IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120928

Docket: M063505

Registry:
Vancouver

Between:

Maggie
Chow

Plaintiff

And

Van
Loc Nguyen and Tay Van Nguyen

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Dley

On
appeal of a Master’s decision dated May 18, 2012 cited at
Chow v. Nguyen, 2012 BCSC 729, Docket No. M063505

Reasons for Judgment

Introduction:

[1]            
This is a review of a Master’s decision in which he allowed costs of
photocopies at 25 cents per page and the full amount of two expert reports.

[2]            
The applicants argue that the Master failed to consider the
reasonableness of the charge for the photocopies and the cost of the expert
reports, and in effect imposed a reverse onus requiring the applicants to prove
that these disbursements were unreasonable.

[3]            
For the reasons that follow, I conclude that the applicants have failed
to show that the Master was clearly wrong and therefore his decision will not
be disturbed.

Facts:

[4]            
This action arose out of a motor vehicle accident. The case was complex
and scheduled for a 20-day trial. The parties settled in the month prior to
trial, with the plaintiff receiving $525,000.00, plus costs.

[5]            
The plaintiff delivered a bill of costs in the amount of $51,116.11. The
defence objected to certain items, including the photocopying costs and the
disbursements relating to Dr. Schultz and Mr. Cheesman.

[6]            
The plaintiff claimed the costs of photocopying 7,231 pages at 25 cents
per page. The defence did not dispute the number of copies made, but challenged
the rate being charged. The defence argued that some of the photocopying could
have been done on a bulk basis at a reduced per copy charge.

[7]            
The Master referred to the Supreme Court Civil Rules Appendix B
administrative notice effective July 5, 2010, which directs that photocopying
charges may be allowed at 25 cents per page and used that amount in awarding
the full claimed amount of $1,807.75.

[8]            
The main argument before the Master centered on the disbursement
accounts of Dr. Schultz, a psychologist specializing in neuropsychology, and
Mr. Cheesman, an occupational therapist. The issue was the reasonableness of
the costs of the reports.

[9]            
Dr. Schulz charged $11,867.00 for the assessment of the plaintiff and
the resulting opinion. The defence retained its own expert to do a similar
assessment; that expert rendered a bill for $3,000.00. Allowing for somewhat
lengthier tests administered by Dr. Schulz, the defence position before the
Master was that the psychologist’s costs should have been reduced to $5,000.00.

[10]        
Mr. Cheesman provided the plaintiff with a functional capacity
evaluation and submitted a report which included a cost of care opinion. He
rendered a bill for $7,100.00. The defence retained two experts to provide
opinions in the same areas. One of those experts travelled to New York (where
the plaintiff resided) to complete the cost of care assessment; the total
billing to the defence was $7,382.45. Taking into account that one of its
experts incurred the extra costs in travelling to New York, the defence argued
before the Master that Mr. Cheesman’s disbursement should have been reduced to
$4,000.00.

[11]        
In dealing with the reasonableness of the accounts rendered, the Master
said the following at para. 15:

…In dealing with the reasonableness of the
amounts claimed for disbursements, I am guided by the principles summarized by
Registrar Sainty in Fairchild v. Vancouver Coastal Health Authority,
2011 BCSC 616, and in particular her comments in para. 23 as follows:

[23] In Wheeldon v. Magee,
2010 BCSC 491, Master Bouck (sitting as a registrar) confirmed the principles
to be applied on an assessment of costs. As I cannot express these principles
better myself, I simply reproduce paragraphs 20 – 29 of Her Honour’s decision
here:

20] The assessment
of party/party costs is an objective exercise.

…

[23] The
assessment of disbursements is governed by Rule 57(4) [now 14-1(5) which
although worded slightly differently has not changed in principle in my
opinion]:

(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
disbursements have been necessarily or properly incurred in the conduct of the
proceeding, and

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

[24] It is trite
law that where a disbursement is in issue, an affidavit of justification is an
indispensible requirement.

[25] With respect
to fees charged by experts, the assessing officer may rely on experience in
determining whether the charges of those experts are reasonable in the
circumstances: Hamo v. Khan, 2010 BCSC 205. However, the best evidence
to present to the assessing officer will include detailed invoices showing the
hours spent by the expert and that individual’s hourly rate. This evidence
should come directly from the expert who may then be subject to
cross-examination on the affidavit’s contents. It is often helpful to have
evidence of comparable charges applied in the expert’s area of expertise.

[26] Experts’
charges may be disallowed or reduced for a variety of reasons, including when:

*the cost is unreasonable, compared to the
evidence of other similar experts;

*the expert’s report includes, improperly,
extensive narrative; and

*when the suggested damages reported by the
expert are "preposterous" in the view of the court. [Emphasis added.]

Bell v. Fantini
(No. 2) (1981), 32 B.C.L.R. 322 (S.C.) (see also Leverman
v. Prince George (City), 2000 BCSC 697 for a synopsis of this decision)

[27] With respect
to the necessity and propriety of a report, the assessing officer is not to
"step into the shoes of the trier of fact" but rather must focus
"on whether in the circumstances, it was a proper expenditure to fully and
properly prepare the case for trial": Freake v. Wilson, 2000 BCSC
695; Morrissette v. Smith (1990), 39 C.P.C. (2d) 30. I observe that in
this case, the trial judge has already rejected the suggestion that the
impugned charges of the experts be disallowed in their entirety based on the
jury’s verdict.

[28] Nonetheless,
an expert’s charges will be significantly discounted if not disallowed in their
entirety if their evidence is "nothing more than counsel could have done
in argument": Moore v. Dhillon, [1992] B.C.J. No. 3055.

[29] One further
principle is applicable to the issues in this assessment:

In the law of costs, convenience — that
which is beyond necessity and propriety — is luxury. And luxury must be paid
for from the pocket of the indulging party: Hall (Guardian ad litem of) v.
Strocel, [1983] B.C.J. No. 506.

[12]        
The Master continued with his reliance on the comments in Fairchild
by reference to para. 144:

[144] I have previously held (see Dosanjh
v. Martin 2001 BCSC 1759) that expert’s fees ought only to be reduced where
there is a clear overcharge. Specifically I said:

[50] In my opinion, a registrar should not,
without good reason, interfere with the amounts charged by experts. The
plaintiff hired the experts in good faith to assist with the plaintiff’s case.
Those experts charge what they charge. In my view, the defendant should not be
rewarded (and the plaintiff penalised) by a registrar reducing expert fees
except in cases where there is clearly an overcharge or it is determined that
the fees were unreasonable. (See Reap v. Insurance Corporation of British
Columbia, [2000] B.C.J. No. 2258 (Registrar). I cannot say that there was a
clear overcharge or that the disbursements were unreasonable for any of the
medical legal reports provided by Drs. Yasin and Khan. I will therefore allow
the disbursements for the medical legal reports prepared by each of Drs. Khan
and Yasin.

[13]        
The Master did not refer to the subsequent para. 145 in Fairchild:

[145] That view has been tempered by
subsequent cases and, as I have noted, I must now consider proportionality in
all assessments. For example, in Mohr v. Dent (1983), 40 C.P.C. 8;
[1983] B.C.J. No. 323 (S.C.) Hutchison J. noted, at para. 54:

Whether those sums charged are fair as
between the doctor and his patient is of course not for me to concern myself
with. They may well have been contracted for. If they were being charged
against the patient on a quantum meruit basis I would find the fees
excessive.

[14]        
The Master concluded that the charges were reasonable and necessary and
allowed the disbursements as charged.

Discussion

[15]        
The standard of review on a registrar’s decision regarding costs is
summarized in Farrokhmanesh v. Sahib, 2010 BCSC 1797 at paras. 17-18:

[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…

[16]        
The defence argues that the Master failed to consider the reduction in
photocopying costs because some of the copying could have been done in bulk. The
defence argues that at 25 cents per photocopy the photocopier is a profit centre
for the plaintiff’s law firm and not a reasonable expense that is properly
recoverable as a disbursement.

[17]        
The Master confirmed that his duty was to assess costs on the basis that
only those disbursements necessarily or properly incurred were to be allowed. He
also confirmed that the amount of the disbursements must be reasonable.

[18]        
The Master referred to the administrative notice as a guideline only. He
acknowledged that if it was shown that the actual cost was different than the
guideline amount, he had the discretion to depart from the guideline.

[19]        
The Master concluded that since there was no evidence to show what the
actual per page cost was, he should follow the guideline and awarded 25 cents
per page.

[20]        
The defence says that the Master’s approach was flawed because he failed
to consider the reduced costs that could have been reached if the plaintiff had
used bulk copying services. The defence says that the plaintiff had the onus of
proving costs, and that the Master imposed a reverse onus by asking the defence
to prove the cost of photocopies.

[21]        
I disagree with the defence position.

[22]        
In a case such as this, document disclosure would reveal the nature and
extent of the photocopying that would have been necessary. For example, if the
plaintiff had provided large numbers of copies of clinical records or working
papers of the experts, the defence would be informed as to the amount of bulk
copying that could have been done.

[23]        
The plaintiff set out its position regarding the costs of photocopying;
the number of copies and the charges were detailed. To expect the plaintiff to
go further would force her to resile from her claim — that is not reasonable.

[24]        
The defence could have tendered evidence in response to the claim it was
facing. The defence could have referred to the number of copies made from a
particular source (e.g. clinical records) and provided proof of bulk copying
costs.

[25]        
Requiring a party to respond to a claim for costs does not create a
reverse onus. It is nothing more than requiring a party to respond by providing
proof that puts a claim into issue.

[26]        
Photocopying charges have been the subject of much discussion: Bailey
v. Thiessen, 2005 BCSC 1108 and Sovani v. Kwiatkowski, 2006 BCSC 855.

[27]        
The presumptive rate set out in the administrative notice was intended
to put to rest the debate on what the actual cost of photocopying might be. The
presumptive rate was not intended and has not been interpreted as the only rate.
Evidence can be presented to show that the per page cost differs — it may be
lower or higher depending on the particular circumstances.

[28]        
The Master considered the evidence before him and analyzed the
reasonableness of the photocopying charges. He found no reason to depart from
the guideline amount. The Master considered the correct principles of law in
coming to his determination.

[29]        
Accordingly, I would not interfere with the assessment of the
photocopying costs.

[30]        
The defence also takes issue with the Master’s failure to refer to para.
145 of Fairchild, and argues that such an omission resulted in an
incorrect interpretation of the law in determining the reasonableness of the
expert reports.

[31]        
In para. 145, Registrar Sainty referred to proportionality as being a
tempering restraint on the assessment of disbursements. That does not come as a
new or novel concept. Proportionality is a consideration required in the Supreme
Court Civil Rules. The Master would have been alive to that factor.

[32]        
It was not necessary for the Master to set out each and every factor
that he was bound to consider in his assessment. He was bound to consider
whether the disbursements in issue were necessary and proper and whether the
resulting cost was reasonable.

[33]        
The reliance placed by the Master on para. 144 of Fairchild
indicate that he was aware of his duty to analyze whether the disbursements
resulted in an overcharge or were unreasonable.

[34]        
The Master did not simply accept that the disbursements were incurred as
justification for their costs. He examined the charges and, after careful
consideration, concluded that they were reasonable.

[35]        
The Master’s analysis did not create a reverse onus. The burden of proving
the necessity and reasonableness of the expert reports remained with the
plaintiff. The Master did not shift that onus to the defence.

[36]        
It is not for this court to substitute its discretion and come to a
different conclusion as long as the Master followed the correct principles in
assessing the disbursements.

[37]        
I conclude that the Master followed the correct principles in assessing
whether the disbursements were reasonable. Accordingly, I would not disturb the
Master’s conclusions regarding the costs associated with the experts’ services.

[38]        
The application to review the Master’s award is dismissed with costs to
the plaintiff.

“S.D. Dley J.”

DLEY J.