IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100414

Docket:
M070334

Registry: Vancouver

Between:

Sanaz
Farrokhmanesh

Plaintiff

And

Ishtiyaq
Ali Sahib and Amin Sulfikaralli Shamji

Defendants

Before: District Registrar Sainty

Reasons for Decision

[1]            
This was an application by the plaintiff to
assess her party and party bill of costs presented following settlement of this
action (the “Sahib action”) in which the plaintiff sued the defendant for
injuries suffered by her in a motor vehicle accident that occurred on January
25, 2005.

[2]            
In addition to the motor vehicle accident in respect
of which the plaintiff claims the within costs, the plaintiff was involved in a
second motor vehicle accident on November 18, 2005. The plaintiff commenced a
second action in respect of that action: Farrokhmanesh v. Soaga and others,
B.C.S.C. Vancouver Registry, Action No. M074614 (the “Soaga action”).

[3]            
Mr. Fahey acted for the plaintiff in this
action and in the Soaga action.

[4]            
The plaintiff settled both this action and the
Soaga action for the sum of $42,000, plus costs to be assessed. The plaintiff
settled her costs in the Soaga action for the all in sum of $8,100. The parties
have not been able to come to an agreement in respect of the plaintiff’s costs
in this action. Accordingly, this assessment was taken out. At issue before me
were a number of the tariff items as well as five disbursements.

[5]            
With respect to the tariff items, the main issue
between the plaintiff and the defendants is the defendants’ submission that
there was some duplication of effort on behalf of the plaintiff in respect of
both this action and the Soaga action. Defence counsel therefore submits that,
in accordance with s. 9 of Appendix B of the Rules of Court
relating to costs, I should take into account this “sharing” of the efforts and
apportion the plaintiff’s costs between the two actions.

[6]            
In making these submissions, Ms Weinrath
wished to rely on settlement discussions and correspondence between herself and
Mr. Fahey, counsel for the plaintiff, that detailed, to some extent, how
the costs in the Soaga action were decided. Mr. Fahey vehemently opposed
my reviewing such settlement documentation and, in the end, without making a
formal ruling, I decided that I could deal with this matter without considering
how either party allocated the amount agreed to between them to the particular
tariff items. What I do understand is that the parties agreed to a total of 51
units but I am not privy to how either Mr. Fahey or Ms Weinrath divided
those units.

[7]            
I am not aware of any case law that would assist
me in making my decision as to how I ought to apportion costs between two
actions where the costs of one of those actions have been settled and the costs
of the other remain to be assessed by a registrar. I am, however, guided in my
decision-making by s. 9 of Appendix B of the Rules of Court which
provides:

Where 2 or more proceedings have, by order,
been tried at the same time or tried one after the other and no order has been
made as to apportionment of costs, the registrar may

(a)        assess 2 or more bills as one
bill,

(b)        allow an item once or more than
once, or

(c)        apportion the costs of an item
or of the whole bill between the proceedings.

[8]            
In my view I ought to somehow apportion the
costs between the two actions taking into consideration the work, and based on
the evidence before me, that was done in relation to each of them.

[9]            
At the hearing, Mr. Fahey confirmed (and
this was contained in the affidavit of his assistant, Ms Wong, filed March
16, 2010) that the Sahib action (this action) was the “main file” at the firm. Mr. Fahey
said that he always opens a separate file in respect of each accident in which
a client has been involved but that he usually treats one of those actions (usually
the one commenced in relation to the first accident) as the “main” action and
that most of the correspondence and work relating to both actions is carried on
in the file opened in respect of that first accident.

[10]        
However, how Mr. Fahey deals with his
client’s files is not, in my view, something that is germane to my decision. What
I germane is: what was the amount of work that ought to have been required for
this particular file taking into account that there would have been some
economies of scale given that two actions were ongoing?  In my opinion, the
appropriate way to assess these costs is to consider the actual work done and,
keeping in mind that there was some overlap/duplication, award the plaintiff
units based on the work done in relation to this action.

[11]        
Before considering the disputed tariff items, I
note that the parties have agreed that units ought to be awarded for certain of
the tariff items as follows:

a.         Item14(a): 2 units;

b.         Item 14(b): 3 units;

c.         Item 15(a): 4 units;

d.         Item 15(b): 5 units;

e.         Item
34: 5 units.

[12]        
I will therefore award the plaintiff those
numbers of units for those tariff items.

[13]        
Turning now to the disputed items, the first
disputed item is Item 1A. That item is awarded for:

Correspondence,
conferences, instructions, investigations or negotiations by a party until the
commencement of the proceeding, for which provision is not made elsewhere in
this tariff.

The range of
units that I may award for this Item is 1 to 10.

[14]        
Section 3(3) of Appendix B of the tariff
provides that:

In assessing costs where the Tariff
indicates a range of units, the registrar shall have regard to the following
principles:

(a)        one unit is for matters upon
which little time should ordinarily have been spent;

(b)        the
maximum number of units is for matters upon which a great deal of time should
ordinarily have been spent.

[15]        
In assessing this item (and all of the other
tariff items) I must consider where this case falls in the spectrum of cases
that comes before this court. By that I mean that, in deciding the appropriate
number of units, I must compare this case to all of the other cases that come
before the court, not simply all other personal injury actions, and award units
based on how much time ought to have been spent on this particular action.

[16]        
This was a motor vehicle accident claim. I was not
advised that liability was in issue. The plaintiff sustained a shoulder injury
in the accident as well, I believe, as some other soft-tissue injuries. However,
the major injury that she suffers from appears to be depression. There was some
evidence before me that the depression might be the result of some non-accident
related matters: a treatment for cancer shortly before the accident; and, after
the accident occurred but before the action was commenced, the breakdown of her
marriage (although the plaintiff claimed this latter happening was partly
because she suffers from depression as a result of the accident).

[17]        
The accident occurred in 2005. The writ of
summons and statement of claim were filed in 2007. That length of time, in and
of itself, indicates to me that there was some amount of correspondence,
conferences, instructions, investigations or negotiations undertaken before the
proceedings were commenced.

[18]        
The plaintiff has claimed 5 units in respect of
this item. The defendant suggests that 3 is more appropriate. I do believe that
the items undertaken in respect of this action were separate and apart from
those undertaken in the Soaga action. However, based on the evidence before me,
I conclude that, prior to the commencement of the proceedings somewhat less
than an average amount of time would have been required. Accordingly, I allow 4
units for this item.

[19]        
Item 1B is for:

Correspondence,
conferences, instructions, investigations or negotiations by a party after the
commencement of the proceeding to the completion of the trial or hearing, for
which provision is not made elsewhere in this tariff.

The minimum number of units is 10 and the
maximum is 30. The plaintiff has claimed 15 units. The defendants suggest that
10 is more appropriate.

[20]        
This is definitely an item in respect of which
the provisions of s. 9 of the tariff ought to come into play. There would
have been economies of scale and some sharing in respect of the correspondence,
conferences, instructions, investigations or negotiations undertaken by the
plaintiff after the proceedings were commenced up to the time the actions were
settled between this action and the Soaga action.

[21]        
If I were assessing the Soaga action and this
Sahib action together, I likely would have only allowed Item 1B only once (per
s. 9(b) of Appendix B) and then assessed the appropriate number of units
based on looking at both files and considering the work undertaken in respect
of them both to determine the requisite number of units that might be awarded. Had
I been asked to assess the costs of both the Soaga action and this action
together, I likely would have awarded something less than 20 units in total
between the two actions as I do not believe, where two matters are heard at the
same time, that I must award, in respect of each of them, the minimum number of
units set out in the tariff. However, here the defendants have suggested that
10 is the appropriate award in respect of this matter and, on that basis, I
will award the plaintiff 10 units in respect of Item 1B, keeping in mind that
the parties likely attributed 10 units to this item in the settlement of the
plaintiff’s costs in the Soaja action.

[22]        
Item 3 relates to “all process, for which
provision is not made elsewhere in this tariff, for commencing and prosecuting
a proceeding”. It is for the pleadings – here the writ of summons and statement
of claim. The amount claimed is 5. The defendants suggest that 3 is more
appropriate particularly as they say the pleadings were to some extent “boiler
plate”. While I agree that in relation to motor vehicle accident claims, the
types of claims put into pleadings are for the most part boiler plate, there is
still a fair degree of consideration of what part of the boiler plate one puts
in. In Parrotta v. Bodnar (2006 BCSC 787) I allowed three units for a
similar set of pleadings. I would allow the same number here.

[23]        
Item 8 has been claimed at 7 units. It relates
to the “process for giving discovery and inspection of documents”. For matters
where 1 to 999 documents are disclosed, the range of units is 1 to 10. This was
not a document intensive case. The “usual” types of documents that one might
expect on a personal injury matter were disclosed (medical records, some
employment records, police reports and so on).

[24]        
In his submissions, Mr. Fahey told me that
he often lists bundles of documents under one particular item on a list of
documents and suggested that the plaintiff should somehow receive “credit” for
a greater number of documents (pages) and that I ought not to base the units
here strictly on the number of documents listed in her lists of documents. The
reference in the tariff to units awarded for numbers of documents disclosed
relates to the number of actual documents listed. It does not relate to the
number of pages that make up the various documents listed on the list of
documents. I do not think any special skill or effort went into the document
discovery in this case and, accordingly, I would award 4 units for this process. I
do so keeping in mind that the plaintiff has failed to claim anything under
Item 7 which is for “process for obtaining discovery and inspection of
documents”. Had that item been claimed, I would have allowed two units for it
and two units under Item 8.

[25]        
Item 13A has been claimed at 5 units. That
tariff item is for “all process and correspondence associated with retaining
and consulting all experts for the purposes of obtaining opinions for use in
the proceeding”. The plaintiff retained five experts, although the defendant
suggests that four would have been a more appropriate number. I will deal with
that issue (whether four or five experts was more appropriate) when I deal with
the issue of disbursements in this matter.

[26]        
As I mentioned earlier, in assessing the
plaintiff’s costs in this action, I must compare it to all other actions that
come before the court. The range of units allowable for Item 13A is 1 to 10.
Ten is the maximum, regardless of the number of experts retained and the type
of expert opinion sought/given. This was not a significant claim in that it
settled for the sum of $42,000. I say this knowing that matters settle for a
variety of reasons and that the settlement number is not necessarily indicative
of the overall “value” of the case had it proceeded to trial. Here the experts
all gave opinions on the plaintiff’s health issues. This was not a case that
required expert evidence on complex financial or engineering issues (as is the
case with some of the cases that come before this court). All in all the
experts were the “usual” experts that I might have expected to see in a matter
of this nature. I think the 5 units claimed here is slightly on the high side
and I will reduce the units allowed for Item 13A to 4 units.

[27]        
At the hearing, Ms Weinrath raised the
plaintiff’s right to claim Items 20 and 21 (for the preparation for and
attendance at this hearing). I advised her that, in my view, if the matter
proceeded before me then the plaintiff was entitled to claim her costs for
preparing and attending in respect of this assessment and that these items (20
and 21) were items in respect of which I had no discretion (i.e. if an assessment
proceeded before a registrar, the party bringing the application for assessment
was automatically entitled to his or her costs in relation thereto). I also
confirmed to Ms Weinrath that, if the plaintiff is “unsuccessful” on this
assessment, I would then look to the provisions s. 10 of Appendix B
(dealing with offers to settle costs) and s. 57(14) (costs arising from improper
acts or omission) in determining whether or not the plaintiff’s right to claim
Items 20 and 21 ought to be offset by some costs to the defendants in relation
to its defence of this assessment.

[28]        
Accordingly I will allow the plaintiff her costs
relating to preparation and attendance in respect of this assessment. On her
bill of costs, the plaintiff claimed 2 units (the full day rate) for
preparation (Item 20) and 2 units (the half day rate) for attendance (Item 21).
Although only set before me for a half day, the matter continued into the
afternoon. Therefore, the plaintiff is entitled to the full day rates with
respect to both items and I will award 2 units for Item 20 and 4 for Item 21.

[29]        
The plaintiff claimed 1 unit for Item 30(a)
being “process for setting down proceeding for trial”. I recall that the
defendants disputed the plaintiff’s entitlement to claim this Item. However, in
reviewing the court file in connection with this action I came across a Notice
of Trial filed by the plaintiff on August 26, 2007. Accordingly, I will allow
the plaintiff to claim her costs (1 unit) relating to filing it.

[30]        
The plaintiff seeks 1 unit for Item 31: “process
relating to entry of an order or a certificate of costs when Item 21 or 34 does
not apply”. Mr. Fahey told me that this was a “prospective” claim in that
he anticipated filing a certificate of costs after this matter concluded. I am
aware that in most instances in this province where the defendants are insured
by the Insurance Corporation of British Columbia, once the issue of costs has
been determined, the Insurance Corporation does not require a certificate of
costs in order to pay those costs. Accordingly I will not allow this item at
this point in time. However, if the plaintiff’s costs are not paid within 30
days of the release of these reasons for decision, the plaintiff may send me an
affidavit confirming that and I will then issue a certificate in the amount of
costs awarded in these reasons plus one additional unit for this Item (plus GST
and PST).

[31]        
Item 38[1]
is the last tariff item claimed on the bill of costs for “attendance to speak
to trial or hearing list”. I was not satisfied on the evidence before me that
the plaintiff did any such thing and accordingly I will not allow this item.

[32]        
To summarize, the plaintiff is entitled to a
total of 51 units:

[33]        
The costs are to be assessed at Scale B which is
$110 per unit. Thus the plaintiff is awarded costs of $5,610, plus GST of 5% ($280.50)
and PST of 7% (392.70) for total tariff item costs of $6,283.20.

[34]        
I now turn to the issue of disbursements. For
the most part, the parties were in agreement with respect to the disbursements.
However five disbursements are in issue:

1.         Two MRI scans done of the
plaintiff at CMI (Canadian Magnetic Imaging) in the amount of $975 each (plus
$164.55 in interest charges on each of the scans) for a total claim of
$2,279.10;

2.         Photocopying costs in the amount
of $0.25 per page for 3,121 pages for a total amount claimed of $780.25;

3.         Medical-legal report by Dr. Joy,
a psychologist, costing $3,937.50;

4.         $120.50 paid by the plaintiff to
order reasons for judgment in respect of a chambers application made by the
defendant for document production at which the plaintiff’s counsel did not
attend;

5.         A
prospective amount ($31) for filing a certificate of costs.

[35]        
In regards to the last item, in the same manner
that I have declined to award the plaintiff her tariff costs for filing a
certificate of costs, I will also disallow the disbursement, with the proviso
(as set out above) that, if the defendants fail to pay the plaintiff’s costs
herein within 30 days of the date of release of these reasons for decision, the
plaintiff may forward me an affidavit noting same, and a certificate for
signature by me containing the costs awarded hereunder plus the tariff item for
filing the certificate as well as this filing fee.

[36]        
In regards to the MRI scans, in his affidavit in
support of this assessment Mr. Fahey says (at para 10):

The plaintiff
claimed damages herein as a result of injuries she sustained to both her neck
and trapezius (shoulder area). Her symptoms persisted for years after the
accident and were continuing when I made arrangements to have the plaintiff
undergo magnetic imaging. I wanted to obtain the best possible imaging in order
to ascertain the nature and extent of the plaintiff’s injuries and to uncover
objective evidence of injury.

[37]        
He continues (at paras. 12):

I ordered the scans because in my view
presentation of my client’s claim required it. The plaintiff had been off work
for a long time and had continuing complaints. These pain symptoms were also
causing significant depression. I knew the fact of whether or not there were
objective signs of injury as opposed to only subjective complaints was going to
be an important issue at trial and thus I ordered the scans to obtain evidence
going to this issue.

I knew when I
ordered the scans that upon resolution of the subject claims the client would
likely be required to sign a release thereby ending her ability to make any
further claim for damage, on a permanent basis, to her neck and shoulder. Knowing
this and the fact I was responsible for giving advice to the plaintiff
regarding her injury and damages and the release, I ordered the scans to ensure
there was no latent injury not previously uncovered. This was one of the
reasons I ordered the scans. The plaintiff herein was going to forever give up
her right to sue in connection with these injuries and thus it was my view that
it was important to have the scans undertaken. In fact it was a term of the
settlement herein that the plaintiff sign an ICBC form of release.

[38]        
The test for determining whether a disbursement
ought to be allowed 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”. (Van
Daele v. Van Daele, [1983] B.C.J. No. 1482; 56 B.C.L.R. 178 (C.A.)
(at para. 109))

[39]        
The provisions of Rule 57(4) of the Rules of
Court relating to the Registrar’s discretion to award disbursements are
broad. In general:

The registrar
must consider all of the circumstances of each case and determine whether the
disbursements were reasonably incurred and justified. He must be careful to balance
his duty to disallow expenses incurred due to negligence or mistake, or which
are extravagant, with his duty to recognize that a carefully prepared case
requires that counsel use care in the choice of expert witnesses and examine
all sources of information and possible evidence which may be of advantage to
his client. (see Bell v. Fantini (1981), 32 B.C.L.R. 322 (S.C.)) at para. 23.))

[40]        
Mr. Fahey submits that this latter
statement affords counsel a wide latitude to decide which experts he ought to
use to best present his client’s case and that here, as he believed MRI’s were
necessary for the proper presentation of the plaintiff’s case I ought not to
look behind his decision as it was a decision made by a careful counsel wanting
to “examine all sources of information and possible evidence that might be of
advantage to his client”. On that basis he says I ought to allow this
disbursement provided that it was not extravagant or incurred as a result of
negligence or mistake.

[41]        
In response, Ms Weinrath says that the
MRI’s were “extravagant” and ordered as a result of “excessive caution or
excessive zeal”. She submits that, to be claimable as a cost there must be some
medical evidence supporting the view that an MRI is necessary. Dr. Hill,
an orthopaedic surgeon, was the only doctor to comment on the issue of
diagnostic tools specifically. He first noted that the plaintiff had soft
tissue injuries and suggested that her ability to recover was being affected by
her unresolved psychological and emotional issues. In his report Dr. Hill
notes “I do not anticipate that she will require any specific surgical
intervention with respect to her injuries, and I do not believe that she
requires any further diagnostic initiatives” (from his report dated July19,
2008). There is no suggestion that an MRI was necessary or warranted.

[42]        
Ms Weinrath further submits that by
personally deciding that MRI scans might be beneficial (rather than relying on
medical evidence suggesting an MRI is necessary) counsel for the plaintiff is
veering into purview of the medical profession, something that it is improper
for him to do. In this regard, Ms Weinrath relies on two decisions of Registrar
Blok. The first of those is Phelan v. Newcombe, 2007 BCSC 714 where (at paras. 16
and 17) in denying a claim for an MRI disbursement, the learned registrar says:

…In general, disbursements that are
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.

I should add
that the mere fact that a physician has recommended that an MRI scan be done
will not guarantee its recovery as a disbursement. For the most part,
diagnostic imaging will be a medical matter (and any private medical costs
would fall under special damages) and its rule as an aid in litigation will be
relatively narrow.

[43]        
The second decision relied on is Ward v. W.S.
Leasing Ltd. et al. 2007 CarswellBC 1396, wherein, in dealing with an MRI
scan claim, Registrar Blok says (at para. 14):

In my view there
must be some judgment applied, perhaps with medical input, in considering the
necessity for the procedure in a litigation context, given the injuries
involved, the likely damages, what the MRI is expected to achieve from a
litigation standpoint, and so on. There is no proper basis on which I can
conclude that the MRI’s were necessary, at the time they were ordered, in this
particular case.

[44]        
I am going to disallow the claim for
reimbursement for the two MRI scans. I cannot accede to Mr. Fahey’s
argument that simply because he, as counsel, thought it was necessary to obtain
MRI scans I ought not to question that decision unless I find it to be
extravagant or overly zealous. In my view, and I am going to expand on what
Registrar Blok held in Ward v. W.S. Leasing Ltd., to be allowed as a
necessary and proper disbursement, there must be some medical reason for
ordering an MRI. It is not simply enough that counsel seeks some (potential) objective
evidence of an injury. Nor is it enough that counsel wishes to ensure that
there is no latent injury such that his client might sign the standard release
required. There is always a risk in personal injury litigation that a new
injury or an injury that has not yet been determined might be found following
settlement. That is simply a risk of litigation and a risk of settlement.

[45]        
I am not satisfied on the evidence before me
that costs of the MRI scans were necessarily or properly incurred in the
conduct of the proceeding and I will not allow them.

[46]        
Mr. Fahey made a claim for interest on the fees
for the MRI scans. As I have not allowed the costs of those scans, I do not
have to decide the issue of whether the defendant ought to reimburse the
plaintiff any interest paid by her on such disbursements.

[47]        
Next I turn to the issue of Dr. Joy’s fees.
Mr. Fahey engaged the services of both Dr. Joy, a psychologist, as
well as Dr. Sehon, a psychiatrist. Ms Weinrath submits that it was not
necessary or proper to retain both Dr. Joy and Dr. Sehon and that one
of them could have provided the expert evidence required. In fact, she told me
that she could just as easily have made her submissions in relation to Dr. Sehon’s,
rather than Dr. Joy’s, fees.

[48]        
In his affidavit in support of the plaintiff’s
bill of costs, Mr. Fahey deposes:

3.         I retained Dr. T. Sehon to
prepare psychiatric opinion evidence. I retained Dr. Joy for a
psychological opinion. I retained both experts because as counsel I believed my
client’s case required it. This was my belief because:

A.         The
mental/emotional problems were a significant issue and the matter was
complicated.

B.         The
Psychiatrist and the Psychologist bring different perspectives and analyses to
bear and I had not decided whether to use one, both, or neither of them.

C.        I
may have used Dr. Sehon for preparation of my cross of the defence expert
or for rebuttal purposes only.

D.        I
know Dr. Joy to be a very polished and strong expert witness with many
years of experience. I have reviewed the cases where is mentioned and courts
have typically agreed and relied on his testimony. His opinions in my
experience are very well written, are comprehensive, and he is objective.

E.         At the time I
ordered the reports, I anticipated making future care awards for medicine and
psychotherapy. Dr. Joy cannot prescribe and thus would not be in position
to give opinions in this regard. Dr. Joy would be in a position to opine
regarding the need for psychotherapy and the costs thereof. The therapy offered
by Psychiatrists, in my experience, is drug therapy and possible referral to
psychotherapy.

F.         At the time
these investigations were requisitioned, the precise nature of the depression
and psychological upset and the treatment plan was not established. As counsel,
I believed I needed to have the plaintiff investigated by these experts to
effectively present her claims and to respond to the defence expert.

[49]        
As I noted above, Ms Weinrath suggested that Dr. Joy’s
and Dr. Sehon’s work was duplicative in nature and that there was no
particular reason for employing both a psychologist and a psychiatrist. In
support of her argument, she took me through both experts’ reports. Both Dr. Joy
and Dr. Sehon diagnosed the plaintiff as having a pain disorder. Dr. Sehon
also thought the plaintiff had sustained a “major depressive disorder” while Dr. Joy
felt that she had “anxiety and depressive symptomology”. Both Dr. Joy and Dr. Sehon
used the same diagnostic tools (the DSM-IV-TR) in coming to their conclusions. Both
doctors also performed similar testing including the Beck Depression Inventory
2^nd Edition in assessing Ms Farrokhmanesh.

[50]        
In response to Mr. Fahey’s suggestion that
the report of Dr. Sehon was required in order to have “matching experts” (the
defendants had retained Dr. O’Shaunessy, a psychiatrist), Ms Weinrath argued
that it is not necessary to have matching experts to bring forward a particular
claim, as each expert is an expert in his or her own right and can opine on his
or her own areas of expertise.

[51]        
As for the issue of psychotherapy, Ms Weinrath
submitted that psychiatrists frequently engage in psychotherapy. Further, as
regards to Mr. Fahey’s submission that Dr. Sehon was required to
prescribe drug therapy Ms Weinrath noted that the plaintiff was being
prescribed drugs by her family physician and suggested that there was therefore
no requirement to have Dr. Sehon available as a prescriber.

[52]        
I am not convinced, on the evidence before me,
that it was necessary and proper to hire both experts given that their
expertise clearly overlaps and each used similar methodology in assessing the
plaintiff. The plaintiff saw both Dr. Joy and Dr. Sehon in July 2008.
There was no reason, in my view, to have the plaintiff assessed by both, except
to some extent, to do some “doctor shopping” (and in saying so I mean no
disrespect to Mr. Fahey’s decision to have the plaintiff seen by both Dr. Joy
and Dr. Sehon). My view is bolstered by the fact that, at the time that
both experts were retained (or at least at the time their reports were ordered),
the plaintiff had not yet seen Dr. O’Shaunessy (and certainly his report
was not available) and thus Mr. Fahey’s concerns over having an expert who
could “match” Dr. O’Shaunessy were unfounded.

[53]        
I find that is was not necessary or proper to
have two experts engaged in a similar assessment at the time these experts were
retained and, accordingly I disallow the claim for the expert report and fees
charged by Dr. Joy in the amount of $3,937.50.

[54]        
As to the photocopy costs, by Notice to the
Profession dated August 18, 2003, Master McCallum (as Registrar of the Supreme
Court) noted that, on a party/party bill of costs, charges for photocopying are
to be allowed at $0.25 per page (hence the term “registrar’s rates”). That
Notice to the Profession also notes:

Counsel are
reminded that these amounts are guidelines only. If it is shown that the actual
costs was, or should have been, different from the guideline charges then the
amounts allowed on as assessment may differ from the guideline amounts.

[55]        
Ms Weinrath argues I ought to allow the copies
at something less than the “registrar’s rate” of $0.25 per page. In support of
her argument, Ms Weinrath presented a comprehensive affidavit from Ms Tara
Balla, an assistant in the ICBC Claims Legal Services Department. In her
affidavit, Ms Balla deposes to having contacted a number of vendors offering
bulk photocopying services at significantly less than the $0.25 per page
registrar’s rate. That affidavit also attempts to quantify the “in-house” costs
to ICBC of photocopying done by its staff. On the basis of that affidavit, Ms
Weinrath submits that the charges for photocopying on the plaintiff’s bill of
costs are excessive.

[56]        
Mr. Fahey, on the other hand, says that the
photocopying was done and, as such, it ought to simply be allowed at the registrar’s
rates of $0.25 as there is no reason to deviate from that rate. To counter Ms
Weinrath’s argument, Mr. Fahey submitted an affidavit sworn by Maria Wong,
a paralegal in his office. In her affidavit, Ms Wong deposes:

11.       In answer to the defendants
assertion that a professional copy company and a large corporation such as ICBC
can make copies at a lower cost than Mr. Fahey I say that this is true. In
fact in Mr. Fahey’s practice we regularly send out large copy orders to
service providers. This is only practical for large orders and there is a cost
savings where the copy work is simple.

12.       For the following reasons it is
generally impractical to send out smaller copy orders – such as orders in the
Sahib action:

A.         With many files and a multitude
of document requests over several years it is impractical and not cost
effective to send out repeated orders. It would also increase the risk of lost
documents and thus liability.

B.         Tracking all the client
documents would necessitate extra systems and staff time and there would be
associated courier charges.

C.        There are important
confidentiality concerns with sending documents out to service providers. The
majority of the copies in the Sahib action were medical records containing
potentially embarrassing information.

13.       In my experience the per page
quotations provided by the defendants are the lowest possible charges. This
would be for straight forward single sided pages that can simply be fed into a
machine. Many of the records and documents copied in personal injury cases and
indeed in this case are not simple in nature. Often I am required to copy hand
written notes, small receipts and invoices, odd shaped pages and pages stapled
together with notations on both sides. Often medical records and income tax
returns are double sided.

. . .

15.       The
copies claimed for in the Sahib action were not all made at one time. They were
made over several years at different intervals and relate to client copies of
letters, medical records and pleadings etcetera. It would be completely
impractical to send each copy job to an outside service provider and cost more
in staff time and courier charges.

[57]        
I agree with the plaintiff that it is
impractical to send all copy jobs out to an independent service provider. I
also agree that the rates set out in Ms Balla’s affidavit are based on large
so-called “bulk” copying jobs. Further, I believe that, as a large institution,
the defendant is able to produce copies at a much lower rate than someone like
plaintiff’s counsel who does not have the same buying power or resources
available to him as ICBC. I am satisfied that the cost of the copies to the
plaintiff was at least equal to registrar’s rates and I will allow the copies
here at that rate ($0.25 per page).

[58]        
As I am required to do, I must consider not only
the rate at which to allow photocopies, but also the number of photocopies recorded
to this matter and whether the amount of copies claimed was reasonable in the
circumstances. In my view, the number claimed (3,121) is not outside the number
that I might have expected to see in a case of this nature. It is possible that
some of the copies made were sent to the client and therefore not considered
“necessary or proper” for the purposes of the litigation. However, I am
certainly aware that significant photocopying was done for this process after the bill
of costs was prepared. I am therefore satisfied that the plaintiff should recover
her costs for 3,121 copies at $0.25 per page (or $780.50).

[59]        
As for the Reportex fee for the reasons for
judgment, I was not convinced on the evidence that it was reasonably necessary
and proper for the conduct of the proceeding for the plaintiff to order (and
for the defendant to pay for) those reasons for judgment. In support of the
plaintiff’s claim for this amount, Mr. Fahey suggested that it was
important for his client to understand the judge’s decision and that was a
reason to order the reasons. In my opinion, and I agree with Ms Weinrath in
this regard, it would have been sufficient for the plaintiff to simply be given
a copy of the judge’s order. If the plaintiff had issues regarding why or how
matters had been determined, she could have asked Mr. Fahey for an
explanation and, competent counsel that he is, he could have provided same. If
the plaintiff still had issues (and that is not the evidence here) it might then
have been necessary and proper to order a copy of the reasons.

[60]        
I have now dealt with all of the disbursements. I
was not quite clear at the hearing exactly what were the amounts of the
remaining disbursements that were agreed to between the parties. For that
reason, I am unable to set out in these reasons for decision the final amount
to be paid by the defendants to the plaintiff for her costs.

[61]        
I will leave it to the parties to work out the
numbers and if they are unable to do so this matter may be reset before me for
further consideration and calculation.

[62]        
Finally, as I noted earlier, there were also
(perhaps) considerations to be given to offers to settle costs about which I
have no specifics. If either party wishes to address me regarding any such
offers to settle costs, they may set this matter before me for further argument
on that issue.

“District Registrar Sainty”