IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20111202

Docket: S20982

Registry: Chilliwack

Between:

Ranjit Kaur Gill

Plaintiff

And:

Hendry Widjaja and Li Mei Tan

Defendants

Before: The Honourable Mr. Justice Harvey

Oral Reasons for Judgment

In Chambers

[1]            
THE COURT: Each of the parties applies for a
review of the findings of Master Baker, sitting as a registrar, with respect to
the taxation of the plaintiff’s party and party bill of costs arising under
this Rule 15 action.

[2]            
Each asserts an
error in principle with respect to findings made by the master in respect of
the determination of the disbursements and tariff amount payable.

[3]            
The plaintiff submits
that in failing to allow appropriate disbursement amounts for agencies in
connection with the filing of court documents, photocopying expenses, and the “trial
booking fee” for Dr. Sood, the plaintiff’s medical expert, the master fell into
reversible error.

[4]            
The defendants,
for their part, assert that the master erred in failing to award the defendants
costs of the taxation and in failing to reduce the tariff amount allowed under
Rule 15-1(15), so as to consider the fact no pre-trial preparation took place.

The Background

[5]            
This action arises
from a motor vehicle accident which occurred in October of 2008.  Both liability
and quantum of the damages were apparently at issue.

[6]            
A judicial
settlement conference occurred in February 28, 2011, and thereafter, the
defendants made a formal offer to settle the claim for the sum of $34,800, plus
taxable costs.

[7]            
On March 9, 2011, the
parties attended a scheduled trial management conference and thereafter further
settlement discussions ensued, resulting in the acceptance of the defendants’
formal offer to settle on March 11, 2011, some two months prior to the trial.

[8]            
Included with the
acceptance of the offer to settle was the plaintiff’s bill of costs.  The defendant
disputed various items on the bill of costs, including, but not limited to, the
disbursements for photocopying, the fees paid to agents for the filing of court
documents, and the fee paid to Dr. Sood in respect of what is later described
as a “standby charge” to secure his attendance at trial.  I should note that
Dr. Sood prepared a medical report and was requested by the defendants to
appear at trial for the purposes of cross-examination in respect of that
report.

[9]            
Taxation took
place on June 22, 2011, and on July 15, 2011, Master Baker gave written reasons
ordering a reduction of the claimed disbursements by $2,767.37 and capped the
amount of costs under the tariff at $6,500.  He then granted counsel leave to
speak to costs for the preparation of the attendance at the assessment.

[10]        
This further
attendance occurred August 5, 2011.  At that further hearing, Master Baker
ordered the plaintiff receive three units, plus the filing fee for the
appointment to settle the costs.

[11]        
The certificate of
costs was certified August 11, 2011.  Thereafter both parties sought a review,
albeit in the first instance the plaintiff filed an appeal of the decision, not
a review.

[12]        
Counsel have
agreed that I should proceed as if this were a review under Rule 14-1(29).

The Hearing Before Master Baker

[13]        
I have been
referred to the transcript of the hearing before Master Baker.  At the hearing
on June 22, 2011, the defendants sought to reduce the sum of costs payable to
$4,500 and challenged specific disbursements for both photocopying and agents’
filing fees, as well as the charge of Dr. Sood.

[14]        
With respect to
the fee portion of the tariff, it was the position of the defendants that in
addition to the $1,500 deducted from the $8,000 ceiling, there ought to be a
further $2,000 reduction, given that no preparation for trial was done.  The
plaintiff took the opposite view concerning pre-trial preparation, but acceded
to the deduction of $1,500.

[15]        
Master Baker determined
that the appropriate tariff amount was $6,500, specifically the $8,000
prescribed maximum, less $1,500 for the first day of trial.  No further
deduction was made to take into account the matter settled some seven weeks
before the trial.

[16]        
As to the matter
of routine registry filings, the defendant took the position with electronic
filing now available and generally in use, the process by which solicitors
retain court agents to physically take documents to the registry for filing
should be reviewed.  Mr. Cope, on the other hand, noted his office does not
file electronically.  Master Baker disallowed the expense for routine agents’
filing fees, stating as follows:

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)
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.

Accordingly,
the disbursements were so reduced.

[17]        
Another matter of
contention was photocopies.  In this instance, the specific complaint of the
defence was there was 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.  At the hearing of the matter, although nowhere in the affidavit
material, counsel for the plaintiff noted that the defence copies were not
expensed as a disbursement, but charged to the defendant and a separate
accounting was kept.  The claimed photocopies, in the number of 3,579, were
tracked by the plaintiff’s office photocopier and computer records.  Mr. Cope
also advised that his office had 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.

[18]        
No particulars
were given as to the need for 3,579 copies exclusive of those which were
already charged to the defendants and exclusive to those which were routinely
made as part of the solicitor’s brief to inform Ms. Gill of progress.  Master
Baker allowed as to how he suspected some may have been copies of medical
information for exchange between medical professionals, but he did not know
that for a fact.  In the result, all of the expense for photocopying was
disallowed.

[19]        
Lastly, dealing
with the "cancellation fee" of Dr. Sood.  Dr. Sood was Ms. Gill’s
family doctor.  He had already charged the plaintiff the sum of $2,000 for his
report and opinion, which was served in the proceedings upon the defendants in
the usual course.  The defendants, upon receipt of Dr. Sood’s report, notified
the plaintiff that they required his attendance at trial for the purposes of
cross-examination.

[20]        
Plaintiff’s
counsel, upon learning this, contacted Dr. Sood, who advised that he required a
$1,500 booking fee so as to reserve his time.  This was paid by plaintiff’s
counsel and, when the matter settled some seven weeks before the trial, counsel
promptly requested a refund of the $1,500 from Dr. Sood, who declined in a
terse handwritten note on the letter of request stating that the fee was,
"non refundable".

[21]        
There was no
evidence before the registrar that Dr. Sood lost any income as a result of
being unable to reschedule patients for the day he was schedule to testify,
given he had seven weeks to do so.  In the result, the "non
refundable" standby fee of Dr. Sood was disallowed from the disbursements.

[22]        
Finally, at the subsequent
hearing on the issue of costs of the taxation, counsel made representations as
to the settlement offers exchanged.  I note that no formal offers to settle
were exchanged.  Master Baker, in awarding three units (two for attendance, one
for preparation) to the plaintiff was of the view the plaintiff was required to
attend the taxation recognizing, as he did, that the defendant had prevailed in
the main on the issue of the contested disbursements and that the plaintiff had
succeeded in the main on the tariff amount, determined to be $6,500.

[23]        
Paragraph 16 of his
reasons, given August 5, 2011 he stated:

Whether
or not that becomes an issue, and whether or not my conclusions in that respect
are overruled, I don’t know.  But I say this, that overall the plaintiff was
entitled to costs.  The matter was settled for a sum together with costs.  Overall,
I’m of the view that the plaintiff was entitled to bring her bill of costs and
is entitled to the units offered.

[24]        
Continuing at
paragraph 17:

I’m
always worried about — notwithstanding the obvious intent to assist and make
predictable issues of cost — I’m a little concerned about parsing matters down
too much to the point where — well, I just don’t think we should parse them
down too much.  I think there’s a danger in that, too.  I think you still have
to look at the larger picture of, after all, who won this lawsuit?  The
plaintiff did.

Findings and Analysis

[25]        
The parties are
agreed that the proper standard of review is that the party seeking a review of
the master’s, sitting as registrar, decision is to demonstrate “an error in
principle” or that the registrar was “clearly wrong”.  In this regard, see: Berge
Horn v. Ziebler, 2007 BCSC 963.  This was confirmed in Miller v. Van
Rijn, 2008 BCCA 438, where at paragraph 11 the court stated:

On the appeal
before Mr. Justice Brooke, he noted the standard of appellate review (at
para.3):

[3]  The
appellant acknowledges that she must show something approximate to an error in
principle or that the registrar was clearly wrong.

[26]        
As to the matter
of disbursements, Rule 14-1(5) states that:

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

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

(b) allow a
reasonable amount for those disbursements.

[27]        
There is a
difference between a disbursement which is necessary and a disbursement which
is proper. McKenzie v. Darke, 2003 BCSC 138.

[28]        
The claimed sum of
$103.25 paid to Dye and Durham for attending the court registry to file
documents was an actual expense of the plaintiff.  The question then is was it
proper, given the fact court documents can be filed electronically.  The error
in principle submitted by the plaintiff was that Master Baker erred in his
application and the interpretation of Rule 1-3 so as to disallow the filing
expenses which were actually incurred by the plaintiff on the basis that such
would encourage the profession to generally file electronically.

[29]        
While I agree Rule
14-1(2)(b) states that on an assessment of party and party costs the registrar
must consider the Rule 1-3.  I am in agreement with plaintiff’s counsel that
the objects of Rule 1-3 cannot supersede the clear wording of Rule 14-1.

[30]        
The common law
test for whether a disbursement is allowable is set out in Van Daele v. Van
Daele (1983), 56 BCLR 178 (BCCA), where at paragraph 10 the court stated:

…The
proper test…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.

[31]        
In my view, absent
a practice direction indicating that the profession, generally, will be
required to file electronically, the choice by counsel to engage agents to file
paper documents at the registry cannot be seen as either excessively, cautious,
zealous, extravagant or negligent.  In the result, until such time as a
practice direction is issued requiring electronic filing, it is my view that
agents’ filing fees, when incurred, is a proper disbursement allowable in a
party and party taxation.

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

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

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

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

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

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

[37]        
Turning to the
matter of Dr. Sood’s trial booking fee, the plaintiff complains that it was an
actual expense incurred by the plaintiff because of the request of the
defendants to have the doctor at trial.  Reference was again made to Van
Daele and the principles enunciated therein.  In Van Daele reference
was made to the case of Bogardus v. Hill (1913), 18 B.C.R. 358, where
the following principle emerged:

3.  … I
think the principle to be acted upon in dealing with allowances to witnesses
for equipping themselves is that all work should be allowed for which a
reasonable man, preparing for trial, would feel bound to undertake in order to
prove his case. …

[38]        
The evidence
before Master Baker was that Dr. Sood had already levied a charge of $2,000 for
his medical report (in advance of the report being provided to counsel) and,
upon being notified of his attendance at trial, Dr. Sood sent a further invoice
dated February 7, 2011, indicating an invoice amount of $1,500, below which was
written, "Pre-payment is required for the requested information" and
further, in presumably Dr. Sood’s handwriting or that of his assistant, the
words "trial fee".

[39]        
Reasonably, one would
expect that this was a prepayment of the charge of Dr. Sood’s attendance at
trial, not a standby fee to ensure his attendance.

[40]        
When on March 16,
2011, Dr. Sood was advised of the settlement and requested a repayment of the
$1,500, which had previously been done by telephone, the plaintiff was advised
that the $1,500 booking fee was non-refundable and in Dr. Sood’s handwriting or
that of his assistant was handwritten "Deposit, non-refundable.  Cancelled. 
Prior commitment APTS.  Thanks."

[41]        
The plaintiff asserts
Dr. Sood required advance payment for the purpose of booking into his medical
practice calendar and that this was a cost that would not have been incurred
but for the request of the defendant.

[42]        
With respect, I
disagree.  While the invoice may have referenced a pre-payment for service to
be rendered, the invoice clearly referenced a fee for attendance at trial.  No
mention is made in the invoice of cancellation costs or the fact that the fee
is non-refundable in the event Dr. Sood was notified, in a timely fashion, that
he could re-book patients for the date of trial.

[43]        
No evidence was
adduced before the master that such did not happen.

[44]        
Dr. Sood’s cash
grab, for lack of a better expression, cannot be at the expense of the
defendants.  Only the plaintiff has the ability, contractually, to seek
repayment of the funds paid to Dr. Sood.  There is no contractual nexus between
the defendants and Dr. Sood, such that they can complain of his behaviour.

[45]        
In the event Dr.
Sood’s letter made it clear that it was a non-refundable fee, regardless of
whether his attendance was actually required or not, counsel for the plaintiff
is faced with the option of conveying that information to defendants’ counsel
so that they can make an informed decision as to the requirement of his
attendance, or, alternatively, plaintiff’s counsel can utilize a subpoena to
compel the doctor’s attendance, while at the same time, undertaking to him that
he would be paid for his reasonably incurred preparation time and for his time
attending trial should the matter proceed to court.  Indeed, undertakings could
be given as to the appropriate cancellation fee in the event the matter was
settled the day before his attendance, thus still resulting in a loss of
income.

[46]        
In the
circumstances, I am unable to find any error in principle by Master Baker in
his denial of the standby fee to Dr. Sood.  The plaintiff, in my view, has the
wherewithal to commence an action in small claims for the return of the money
paid, based upon the correspondence between Dr. Sood’s office and the
plaintiff’s office and the fact it clearly does not make known to the payor
that the $1,500 requested was non-refundable.

[47]        
I turn now to the
matter of the tariff fees allowed by Master Baker of the $6,500 in costs.

[48]        
Rule 15-1(15)
reads:

(15) Unless
the court otherwise orders or the parties consent, and subject to Rule
14-1(10), the amount of costs, exclusive of disbursements, to which a party to
a fast track action is entitled is as follows:

(a)  if the
time spent on the hearing of the trial is one day or less, $8,000;

(b) if the time spent on the hearing of the trial is 2
days or less but more than one day, $9 500;

(c) if the time spent on the
hearing of the trial is more than 2 days, $11 000.

[49]        
The Rule, as
written, gives the registrar wide discretion in determining the appropriate
tariff amount.  Master Baker was aware of the steps taken in the litigation and
the date of settlement relative to the trial date.

[50]        
Having regard to
the aforementioned test that I must apply, I am not of the view that an error
in principle has been demonstrated nor do I find that the master was clearly wrong
in his determination that the appropriate cost of tariff amount was $6,500.

[51]        
The express
purpose of Rule 15-1 is to streamline the process both for trial and,
presumably, taxation of costs.  Parsing out the details in each action where
the amounts do not apply is not, in my view, the proper course.  Indeed, were
it, in this action there was a settlement conference which no doubt
necessitated some significant preparation, much like trial preparation, and, as
well, a trial management conference.  Each of those events resulted in
discussions leading to the settlement of this matter.

[52]        
In those
circumstances I find no error in principle such as to interfere with the
finding of the master.

[53]        
Finally, as to the
allowance by Master Baker of the three units to the plaintiff for attendance at
taxation and preparation, I note the defendant made no formal offer to settle
the matter of costs which, in my view, is the appropriate manner in which to
make argument that they, instead of the plaintiff, should have been awarded the
costs of taxation or, alternatively, no costs awarded to each party given the
fact they succeeded substantially on the issue of the disbursement.  As against
that, there is a failure on the issue of further reduction from the tariff of
$2,000, as was sought.

[54]        
I am in agreement
with Master Baker when he said the plaintiff, by virtue of the failure of the
defendants to agree, was obliged to come forward to tax their bill of costs to
determine the appropriate amount.  That it was not the amount claimed is no
different than a plaintiff appearing in a damage action and getting something
less than was sought, but nonetheless recovering.  Without the taxation, the
plaintiff was left with no device by which to recover that portion of the offer
to settle, which they had accepted in February.

[55]        
Had the defendants
the courage of their conviction on the amounts tendered as to the appropriate
amount of costs, a formal offer to settle would have been made resulting in the
ability of Master Baker to have determined whether the defendants were entitled
to receive their costs or, indeed, had the plaintiff made an offer to settle,
whether the plaintiff was entitled to double costs.

[56]        
I am of the view
the parties here have achieved mixed success with respect to this application
for review and each should bear their own costs.

“Harvey J.”