IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110715

Docket: S020982

Registry:
Chilliwack

Between:

Ranjit Kaur Gill

Plaintiff

And

Hendry Widjaja and
Li Mei Tan

Defendants

Before: Master Baker

as
Registrar

Reasons for Decision

ISSUE

[1]          
This is the assessment of party and party costs arising in a personal
injury case, brought under Rule 15-1(“Fast Track”).

BACKGROUND

[2]          
Ms. Gill sustained injuries in a motor vehicle accident October 31,
2008. Liability was very much in issue. The matter had been scheduled for trial
May 2, 2011 for three days but on March 3^rd six days before a
scheduled judicial settlement conference the defence delivered an offer to
settle. On March 11^th Ms. Gill accepted the $34,800.00 offered
together with assessable costs.

PARTIES’ POSITIONS

[3]          
While Rule 15-1 sets flat-rate caps for costs, Mr. Cope prepared a
typical bill of costs, listing the applicable tariff items and units, and then
reduced the total (96 units, or $10,560.00) to the $8,000.00 cap, then deducted
a further $1,500.00 (discussed below) but added $750.00 to that for pre-trial
preparation. The total disbursements claimed, with tax, are $8,849.92, for a
total bill of $17,709.12.

[4]          
Mr. Cope’s logic in reducing his fee portion is that the allowable costs
prescribed by Rule 15-1(15)(a) i.e. $8,000.00 must, since there was no first
day of trial, be reduced. The usual reduction by one day’s trial time[1]
is appropriate, he acknowledges, as there was no first day of trial. He argues
that the reduction, however, of $1,500.00 should be qualified by the pre-trial
preparation that should be credited to Ms. Gill. This point is disputed by Ms.
Tonge not only in respect to the fee and tariff item claim but in respect of
certain disbursements, too, so I will discuss it further below. Suffice it to
say that Ms. Tonge’s view is that there should be a reduction for a full day
($1,500.00) for a start and that that sum should be reduced further by a factor
of $2,000.00 for preparation not done. In other words she and Mr. Cope take
opposite views of pre-trial preparation. Ms. Tonge also objects to Ms. Gill
claiming 6 units for the process of preparing and assessing these costs. I will
return to this subject after dealing with the disputed disbursements.

[5]          
Rather than describe every disbursement, I will list the ones opposed or
qualified by the defence and discuss them in turn.

–           Rush Registry Service                                –           $279.10

–           miscellaneous court agent fees for

 routine filings                                                           –           $110.60

–           Dye & Durham registry fee re: briefs        –           $ 
17.92

–           long distance charges                                –           $ 
6.30

–           photocopies (3,579)                                     – 
$894.75

–           Dr. Sood witness/cancellation fee                        – 
$1,500.00

[6]          
Rush Service. This charge arises from the filing and subsequent pickup
of the plaintiff’s judicial settlement brief. Ms. Tonge’s argument is that
there was no need for a rush, as the conference date had been set well in
advance. I agree with her; the usual fee (from other filings evidenced) was
$27.65 and that is the sum that will be allowed.

[7]          
Routine registry filings. Ms. Tonge argues that with electronic filing
now available and generally in use the good old fashioned process by which
court agents take documents physically to the registry for filing should be
reviewed. Mr. Cope’s office does not file electronically. Mr. Cope’s response
is that, while change has come and electronic filing may be a good thing, it’s
difficult to change. I understand that, but I agree that the thrust of the new
Rules and Rule 1-3(1)[2]
should operate and apply to require, all other things being equal, the least
expensive approach to litigation. This means that counsel and client may choose
another, more costly, process if they wish, but they will have to justify it. I
calculate that this would apply for five filings in this case, so that the
charge of $27.65 is reduced to $7.00, or an overall reduction of $103.25.

[8]          
Dye & Durham charge for briefs. The court agent was sent to court to
copy two other unrelated settlement conference briefs. Mr. Cope was blunt and
direct on this point: he had not attended a judicial settlement conference in
years, he said, so he needed to check other briefs as precedents. A wise step,
no doubt, but one that I would attribute to counsel’s ongoing education, and
not to the costs attributable to the defendant. The cost ($17.92) is
disallowed.

[9]          
Long distance charges. In the usual course long distance charges would
not have been required in this case, but Ms. Gill, it seems, took a trip to
India at one point and while one would expect expensive telephone charges in
that instance the listed disbursement ($6.30) is all that Mr. Cope’s office
could attribute to the file. In the circumstances it seems a reasonable expense
and will be allowed.

[10]       
Photocopies. The specific complaint of the defence is that there is no
evidence of the number of, or need for photocopies; each time the defence
required copies they were invoiced and paid for by the defence. Mr. Cope says
that defence copies are not the copies expensed as a disbursement; they are
charged differently. The 3,579 copies indicated are those tracked by his
office’s photocopier and computer records. This, I expect, means every copy
recorded on the file. He also said, however, that his office has been made “a
paperless office” and that originals of documents are scanned into a digital
form and stored electronically, and that the originals are then returned to the
client.

[11]       
Given Mr. Cope’s assurance of a paperless office and given the lack of
any other particulars I cannot see any basis for attributing photocopy costs to
the defendants. I do not know how many (since all copies were recorded)
were routine copies to inform Ms. Gill of progress, for example. I suspect that
some may have been copies of medical information for exchange between medical
professionals[3]
but I do not know that for a fact.

[12]       
Photocopies are a routine expense on lists of disbursements. Rule 14-1,
however, makes no specific allowance for photocopies, or any other disbursement
for that matter. It simply directs that the registrar shall allow disbursements
“…which have been necessarily or properly incurred in the conduct of the
proceeding…”. And, of course, the Registrar has set the allowable cost per
copy from time to time. That cost is currently $0.25 per copy. But fixing an
amount in that way no more mandates that every (or, perhaps, any) copy be
allowed any more than the BC Medical Association’s tariff for medical reports
or court attendance binds doctors to those amounts. In the modern world
documents are routinely created in digital form. Indeed, some never leave that
form. They are exchanged, distributed, copied and stored with practically
instantaneous speed. The value and advantages in using digital formats has
already been noted twice in these reasons, once by me (para. 7 above, re:
electronic filing) and once by Mr. Cope (para. 10 above re: a paperless
office).

[13]       
Various expenses and costs involved in the conduct of a lawsuit have
been categorized as overhead and disallowed as disbursements on specific files.
That has been the case with computer-assisted legal research, for example, or
cell phone charges, office supplies, cables, and dvds[4].
I cannot see that photocopy costs in a modern office are any different. The
technology is so ubiquitous that the cost is virtually universal, on a par with
the cost of heat and light, for example. Rule 14-1(2)(b) directs that the
registrar, in assessing costs, “consider Rule 1-3”. I take that to mean that
all counsel must conduct a case in the most reasonably efficient means
possible, always considering the exigencies of the particular case. When
alternative technologies are available that can virtually eliminate the cost of
photocopying, Rule 1-3 must come into play. For that reason and the reason that
there are no specifics offered establishing the need or use of the copies, I disallow
the photocopying expense.

[14]       
Dr. Sood cancellation fee. Dr. Sood, again, is Ms. Gill’s family doctor.
He had already charged Mr. Cope, in my view, a substantial sum ($2,000.00) for
his report and opinion. Mr. Cope did not intend to call Dr. Sood to give
evidence, but the defence put Mr. Cope on notice that they required him at
trial for cross-examination. Dr. Sood then required $1,500.00 as a booking fee
and Mr. Cope paid this quickly, to ensure Dr. Sood’s availability. When the
matter settled about seven weeks before trial Mr. Cope promptly requested a
refund of the $1,500.00 from Dr. Sood who declined. He returned Mr. Cope’s
letter with a note that the fee was “non-refundable”. Ms. Tonge argues that Mr.
Cope paid Dr. Sood’s standby fee too quickly, that he should have waited until
the trial was more proximate before committing to the expense, and that Dr.
Sood’s original reference to the fee said nothing about it being non-refundable.
Finally, she argues that Dr. Sood, as a general practitioner, could reasonably
have booked patients or arranged other duties to fill the day, given seven
weeks’ notice.

[15]       
The problem of standby time or cancellation fees by experts has been
considered in other decisions. In Mohr v. Dent[5],
for example, the court concluded that before a party must reimburse the
disbursement for a cancellation fee the doctor in question must justify and
prove a loss. This approach was adopted by Registrar Bouck in Summers v.
McGinnis[6]
who allowed a portion of the cancellation fee when the physician was given only
two days’ notice. In a case where seven weeks’ notice was given the onus is
even greater to demonstrate a likely cost or loss to the expert. That has not
been proven in this case, so the standby charge is disallowed.

[16]       
Tariff amount and Rule 15-1. The real question is: how much should the
fee mandated by Rule 15-1, when the matter is settled without trial, be further
affected by preparation or lack thereof?  Counsel agree that the starting sum
is $8,000.00 and that, since no trial proceeded, there should be a reduction of
one day’s costs ($1,500.00). After that they disagree. Mr. Cope says there
should be the equivalent of one-half day’s trial cost added back in for trial
preparation. Ms. Tonge says $2,000.00 should be further deducted. Certainly,
the Rule permits departure from the indicated amount, as it is prefaced with
“Unless the court otherwise orders…”.

[17]       
I start with the assumption that, once the portion attributed to the
first day of trial is deducted, the balance is allocated to preparation[7].
It would take compelling facts and circumstances to depart from that simple
principle. And that simple principle should be applied when one recalls that
the costs provisions of Rule 15-1 are intended to be summary in nature and to
avoid assessments such as this. Counsel referred me to other authorities
considering and, in effect, parsing pre-trial proceedings, but those cases seem
to apply to situations where Rule 37 or 37B offers were made and either
accepted or refused. In those cases, of course, it became important to mark the
point in the proceedings when the offer was made and to then invoke the Rules’
effects on costs for the proceedings thereafter. In such a case it would
require that some assessment be made of the degree of preparation done at the
point of the offer. This is not that case.

[18]       
Mr. Cope argued that Ms. Gill was due some allowance for preparation,
yet the tariff items in his bill included Item 17 “All process and
correspondence associated with retaining and consulting all experts…” and
Item 18 “All process and correspondence associated with contacting,
interviewing and issuing subpoenas to all witnesses”. While the items do not
apply per se, as Rule 15-1(15)’s omnibus cap does instead, Mr. Cope obviously
considered all of that to include most, if not all, of the usual allowable
stages of preparation. His draft in the form presented is a tacit admission of
that. Moreover, as Ms. Tonge pointed out, there is no evidence of any unusual
preparation having occurred before the offer was made and accepted.

[19]       
Similarly, there is no basis to take the reverse view and conclude that,
given the matter settled seven weeks before trial, that no, or substantially
no, preparation would have taken place. Quite the contrary: it is clear that Mr.
Cope took the usual steps to obtain and organize the evidence he would need to
that point and that those preparations were sufficient that he and Ms. Gill
were prepared to settle.

[20]       
In the end there is no basis for any intervention by me, either to
deduct or add in, respecting preparation costs. The only deduction from the
fast track capped cost will be $1,500.00 representing the first day of trial.

SUMMARY

[21]       
In sum, then, the fee portion of Ms. Gill’s bill of costs is fixed at
$6,500.00 and the disbursements reduced by

–           Rush filing                                        $ 
251.45

–           Court agent’s fees                           $  103.25

–           copying briefs                                   $ 
17.92

–           photocopies                                      $
894.75

–           Dr. Sood standby fee                      $1,500.00

 Total 
$2,767.37

I leave counsel to calculate the further reduction, if any,
for tax of these amounts.

[22]       
Mr. Cope also claims 6 units at Scale B for preparation for, travel to,
and attendance at this assessment. Given the result and the possibility of
offers having been made, I will not decide the matter at this time. Counsel
have leave to speak to that aspect and may do so by teleconference if they
wish.

“Master D. Baker”