IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101215

Docket: M070334

Registry:
Vancouver

Between:

Sanaz
Farrokhmanesh

Plaintiff

And

Ishtiyaq Ali
Sahib, Amin Zulfikaralli Shamji

Defendants

Before:
The Honourable Mr. Justice Ehrcke

Reasons for Judgment

I.                
Introduction

[1]            
This is an application, brought by a Notice of Motion signed by Mr. Boyar
as solicitor for the plaintiff. At the hearing, Mr. Boyar appeared along
with Mr. Berardino, Q.C., who presented the oral argument. The application
is to review the assessment of costs of District Registrar Sainty dated April
14, 2010, reported at 2010 BCSC 497 (the “Decision”).

[2]            
In her Decision, the Registrar disallowed two of the plaintiff’s
disbursements, namely, MRI scans in the amount of $2,279.10, and a medical
legal report prepared by a psychologist, Dr. Joy, in the amount of
$3,937.50.

[3]            
The applicant submits that these two disbursements ought to be allowed. The
defendants submit that the decision of the Registrar should not be disturbed.

[4]            
The defendants also raise an additional point. They submit that the
present application offends the rule against champerty, as they suspect that
this application for review is being funded by strangers to the litigation.

II.              
Facts

[5]            
The plaintiff was involved in two motor vehicle accidents, one on
January 25, 2005 and the other on November 18, 2005. Matthew Fahey acted as
counsel for the plaintiff in both actions.

[6]            
Prior to trial, the plaintiff settled both actions for $42,000, plus
costs to be assessed. The costs of the second action were settled for $8,100,
but the parties could not agree on the costs of the first action, so they went
before District Registrar Sainty on March 22, 2010 for an assessment.

[7]            
At that hearing, Mr. Fahey filed an affidavit in which he explained
his understanding of the agreement between the plaintiff and CMI (Canadian
Magnetic Imaging), the company that performed the MRIs. He deposed at para. 8:

8. I am advised by Mr. T.
Cherniak that the agreement between the plaintiff herein and CMI is that if
there is no recovery, on account of damages or costs, under her claim then CMI
waives payment for the scans. In this case the plaintiff has recovered sums and
is obligated to pay the CMI accounts with interest.

[8]            
He also deposed at para. 9 that he understood CMI required a
requisition from a physician before they would perform an MRI, and in this
case, CMI wrote the physician for clarification as to which areas were to be
scanned. The doctor provided that clarification, and the scans were performed
accordingly.

[9]            
Mr. Fahey explained his reasons for ordering the MRI at paras. 11-14:

11. I have been practicing personal injury law for
approximately 19 years and in my experience defendants typically argue that
there are no objective signs of injury and thus one must believe the plaintiff
and then argue that the plaintiff is not credible for whatever reason. I
anticipated this approach in the claim herein. I was unaware of the plaintiff
exhibiting any objective signs of injury when I ordered the MRI scans. I
thought the scans may show objective injury including, but not limited to, a
cervical disc injury and/or a muscle tear in the trapezius area. In my
experience these injuries often show up with magnetic scans but do not show up
on traditional x-rays or CT scans.

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.

13. 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.

14. The scan findings were relied
upon by me in giving advice to the plaintiff regarding settlement and were
relied upon by the plaintiff in consideration of the strength of her case and
were very useful in this regard. After the scans were done and the reports were
reviewed the plaintiff and I had a much better sense of her case and the
litigation risk.

[10]        
The plaintiff was diagnosed with cancer shortly before the accidents and
suffered from depression as a result. Her husband left her after the accidents.
Although the plaintiff attributed the breakdown of her marriage to depression
caused by the injuries she suffered in the accidents, Mr. Fahey
anticipated that he would have to address a defence argument that her condition
was caused by events unrelated to the accidents.

[11]        
Mr. Fahey retained a psychiatrist, Dr. Sehon to prepare a
psychiatric opinion. He also retained a psychologist, Dr. Joy for a
psychological opinion. Subsequently, the defence retained Dr. O’Shaughnessy
to prepare an opinion.

[12]        
At para. 3 of his affidavit, Mr. Fahey explained why he
retained both a psychiatrist and a psychologist. He said:

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 he is mentioned and courts have typically agreed and relied
upon his testimony. His opinions in my experience are 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 prescription drugs and thus would not be in a
position to give opinions in this regard. Dr. Joy would be in a position
to opine regarding the need for psychotherapy and the cost 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.

III.            
The Registrar’s Decision

[13]        
At issue on the Registrar’s hearing were a number of tariff items and
five disbursements, including the costs of the MRIs and of Dr. Joy’s
medical legal report.

[14]        
The Registrar gave extensive reasons for disallowing the costs of the
MRIs. At paras. 36-37 of her Decision, she quoted extensively from the
affidavit of Mr. Fahey. She went on at paras. 38-43 to review the
relevant case law and the submissions of both parties. She then decided on the
basis of the law, the evidence, and the submissions of counsel that the claim
for the MRIs should be disallowed. She concluded at paras. 44-46:

[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.

[15]        
The Registrar next turned, at para. 47, to the issue of the fees
for Dr. Joy, the psychologist who had been retained by Mr. Fahey in
addition to the psychiatrist, Dr. Sehon. The issue was whether it was
necessary or proper to retain both experts on the facts of this case. At para. 48,
the Registrar reviewed the affidavit evidence of Mr. Fahey as to his
reasons for retaining both experts.

[16]        
At paras. 49-53. the Registrar considered the submissions of
counsel and found that it was not necessary or proper to retain Dr. Joy in
light of the work that had been done by Dr. Sehon, and she disallowed that
disbursement. She said:

[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 2nd 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.

IV.           
Standard of Review

[17]        
In Frost v. Frost (1940), 56 B.C.R. 30 (C.A.), the Court of
Appeal discussed the proper standard on a review of a registrar’s decision on
assessment of costs:

Historically the matter seems to stand thus: It was always
the law in England that it was not for the Court to interfere on a review of
taxation except where the taxing master had gone wrong on a matter of
principle. In Ginn v. Robey, [1911] WN 28, this is clearly laid down by
the Court of Appeal, reversing Bucknill, J. who had reversed the taxing
master’s order allowing fees to two counsel. The Court of Appeal stated:

It was a question which the taxing master was much better
qualified than a judge to decide and prima facie the Court would not
interfere in such a case.

[18]        
This standard of review was applied in Bell v. Fantini (1981), 32
B.C.L.R. 322 (S.C.), where Legg J. said at p. 326:

I have examined the registrar’s decisions
on the basis that the court should rarely interfere with a taxing officer’s
ruling if appears that he understood the governing principle in reaching his
conclusions…

[19]        
More recently, Frost was applied in Wood v. Kabaroff, 2006
BCSC 1391.

[20]        
I accept that those cases set out the appropriate standard of review.

V.             
The Rules regarding Costs and Disbursements

[21]        
The Registrar’s Decision was rendered before the new Rules of Court came
into effect. The former Rule 57(2) and (4) provided:

57 (2) On an assessment of party and party costs, the registrar
shall allow those fees under Appendix B that were proper or reasonably
necessary to conduct the proceeding,

…

(4) In addition to determining the fees that are to be
allowed on an assessment under subrule (1) or (3), the registrar must

(a) determine which expenses and
disbursement have been necessarily or properly incurred in the conduct of the
proceeding, and

(b) allow a reasonable amount for those expenses and
disbursements.

[22]        
The current rule is similar. Rule 14-1(2) and (5) now provides:

14-1 (2) On an assessment of party and party costs under
Appendix B, a registrar must:

(a) allow those fees under Appendix
B that were proper or reasonably necessary to conduct the proceeding, and

(b) consider Rule 1-3 and any case
plan order.

…

(5) When assessing costs under subrule (2) or (3) of this
rule, a registrar must:

(a) determine which expenses and
disbursements have been necessarily or properly incurred in the conduct of the
proceeding, and

(b) allow a reasonable amount for those disbursements.

[23]        
One difference between the former rules and the current rules is that
under the current Rule 14-1(2)(b), the Registrar is specifically directed to
consider Rule 1-3, which provides:

1-3 (1) The object of these Supreme Court Civil Rules is to
secure the just, speedy and inexpensive determination of every proceeding on
its merits.

(2) Securing the just, speedy and inexpensive determination
of a proceeding on its merits includes, so far as is practicable, conducting
the proceeding in ways that are proportionate to

(a) the amount involved in the
proceeding,

(b) the importance of the issues in
dispute, and

(c) the complexity of the proceeding.

[24]        
The new rules thus explicitly require the Registrar to consider
proportionality. Even under the former rules, however, the case law made it
clear that the Registrar was required to assess whether a given disbursement
was extravagant or the result of excessive caution or zeal. In making that
determination, a consideration of proportionality would inevitably be involved.

[25]        
In Bell v. Fantini, Legg J. observed that in exercising the wide
discretion given under rule 57(4) to disallow disbursements, to the Registrar
must consider all the circumstances. He said at p. 327:

I consider that Rule 57(4)
entitles the registrar to exercise a wide discretion to disallow disbursements
in whole or in part where the disbursements appear to him to have been incurred
or increased through extravagance, negligence or mistake or by payment of
unjustified charges or expenses. The registrar must consider all the
circumstances of each case and determine whether the disbursements were
reasonably incurred and were 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.

[26]        
In Van Daele v. Van Daele (1983), 56 B.C.L.R. 178 (C.A.) the
Court of Appeal held that the circumstances must be judged at the time that the
expense was incurred. McFarlane J.A. wrote at p. 180:

There, in my opinion, lies the
error of principle into which Meredith J. 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.

[27]        
In McKenzie v. Darke, 2003 BCSC 138, Registrar Horn distinguished
between the words “necessary” and “proper” in Rule 57(4). He wrote at paras. 17-18:

[17]      Rule 57(4) provides that necessary or proper
disbursements and expenses shall be allowed.

[18]      There is a difference
between a disbursement which is necessary and a disbursement which is proper. 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 purposes of the
proceeding. (For these propositions, see Fraser & Horn, Conduct of Civil
Litigation in British Columbia ss. 28.28 and 28.30).

VI.           
The Cost of the MRI

[28]        
The applicant submits that the Registrar erred in disallowing the cost
of the MRIs when Mr. Fahey had deposed at paras. 10-14 of his
affidavit that he exercised his judgment and believed the MRIs to be reasonable
or necessary.

[29]        
It is not, however, an error in principle for the Registrar to disallow
a disbursement that counsel has said was justified. In Bell v. Fantini,
Legg J. observed at p. 327 that the Registrar was not bound to accept
counsel’s opinion:

The registrar is not bound to
accept an affidavit of counsel that in counsel’s opinion the employment of the
expert or the incurring of the expense was justified or that it was necessary
for the attainment of justice when the registrar is considering allowing or
disallowing the disbursement under this rule. He should give careful
consideration to any such affidavit and he must weigh what is deposed to
against any affidavit that deposes to the opposite effect. His duty under the
rule is to determine whether the expense is a reasonable and justifiable
expense which should be borne by the unsuccessful litigant. [Emphasis in
original.]

[30]        
In her Decision, the Registrar considered two cases specifically dealing
with MRIs. She referred to Phelan v. Newcombe, 2007 BCSC 714, where
Registrar Blok, in disallowing the cost of an MRI, wrote at paras. 16-17:

[16]      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.

[17]      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 role as an aid in litigation will be relatively
narrow.

[31]        
She also referred to Ward v. W.S. Leasing Ltd., 2007 BCSC 877. In
that case, Registrar Blok disallowed an MRI where counsel had deposed that he
ordered MRIs as a standard practice as soon as he was retained. He said at paras. 13-15:

[13]      The evidence here is simply that the standard
practice of plaintiff’s counsel is to obtain MRIs for his personal injury
clients as soon as he is retained. No consideration is given to the necessity
of an MRI in any particular case. It is evidently assumed that an MRI is
necessary in all cases.

[14]      I conclude that the claim fails for that reason. A
blanket conclusion that an MRI is necessary in every personal injury case
renders the cost extravagant or as a result of excessive caution or zeal, as
that language was used in Van Daele v. Van Daele. 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 MRIs were necessary, at the time they were ordered, in this
particular case.

[15]      In the circumstances it
is unnecessary for me to comment on the interest charges. The claim for the
cost of the MRIs is therefore disallowed.

[32]        
The applicant submits that the Registrar erred in principle when, at para. 44
of her Decision, she expanded on the reasoning in Ward by saying:

[44]      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.

[33]        
The applicant submits that the Registrar erred in principle by saying
that there must be a medical reason for ordering the MRI. In my view, the
applicant’s submission seeks to parse the Registrar’s decision too finely. In
reviewing the Decision of the Registrar with the appropriate level of
deference, it would be wrong to focus on a single word or a phrase taken out of
the context in which it occurs.

[34]        
When read in context, the Registrar’s reason for disallowing the cost of
the MRI is that she found it was not necessarily or properly incurred. In
coming to that conclusion, she took into account that no medical professional
had advised counsel of the probable utility of an MRI in the particular
circumstances of this case. Mr. Fahey had deposed in para. 11 of his
affidavit that he was unaware of the plaintiff exhibiting any objective signs
of injury when he ordered the MRI scans.

[35]        
I am unable to find that the Registrar acted on a wrong principle in
disallowing the cost of the MRIs in this case, and I would not interfere with
her Decision.

VII.          
Dr. Joy’s Report

[36]        
The applicant submits that the Registrar erred in principal in
disallowing the cost of Dr. Joy’s report on the basis that it was
unreasonably duplicative of the report of Dr. Sehon.

[37]        
First, the applicant submits that the Registrar committed the error of post
facto reasoning, that is, assessing the utility of the two experts at a
time other than the time when they were retained. I do not agree that a fair
reading of the Registrar’s Decision discloses such an error.

[38]        
Second, the applicant submits that the Registrar ignored the evidence of
Mr. Fahey as to the reasons he felt both experts should be retained. I do
not agree. In her Decision, the Registrar explicitly set out the reasons
advanced by Mr. Fahey. She quoted from para. 3 of his affidavit. She
found that the reasons he advanced were unsatisfactory. For example, in his
affidavit at para. 3(F), Mr. Fahey said one of the reasons for
retaining both experts was in order to “respond to the defence expert.”  The
Registrar quite reasonably found this explanation to be wanting when she
observed that at the time both experts were retained the plaintiff had not yet
seen the defence expert, Dr. O’Shaunessy, and his report was not
available.

[39]        
Finally, the applicant objects that the Registrar referred to “doctor
shopping” when there was no evidence from which she could draw such an
inference. The applicant says that this is an error in principle. I do not
agree.

[40]        
In his affidavit, Mr. Fahey deposed at para. 3(B) that when he
retained both Dr. Sehon and Dr. Joy, he had not decided whether to
use one, both, or neither of them. This suggests that he wanted to see which
expert’s opinion would be more beneficial to his client. There was a sufficient
basis, therefore, for the Registrar to say, at para. 52 of her Decision:

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).

[41]        
The applicant has not shown that the Registrar acted on a wrong
principle in disallowing the cost of a psychologist in this case, when a
psychiatrist had also been retained. I would not interfere with the Registrar’s
Decision.

VIII.        
Champerty

[42]        
At the outset of this hearing, counsel for the defendants objected that
it appeared Mr. Berardino may be acting for a stranger to the litigation,
and that this amounted to maintenance or champerty. She said she suspected that
this review application was being financed by CMI, the company that provided
the MRI scans. She alleged that CMI has a collateral interest in the outcome of
this case, namely to encourage the widespread use of its private MRI services
in virtually all personal injury cases.

[43]        
Mr. Berardino stated in oral argument that although he could not
disclose details of his retainer for reasons of solicitor-client privilege, he
was prepared to have this case decided on the basis that CMI provided funding
for that part of the review application dealing with the MRI disbursement, but
that no one other than a party to the litigation was funding the remainder of
the review application.

[44]        
Our Court of Appeal discussed the strictures of the common law against champerty
and maintenance in Fredrickson v. ICBC (1986), 3 B.C.L.R. (2d) 145 (C.A.),
aff’d [1988] 1 S.C.R. 1089. The Court also mentioned a number of exceptions. At
p. 153 McLachlin J.A. wrote:

A second exception concerns cases
where the assignee has either a pre-existing property interest or a legitimate
commercial interest in the enforcement of the claim. An assignment where the
assignee possesses such an interest will be valid, provided the action in tort
is not based on a personal wrong, such as assault, libel or personal injury.
The reason for the latter stricture appears to be that in cases of personal
torts, the assignee can have no legitimate property or commercial interest in
recovery: Trendtex Trading Corp. v. Credit Suisse, [1980] 1 Q.B. 629 at
656-657, [1980] 3 W.L.R. 367, [1980] 3 All E.R. 721, per Denning M.R., affirmed
[1982] A.C. 679, [1981] 3 W.L.R. 766, [1981] 3 All E.R. 520 at p. 530
(H.L.).

[45]        
The applicant, at paras. 52-53 of its written submissions,
submitted that these proceedings were not champertous because CMI would suffer
a loss if the disbursement for the MRIs was not allowed. It submits that CMI
therefore had a genuine pre-existing interest in this review application:

52. Indeed, it is only where there is no relationship between
the third party and the litigants that can be described as “external” to the
litigation that the tort of champerty and maintenance will be made out.

53. In these proceedings, there
is evidence on the record that CMI had a legitimate pre-existing commercial
interest in the litigation by virtue of the business in which it is engaged.
Mr. Fahey’s understanding of the agreement between the plaintiff and CMI
was that CMI would waive the costs of the MRI if there is no recovery on
account of damages or costs. CMI therefore has a genuine pre-existing interest
in ensuring that the plaintiff recovers the costs of the MRI as a disbursement.
If not, it suffers a loss.

[46]        
That submission is difficult to understand in light of Mr. Fahey’s
affidavit, where he deposed at para. 8 that:  “In this case the plaintiff
has recovered sums and is obligated to pay the CMI accounts with interest.”  If
the plaintiff is obligated to pay CMI for the MRI scans regardless of the
outcome of this review application, then it is difficult to understand how CMI
has “a legitimate pre-existing commercial interest in the litigation.”

[47]        
However, as I have in any event found on the merits that the review
application must fail, I need not finally decide the issue of whether the
application is champertous.

IX.           
Conclusion

[48]        
The application to review the Decision of the Registrar is dismissed,
with costs to the defendants.

The
Honourable Mr. Justice W.F. Ehrcke