz was retained by plaintiff’s
counsel in a personal injury action that arose from an August 2001 motor
vehicle accident.  Evidently the plaintiff, Geena Hamo, struck her head on the
windshield of the vehicle being driven by her brother.  Thereafter, she
suffered from various physical ailments but, for present purposes at least, the
most serious of those ailments were collapsing spells that resembled epileptic
seizures and which began about six months after the accident.

[3]            
In the course of Ms. Hamo’s medical treatment
she had been referred to a neurologist at U.B.C. Hospital, Dr. Foti, who
concluded that the plaintiff’s collapsing episodes were not epileptic in origin
but instead were “pseudo seizures”.  Mr. Gertsoyg, who acted as counsel for Ms.
Hamo in the personal injury action, testified that he sought to determine the
cause of those seizures and whether they prevented the plaintiff from working.

[4]            
Mr. Gertsoyg determined that Dr. Hurwitz was the
right expert to engage for the plaintiff’s case.  Dr. Hurwitz has an unusual
dual specialty as both a psychiatrist and a neurologist and has practiced both
of these specialties since 1982.  He is the director of the U.B.C.
Neuropsychological Program and, according to Dr. Hurwitz, he and his colleagues
at the Program see “complex cases that overlap neurology and psychiatry”.

[5]            
Dr. Hurwitz testified that there are very few
practitioners who have a dual specialty in neurology and psychiatry.  He said
he was the only person in British Columbia with this dual specialty and he
thought that he would be the only holder of these qualifications west of
Toronto.

[6]            
Dr. Hurwitz testified that, when he is engaged
as an expert, he tends to get the complicated cases and when he was engaged in
this case he knew it would be a complicated mix of neurology and psychiatry. 
He rated the difficulty of the plaintiff’s case as a “seven out of ten”.

[7]            
As is his practice, he wrote out a contract,
giving his hourly rate ($500) and the estimated time (in this case 40 to 70
hours), and this contract was accepted by Mr. Gertsoyg.  Dr. Hurwitz said that
he has been retained on behalf of defendants at the same hourly rate.

[8]            
He followed his general investigative method,
which is as follows:

(a)      examination
and interview of the patient:  Dr. Hurwitz said this typically this takes four
to six hours, and for the first report he saw the plaintiff twice, so this
examination took a day in total.  He also saw one of the plaintiff’s family
members during this time.  He dictated his examination notes right afterward.

(b)      review
and summary of previous records:  Dr. Hurwitz said that reviewing and
summarizing handwritten medical notes can be particularly time-consuming.

(c)      examination
of any neuro-imaging available:  in this case the plaintiff required an MRI
scan and this was arranged and the results subsequently reviewed.

(d)      dictating
conclusions and preparing the report.

[9]            
Dr. Hurwitz said that he has learned to prepare
a report that he can defend, and he therefore reads and summarizes all of the
medical documents and is careful to put in his reports all of the information
upon which he relies.  For this case he said that he did what he felt he had to
do to defend his opinion and to set out in detail the plaintiff’s medical
history in order for other people to be able to check his work.

[10]        
Dr. Hurwitz concluded that the collapsing
episodes were due to “psychogenic epilepsy” and were not due to epilepsy as
such.  In this he agreed with Dr. Foti.  He said, however, that while a
neurologist can make this diagnosis, a neurologist cannot say why these
psychogenic events are occurring.  The “why” was perhaps the more difficult
question, and it was a question for a psychiatrist to answer.  To accomplish
the same investigations that he can perform, one would need to engage two
specialists.

[11]        
Dr. Hurwitz said that the case was complicated
because he had to analyze each spell or episode, and he also had to examine the
plaintiff’s pre-accident medical history, looking for physical presentations
that had no explanation.  He also had to consider the plaintiff’s pre-accident
depression and determine whether the plaintiff’s post-accident depression was
worse (he concluded that it was).  Ultimately, Dr. Hurwitz concluded that the
plaintiff’s episodes were caused by a conversion disorder.

[12]        
Dr. Hurwitz exceeded his estimate of 40 to 70
hours of work, spending 89 hours in total.  He said that he did not have the “collateral
information” when he gave the estimate and he received more materials than he
expected.

[13]        
Dr. Hurwitz’s first report, which is dated
October 22, 2005, is 82 pages long, excluding his 14-page curriculum vitae. 
The report is in two main parts: (1) the medical report plus a synopsis of the
collateral information (46 pages), and (2) a detailed summary of all of the collateral
information (a further 36 pages).  There are two subsets of the 46-page first
part of the report, a history based on Dr. Hurwitz’s examination and interviews
(16½ pages in length), and his assessment and conclusions (29½ pages).

[14]        
For this report Dr. Hurwitz charged a total of
$48,150, consisting of fees of $44,500 (based on 89 hours at $500 per hour), an
“administration and processing fee” of $500, and GST of $3,150.  In
cross-examination, Dr. Hurwitz explained that the $500 administration and processing
fee was intended to cover his transcription costs (which are in the range of $21-$22
per hour), secretarial costs and postage.

[15]        
Dr. Hurwitz acknowledged that the preparation of
this report took place over a considerable period of time (from February to
October 2005) and that this meant he had to go back and review notes he had
made earlier.

[16]        
Dr. Hurwitz prepared a second report at Mr.
Gertsoyg’s request, this one dated February 4, 2008.  Again, Dr. Hurwitz
examined the plaintiff, who was in the company of a family member, and he
reviewed additional collateral material that had been generated since his 2005
report.  He also re-read his previous report.  He adopted the same approach as
he did before in that he summarized the collateral material and then prepared
his report.  He was also asked to comment on the report prepared by a defence
psychiatrist.

[17]        
Dr. Hurwitz’s second report is 26 pages in
length, organized in similar fashion to the first.  The first part (the history
and assessment) is 16 pages long and the detailed summary of the collateral
information is 10 pages long.

[18]        
His conclusions were as follows:

Final Diagnoses:

1.         Major depressive illness
complicated by somatization, which includes the conversion reaction in the form
of psychogenic seizures and a multifocal pain syndrome, and
cognitive-intellectual difficulties.

2.         Chronic post traumatic headaches
made worse by her depression.

3.         Temporomandibular joint
dysfunction and pain and made worse by depression.

All the above are a direct consequence of
the motor vehicle accident in which she sustained a closed head injury of at
least moderate severity.  Her depressive illness, as well as her tendency to
somatize, pre-dated her motor vehicle accident and has been de-stabilized by
this event rendering it chronic, severe and treatment-resistant.

Final Prognosis:

Ms. Hamo is
totally and permanently disabled for all forms of competitive gainful
employment.

[19]        
For this report Dr. Hurwitz charged a total of $21,393.75,
consisting of fees of $20,125 (based on 40.25 hours at $500 per hour), an
administration and processing fee of $250 (in this instance, only for transcription
costs), and GST of $1,018.75.

[20]        
Dr. Hurwitz acknowledged that the summarizing of
the collateral information was the most time-consuming aspect of his work. 
Without that, the preparation of the second report would have taken 20 hours.

[21]        
Dr. Hurwitz charged a further $1,125 for 2.25
hours spent for a meeting with Mr. Gertsoyg, at the latter’s request, on
October 5, 2009 (the trial was set to commence on October 13, 2009).  One hour was
spent reviewing materials in preparation for the meeting and the remainder of
the time was spent in the meeting itself.

[22]        
Mr. Gertsoyg testified that this was a policy
limits case that had settled upon the defendant’s insurer agreeing to pay the
policy limits of $1 million to both the defendant and her brother who, it
appears, was also very seriously injured in the accident.  The evidence is that
the two plaintiffs have agreed to divide these policy limits by paying $700,000
to the brother and $300,000 to Ms. Hamo.  The ultimate recovery is not yet
known as both plaintiffs are making Underinsured Motorist Protection (UMP)
claims, with available funds of a further $1 million each, and these are
evidently proceeding to arbitration.

[23]        
The defendant adduced evidence by affidavit,
showing that defence counsel obtained three reports from a psychiatrist, Dr. H.
Davis, at a total cost of $9,025, billed at an effective rate of $375 per
hour.  Dr. Davis is shown on his curriculum vitae as having a “specialist
degree” in both psychiatry and neurology.  Defence counsel also retained a
neuropsychologist, Dr. David J. Crockett, who billed $2,518.75 for the
preparation of a 2004 report, based on 16.25 hours spent at a billing rate of
$155 per hour.

C.       Positions of the Parties

 (a)      The Plaintiff

[24]        
Counsel for the plaintiff emphasized the unique
double specialty of Dr. Hurwitz, noting that otherwise two experts would have
to have been used and this would have been “wasteful”.  As for the time spent,
Dr. Hurwitz did the work he felt he had to do to defend his opinion, and a full
understanding of the collateral information was a necessary component of his
work.

[25]        
Counsel submitted that there was no evidence on which
any reduction could be based.  He asserted that it would be “wrong” to conclude
that the time spent was not justified, “wrong” for a registrar to apply any
element of his or her experience in these matters and, further, were the
registrar to do so, it would be “wrong” to do so without giving advance notice
of the experience relied upon so as to give the plaintiff notice of the case
she had to meet.

  (b)      The Defendant

[26]        
The defendant submitted that Dr. Hurwitz’s
hourly rate ($500) was unreasonably high, particularly in relation to the
current rate in the B.C. Medical Association Fee Guide ($356 per hour) and the
billing rate used by Dr. Davis ($375 per hour).  It was also submitted that the
time spent by Dr. Hurwitz in preparing his report was excessive and therefore
unreasonable.  As to the time spent, it was said to be inefficient because of
the long delay between the initial review of information and the actual writing
of the first report, and it was excessive in that there was no need to prepare
detailed summaries of all of the medical documents, salient portions of which
also appeared in the assessment and opinion part of the report.

[27]        
By the time Dr. Hurwitz was retained to do a
report the plaintiff had already obtained a report from a neurologist, Dr. Cameron,
who charged $2,182 for his report, and a report from a psychiatrist, Dr.
O’Shaughnessy, who charged $2,600.  Later they obtained a report from another
neurologist, Dr. Robinson, who charged $2,500.  These figures demonstrate that there
was no economy in using one expert rather than two.

[28]        
Finally, the defendant submitted that the
“administration and processing fee” ought to be disallowed for each of the two
main bills in issue on the basis that this is an overhead item that ought to be
captured in the hourly rate.

D.       Discussion

[29]        
There can be no doubt that the amounts charged
by Dr. Hurwitz are far greater than those of any medical expert I have seen. 
They are nearly double the highest examination and report fee previously at issue
before me, and that latter fee was in itself a significant “outlier” from the
vast majority of charges of other medical experts.  But am I entitled to take
that into account in any way?  I conclude that I am.

[30]        
The argument that a registrar may not utilize
any experience in these matters essentially characterizes the registrar as some
sort of empty vessel, bereft of any experience (and the contextual knowledge
that comes with that experience), a vessel that is to be filled anew at each
hearing with all necessary knowledge.  I reject that characterization and the argument
from which it flows.  It is contrary to principle, to practice and to law.

[31]        
 Registrars apply their experience to all
aspects of costs on a frequent basis.  Costs assessments require that they
consider the fees of a wide variety of professionals, including accountants,
professional engineers, accident reconstructionists, business valuators,
appraisers, private investigators, actuaries, mediators, vocational
consultants, cost-of-care specialists, psychologists, therapists of every type,
and medical professionals of every sort and specialty.  In just one costs
assessment in a major personal injury case there might be a dozen medical
experts whose charges are considered and ruled upon.  In other types of hearings
registrars are required to assess the reasonableness of the fees claimed or charged
by estate trustees and administrators, committees, arbitrators, receivers,
receiver-managers and bankruptcy trustees.  Indeed, in the case of the latter, all
trustees and proposal administrators whose fees are not subject to a fixed
tariff must tax their accounts before the registrar.  In proceedings under the Legal
Profession Act, S.B.C. 1998, registrars review the reasonableness of
lawyers’ bills.  In the case of taxations of trustees’ statements of receipts
and disbursements under the Bankruptcy and Insolvency Act, R.S. 1985, c.
B-3, as amended, all legal bills in excess of $2,500 (recently increased
from $1,000) that are included in those accounts must be taxed before the
registrar.

[32]        
In short, under various statutes and rules the
registrar has been given the jurisdiction and responsibility to review the
accounts of professionals of almost every kind.  This is obviously no
coincidence, and from this I conclude that, as a matter of principle,
registrars have been designated for this wide responsibility because of the
experience and expertise they have and which they are expected to apply.  The
plaintiff’s submission that registrars must not bring any of this experience to
bear in considering the reasonableness of the fees of medical professionals is therefore
contrary to that principle.

[33]        
In the case of costs, Rule 57(4)(b) requires
that a registrar allow “a reasonable amount” for disbursements that have been
found to have been necessarily or properly incurred in the conduct of the
proceeding.  Expert evidence is very rarely led on the question of the
reasonableness of any particular disbursement, and it is left to the registrar
to apply his or her experience in these matters to determine that essential question
on the evidence led (see, for example, Prehara v. Royer, 2007 BCSC 912). 
So the plaintiff’s submission is contrary to long-standing practice.

[34]        
Finally, the submission is contrary to law. 
There are many cases that have endorsed the use by registrars of their
expertise and experience in the area of costs, or that deferred to their special
expertise in the area.  Of those cases I need only refer to two: Vincent v.
Foster, [1993] B.C.J. No. 455 (S.C.) and a very recent case, Narvaez v.
Zhang, 2010 BCSC 78.

[35]        
I reject, as well, the submission that if
registrars are to apply their experience in the area they must first disclose
that experience to litigants or their counsel.  Even in the field where
plaintiff’s counsel conceded that registrars may apply their experience (the
review of lawyers’ bills) such a submission has never been made and, in my
view, this is for obvious reasons.  It would be the same as demanding that
judges reveal their experience in personal injury cases before they assess
non-pecuniary damages.

[36]        
So I conclude that I may use my experience in
considering the accounts of Dr. Hurwitz.  As noted earlier, that experience
tells me that Dr. Hurwitz’s accounts are extraordinarily high.  Since they are
the arithmetic product of the time spent and the hourly rate, it is these two
components that must be scrutinized.

[37]        
However, before I do so I would note that the
evidence of the fee agreement between Mr. Gertsoyg and Dr. Hurwitz, and the
evidence that Dr. Hurwitz charged on the basis that he said he would charge,
both have no bearing on the issue of the reasonable amount that ought to be allowed
as costs between party and party.  In Cloutier v. Wong (1992), 12 C.P.C.
(3d) 169 (B.C.S.C.) – as it happens, a case that also concerned the fees of Dr.
Hurwitz – Master Joyce (as he then was) said the following:

10.       When the solicitor retained Dr.
Hurwitz the doctor advised him that he would charge $350 per hour and that he
would have to spend a very considerable number of hours on the case in order to
do it to his satisfaction.  The solicitor accepted those terms.  In fact, the
doctor did spend a large amount of time on the matter for which he billed at
$350 per hour. …

11.       It does not follow, in my view,
from my conclusions with respect to the reasonableness of the solicitor’s
decision to obtain this sort of evidence that the defendant is obliged to pay
whatever fees Dr. Hurwitz might negotiate with the solicitor.  In my view it is
open to the assessment officer to consider the amount of the fees, based upon
all the evidence, and to allow only that amount which the assessment officer
determines are reasonable in all the circumstances.  The party presenting the
bill has the burden of establishing the reasonableness of those fees.

[38]        
Interestingly, the issues in Cloutier v. Wong
were similar to those in this case.  After describing the report itself, Master
Joyce said the following:

13.     Dr. Hurwitz deposes that in preparing
himself to give an opinion in a case such as this it is essential to review,
make notes of, digest and correlate all of the medical records and other
doctor’s reports. I accept that in providing his opinion in these circumstances
the doctor must review the documentary medical evidence and the medical
literature. I further accept that it is reasonable for the expert to set out in
the text of his report the material facts which he has taken from the medical
records and reports and upon which he relies in formulating his opinions, particularly
where there is such a vast body of such documentary material.

14.     However, having considered the materials
reviewed by Dr. Hurwitz and having reviewed the doctor’s report I cannot accept
that it was necessary or reasonable for the expert to spend 38 hours in the
preparation of the report. In my respectful opinion the report contains an
overly detailed summary of evidence which would be before the court in another
form rather than a statement of the material facts which he took from that
evidence. Such summary might be useful to counsel or to the trial judge but in
my view can and should be compiled, if thought desirable by someone who charges
at rates much less than a specialist doctor. I am of the view that the time
which the doctor spent in reviewing and summarizing these records was excessive
and that the cost of this doctor’s extremely high standards of preparation
ought not to be borne by the defendant. Counsel for the plaintiff has not
satisfied me of the reasonableness of the total amount of time devoted to the
preparation of this report.

15.     I do not
doubt that the doctor spent the time indicated on the bills. I question only
the reasonableness, within the context of Rule 57, of spending that much time
on the case.

[39]        
Master Joyce concluded that 24 hours was a
sufficient amount of time for report preparation (as compared to the actual 38
hours spent) and that the hourly rate ought to be reduced from $350 to $225. 
The result was that Dr. Hurwitz’s charges were reduced from $22,550 to $10,400.

[40]        
Of course Master Joyce had to make his decision
based on the evidence before him, and I have to decide this case on the
evidence before me, but as it happens I have come to similar conclusions.

[41]        
Dr. Hurwitz said that he has learned to prepare
a report that he can defend.  The implication of this was that meticulous detail
was required.  This is not so.

[42]        
In Chandi v. Atwell (Unreported, May 29,
2009, Vancouver Registry No. M055602), among the disbursements at issue were
charges totalling $30,500 for a 237-page medical-legal report prepared by a
highly-qualified physiatrist.  There I said:

Dr. Vondette testified that a report of this
length was needed because of the plaintiff’s extraordinarily complex history
and complicated medical situation.  He said that the medical documents he
reviewed went back 15 years and that the plaintiff’s medical problems went all
the way back to his childhood in India.  He said he had to determine the extent
to which antecedent problems caused or contributed to the plaintiff’s current
symptoms.

…

In cross examination, Dr. Vondette resisted
the suggestion that his 15-page executive summary would have sufficed for a
medical legal report.  He said “I could not have stopped there”.  It was his
feeling that it was necessary to set out all the detail he did in order to
demonstrate how and on what basis he had come to his various opinions.

…

In his testimony, Dr. Vondette indicated
that he was aware that the expert evidence rule required that he set out all of
his opinions and that if he did not do so the additional opinions would be
objected to at trial.  This much is true, but this does not mean that the
opinion cannot be summarized (as Dr. Vondette himself did in the executive
summary portion of his report) and it does not mean that everything that could
possibly be said, whether opinion or not, including every scrap of information
gleaned from every source and every verbatim statement ever uttered to Dr.
Vondette by the plaintiff, must be included in the report.  Clearly, there is
no necessity for any expert to go to these lengths in the preparation of a
medical-legal report.

In the cross-examination of Dr. Vondette, a
number of points of medical history related by the plaintiff were suggested as
being unnecessary.  Dr. Vondette insisted that everything he set out was “vital
for me to know”.  This, however, misses the point.  It may well be that a
medical practitioner must know full details of the medical history of the
patient, whether derived from a personally-related history or otherwise, but it
is not necessary that every single item of this history, to the point of
minutia, be set out verbatim, rather than summarized or left out altogether, in
the subsequently prepared medical-legal report.

Dr. Vondette
seems to have been under the impression that everything that could possibly be
said must be said and this is simply not the case.

[43]        
While I am not comparing the charges or the
result in that case with those in this case, I do wish to emphasize those
comments quoted above that make it clear that medical-legal reports containing
excessive detail are neither desirable nor necessary (see also Hall v.
Strocel (1983), 34 C.P.C. (2d) 170 (B.C.S.C.) and Bell v. Fantini
(1981), 32 B.C.L.R. 322 at 330).

[44]        
In view of the length of the reports in question
(82 pages for the first report and 26 pages for the second) we might well pine
for the days when a mere 13-page medical-legal report was found to be excessive
due to its unnecessarily long recitation of medical history: see Hall v.
Strocel, supra.

[45]        
Dr. Hurwitz said that for his first report the
summarizing of the collateral information took place between February 16 and
July 24, 2005, during which time he recorded 63.25 hours on the matter.  Prior
to February 16 he spent 10 hours interviewing the plaintiff and a family member
and dictating his findings, and after July 24 he spent 15.75 hours in the
preparation of his report.

[46]        
For the second report Dr. Hurwitz said that its
preparation would have taken 20 hours but for the time he spent summarizing the
collateral information, which roughly doubled the amount of time he spent (which
was 40.25 hours in total).

[47]        
I conclude that the time spent on the
summarizing of the collateral medical information was excessive; in fact,
vastly excessive, particularly given that a fair amount of the pertinent
history seems to have been summarized elsewhere in the reports.  I also agree
that, based on Dr. Hurwitz’s own evidence, in the case of the first report there
was inefficiency as a result of the lengthy time it took to complete the
process.

[48]        
As Master Joyce made clear in Cloutier v.
Wong, and also as stated in Chandi v. Atwell, there is simply no
need to prepare meticulous summaries of medical information obtained from other
sources.  I accept that there was a need for Dr. Hurwitz to read and fully
absorb this other medical information, but there was no need to do it in this
expensive and time-consuming way.  If that is the only way Dr. Hurwitz can
accomplish this task then that is all very well as between Dr. Hurwitz and counsel
who retain him, but for the purposes of costs between party and party it is
excessive and that excessive element cannot be passed on to the opposing party.

[49]        
I turn now to the hourly rate.  This was the
subject of much debate, mostly on the significance of the B.C.M.A. fee
schedule, which at present has a guideline fee of $356 per hour for “court
preparation” and a fee of $1,495 for preparation of a “medico-legal opinion”. 
The defendant did not rely on the “medico-legal opinion” guideline fee (and
here I note that the defendant’s own experts did not appear to adhere to it) but
did rely on the court preparation fee as providing guidance when considering
the $500 per hour rate charged by Dr. Hurwitz.  For her part the plaintiff
cited Mohr v. Dent (1983), 40 C.P.C. 8 (B.C.S.C.), where the court said
that the B.C.M.A. fee schedule was a guide to the medical profession and had
“nothing to do with what is a proper fee for an unsuccessful defendant to pay”
(at para. 62).

[50]        
Both submissions are correct, in their way.  The
B.C.M.A. fee schedule is not determinative of the proper amount that ought to
be allowed as a disbursement but, as was noted in Moore v. Dhillon,
[1992] B.C.J. 3055 (S.C.), it is “of some assistance … to know what the medical profession, in
this province, views as a fair, and, presumably, competitive rate, for that
particular service” (at para. 212).

[51]        
In my experience the B.C.M.A. fee schedule can
be somewhat helpful in more straightforward cases, but as the cases become more
complicated and the medical experts more specialized or accomplished its utility
is much less.  Of more relevance, in my view, is the $375 hourly rate charged to
the defendant by Dr. Davis, a psychiatrist, who although he does not have a
dual specialty in psychiatry and neurology like Dr. Hurwitz, does have a
postgraduate specialist degree in both disciplines.  I accept that, all other
things being equal, Dr. Hurwitz could rightly charge a higher hourly rate than
Dr. Davis because of his additional specialty, but the question is whether the
plaintiff has met the burden of showing that Dr. Hurwitz’s hourly rate ought to
be 33% more than that of Dr. Davis.

[52]        
I should say, because it was argued, that I did
not find any assistance in knowing the hourly rate of the neuropsychologist,
Dr. Crockett.  His specialty is really quite different than that of the
medically-trained experts.

[53]        
The plaintiff made much of the unique nature of
Dr. Hurwitz’s qualifications, and submitted that since he is the only one
around with this dual specialty “he is the market”.  But this is
circular reasoning which could be used to justify any rate at all (he charges
this rate, he is the market, therefore it is the market rate and it is ipso
facto reasonable).  It also ignores the alternative avenue of retaining two
experts instead of one very expensive expert.  Counsel for the defendant did
not advance this argument, but it seems to me that a good case might have been
made that the plaintiff ought to be limited in her costs recovery to the
possibly cheaper reasonable alternative of retaining two experts.

[54]        
Although the plaintiff submitted that Dr.
Hurwitz’s dual qualifications avoided the “wasteful” alternative of having to
retain specialists in two different fields, that argument falls rather abruptly
in light of the evidence of the charges of the other medical experts,
neurologists Dr. Cameron ($2,182) and Dr. Robinson ($2,500), and psychiatrists
Dr. O’Shaughnessy ($2,600) and Dr. Davis ($3,850 for his first report),
compared to the $45,000 (exclusive of GST) charged by Dr. Hurwitz for his first
report.

[55]        
For these reasons I have concluded that the
plaintiff has not met the burden of showing that Dr. Hurwitz’s hourly rate is
reasonable.  Doing the best I can on the evidence available I am satisfied that
an hourly rate of $425 is a reasonable one in all the circumstances.

[56]        
For the first report I conclude that fees of
$18,000 (plus GST) are appropriate.  In general, this reflects my conclusions
on the hourly rate, the unproductive and unnecessary clinical records summaries
(though accepting and allowing for time that had to be spent reviewing those
records) and the element of inefficiency due to the lengthy report-creating
process, while accepting the time spent on the examination of the plaintiff and
related interviews (that is, all the time spent prior to February 16, 2005) and
the time that was shown to have been spent on the actual preparation of the
report.

[57]        
For the second report I would allow fees of $9,800,
plus GST, based in general on the elimination of the time spent on the records
summaries (while allowing for time to have been spent reviewing those records)
and the reduction in the hourly rate.

[58]        
 The trial preparation charges I would allow at
$936.25, based solely on the reduction in the hourly rate.  For some reason GST
was not included in the subject invoice and therefore GST is not to be added to
this disbursement.

[59]        
I disallow the “administration and processing”
charges included in the first two accounts.  While it may be an interesting
debate whether these charges should be disallowed because they are part of
overhead (as they usually are with lawyers’ bills) or may be charged in
addition (which, for reasons unknown, is by case authority allowable for receivers
and bankruptcy trustees), I leave the answer to that question for another time
because in this case there is no (or at least, insufficient) evidence to show
what Dr. Hurwitz’s actual costs were or the relationship between the
round-figure charges of $500 and $250 and his actual costs.

E.       Conclusion

[60]        
I allow the following amounts for the
disbursements claimed by the plaintiff for the services of Dr. Hurwitz:

 (a)      for
the work reflected in his account dated October 22, 2005, $18,000 plus GST;

 (b)      for
the work reflected in his account dated February 4, 2008, $9,800 plus GST; and

 (c)      for
the work reflected in his account dated October 5, 2009, $936.25.

“Registrar
Blok”