IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121109

Docket: M095033

Registry:
Vancouver

Between:

Guy Parent

Plaintiff

And

Gopal Chander
Lohia
Yellow Cab Company Ltd.

Defendants

– and –

Docket: M123725

Registry:
Vancouver

Between:

Guy Parent

Plaintiff

And

Louise Chu

Defendant

Before:
Master McDiarmid as Registrar

Reasons for Judgment

[1]            
These are assessments of two bills of costs presented by the plaintiff
following settlement of two motor vehicle accidents in which the plaintiff was injured.

[2]            
The evidence provided at the assessment hearing is contained in three
affidavits sworn by Gloria Corsi, a case manager with the law firm of Klein
Lyons, lawyers for the plaintiff, and one affidavit sworn by Lesley Raymond, a
paralegal working under the direction of counsel for the defendants.

[3]            
At the appointment for the assessment of the bills of costs, by consent,
three additional exhibits were entered. Exhibit 1 is a document prepared by
plaintiff’s counsel. It sets out the disbursements being claimed by the
plaintiff on both files. It claims photocopying at 25 cents per page (reduced
from what was initially claimed). It claims facsimile transmissions at 35 cents
per page. It claims legal research fees at 50 percent of the $900.00 initially
claimed; $450.00.

[4]            
The total disbursements and taxes claimed by the plaintiff in both
actions amounts to $14,077.82.

[5]            
The background facts are set out in the first affidavit of Gloria Corsi
at paragraphs 2 to 7:

2.         These
actions are for personal injuries that arose as a result of two motor vehicle
collisions that occurred on January 30, 2008 (the “First Collision”) and
November 11, 2010 (the “Second Collision”), both in Vancouver, B.C. (together
“the Collisions”). As a result of the Collisions, the plaintiff suffered
personal injuries, loss and expense.

3.         We
were retained by Mr. Parent on September 26, 2008 for the First Collision. The
Insurance Corporation of British Columbia was put on notice of our
representation on September 30, 2008. We were retained for the Second Collision
on January 19, 2011. ICBC was put on notice of our representation on January
19, 2011.

4.         Mr.
Parent sustained injuries to his neck and back and developed a chronic pain
condition in the collisions. He is a letter carrier with Canada Post in
Vancouver. Due to his injuries, and other events in his life, Mr. Parent was
given modified work in the sorting department of Canada Post. Mr. Parent also
had workplace injuries in 2006, 2008 and 2011 (the “Workplace Incidents”) and
in 2009 he had an injury at the Real Canadian Superstore (the “Other
Incident”).

5.         The
central issue in this litigation was to what degree Mr. Parent’s neck and back
and chronic pain symptoms were caused by the Collisions as opposed to the
Workplace Incidents and Other Incident.

6.         The
Writ of Summons and Statement of Claim for the First Collision was filed
October 14, 2009. The Notice of Civil Claim for the Second Collision was filed
July 11, 2012. The Notice of Trial was filed on March 23, 2011. Our firm uses
Dye & Durham to file pleadings. Attached hereto and marked as Exhibit
“A” is a true copy of Dye & Durham’s invoices for the matter.

7.         The trial for these actions was
set for August 27, 2012, for five (5) days (for both matters to be heard
together) and the mediation was scheduled for August 2, 2012 (for both
matters). The mediation proceeded as scheduled. The parties were not able to
resolve these matters at the mediation. The trial did not proceed, as the
matter settled on August 16, 2012. I have been advised by Mr. Manjot S. Hallen,
lawyer for the plaintiff, and verily believe it to be true that our office took
the necessary steps in preparation for the mediation and trial of this matter.
I am informed by Mr. Hallen and verily believe it to be true that when these
claims settled, the parties could not agree on costs and disbursements. The
parties agreed that costs and disbursements were to be assessed. Attached
hereto and marked as Exhibit “B” is a Release of All Claims signed by
Mr. Parent noting that costs and disbursements are to be assessed. Attached
hereto and marked as Exhibit “C” is a true copy of an invoice from D.J.
Husband Mediation Services representing Mr. Parent’s share of the failed
mediation cost.

[6]            
Exhibit B, as noted, confirms that the plaintiff’s claims were settled
for the sum of $44,262.53, representing $35,000.00 new money, plus costs and
disbursements to be assessed. The full and final release of all claims
references both motor vehicle accidents. While the release contains the usual
provision that “payment is not deemed to be an admission of liability,” the
materials before me confirm that with respect to the first collision as
described in paragraph 2 of the first Corsi affidavit above, liability was
admitted when the defendants filed a response to civil claim on November 26,
2010 (see Raymond affidavit at paragraph 6).

[7]            
The facts deposed to in the first Corsi affidavit at paragraph 4 give an
indication of the main issue confronting the parties and their counsel in
endeavouring to resolve the plaintiff’s claims.

[8]            
As is apparent from the evidence before me, the plaintiff had a
significant pre-accident history.

[9]            
At the request of the defendants’ counsel, the plaintiff was examined by
Dr. George Aitken, an orthopaedic surgeon. His report was exhibited as an
attachment to the Raymond affidavit. At exhibit page 20, Dr. Aitken writes:

This is one of the most complicated files I have seen in my
practice.

Prior to the subject MVA of January 30^th, 2008,
Mr. Parent had a long, long history of chronic pain.

…

Subsequent to that he had a WCB injury in 2006 that is still
not resolved with ongoing appeals open.

The indications are, however, that around January 2008 he was
improving and may in fact have gone back to work full-time, although on
modified duties – It seems unlikely he would ever have been able to go back to
work involving a lot of heavy lifting.

But for the subject crash I suspect that he would have
ongoing problems in the future.

The car crash in question,
involved a right frontal impact totalling his vehicle, causing an overload
strain to the spinal axis as well as problems with the upper extremities, and
the lower extremities, as well as the pelvis.

[10]        
The report goes on to detail some of the difficulties in endeavouring to
separate out the effects of the first collision from the other medical issues
affecting the plaintiff.

[11]        
Plaintiff’s counsel sought a rheumatology opinion from Dr. Rhonda
Shuckett, a specialist in internal medicine and rheumatology. The plaintiff saw
Dr. Shuckett for the purposes of a medical examination on December 11, 2009.
Following that medical examination, Dr. Shuckett provided a 16-page report
dated December 11, 2009, for which she billed $2,500.00. This account is not
contested by the defendants.

[12]        
At the request of plaintiff’s counsel, the plaintiff went back to Dr.
Shuckett for a follow-up medical examination and report on April 5, 2012. On
June 1, 2012, Dr. Shuckett provided what she refers to as a “follow-up medical
legal report” referencing her examination of the plaintiff on April 5, 2012.
This date is obviously almost 18 months after the second collision, yet
curiously makes no mention of the second collision. The report is 13 pages in
length. The credentials portions of both reports understandably contain
considerable overlap. The June 1, 2012 report contains a section entitled “MY
RECOGNITION OF RULES OF COURT” which sets out Dr. Shuckett’s awareness of Rule
11-2 of the Supreme Court Civil Rules (the “Civil Rules”). Both
reports contain what is referred to in the reports as “Appendix 1: REVIEW OF
SUBMITTED RECORDS.” The appendices differs significantly, making it apparent
that the appendix to the June 1, 2012 report is not a copy of the appendix to
the December 11, 2009 report, but rather provides evidence of a review of
updated records. However, the June 1, 2012 report is of no assistance in
providing opinion evidence as to the effect of the second collision on the
plaintiff.

[13]        
Dr. Shuckett billed the plaintiff’s lawyers $1,850.00 for the June 1,
2012 report. The defendants take the position that I should allow $500.00 for
that report.

[14]        
Exhibit 2 is a letter from defendants’ counsel to plaintiff’s counsel.
It acknowledges receipt of the two bills of costs and acknowledges receipt of
exhibit 1. The second paragraph reads as follows:

From a practical point of view,
we propose that the two Bills be argued concurrently. By that, we mean that we
argue each tariff item at the same time and the Registrar can rule on each Bill
…

[15]        
This approach was agreed to, and the assessments proceeded on this
basis.

[16]        
Exhibit 2 sets out the following:

We advise that the defendants challenge the following tariff
items on the Parent v. Lohia Bill:

1, 2, 6, 10, 11, 17, 18, 32 and 34.

We advise that the defendants challenge the following tariff
items on the Parent v. Chu Bill:

1, 2, 6, 10, 11, 17, 32 and 44.

In addition, we should agree as
to whether the plaintiff is pursuing Items 29, 30 and 31 (the assessment costs)
in the Parent v. Chu Bill. If so, then the defendants also challenge Items
29, 30 and 31.

[17]        
Exhibit 2 goes on to set out the following:

Insofar as Disbursements [are] concerned, the defendants
challenge the following disbursements:

Agents fees (for “Rushes”)

Courier

Fax Transmissions

Copying

Nov 6/08 Legal Disclosure-WorkSafe BC (please provide invoice
to justify $675.50)

Aug 12/11 Travel expense mileage to attend XFD

Aug 12/11 Travel expense parking

Jun 1/12 IME Dr. Shuckett

Jun 1/12 Parking TMC expense

August 2/12 Mediation Cost of $85 (We confirm that you have
indicated that the amount is in error and is not being pursued by the
plaintiff.)

August 9/12 Mediation Cost $14.50

August 13/12 Quicklaw Legal research fees (challenge is to
the entire amount)

August 20/12 Legal Research Law Corp (challenge is to the
entire amount)

March 5/2010 Medical Report Dr. Shuckett

Sept 27/12 Interest on disbursements (challenge is to the
entire amount)

At this stage, we request a breakdown of the invoices of Dr. Shuckett
dated 5 March 2010 and 1 June 2012. In particular, we request particulars of
the hours spent by Dr. Shuckett and her hourly rate.

Insofar as the report of 5 March 2010 is concerned, we
request a breakdown of time spent conducting the IME itself, as well as a
breakdown of time spent perusing records and time spent writing the report.

Insofar as the report dated 1
June 2012 is concerned, we request details of time spent consulting additional
records, as well as details of which additional records were considered, and
time spent writing the report.

[18]        
Exhibit 3 is a one-page summary of the items in issue, extracted from
exhibit 2.

[19]        
In submissions, plaintiff’s counsel confirmed that interest on
disbursements was not being claimed, and it was not claimed on the list of
combined disbursements entered by consent as exhibit 1. The mediation cost of
$85.00 was confirmed to be in error and was not being claimed.

[20]        
At the hearing, defendants’ counsel also advised that he had
instructions to oppose the awarding of the $10.00 Trust Assurance fee as a disbursement.

[21]        
The assessment of the bills of costs proceeded on the basis that I
should assess the individual tariff items for each file, but should also look
at the total. Both counsel agreed with this approach, which accords with the
spirit of the Civil Rules and in particular the proportionality aspect
of the Rules as set out in Rule 1-3(2). This approach is also consistent with
the decision of Cowan J. in Cook v. Lawson Oates Chrysler Ltd., [1991]
B.C.J. No. 3534, wherein he writes in the penultimate paragraph of his
decision:

… I have concluded that each
case should be decided on its own facts. I consider that no general rule can be
established as to the proper approach in matters of this kind [referring to
taxable costs and disbursements in multiple actions where the settlement was
not apportioned among the actions]. It must be left to the discretion of the
registrar concerned to deal with the taxation depending on the facts in each
case.

[22]        
Further guidance was given to me by the decision of District Registrar
Sainty in Farrokhmanesh v. Sahib, 2010 BCSC 497, where at paras. 7-8 she
wrote:

[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.

[23]        
Both counsel provided me with extensive authorities to assist me in the
assessments. Some of the cases contain general principles to be utilized in the
assessment, both of the tariff items and of the disbursements. Other cases are
of assistance in seeing how other registrars have assessed tariff items and
disbursements in analogous cases. The starting point for assessment of the
number of units for each tariff item is, obviously, but some sometimes not
recognized by the parties, to read the wording applicable to each tariff item.

[24]        
Counsel cited principles to be utilized in assessing the tariff items.
In Prehara v. Royer, 2007 BCSC 912, District Registrar Bouck at paras.
18 and 20 writes as follows:

[18] It is trite law, but nonetheless worth
reiterating, that the onus is on the plaintiff to justify her bill.

….

[20] The recent amendments
to the tariff have yet to attract much judicial comment. However, the
principles to be applied in assessing tariff items did not change with those
amendments. This is an objective, rather than subjective, exercise: s. 3(3) of Appendix
B. Thus, while descriptions of the length and complexity of the proceeding
assist the registrar, the actual time spent by counsel is of limited
assistance. It is necessary to delineate between the three phases of items 1A,
1B and 1C but the registrar needs to know what actions were taken, not
necessarily the time recorded for each of those phases.

[25]        
The general principles were summarized by Master Bouck as Registrar in Lund
v. Black Press Group Ltd., 2011 BCSC 992, where at paras. 29-31 she writes:

[29] The registrar is to allow tariff fees with
respect to work that was proper or reasonably necessary to the proceeding.

[30] In fixing the number of units for items where a
minimum and maximum number of units is allowed, the registrar is to allow:

a. the minimum unit for matters
upon which little time should ordinarily have been spent; and

b. the maximum unit for matters
upon which a great deal of time should ordinarily have been spent.

[31] As recently stated by Registrar Sainty in Fairchild
v. Vancouver Coastal Health Authority, 2011 BCSC 616, the assessment of
discretionary tariff items is an objective exercise:

… in deciding the proper number
of units to award in respect of each tariff item, I must compare this case with
all of the other cases that come before the court and decide where it fits in
the spectrum of them. Was it a simple, straightforward (i.e."run of
the mill") case; or was it litigation involving numerous parties,
extensive legal issues, numerous experts and involving large sums of money?

At para. 24.

[26]        
One particularly important series of words “For which provision is not
made elsewhere in this tariff” is part of the description for several tariff
items. Each time that wording appears, I must consider submissions and evidence
to ensure that there is no duplication between units awarded for one tariff
item and another.

[27]        
In dealing with assessment of specific units for tariff items, I have
been assisted by the reasons for judgment of Master Shaw (as she then was) in Smagh
v. Bumbrah, 2010 BCSC 988, a decision of Master Bouck as Registrar in Lund,
and decisions of Registrar Sainty in Prevette v. Cusano, 2001 BCSC 1104;
Farrokhmanesh; and Fairchild v. Vancouver Coastal Health Authority,
2011 BCSC 616.

[28]        
The principles I have followed with respect to assessment of
disbursements commence with the guidance provided by the British Columbia Court
of Appeal in Holzapfel v. Matheusik, [1987] B.C.J. No. 1227, 14 B.C.L.R.
(2d) 135, where Macdonald J.A. for the Court, dismissed an appeal from County
Court Judge Boyle who, on a review, dismissed an appeal from the decision of a
registrar on what was then called a taxation. Macdonald J.A. writes as follows:

An excellent statement of the Registrar’s function is made by
Mr. Justice Legg in Bell v. Fantini et al (1981) 32 B.C.L.R. 322 at p. 327:

I consider that R.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.

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.

I recognize that there are significant practical problems
when the party presenting a bill is faced with an intransigent opponent. But
when strict proof is demanded there is no alternative to providing it. What it
will involve at the minimum appears from this passage from the judgment of
Fulton J. in Bereti v. Schuette (1980) 17 C.P.C. 259 at p. 266-7:

What the Court of Appeal and the
other decisions I have cited do make clear, in my view, is that the
indispensable requirement is an affidavit, from the solicitor responsible for
the preparation of the case, as to the nature and extent of the work done and
verifying that such work was necessary for the full and proper presentation of
the case, and that the fees charged and paid therefore were reasonable in the
circumstances. If there are special circumstance — such as travel time, or
attendance in Court to hear and advise upon evidence from witnesses for the
opposing side or other factors necessitating attendance for a longer period than
that occupied in the actual giving of evidence — the facts and the necessity
therefor should also be set out.

While I express no firm conclusion on the matter, for it is
not necessary to the decision in the case before me, in my view where the
account submitted by the expert itself contains a reasonably detailed outline
of the nature of the work and the hours and other items involved therein — and
this is of course desirable — and such bill is attached to the bill of costs
submitted for taxation, then an affidavit from the expert in addition is not
necessary: what is required is an affidavit from the solicitor of the nature
referred to. After all, it is the solicitor, not the expert, who knows what is
needed to properly present the case, and it is the solicitor’s affidavit that
is desirable and necessary. It is only, I should think, if the expert’s bill as
originally submitted and paid does not contain sufficient detail as to what
work he actually and necessarily did, that an affidavit or further supporting
material from that expert would be required. Generally, then, it would seem
that the affidavit from the solicitor should suffice — and this, as I view the
authorities, is the indispensable necessity.

[29]        
This decision, though, must be tempered by the recognition that what was
appropriate a quarter century ago when the decision was given, must now be
applied along with the proportionality provisions of the Civil Rules,
which in my view permit me to consider whether such precise proof is always
necessary, given the amount involved in the proceeding, the importance of the
issues in dispute, and the complexity of the proceeding. In assessing
disbursements I am guided both by the decision of our Court of Appeal in Holzapfel
and by the object of the Civil Rules as set out in Rule 1-3.

[30]        
A further useful summary of the general principles with respect to
disbursements is set out by Master Bouck as Registrar in Lund at paras.
32-33:

[32] Similarly, with respect to disbursements, the
registrar is to allow those charges and expenses that were necessarily or
properly incurred in the conduct of the proceeding. The amount allowed should
be objectively reasonable. A party is not entitled to a "Cadillac"
version of a service when a cheaper model will suffice: Henry Electric Ltd.
v. Woodwest Developments Ltd. (1983), 50 B.C.L.R. 26 (Cty Ct); Moore v.
Dhillon, [1992] B.C.J. No. 3055 (Master). Lastly, the opposing party is not
liable for costs incurred by the successful party as a matter of convenience.
Convenience is considered a luxury in the law of costs: Hall (Guardian ad
litem of) v. Strocel, [1983] B.C.J. No. 506 (S.C.).

[33] As has been
oft-stated by assessing officers, the onus is on the party claiming the costs
to provide satisfactory evidence in support of item or disbursement claimed.

[31]        
Further guidance is provided to me by a decision of Master Keighley in Deo
v. Chang, 2005 BCSC 1335, where at para. 8 he writes:

[8] While an affidavit
from counsel setting forth an opinion that a disbursement was justified or
necessary should be given careful consideration, it must be weighed against any
contrary affidavit material and in the end, it is for the registrar to
determine whether the expense claimed is reasonable and justifiable: Bell v.
Fantini and others (1981) 32 B.C.L.R. 322 (S.C.B.C.).

[32]        
As set out by District Registrar Cameron in Chandi (Guardian ad litem
of) v. Atwell, 2011 BCSC 1498 at para. 10:

[10] The test for whether a disbursement is allowable
is set out in Van Deale v. Van Deale 56 B.C.L.R. 178 (C.A.), where the
Court of Appeal held, at paragraph 11:

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.

[11] The onus of proof of the necessity and propriety
of the disbursement rests on the party presenting the bill for review.

[33]        
In determining whether disbursements are necessary and proper as set out
in Rule 14-1(5), I am guided by the decision of Master Hyslop (as she then was)
cited by Mr. Justice McEwan in Fairchild v. Vancouver Coastal Health Authority,
2012 BCSC 1207 at para. 9 as follows:

[9] The distinction
between necessary disbursements and proper disbursements is set out in Zaenker
v. Kirk, 2008 BCSC 1460 at para. 24. "Necessary"
disbursements are outlays that could not be avoided in the conduct of the
proceeding, while "proper" disbursements are those that are
reasonably incurred, although, strictly speaking, avoidable. This appeal is
concerned with "proper" disbursements.

[34]        
In dealing with some of the disbursements which are in issue, the issue
of photocopies on a party-party bill of costs was recently considered by me in Chow
v. Nguyen, 2012 BCSC 729, appeal dismissed 2012 BCSC 1432.

[35]        
Guidance with respect to agent’s filing fees was provided by Mr. Justice
Harvey in Gill v. Widjaja, 2011 BCSC 1822 at para. 31:

[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.

[36]        
Harvey J’s comments at paras. 32-36 with respect to photocopying has
also been considered by me.

[37]        
Guidance in dealing with the contested specialist’s account for her
second medical-legal report found in Registrar Blok’s (as he then was) decision
of Hamo v. Khan, 2010 BCSC 205, where he extensively analyzed a
contested account rendered by Dr. Hurwitz, a psychiatrist and neurologist. I
was also assisted by the decision of Mr. Justice Groberman in Ebrahimi v.
Stevenson, 2006 BCSC 983, which was an appeal from a registrar’s decision
not to allow the full amount of disbursements with respect to four expert
witnesses, and also dealt with the amount recoverable for trial preparation
under the tariff. This case, though, must now be read in light of s. 4(4) of
Appendix B where I am limited to allowing units for preparation for an activity
that does not take place up to the maximum allowable for one day.

[38]        
In dealing with facsimile charges, the decision of Master Donaldson as
Registrar in Briscoe v. Smyth and NW Floral Express Ltd., 2011 BCSC
1492, at para. 13, is of assistance.

[39]        
The hearing proceeded by going through each of the bills of costs and
having each counsel address me on each tariff item.

[40]        
In making my determinations, I have considered the following factors:

a)    the obvious
difficulty in sorting out what injuries suffered by the plaintiff are
compensable by the defendants, or, put another way, attributing the plaintiff’s
injuries and the consequent damages to the motor vehicle accidents as opposed
to the other significant pre-existing medical issues affecting the plaintiff;

b)    the amount of
the settlement, $44,262.53, plus costs and disbursements;

c)     dates on
which various events occurred, including the fact that in August of 2012, there
was a mediation, a trial management conference, a settlement the day following
the trial management conference, and a trial scheduled 11 days after the
settlement occurred;

d)    the evidence of
disbursements contained in the first affidavit of Gloria Corsi;

e)    the invoice
attached to the second affidavit of Gloria Corsi;

f)      medical
reports attached to the third affidavit of Gloria Corsi; and

g)    the evidence
contained in the first affidavit of Lesley Raymond which included the list of
documents of the defendants, the list of documents of the plaintiff, and other
evidence which I used in assessing the number of units in some of the tariff
items and in assessing the disbursement claimed for the second medical report
of Dr. Shuckett.

ASSESSMENT OF TARIFF ITEMS

Tariff Item 1

[41]        
Plaintiff’s counsel claimed five items for the first collision and two
items for the second collision. The defendants submitted that four units and
one unit respectively were appropriate. Pre-accident investigation was needed.
There was a period of almost 18 months between the time plaintiff’s counsel was
retained and the time they issued the notice of civil claim relating to the
second collision. The amount claimed by the plaintiff in each case is
appropriate, five units and two units respectively.

Tariff Item 2

[42]        
In tariff item 2 the plaintiff is claiming 16 units for the first
collision and three for the second collision; the defendants suggest five units
for the first collision and none for the second collision are appropriate. The
matters settled, but only after an examination for discovery, mediation, a
trial management conference, and some trial preparation. Proportionality,
though, comes into play here as well. I assess 15 units for the first collision
and two units for the second collision.

Tariff Item 6

[43]        
The plaintiff claimed four units for the first collision and two units
for the second collision. The defendants argue that there should be allowed two
units for the first collision and one unit for the second collision. I reviewed
the writ of summons with statement of claim attached resulting from the first
collision, and the notice of civil claim in the second collision. I would
consider them somewhat “boiler plate,” but each pleading needed to be drafted
with a view to particularizing the specifics of the collisions, the parties,
and the injuries. I will allow three units for the first collision and two
units for the second collision.

Tariff Items 10 and 11

[44]        
The plaintiff is claiming six units for the first collision and one unit
for the second collision on item 10, and eight units for the first collision
and two units on the second collision for item 11. The defendants submit that I
should allow two units for the first collision on item 10 and three units for
the first collision on item 11, and no units on either items for the second
collision. There were no lists of documents either demanded or prepared for the
second collision. The plaintiff listed 25 documents on his list of documents.
Some of those documents appear to be fairly extensive. They were referred to in
the four medical reports I have reviewed. The defendants listed 30 documents,
one of which comprised 21 laser copies of photographs, one of which comprised
33 pages of wage loss information, one of which comprised 84 pages of clinical
records, and one of which comprised 26 pages of WCB records. There is an
overlap of these documents. I will allow three units for the first collision on
tariff item 10 and three units for the first collision on tariff item 11. As
there was no demand for discovery of documents, nor any giving of discovery of
documents with respect to the second collision, I accept the defendants’
submission and award no units under those tariff items for the second
collision.

Tariff Item 17

[45]        
The plaintiff claims four units for the first collision and one unit for
the second collision, whereas the defendants submit that two units for the
first collision is appropriate. Keeping in mind that the maximum number of
units here is ten, and recognizing that there are cases which are significantly
more complex in that they requite significantly more experts, I allow three
units for the first collision and one unit for the second collision.

Tariff Item 18

[46]        
At the hearing, the parties agreed that two units under tariff item 18
was allowable for the first collision; none was claimed for the second
collision.

Tariff Items 19 and 20

[47]        
No issue was raised with the amounts claimed for examinations for
discovery under tariff items 19 and 20, and I have allowed three units under
tariff item 19 and five units under tariff item 20 on the first collision.

Tariff Item 28(a)

[48]        
No issue was taken with the plaintiff’s claim on the first collision for
two units under tariff item 28(a) for preparation for a hearing which was
resolved by agreement.

Tariff Item 32

[49]        
In tariff item 32, there were two trial management conferences, one of
which dealt with both actions. The plaintiff claimed two units for the first
collision and one for the second collision. The defendants submit that only one
should be allowed for the first collision. Because there were two trial
management conferences, the amount claimed by the plaintiff is allowed; namely,
two units for the first collision and one for the second collision.

Tariff Items 29, 30 and 31

[50]        
At the hearing, counsel agreed that the plaintiff was entitled to one
unit on each bill for item 29, two units globally for item 30, and one unit
globally for item 31.

Tariff Item 34

[51]        
The plaintiff has claimed five units for preparation for trial under
tariff item 34. The defendants have contested this. Paragraph 7 of the first
affidavit of Gloria Corsi deposes to steps taken by the plaintiff’s counsel to
prepare for trial. I am satisfied the trial preparation took place. This case
settled ten days before trial. Preparation for one day of trial is allowable
and is awarded at five units for the first collision.

Tariff Item 44

[52]        
Both parties agree that five units is appropriate for the first
collision under this tariff item, but the defendants submit that there should
be no units allowed on the second, whereas the plaintiff has claimed two units.
In the circumstances, the second collision issues were settled, albeit in
conjunction with the issues arising from the first collision. I allow one unit
on the second collision and five on the first collision under that item.

Tariff Items 45 and 46

[53]        
No issue was taken with the plaintiff’s claims under tariff items 45 and
46 for the mediation and five units and three units respectively is allowed for
those tariff items on the bill for the first collision.

DISBURSEMENTS

[54]        
Agents’ fees totalled $117.00. There was an invoice of $12.74 for a
rejected document and two invoices of $15.50 each for “Rush” service. One of
these was for filing a trial brief on August 9, 2012, shortly after the failed
mediation.

[55]        
On occasion, rush filings are necessary. Filing a trial brief is proper.
In the circumstances, given the short time from the mediation until the need to
prepare and then file the trial brief, the agent’s fee for that rush is both
necessary and proper. The $12.74 fee for a rejected document and the other
$15.50 fee for the rush are neither necessary nor proper.

[56]        
There were submissions about courier fees. The courier fees charged were
documented, being exhibit “M” to the first Corsi affidavit. The bulk of the
courier fees of $49.64 were incurred in early June 2012. Many of the courier
fees are of the approximate amount that would be charged for postage ($0.50 and
$0.55). While the defendants should not have to pay for disbursements that were
incurred or increased through extravagance, common sense and experience
suggests that at times courier fees are necessary, proper or both. In the
circumstances, I will reduce the courier fees by $20.00, allowing the balance
of $62.76.

[57]        
The claim for facsimile transmissions was reduced to $0.35 per page for
293 faxed pages. I find that amount to be appropriate, which is to say both
necessary or proper, and allow it in full.

[58]        
As set out in Administrative Notice 5, which is set out in Chow v.
Nguyen, 2012 BCSC 1432 at paras. 18-29, that administrative notice
is a guideline, and if it is shown that the actual cost of photocopies is
different than the guideline amount, I would have discretion to depart from the
guideline. There was no evidence to that effect. The evidence supports the
large number of photocopies incurred on behalf of the plaintiff in the two
actions. The photocopying is allowed as presented on exhibit 1 at $0.25 per
page, in the full amount of $1,872.25.

[59]        
The invoice to justify $675.50 for WorkSafe BC is provided and was
properly conceded by defendants’ counsel at the beginning of the hearing.

[60]        
Travel expense, mileage and parking, where the travel is within a
reasonable distance of counsel’s office, must be considered to be an item of
overhead, and not a proper disbursement. There are claims for $4.50 for
mileage, $16.25 for parking, $6.70 for parking, another $6.70 charge for
parking, and a $14.50 charge entitled “mediation cost” which I am advised is
also parking. These total $32.40 and will be deducted from the claimed amount
of taxable disbursements.

[61]        
The largest amounts in dollar value claimed, apart from the photocopying
and medical report fees, are challenges to the Quicklaw legal research fees and
charges characterized as “outside assistance” from On Point Legal Research Law
Corporation. The applicable evidence is contained in paragraph 20 of the first
affidavit of Gloria Corsi which is as follows:

20.       I am advised by Mr. Hallen and
verily believe to be true, that the law of Causation in British Columbia and
Canada is complex and ever evolving. I am further informed by Mr. Hallen that
this complexity required him to use our internal legal research software
(Quicklaw) that is tracked by file number and charged accordingly, as well as
required him to obtain outside assistance from OnPoint Legal Research Law
Corporation to research the various causation issues. The OnPoint Legal
Research Law Corporation charge of $504.00 is their minimal charge. Attached
hereto and marked as Exhibit “L” is a true copy of an invoice from
OnPoint Legal Research Law Corp.

[62]        
Quicklaw charges represent an allocation of a licensing fee paid by
counsel’s law firm. Typically, this fee would be paid irrespective of whether
the law firm had ten files or 1,000 files. Some effort is often made by the law
firm to apportion the cost to the files. This is an item of overhead and not,
in my opinion, a true disbursement applicable to an individual file.

[63]        
There may be circumstances where there is a specified cost applicable to
a file or an increased cost over a pre-set overhead amount. In those cases, an
evidentiary basis must be proven by the party seeking the disbursement. The
plaintiff has not succeeded in doing so here.

[64]        
The $450.00 claim (which is 50 percent of a $900 claim) attributable to
Quicklaw is disallowed.

[65]        
On the other hand, being mindful of the evidence set out above by Ms.
Corsi and the evidence provided by Dr. Aitken, where he states “This is one of
the most complicated files I have seen in my practice,” obtaining outside
assistance to research causation issues in this particular case is both
necessary and proper, and so the disbursement for $450.00 is allowed.

[66]        
Lastly, the defendants submit that the amount of Dr. Shuckett’s second
account in the amount of $1,850.00 ought to be significantly reduced. I have
read the report and, as noted previously in these reasons, am aware that the
report did not provide much assistance. It did not separate out the effects of
the second collision from the other medical issues affecting the plaintiff, and
to that extent was of limited use. However, in the circumstances of this case,
it would have probably been foolhardy for plaintiff’s counsel to proceed to
trial, or, alternatively, settle the plaintiff’s case, without having an
updated report.

[67]        
Keeping in mind that the defendants did not challenge the amount of the
initial medical report of Dr. Shuckett, which was billed at $2,500.00, and
after reviewing the report and noting that it was indeed an update and not
merely a rehashing of a previous report, in my view the obtaining of the report
and the attendant cost was both necessary and proper. Exhibit 1 has included
that report under taxable disbursements, but on review of the report it would
appear that no tax was charged and so it will be deducted from the taxable
disbursements portion and added to the non-taxable disbursements portion,
affecting the tax but no other portion of the bill.

[68]        
The Trust Assurance fee is required by the Law Society to be paid by the
plaintiff’s law firm. It funds insurance which protects the public from rare
but occasional trust account defalcations. It is a necessary disbursement.

SUMMARY

[69]        
On Parent v. Lohia (the first collision), I have allowed 69
units, which when multiplied by $110.00 per unit results in a sub-total of
$7,590.00 to which is added 12 percent HST of $910.80 for a total of $8,500.80.

[70]        
On Parent v. Chu (the second collision), I have allowed 10 units,
which when multiplied by $110.00 per unit results in a sub-total of $1,100.00
to which is added 12 percent HST of $132.00 for a total of $1,232.00.

[71]        
Exhibit 1 presented taxable disbursements globally at $9,380.45. Noting
that the medical report of $1,850.00 did not require payment of HST, I have
deducted that amount from the taxable disbursements and added it to non-taxable
disbursements. That results in taxable disbursements before taxes being
presented at $7,530.45. I have reduced these by $530.64 so they are allowed at
$6,999.81, together with $839.98 HST for a total of $7,839.79. Non-taxable
disbursements are allowed as presented at $3,571.72. The $1,850.00 bill from
Dr. Shuckett must be added to that, so that non-taxable disbursements in total
are allowed at $5,421.72.

[72]        
Disbursements in total, then, are allowed at $13,261.51.

[73]        
Following the general approach taken to deal with both of these bills of
costs together, I have allocated two-thirds of that amount to Parent v.
Lohia; that is an amount of $8,841.01. I have allocated one-third of that
amount to Parent v. Chu; that is an amount of $4,420.50.

[74]        
I order costs of $8,500.80 on Parent v. Lohia and disbursements
of $8,841.01 for a total of $17,341.81.

[75]        
I order costs of $1,232.00 on Parent v. Chu and disbursements of
$4,420.50 for a total of $5,652.50.

[76]        
The total on the two files allowed is $22,994.31.

[77]        
If there is a reason to allocate disbursements in a manner other than
what I have done, the parties are at liberty to do so by a consent order or
further submissions. I have signed the bills of costs attached to the
appointments confirming the amounts set out above.

“Master R.W.
McDiarmid”

MASTER McDIARMID